A DIGESTOF THE

ELECTION LAW REPORTS

VOLS. XXIII TO XXXII

1961—65

Editor :

R.K.P. SHANKARDASS, M.A., LL.B. (Cantab)Advocate, Supreme Court.

Assisted by

K. G. AVADHANI, M. A., B. L.Advocate.

Published under the authority of the Election Commission of India by theController of Publications, Civil Lines, Delhi andPrinted by the Managers Government of India Press, Simla.

All Bights Reserved

CONTENTS

I. Table of Headings .. . . . . . . (iii)

II. Table of Cases Digested . . . . . . (v)

III. DIGEST 1

IV. Indes of Statutes referred to . . . . 235

V. Table of Cases overruled, followed etc. . . . . 265

TABLE OF HEADINGS

PAGE

Agency • . . . . . . r . . . . 1

Ballot papers . . . . . . . . . . 2

Constitution . . . . . , . . , 28

Corrupt practice . . . . . . . . . . 33

1. General principles . . . . . . ]1 . . 332. Appeal on grounds of religion etc. . . . . . . 373. Bribery . . . . . . . . . . 4.Q

4. Publishing false statements . . . . . . 515. Hiring or procuring vehicles . . . . . . 61

6. Incurring unauthorised expenses . . . . . . 63

7. Procuring a^sisfcanca of Gavernment servants . . ' . ; . • ! , , . , , , • „ , , . 6 5 ,8. Undue influence . . . . . . . . 669. Use of national or religious symbols . . . . 69

10. Miscellaneous . . . . . . . . . . 70

Delimitation Commission . . . . . . . . . 71

Disqualification of candidates . . . . . . . . 72

1. Age . . . . . ; • • * . . r . . . . 722. Citizenship . . . . . . . . . . 753. Conviction . . . . . . . . . . 754. Interest in contract with Government . . . . 765. Holding office of profit . . . . . . . . 87

6. Undischarged insolvency . . . . ••;•••• . . 99

Election Agents . . . . . . . . . . 100

Election Commission . . . . . . . . . . 101

Election Expenses . . . . . . . . . . 103

Election Petition . . . . . .

1. General principles . . . . . . . . . . 105

2. Alternative reliefs . . . . . . . . . . 127

3. Amendment of petition . . . . . . . . 128

i. Deposit of security . . . . . . ' . . 132

(jii)

(iv)

PAGE

5. Limitation . . ., . . . . . . . . . . 140

6. Parties to the petition . . . . . . . . 1427. Naming of guilty parties . . . . . . . . 1508. Withdrawal of petition . . . . . . . . 1509. Grounds for setting aside election . . . . . . 153

10. Burden of proof . . . . . . . . . . 155

11. Miscellaneous matters • . . . . . . . . 160

Election Tribunal . . . , . .

1. Constitution . . . . . . ........ ... 1642. Powers . . ... . , . t . ' . * . . . . . 1643. Contempt of Tribunal '.-.' . . . . . . 167

Electoral Eoll . . . . . . . . . . 168Governor . . . . . . . . . . 176

High Courts . . . . . . . . V . . 176

Interpretation of statutes " ' -U - ' . . . . . . 186Nomination of candidates . . - . . . . . . 187Offences . . A . . . . . . 210

Polling Station . . . . . . . . . . 210

Recrimination . . . . . . . . . . 210

Res judicata . . . . . . . . . . 211

Returning Officer & Presiding Officer . . . . . . 213

Scheduled Castes and Tribes . . . . . . . . 216

Supreme Court . . . . . • • • • • • 230

Symbols . . . . . ..« . . . . . 230

Words and phrases . . . , . , . . . . . 232

. TABLE OF CASES DIGESTED

VOLS. XXIII TO XXXII

PAGES

Abdul Rahiman v. Sadasiva Tripathy (Orissa H.C.) 31E.L.R. 380 . . . . . . . . . . 85

Abhey Pada Sana v. Sudhir Kumar Mandal (S.O.) 28E.L.R. 179 . . . . . . . . . . 221

Aeharya Rasikchandra Devshankar v. Adani RatubhaiMulshanker (Gujarat H.C.) 24 E.L.R. 262 . . 106

Adwaita Mondal v. Nakul Chandra Sahis & Ors. (CalcuttaH.C.) 24 E.L.R. 284 217

Ahmed Mohiuddin v. G. Malla Reddy, (Andhra PradeshH.C.) 28 E.L.R. 1 . . 82

Ali Mohammad Tariq & Ors. v. Election Commission,India (Jammu& Kashmir H.C.) 31 E.L.R. 142 . . 33

Aminchand v. Pratap Singh & Ors. (Madhya PradeshH.C.) 27 E.L.R. 135 44,164, 220

Amin Lai v. Hunna Mai (Punjab H.C.) 25 E.L.R. 116 . . 130

Anup Singh (Dr.) v. Abdul Ghani & Anr. (S.C.) 26 E.L.R.396 . . 14,233

Appa Rao, P. N. v. Kumburu Suryanarayana Naidu(Andhra Pradesh H.C.) 25 E.L.R. 220 . . . . 170

Ardhandhu Bhushan v. Smt. Sushilabai & Ors. (BombayH.C.) 26 E.L.R. 34 . . . . . . 10,166,167

Armugam, CM. v. S. Victor Rajagopal (Mysore H.C.) 30E.L.R. 222 . . . . . . . . 227

Babu Lai v. Shiv Sharma & Ors. (Madhya Pradesh H.C.)32 E.L.R. 246 . . . . . . . . 127,186

Badri Narayan Singh v. Kamdeo Prasad Singh & Anr.(S.C.) 23 E.L.R. 203 212

Baharul Islam v. Kamini Mohan Sarma & Ors. (Assamand Nagaland H.C.) 31 E.L.R. 351 . . . . 25,140,210

Bankabehari Das v. Chittaranjan Naik (Orissa H.C.)23 E.L.R. 343 . . . . . . . . 46

(v)

PAGES

Bapu and Peter Augustus Alvares v. Bahurao and Ors.(Punjab H.C.) 28 E.L.R. 217 .. .. . . 146

Bapusaheb BMmrao Salunklie v. Ganpatrao AnnasahebDeshmukh (Maharashtra H.C.) 30 E.L.R. 258 .. 37

Basavalingappa B. v. D. Munichinnappa & Ors. (S.C.)26 E.L.R. 446 .. .. .. .. 319,233

Becharbhai Parmabhai Harjivandas v. DevjibhaiSadabhaiParmar (Gujarat H.C.) 32 E.L.R. 133 .. 64,70,186

Begum Mafida Ahmed v. Rajendranath Barua & Anr.(Assam &Nagaland H.C.) 26 E.L.R. 172 . . .. 112

Bhairon & Anr. v. Sisram & Ors. (Rajsathan H.C.) 25E.L.R.239 .. .. .. .. 7

Bhanwar Lai v. Hari Prasad (Rajasthan H.C.) 25 E.L.R.265 .. . . .. , .. 54,156

Bhupendra Narain Mandal v. E.K. Narainlal Das & Ors.(Patna H.C.) 26 E.L.R. 407 .. .. .. 36,43,113

Bijayananda Patnaik v. Saturghna Sahu & Ors. (S.C.) 24E . L . R . 219 . . • ' • • • ' .'. . . . . 151

Bireswar Ghose v. Satya Narain Mitra & Ors. (CalcuttaH.C.)30E.L.R. 81 .. . . _ . . . . . 21

Brahmananda Reddy, K., v. The Member, ElectionTribunal, Hyderabad and Ors. (Andhra PradeshH.C.) 24E.L.R. 196 .. ... . . . . 28,129

Brij Mohan Das Agarwal v. Z.A. Ahmad and Ors.(Allahabad H.C.) 24 E.L.R. 371.. . . . . 107

Brij Mohan Das Agarwal v. Z.A. Ahmed, 27, E.L.R. 237 172

Brij Mohan Lai (Sharma) v. Fateh Singh & Ors.(RajasthanH.C.)29E.L.R.126 146,197

Brij Mohan Singh v. Narain Prasad Singh & Ors. (PatnaH.C.) 24E.L.R. 298 .. .. .. .. 78

Brij Mohan Singh v. Priyabarat Narainsingh & Ors.(S.C.)26E.L.R.78 74

Brundaban Nayak In re. Election Commission, India.(Opinion) 27 E.L.R. 210 102

Charugondla Ranga Rao v. Komaram Ramayya (AndhraPradeshH.C.) 30E.L.R. 52 .. .. . . 96

(vii)

PAGES

Chengalraya Naidu, N.P. v. G. N. Pathabhi Eeddy(Andhra Pradesh H.C.) 25 E.L.E. 168 .. . . 110

Chennupati Eamakotayya v. Myneni Lakshmanaswamy& Ors. (Andhra Pradesh H.C.) 24 E.L.E. 229 .. 79

Chiranjeevulu Naidu, C. v. E.S. Thyagarajan (MadrasH.C.) 25 E.L.E. 201 .. .. .. . . 156,179

Chittoori Indrayya v. Mullapudi Harischandra Prasad 6(Andhra Pradesh H.C.) 25 E.L.E. 192

Dantu Bhaskararao v. O.V.K. Eao (Andhra Pradesh H.C.)24 E.L.E. 168 .. . . .. .. 39,77

Dattatraya Narayan Patil v. Dattatraya, K.K. & Ors.(Maharashtra H.C.) 25 E.L.E. 143 .. 54

Dvaiah, J. v. Nagappa & Ors. (Mysore H.C.) 26 E.L.E.236 .. . . . . . . . . 131

Didar Singh Cheeda v. Sohan Singh & Ors. (Punjab H.C.)27 E.L.E. 110 44,114,220

Dwarka Prasad Mishra (Pt.) v. Kamalnarain Sharma &Ors. (Madhya Pradesh H.C.) 26E.L.E. 269 .. 113,167

Dwijendra Lai Sen Gupta v. Hare Krishna Konar & Ors.(West Bengal H.C.) 23 E.L.E. 270 .. .. 177,213

Fauja Singh v. Zail Singh (Election Tribunal,Chandigarh 23 E.L.E. 338) .. . . .. 168

Francis, P.E. v. A.V. Aryan & Anr. (Kerala H.C) 30E.L.E. 136 23,216

Pulabhai Dahyabhai v. Eamanbhai Dhanbhai Patel(Gujarat H.C.) 29 E.L.E. 268 .. . . .. !48

Gajadar v. Chunnilal Singh & Ors. (Bombay H.C) 31 21,45,50,51,60,97,B.L.E. 1 104,123

Ganji Veerappa v. Seri H. Sidda-Veerapa, 29, ELE 490. 215

Ganpatrao Kalidas Eupala v. Palabhai NaraindasParmar (Gujarat H.C.) 31 E.L.E. 121 .. .. 60

Ghasi Earn v. Dal Singh & Ors. (Punjab & Haryana H.C.)30 E.L.E. 344 50,68

Giani Kartar Singh v. Jagjit Singh & Ors. (Punjab H.C.)26, E.L.E. 328. . . . . . . . . 1243

Goka Eamalingam v. Boddu Abrham & Anr. (AndhraPradesh H.C.) 30 E.L.E. 62 224

Edourat Goubert, In re (Election Commission-opinion)26E.L.E. 297. . . . . .. .. 9 2

(viii)

PAGES

Goparaju Ramachandra Rao alias Gora v. The ElectionOommissin, India & Ora. (Andhra Pradesh H.C.)29E.L.R.35 32,232

G-ovinda Bhat v. D. Vittaldas Shetty (Mysore H.C.) 30E.L.R. 382 •• 45,63,68,158

Gurucharan Banerjee v. R.O. Burdwan H.P. Constituency(Calcutta H.C.) 25 E.L.R. 312 .. . . 180

Gurugobinda Basu v. Sankari Prosad Ghosal & Ors.(West Bengal H.C.) 23 E.L.R. 356 .. . . 89

Guru Govinda Basu v. Shankari Prosad Ghosal & Ors.(S.C.) 25 E.L.R. 77 .. .. .,,- .. 90

Hanji Shivanna v. T.R: Parameswariah & Ors. (MysoreH.C.) 25 E.L.R. 281 Hrf -• •. .< -..-, .. . . 7

Har Swarup & Anr. v. Brij Bhushan Saran & Ors.(Allahabad H.C.) 24 E.L.R. 214 .. . . . . . . 66,145

Hari Raj Singh v. Sh. Shah" Nawaj Khan & Anr.(Allahabad H.C.) 28 E.L.R. 35 .. . . .. 165

Hariram Singh v. Kamta Prasad Sharma (MadhyaPradesh H.C.) 28 E.L.R. 44 . . . . .. 30,157,192,193

Hasbi Fakirappa Muddappa v. Dessi Basavaraj Ayyappa

& Others (Mysor H.C.) 28 E.L.R. 101 .. . . 69,94,103,215

Hemdhon Mohan v. J.B. Hagjer (Assam H.C.) 26 E.L.R. 90 100,180

Himatbhai Gomanbhai Patel v. Amrutlal AmbalalPatel & Anr. (Gujarat H.C.) 30 E.L.R. 293 .. 74,206

Hirubhau M. Gavali v. Shivram Dada Hire & Anr.(Bombay H.C.) 29 E.L.R. 178 .. . . . . 58,131,198

H.H. Maharana Surender Sinhji Jorawarsinhji Jhala v.Sh. U.M. Bhatt, Chief Electoral Officer, Ahmedabad& Ors. (Gujarat H.C.) 29 E.L.R. 1 .. . . 116,185

Inder Lai v. Lai Singh & Ors. (Rajasthan H.C.) 23 E.L.R.41 . . . . . . . . , . ' . . .. 1,52

Inder Lai v. Lai Singh & Ors. (S.C.) 23 E.L.R. 252 .. 53

Jabar Singh v. Genda Lai (S.C.) 25 E.L.R. 323 9

Jagan Nath v. Sohan Singh Basi & Anr. (Punjab andHaryana H.C.) 29 E.L.R. 367 83

Jagannath & Anr. v. Narayan & Anr. (Bombay H.C.)31E.L.R.223 .. . . . . . . 159

Jageshwar Nath v. Raviridra Nath & Ors. (MadhyaPradesh H.C.) 29 E.L.R. 241 .. . . . . 120,137

(ix)

PAGES

Jagjit Singh (Dr.) v. Giani Kartar Singh & Ors. (S.C.)28E.L.E. 81 .. .. .. .. 16,49,182,230

Jainarainlal Agarwal v. Nand Kumar Dani & Ors.(Madhya Pradesh H.C.) 26 E.L.R. 136 .. .. 11,110

Jashbhai Chunibhai Patel v. Anwarbeg A. Mirja 25,63,142,211(Gujarat H.C.) 32 B.L.E. 1

John C. J. v. N. I. Devasay Kutty & Ors. (Kerala H. C.)29 E.L.R. 134 118,142

Jugal Kishore v. Dr. Baldev Prakash (Punjab &Haryana H. 0.) 31 E.L.R. 313 .. . . . . r 208

Jugal Kishore v. Dr. Baldev Prakash (Punjab & HaryanaH.C.)30E.L.R. 277 .. .. .. .. 153

Kamal Narain Sharma v. Dwarka Prasad Misra & Ors.(Madhya Pradesh H.C.) 26 E.L.R. 382 .. . . 30,36,181

Kanailal Bhattacharjee v. Nakhil Das & Ors. (CalcuttaH. C.) 30 E.L.R. 353 123

Kapur Singh, S. v. S. Devinder Singh Garcha & Anr.(Punjab & Haryana H. C.) 29 E.L.R. 255 .. . . 163,200

Kartar Singh v. Randhir & Ors. (Punjab & HaryanaH. C.) 30 E.L.R. 37 .. . . . . .. 20,205

Kattimani Chandappa Jampannav. Laxman SiddappaNaik & 2 Ors. (Mysore H. C.) 29 E.L.R. 199 .. 17,223

Kedar Pandey v. Narain Bikram Shah (S. C.) 27 E.L.R.97 75'

Kesavan V., v. I. K. Kumaran & Anr. (Madras H. C.)29 E.L.R. 168 .. . . . . . . 118

Keshao Prasad v. A. D. Mani & Ors. (Madhya PradeshH. C.) 23 E.L.R. 171 132,154,164,188

Khader Sheriff v. Abdul Gafoor Sahib and & Ors. 30E.L.R. 401 68,103,158

Khamani Singh v. Dau Dayal Khanna (Allahabad H.C.) 23 E.L.R. 146 >. . . . . . . 35

Khanvilkar, D. K. v. D. N. Patit (Bombay H. C.)30 E.L.R. 1 36,59,100

Khonghpai A. S., v. Stanley D. D. Nichols Roy & Anr.(Assam&NagalandH.C.) 27E.L.R. 196 .. 55,162

Khyali Ram v. Sh. Harlal Singh (Rajasthan H. C.)29 E.L.R. 108 .. .. . . . . 175,197

Kidwai Husain Kamil v. Yadav Ram Sewak (ElectionTribunal, Lucknow) 24 E.L.R. 51 .. 4

<*)

PAGES

Kidwai Husain Kamil v. Yadav Ram Sewak & Ors.(Allahabad H.C.) 25 E.L.R. 35 . . . . . . 5,35,108,165

Kishore Singh v. Bhanwarlal Nahta & Ors. (MadhyaPradesh H.C.)27E.L.R. 243 . . . . . . 57,150,157,192

Kodur Subha Ramiah v. Annam Chanchu Subha Reddi(Member, Election Tribunal, Hyderabad) 25E.L.R. 97 109

Koduri Krishanarao v. Alluri Bapineedu (AndhraPradesh H.C.)25E.L.R. 159 . . . . . . 6

Konappa Rudrappa Nadgowda v. Viswanath Reddy& Assistant Commissioner & Returning Officer forYadagiri Assrmbly Constituency (Mysore H. C.)31 E.L.R. 64 . . 84

Kosalram K. T. v. Dr. Santhosham (Madras H. C.) 32E.L.R. 69 . . 27,164,186,216

Kothapalli Narasayya v. Jammana Jogi and Anr.(Andhra Pradesh H.C.) 30 E.L.R. 199 . . . . 226

Kothurai Venkateswarlu v. Brahman and Reddy (AndhraPradesh H. 0.) 29 E.L.R. 352 . . . . . . 138

Krishna Kumar v. Krishna Gopal (Rajasfchan H. 0.)24 E.L.R. 316 . . . . . . . . 62

Krishna Prasad Chaudhry v. Nates war Prasad & Ora.Patna H. 0.) 28 E.L.R. 209 . . . . 196

Kultar Singh, S., v. S. Mukhtiar Singh (Punjab H. C.)24 E.L.R. 419 . . . . . . . . 35,39

Kultar Singh, S., v. S. Mukhtiar Singh (S. C.) 26 E.L.R.300 42

Kumaranand v. Brij Mohan Lai (Rijasthan H. 0.)

26 E.L.R. 100 . . . . , . . . 135,141

Kumaranand, v. Brij Mohan Lai (S. C.) 26 E.L.R. 435.. 182

Kunhiraman P. v. V. R. Krishna Iyer (Kerala H. C.)23 E.L.R. 208 . . . . . . . . 73,165,168

Kunjukrishanan Nadar M. v. The Speaker, KeralaLegislative Assembly & Ors. Kerala H. C. 26E.L.R. 25 . . . . . . . . . . 28

Laljibhai Jodhbhai Bar v. Vinodchandra Jethal Patil(Gujarat H. 0.) 24 E.L.R. 145 . . . . 66,190

Laliteshwar Prasad Sahai v. Bateswar Prasad & Ors.(S.C.) 27E.L.R. 265 81

(xi)

PAGES

Laxminarayan v. Bankatlal (Madhya Pradesh H. C.)82 E.L.R. 191 .. . . .. ..46,51,86,100,106,125

Madhu Singh v. Ram Saran Chand Mittal & Ors.(Punjab H.C.) 27 B.L.R. 11 15,114,162

Mahadeo v. Babu Udai Pratap Singh & Ore. (S. C.)28 E.L.R. 72 .. .. . . .. 16

Mahendra Singh v. Hari Prasad & Anr. (RajasthanH. C.) 26 B.L.R. 158 .. .. .. .. 92

Mahalingam, N. In re. Election Commission opinion28 E.L.R. 231 .. .. .. .. 94.

Makunuri Dharma Rao v. D. Hanumantha Rao (AndhraPradesh H.C.) 24 E.L.R. 1 77

Manohar Naik v. Binode Behari Bariha (Orissa H. C.)23 E.L.R. 379 .. .. .. .. 73,156

Manmohan Deo v. Smt. Shailbala Roy & Ors. (PatnaH. C.) 26 E.L.R. 363 93

Mani Lai Yadav v. Budhinath Jha 'Kairava' (PatnaH. C.) 23 E.L.R. 159 101,108,231

Marda, B. G. v. K. R. Marda & Anr. (MaharashtraH. C.) 30 E.L.R. 158 44,70

Mayanna, D. T. v. Y. K. Ramaiah & Anr. (Mysore H. C.)32,E.L.R. 17 .. 25,125

Mehesh Prasad Sinha v. Manjay Lai & Ors. (Patna H. C.)25 E.L.R. 130 .. .. .. .. 109

Meshram D. P. (Dr.) v. Panjab Rao & Ors. MaharashtraH.C.)24E.L.R. 6 217

Mohan Singh v. Bhanwari Lai Nahta & Ors. (MadhyaPradesh H.C.) 23 E.L.R. 330 178

Mohan Raj v. Surendra Kumar Taparia & Ors.(Rajasthan H.C.) 31 E.L.R. 416 64,125,150

Mohinder Singh & Anr. v. Gurmit Singh (Punjab H. C.)25 E.L.R. 27 .. . . .. .. 108,191

Mool Chand Jain v. Rulia Ram & Anr. (Punjab H. C.)27 E.L.R. 358 . . . . . . .. 48,190

Uii)

Moolchand & Nand Kishore v. Maharaj Kumar JaiSingh (RajasthanH.C.) 24 E.L.R. 124 ..

Moti Singh v. Bahiyyalal, (Maharashtra H. C.) 29 E.L.R.215 .. . . . . -.'.

Muralidhar Reddy D. V. Paga Pulla Reddy & Ors.(Andhra Pradesh H. C.) 26 E.L.R. 116

Mudaliar, H.R.A. v. Devaraje Urs. (Mysore H. 0.)29 E.L.R. 291

Nagappa, H. v. G. Venkategowda (Mysore H. C.) 26E.L.R. 224 ..

Nalini Kant Devashankar Vyas & Anr. v. Thambe& Ors. (Maharashtra H. C.) 29 E.L.R. 76

Nam Deo Chimnaji Tapre v. Govind Dass & Ors.(Maharashtra H. C.) 25 E.L.R. 1

Nardev V. Joti Saroop & Ors. (Allahabad H. 0.) 24E.L.R. 76 ..

Narayanan Namboodiri K. S. v. N. K. Seshan (KeralaH. 0.) 29 E.L.R. 465

Nand Kishore Pratap Singh v. Kaushalendra PrasadNarain Singh, (Patna H. C.) 23 E.L.R. 244

Narasimha Reddy K. v. G. Bhupathi & Anr. (AndhraPradesh H.0.) 31 E.L.R. 211

Narasimha Rao, N.V.L. v. Kotha Raghuramayya & Ors.(Andhra Pradesh H. C.) 29 E.L.R. 432 ..

Narayan Bikram Shah v. Kidar Pandey (Patna H. C.26 E.L.R. 200

Narain Singh Sampat Singh Weeky v. Dena VithobaNarnavare & Anr. (Bombay H. C.) 29 E.L.R. 405 ..

Narasinbhai Karsanbhai Makwana v. Jesinbhai Govind-bhai Parmar & Anr. (Gujarat H. C.) 32 E.L.R. 152 ..

Naterajan T. v. D. Vijayaraj & Ors. (Madras H. 0.)30 E.L.R. 322

Nathu Ram Mirdha v. Gordhan Soni (Rajaathan H. C.)30 E.L.R. 116

Nawal Kishore Sinha v. Shiv Sharan Sinha & Ors. (PatnaH.C.) 26 E.L.R. 357 ..

PAGES

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95

71

83

112,213

174

133,145,191

144

18,19

165,189

208,228

149,204

167,171

223

105,125,160,209210,229

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PAGES

Net Ram Jat v. The Election Commission & Ors. (PunjabH. 0.) 25 B.L.R. 89 .. .. .. .. 134

Oraon Kartik v. David Munzni & Ors. (Patna H. C.)25 B.L.R. 291 .. . . . . .. . 218

Paramalai, K. v. I' M. Alangaram & R. Krishnamurthy& Anr. (Madras H. 0.) 31 E.L.R. 401 .. . . 209,229

Paras Ram v. Shiv Chand & Ors. (Punjab & HaryanaH.C.) 32E.L.R. 221 230

Pashupathi Nath Singh v. Harihar Prasad Singh (PatnaH. C.) 31 E.L.R. 155 207

Pethu Reddiar, N. v. V. A. Muthiah (Madras H. 0.)24 E.L.R. 136 .. . . . . . . 5

Pratap Singh Daulta v. Jagdev Singh Sidhanti 24E.L.R. 378 .. . . . . . . . . 2,40,107

Pratap Singh Kairon, S. v. The Election Commissioner& Ors. (Punjab H. C.) 26 E.L.R. 60 .. , . ,-. • ;ii 28,135,167

Pritam Singh & Ors. v. S. Shir Singh P.C.S. & Ors.(Punjab & Haryana H. C.) 29 E.L.R. 82 .. . . 146,175

Pt. Joti Prasad Upadhyaya v. Kalka Prasad Bhatnagar& Ors. (Allahabad H.C.) 23 E.L.R. 195 .. .. 88,176

Punjab Rao v. D. P. Meshram & Ors. (S. C.) 26 E.L.R.453 219,233

Putti Venkata Subbaiah v. Smt. B. K. Radhabai (AndhraPradesh H.C.) 30 E.L.R. 100 122,132,186,205

Raghbir Singh v. Election Tribunal Arnbala & ShriRavindra Nath (Punjab & Haryana H.C.) 28 E.L.R.236 .. . . 137

Raghuveer Singh v. Amolokchand (Madhya PradeshH.C.)30E.L.R. 189 122,206

Rajaju v. Brij Kishore Pataria & Ors. (Madhya PradeshH.C.)29E.L.R. 445 20,120,216

Rajendra Prasad Jain v. Sheel Bhadra Yajee & Ors.(Patna H.C.) 28E.L.R. 126 .. .. .. 17,49,184,185

Rajendra Parsad Jain v. Sheel Bhadra Yajee (S. C.)29 .E.L.R. 96 .. . . . . .. . . 49

Raj Deb v. Gangadhar Mohapatra & Ors. (OrissaH.C.) 23 E.L.R. 213 .. . . . . 35455

Ramachandra Reddy P. v. Narsimha Reddy & Anr.(Andhra Pradesh H.C) 30 E.L.R. 93 .. .. 149

Ramanbhai Ashabhai Patel v. Dhabhai AjitkumarFulsinghji & Ors. (Gujarat H. C.) 24 E.L.R. 92 .. 2,38

(xiv)

PAGES

Rama Pr. Roy Chowdhury v. Baidyanatha Bandopa-dhyaya&Ors. (Calcutta H.C.) 31 E.L.R. 167 . . 69,139,150

Ram Chandra Ram v. Raghunath Raj & Anr. (OrissaH. C.) 23 E.L.R. 293 . . . . . . . . 4

Ram Charan Rai (Dr.) In. re. (Election Commission,(India) Opinion 27 E.L.R. 66 . . . . . . 80,102

Ram Krishna Suryabhan Gavai & Anr. v. KrishnaRao Gulabrao Deshmukh & Anr. (Bombay H. C.)29 E.L.R. 377 . . . . . . . . 204

Ram Lai v. Vishvashwar Nate (Rajasthan H.C.) 29E.L.R. 306 . . . . . . . . . . 71,95,200j215

Ram Narayan Prasad Yadav v. Ram Prakash Lall &Ors.(PatnaH.C.)27E.L.R. 222 . . . . 117

Ram Padarath Mahto v. Mishri Sinha & Anr. (S. C.)23 E.L.R. 110 . . . . . . . . 76

Ram Phal v. Braham Prakash & Ors. (Punjab H. C.)23 E.L.R. 92 . . . . . . . . 1,65,66,107,150,160

Ram Prasad & Anr. v. Ashok Rajitram Mehta (BombayH.C.) 31E.L.R. 195 98,207

Ram Rao, T. S. v. Chief Electoral Officer. AndhraPradesh & Ors. (Andhra Pradesh H. C.) 29 E.L.R.60 . . . . . . . . . . 196

Ram Sevak Yadav v. Hussain Kamil Kidwai & Ors.(S.C.) 26E.L.R. 14 . . . . . . . . ' 10

Ram Shankar v. Jugal Kishore & Ors. (Madhya PradeshH.C.) 29E.L.R. 233 . . . . . . . . 119,132

Randhir Singh v. Raj Narain & Ors. (Allahabad H. C.)27 E.L.R. 79 . . . . . . . . 48,172,192

Ranganatha Nayyar, A. G. v. K. Kamala Kannan &Ors. (Madras H. C.) 23 E.L.R. 392 . . . . 154,213

Rangilal Cboudhury v. Daeu Sao and others, 23 E.L.R.(Sc)153 . . . . 188

Ranjit Singh v. Pritam Singh & Ors. (S. C.) 28 E.L.R.169 . . . . 172,195,234

Rao, C. V. K. v. Dentu Bhaskara Rao (S. C.) 26 E.L.R.310 . . . . . . . . . . 80

Rao Abhe Singh v. Rao Nihal Singh (Punjab H. C.)25 E.L.R. 113 35

Rao K. R. v. Chief Election Commissioner & Ors.(Andhra Pradesh H.C.) 29 E.L.R. 63 . . . . 103,174

Ravindra Nath v. Raghbir Singh & Anr. (S. C.) 29E.L.R. 398 139

PAGES

Roop Lai Mehta v. Dhan Singh (Punjab & HaryanaH. 0.) 29 E.L.R. 113 . . . . . . . . 31,155,175

Sadhu Earn & Ors. v. Hira Singh Pal (Delhi H. C.) 32E.L.R. 28 . . . . . . . . . . 64

Sadanandan, K. v. Kozhipurathu Madhava Menon& Ors. (Kerala H.C.) 23 E.L.R. 190 . . . . 3

Saheblal v. Phoolchand & Anr. (Madhya Pradesh H. C.)31 E.L.R. 281 . . . . . . . . 60

Saligram v. Govindrao & 3 Ors. (Bombay H. C.) 27E.L.R. 123 . . . . . . . . . . 55,154

Sangappa v. Shivamurthiswamy (Mysore H. C.) 23E.L.R. 51 .*. . . . . . . . . 1,34,52,63,69

Sangameswara Reddy K. v. A. Ramachandra Reddy(Andhra Pradesh H.C.) 32 E.L.R. 66 . . . . 153

Sanjeevaiyya, D. v. Election Tribunal, Hyderabad,(Andhra Pradesh H.C.) 26 E.L.R. 475 . . . . 101,114,128

Sanjeeviah D. v. P. Rajarathna Rao, Election Tribunal,Hyderabad. 27E.L.R.226 . . . . . . 163

Sant Prasad Singh v. Dasu Sinha (Patna H. C.) 25E.L.R. 181 41,107,110

Sarat Chandra Rabha & Ors. v. Khagendranath & Ors.(S.C.) 23 E.L.R. 125 . . . . . . . . 34,76

Satrughna Sahu v. Bijoynanda Patnaik (Orissa H. C.)23 E.L.R. 259 . . . . . . . . 142,151

Satya Ketu v. Shyam Sunder & Ors. (Allahabad H. C.)27 E.L.R. 58 . . . . . . . . 16

Sawalia Behari Lall Varma v. Tribikram Deo NarainSingh & Ors. (Bihar H.C.) 27 E.L.R. 1 . . . . 168

Seetharaman T. P. v. K. Sekharan Nari & Ors. (KeralaH. C.) 30 E.L.R. 242 24,176

Shamsher Chand v. Prakash Chand & Ors. (Delhi H. C.)32 E.L.R. 97 3;216

Shankaragouda v. Sirur Veerabhadrappa (Mysore H. C.)23 E.L.R. 1 . . . . . . . . 38.87,177

Shankar Raja & Anr. v. V. M. Ram Reddy & Ors.(Andhra Pradesh H. C.) 26 E.L.R. 252 . . . . 41,155

Shanti Bhai v. Mahadev & Ors. (Madhya PradeshH.C.) 32E.L.R. 232 . . . . . . . . 99

Shri M. Jaffeiali, In re-(Election Commission opinion) 93M/J(D)121E0—3

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PAGES

Shiv Shankar Kanodia v. Kapildeo Narain Singh & Ors.(PatnaH.C.) 28 E.L.R. 250 .. .. .. '199

Shiroma&i Akali dal & Ors. v. The Election Commissionof India &Ors. (Delhi H.C.) 29 E.L.R. 53 .. 30,103,232

Shriram Haribhau Mankar v. Madhusudan Atma RamVairale (Bombay H. C.) 29 E.L.R. 171 .. .. 31,187

Srinivas Tiwari v. Rukmini Raman Pratap Singh (S.C.)23 E.L.R. 131 .. .. 34,177,230

Shri Ganji Veerappa v. H. Shri Siddaveerappa 29 E.L.R.490 H. C. (Mysore) . . .. .. . . 18

Shri Shankar Babaji Sarant v. Shri Sakharam VithobaSalunkhe & Ors. (S. C.) 26 E.L.R. 464 .. . . 215

Shyam Lai v. Ram Lai & Anor. (Allahabad H. 0.) 28E.L.R. 58 .. . . . . .. .. ' 68

Shyam Sunder v. Satya Ketu (S. C.) 28 E.L.R. 222 .. 17Sivasankara Mehta v. The Election Commission of India

& Ors. (Madras H. C.) 29 E.L.R. 104 .. .. 99,176Sivasankara Mehta In. re. (Election Commission) 28

E.L.R. 233 .. 99Smt. Subhadrabai v. Bapurao Anandrao Patil & Ors.

(Mysore H.C.) 26E.L.R. 367 .. .. . . .. 14,214Smt. Dr. Sushila Balraj v. Ardhendu Bhushan & Ors.

(S.C.) 26E.L.R. 146 11,167,181Smt. Sahodrabai Rai v. Ram Singh Aharwar & Ors.

(Madhya Pradesh H. C) 31 E.L.R. 266.. .. 124Sridhara Pai, H. & Anr. v. S. K. Amin & Anr. (Mysore

H.C.) 31E.L.R. 329 84,98,124,125Srikantaiah A. C. v. B. Daddabore Gowda & Ors. (Mysore

H.C.) 32E.L.R. 52 26Subharao H. C. v. Member, Election Tribunal,

Hyderabad & Ors. (S.C.) 26E.L.R. 1 .. .. 162

Sunder Lai Chechani v. Sempat Lai (Rajasthan H.C.)24 E.L.R. 340 101,129

Surain Singh, S. v. Dr. Bhagat Singh & Ors. (Punjab&HaryanaH.C.) 29 E.L.R. 160 .. .. 222

Suriya Prasad v. Atamdas (Madhya Pradesh H. C.)32 E.L.R. 116 .. .. .. .. 86,212

Tambreshwar Prasad v. K. C. Gupta & Ors. (S. C.) 23E.L.R. 140 .. . . .. .. .. 2

Thakur Mansingh Khatuji v. Dr. Vasantlal VrajlalParikh & Ors. (Gujarat H. C.) 29 E.L.R. 249 .. 120,147

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PAGES

Tika Ram v. Asrar Ahmed & Ors. (Allahabad H. C). 23E.L.K. 116 . . . . . . . . . . 66,70,132

Tribeni Rai v. Satya Deo Singh & Ors. (Allahabad H. C.)26 E.L.R. 315 13

Udai Bhan Shah v. Shanker Singh & Ors. (MadhyaPradesh H.C.) 31 E.L.R. 318 . . . . . . 46,209

Umrao Singh v. Darbara Singh & Ors. (Punjab & HaryanaH.C.) 31 E.L.R. 99 98

Upendra Lai v. Smt. Narainee Devi Jha (MadhyaPradesh H.C.) 30 E.L.R. 372 . . . . . . 96

Vagheesam Pillai, G. v. M. R. Krishnamurthi Padayachi& Ors. (Madras H. 0.) 27 E.L.R. 47 . . 157

Vaid Prakash v. Pohumal (Rajasthan H. C.) 24 E.L.R.58 47,143

Vasireddy Jagannatham Naidu v. Vangapandu NarayanaAppala Naidu & Anr. (Andhra Pradesh H. C.) 32E.L.R. 253 . . . . . . . . . . 28,51,65

Venkatachalam Chattiar C. V. v. S. Meiyappan & Ct.Ors. (MadrasH.C.) 29E.L.R. 336 . . . . 175

Venkataramiah, K. v. Seetharama Reddy & Ors. (S. C.)24 E.L.R. 42 156,178

Vidyacharan Shukla v. Election Tribunal, Rajnandgaonand 4 Ors. (Madhya Pradesh H. C.) 23 E.L.R. 323 . . 143

Vidya Charan Shukla v. Khup Chand Bhaghel & Ors.(S.C.) 25 E.L.R. 354 141,230

Vishnu Charan v. Virchand Bhandwat & Anr. (MadhyaPradesh H.C.) 31 E.L.R. 92 132,150,135

Vishwanath Prasad v. Salamatullah & Ors. (Allahabad 69,117 131 142H. C.) 27 E.L.R. 145 157,182

Vithalrao v. Guruji Srihari Baliram Jivtode & Ors.(BombayH.C.) 31 E.L.R.291 . . . . . . 61,98

Vithalrao Rajaram Hingwe v. M. K. Joshi, ElectionTribunal, Wardha & Ors. (Bombay H. C.) 24E.L.R. 237 . . . . . . . . . . 133

Vithalrao Rajaram Hingwe v. M. K. Johshi and Ors.(BombayH.C.) 24E.L.R. 83 1 6 1

Wasi Naqvi v. Sh. Baijnath Singh & Ors. (AllahabadH.C.) 28E.L.R. 185 J 9 4

A DIGESTOF THE

ELECTION LAW REPORTSVOLS. XXIII TO XXXII

AGENCY

See also ELECTION AGENTS.Who is agent i HELD:—An association of persons or society or a politi-

cal party or its permanent members who set up a candidate sponsor his causeand work to promote his election, can aptly be called the agents of thecandidate for election purposes. Mani Gopal Swami v.-—Abdul HamidChoudhary, AIR 1959 Assam 200; referred to.

If the corrupt practice alleged is found to have been committed by thereturned candidate himself or his election agent or by any other person withhis consent or that of his election agent, the Tribunal can forthwith declarethe election void. Where, however, the alleged corrupt practice is found tohave been committed by some other persons in the interests of the returnedcandidate and the Tribunal is further of the opinion that the result of theelection, in so far as it concerned the returned candidate, has been materiallyaffected, it is only then that it should declare the election void : INDERLAL v.LAL SINGH AND OTHERS. 23, E.L.R. 41.

—Newspaper editor sponsoring one party—reporting candidate's activities—whether candidate's agent :—The mere fact that the editor of a newspaper issponsoring any particular party and reports the activities of its candidate inthe newspaper cannot have the effect of making him an agent of the candidateunder election law. The case of Borough of Evesham 3, O.M. & H. 192 (1880);Taunton's case : referred to; SANGAPPA v. SHIVAMURTHI SWAMY, 23,E.L.R. 51.

—Agent-nature and proof of—election agency—political parties setting up andcanvassing for candidate ivhether relevant for determining question of agency—It is more or less a question of fact to be determined in each case as to howfar a particular individual has canvassed and acted in the interests of a candi-date so as to bring him within the scope of the word 'agent' as contemplatedby the law of election in India. While considering this question, the fact thatthe candidate has been set up by a political party and the extent, nature andmethod of canvassing adopted by the party as also the extent and nature ofcollaboration between the party and the candidate, may legitimately be takeninto account. RAM PHAL v. BRAHM PARKASH AND OTHES, 23, E.L.R.92.

—100 (d) (1) Political parties sponsoring candidates whether is agent of candi-date—consent required under S.100 (d)(l)—may be expressed or implied. Theswatantra Party which sponsored the appellant's election and made the

appeal in the name of the religious symbol can be regarded as the agent of theappellant and too have committed the corrupt practice, in making the appeal,with the consent of the appellant. Nani Gopal Swami V. Abdul Eamid, 19E.L.R. 175; Inder Lai Jugal Kishorev. Lai Singh Mukund Singh. A.I.R. 1961Eaj. 122, Harishchandra Bajpaiv. Trillok Singh, 12 E.L.E. 461 referred to;RAMANBHAI ASHABHAI PATEL v. DHABHI AJTTKUMARFULSINHJI AND ORS., 24 E.L,R. 92.

100(l)(d)—Scope of—'Consent' referred to in s. 100 (l)(b) whether differentfrom consent which goes to constitute agency—Held—The consent contemplatedby s. 100(l)(b) to the commission of corrupt practices was different fromconsent which goes to constitute agency: Abdul Majeed v. Bhargavan, A.I.R.1963 Ker. 18 referred to—PRATAP SINGH DAULTA v. JAGDBV SINGHSIDHANTL, 24, E.L.R. 378.

Agent, who is—[See Election Agents]—HEMDHON MOHAN v. J.B.HAGJER, 26, E.L.R. 90.

BALLOT PAPERS

[SEE ALSO—ELECTION PETITION (1) GENERAL PRINCIPLESAND (9̂ GROUNDS FOR SETTING ASIDE ELECTION.]

BALLOT PAPERS—Rule 27(2)—Presiding Officer using distinguishingmark other than those directed by the Election Commission—Effect of—Electionwhether vitiated: HELD.—It was not suggested that the appellant was respon-sible for any defect in the ballot papers. The defect, if any, in the ballot paperswas one which, on an application by the appellant could be rectified by theElection Commissioner. It would, if proved', be attributable to a mistakeor failure on the part of the Presiding Officer or the Polling Officer and couldreasonably be condoned and set right if the Returning Officer made an appli-cation in that behaJf to the Election Commissioner.

Almost four-fifths of the period for which the appellant was declaredelected had expired and as the enquiry suggested by the respondent was likelyto be prolonged, no useful purpose was to be served by the scrutiny of theballot papers by the Returning Officer to find out whether the provisions ofRule 27(2) had been complied with or not. TAMBRESHWAR PRASAD v.SHRI K.C. GUPTA AND OTHERS, 23 E.L.R. (S.C.) 140.

Ballot paper containing only a mark X if valid—mark X appearing againstfigures 1, 2 and 3 on another ballot paper—whether represented Roman numeralfor ten—whether invalidated ballot paper—Mark—affording identification ofvoter, or placed by prior arrangement proof of—Held Dismissing the appeal :R. 116(I)(a) provides that a ballot paper shall be invalid on which the figure 1 isnot marked. As the figure 1 did not appear anywhere on the first ballot paperbut only the mark 'X', the Returning Officer rightly rejected that ballotpaper. The mark 'X' appearing against the figures '1 ' , '2' and '3' in the secondballot paper did not represent the Roman numeral for ten but was the familiar-symbol of selection. It did not fall within the meaning of "other figures" inRule 116(I)(c). There was no force also in the contention that the mark 'X' wasa mark of identification within the meaning of Rule 116(I)(d). It is settledlaw that a ballot paper is liable to be rejected only if the mark itself affordsan indication of the voter or there is extrinsic evidence from which it can bo

inferred that it was placed in pursuance of a prior arrangement. In eithercase it is a question of fact to be determined on the evidence on record. Nosuch arrangement was proved on the evidence in the present case. Thesecond ballot paper was, therefore, valid. Woodward v. Sarsons and Sadler,32 T.L.R. 36, Sohan Lai v. Abinash Chander and others, 4 E.L.R. 55 andShah Sankalchand Motilal v. Shukla Damubhai Ghhaganlal, 12 E.L.R. 184referred to. K. SADANANDAN v. KOZHIPURATHU MADHAVA MBNONAND OTHERS 23, E.L.R. 190.

—ss. 100 (l)(d)(iii), 101 (a)—Conduct of Elections Rules, 1961, Rules 56(2),(3), (4), 57(3) and 93—election challenged for improper reception and rejectionof votes—burden of proof—Whether exhibiting ballot papers sufficient leavingcourt to scrutinise them—or petitioner must give particulars. Whether ReturningOfficer should reject ballot papers if voter's intention ascertainable merely becauseof indistinct seal mark or additional mark—course to be followed in cases of mul-tiple voting—Invalid votes claimed to be from-bundle containing votes for electedcandidate—Whether this conclusion possible in view ofs. 57(3)—Safe custody ofballot papers under Rule 93—opportunities for tampering—scope of inference.

At the mid-term election to the Legislative Assembly of Orissa, theappellant was declared elected by a majority of five votes over the first res-pondent. The latter challenged the appellant's election by a petition mainlyon the ground that there was improper acceptance of void votes and rejectionof valid votes; he also prayed for a declaration that he himself had been dulyelected. On an application by the first Respondent, the Tribunal permittedan inspection of the ballot papers as a result of which the respondent claimedthat 245 ballot papers sorted out by him from the bundle containing votes forthe appellant were invalid and that 54 ballot papers from the bundle of rejectedvotes were valid votes cast in his own favour. The Tribunal scrutinised theseballot papers himself and found that 16 ballot papers counted in favour ofthe appellant should have been rejected a? invalid; and a further 16 that wererejected were valid votes in favour of the first respondent. After makingadjustment in respect of these 32 ballot papers, the Tribunal held that the firstrespondent had secured more votes than the appellant. It therefor set aside theappellant's election and declared the first respondent elected by a majorityof 27 votes. HELD : The primary burden is on the petitioner to adduce someevidence to show that the impugned ballot papers were either improperlyreceived or improperly rejected. Mere production of ballot papers before theCourt and there being marked as exhibits is not sufficient to dischargehis burden. On taking inspection of the ballot papers thepetitioner must give particulars of illegality or impropriety of receptionor rejection of ballot papers and cannot ask the Court to find, them out bymaking its own scrutiny. The court's duty to inspect a document or materialexhibit is for the purpose of appreciating the evidence adduced by both partiesand not to supply the evidence which is lacking on the side of the party whoexhibited the same. Keshv Lalcshman v. Dr Deorao Lakshman Anande,AIR (1960) SC. 131; N. T. Velusami Thevarv.C. Raja Nainar and Ors.; AIR1959 S.C. 442; Nagubai Ammal and ors. v. B. Shama Rao and ors; AIR 1956S.C. 593; Godden Cina Venhata Rao and ors. v. K. Satyanarayan Murty andanr., AIR 1943 Madras 698; Siddih Mohammad Shah v. Musamat Saran andors. AIR 1930 P.O. 57; referred to. The procedure whereby the Tribunal had

scrutin ised the ballot papers after the termination of the trial and not in thepresence of counsel was not proper and was highly prejudicial to the appe-llant. Under Eule 56(2) of the Conduct of Elections Rules, 1961 the primaryfunction of the Eeturning Officer is to ascertian the intention of the voterand if he feels no doubt about that, he should not reject the ballot papers asinvalid merely because the seal marks are indistinct or some additional marksare found. In judging whether papers should be rejected as instances ofmultiple voting, the better course would be to examine each seal mark separate-ly and decide whether in the absence of any other mark that seal mark, alonewould have been taken to be sufficient for counting it in favour of a particularcandidate in whose compartment it is found wholly or partially. It was not opento the respondent to seek a scrutiny of the remaining 267 ballot papers underorder 41, Eule 22, C.P.C. in respect of which there was a finding of the Tribunalagainst him, when he had not given proper notice to the appellant and in theabsence of any explanations relating to them by the Returning Officer in hisevidence.—RAM CHANDRA RAM v. RAGHUNATH RAJ AND ANOTHER23, E.L.R. 293.

—Rule 93, whether applies also to Election petitions or only to conduct ofelections—power of Election Tribunal to direct inspection of ballot papers—whether r. 93 applies when ballot papers not in custody of Returning Officer butof Tribunal—and whether incumbent on Tribunal to itself scrutinise ballot papersin new of allegations where inspection refused. HELD The petitioner could notbe permitted to inspect the ballot papers and in the absence of any othersufficient evidence the petition must be rejected. Rule 93 makes it clearthat inspection of ballot papers cannot be claimed by any party as of rightand that it should be allowed by the Tribunal only if it appears necessary inthe interests of justice. Before allowing inspection the Tribunal must considerwhether a prima facie case had been made out showing that mistakes werecommitted during counting, reception, refusal or rejection of votes atthe time of counting. There was nothing on the record which may raise areasonable doubt in the mind of the Tribunal that such mistakes were com-mitted in the present case. Even though the ballot papers were not in thecustody of the Returning Officer but of the Tribunal, r. 93 could not be shutout; ballot papers were in the nature of privileged documents the inspection ofwhich could not be allowed unless a prima facie case was made out for suchinspection in the interest of justice. The ballot papers were summoned bythe Tribunal to be kept in readiness in case their inspection was allowed;they were not in the custody of the petitioner and he could not in theory ten-der them in evidence. The title of "The Conduct of Elections Rules" was onlya short title. An examination of r. 93 clearly shows that it deals with a stageafter the elections are over and when the Election Tribunal has come intoexistence. There was no force in the petitioner's alternative contention thatit was incumbent on the Tribunal to itself scrutinise the ballot papers, in viewof the nature of the allegations in the petition. Laxmi Shankar Yadav v.Kunwar Sripal Sing & ors., 22 E.L.R 47, distinguished. KIDWAI HUSAINKAMIL v.YADAV RAM SEWAK AND ORS., 24 E.L.R. 51

•——s-100 (1) (d)—When election can be set aside on allegations of irregula-rity in counting of votes—Nature of proof required—Whether small margin bywhich a candidate wins is relevant; HELD; The appellant challenged the

election of the first Respondent by an election petition alleging, inter alia,various irregularities and illegalities in the counting of votes, in particularthat a large number of votes cast in favour of the second Respondent wereimproperly counted in favour of the first Respondent; and furthermore, thatcertain invalid votes which contained markings in favour of the first Respon-dent as well as the second Respondent were counted in favour of the former;and that in view of the small margin by which the first Respondent was ele-cted, a recount should be granted. The Tribunal dismissed the petition.HELD : On the facts : There was no proof, not even suspicion of any irregu-larity in the counting of votes. An election once declared can be set aside onlyon the grounds referred to in s. 100(1) of the Act and no election can beset aside on mere suspicion. The mere fact that a successful candidate secu-red only a small number of votes over his nearest rival did not necessarilymean that there was something wrong about the election. Irregularity orillegality in an election or in the process of the counting of the votes was amatter of proof and nothing could be done on the basis of mere suspicion.—PETHU REDDIAR v. V. A. MUTHIAH & ANOTHER, 24 E. L. R. 136.

• Recount of votes—when may be claimed—Rule 63 : HELD : UnderRule 63 of the Conduct of Elections Rules, 1S61, the light to have a recountis before the declaration of the result. A recount can be directed by the Tri-bunal, here, as in England, only in esses which are substantiated by specificinstances and reliable prima facie evidence.

Stepney Case: (1892) 4 O'M andH 35, 50; referred to.—PETHU RED-DIAR v. V. A. MUTHIAH & ANOTHER, 24, E.L.R. 136.

r. 93—Inspection of ballot papers—Discretion of Tribunal—Cir-cumstances justifying permission to inspect : HELD : There is nothing in theprovisions of the Act or the Rules framed thereunder which would justifythe conclusion that inspection should ordinarily be the refused and the merefact that the tribunal has been given a discretion in the matter does notmean, as has been wrongly assumed by the tribunal that it should ordinarilybe refused. An election petition can be presented on the ground that voteshad been wrongly received or wrongly rejected. When such allegations aremade the matter is justiciable and it is the duty of the tribunal to adjudicatein respect of that matter. It is not possible to prove the allegations unlessan inspection is allowed. To require a party to first bring in parole evidenceto prove what can best be demonstrated by a look at the ballot paper itselfis neither required by the law nor rules of practice. All inspections mustprecede the hearing of the case. Abdul Majeed v. BJiargavan, A.I.R. 1963,Kerala 18; VachiaJi v. Bachiah and Ors. 17 E.L.R. 293; distinguished, Bhimsenv. Oopali, 22 E.L.R. 228 referred to. The inspection of ballot papers cannotbe refused on the ground that the affidavit was not properly verified in accor-dance with rules 8 and 9 added by the High Court to 0. 19 r. 3 C.P.C. Theprovisions of the Representation of the People Act constitute a self containedcode governing the trial of election petitions. The affidavit filed by thepetitioner was in substantial compliance with Form 25 even though it wasnot in strict conformity with rules 8 and 9.—KID WAI HUSSAIN KAMILv. YADAV RAM SEWAK & ORS.—25, E.L.R. 35.

6

—•— S. 100 (1) (d) (in) —Improper reception, refusal or rejection of anyvote-—Recount—Circumstances justifying-—Matter of discretion with theCourt—necessity of protest before Election Officer—The appellant challenged thevalidity of the election of the first respondent on various grounds by an ele-ction petition which was dismissed by the Tribunal. In the appeal to the HighCourt, the only contention pressed was that since the margin of votes by whichthe first respondent had won the election was only 207 and the number of votesrejected was about 1900, the appellant was entitled to ask for a scrutiny ofballot papers by the Tribunal and a recount. •—HELD : Apart from the vagueassertion that a large number of votes cast for the appellant had beenwrongly rejected, there was no proof in support of the same. Further, neitherthe appellant nor his counting agents ever protested even orally to the Retur-ning Officer about the rejection of the votes. Though the Act does not providefor a recount or scrutiny as such recount can be ordered by the Tribunal toestablish improper reception, refusal or rejection of any vote. A roving en-quiry to fish out materials to establish a case for recount cannot be permitted.The demand for recounting is not a matter of right but is a matter of discre-tion for the court and this cannot be invoked if the counting agent had notprotested though not in writing, before the election officer. Adamala MohanBeddy v. Anugu Narayan Reddy, 1963 II Andh. W. R. 101; relied on. PethuReddiar v. Mufhiah, (1963) II M.L.J. P. 1.; Ramalingam v. KanduJcuriBaghavulu, 1963. 1 An. W. R. 442; referred to.—KODURI KRISHNARAO v.BAPINEEDU, 25, E. L. R. 159.

——Scrutiny of rejected ballot papers—HELD : dismissing the appeal : Itwas clear from the material on record that apart from a general and vagueallegation that certain votes were improperly received and others were im-properly rejected, no specific instances of either kind had been brought tothe notice of the Tribunal or even mentioned in the election petition. I t iswell settled that a re-count or scrutiny cannot be claimed as a matter of rightand a direction in that behalf cannot be given on mere suspicion or on theground that a successful candidate had secured only a small number of votesover his rival. The appellant had failed to make out a prima facie case for are-scrutiny and the Tribunal was therefore justified in refusing his application.—Pethu Reddiai v. Mulhiah, 1963 II M.L.J.I., 1; and Basavaiah v. Bachiah,XVII E.L.R. 293; relied upon.—0HITTOORIINDRAYYA v. MULLAPUDIHARISCHANDRA PRASAD 25, E.L.R, 192. ;

Rule 63.—Whether includes scrutiny of ballot papers—WhetherScrutiny can be made by Tribunal despite absence of express; provision : HELD 3Rule 63 of the Conduct of Elections Rules, 1961, only provides for re-countof votes upon an application in writing to the Returning Officer and does notinclude re-scrutiny in its ambit. The absence of any rule providing forre-scrutiny does not mean that the decision of the Returning Officer in re-gard to the rejection or acceptance of ballot papers is final and cannot be calledm question, for such re-scrutiny can be secured upon a direction from theElection Tribunal provided a prima facie case is made out. • • •

—Mohan Reddy v. Narayan Reddy, 1963 IT An. W. R. 101; referred to.—•CHITTOORI INDRAYYA v, MULLAPUDI HARISCHANDRA PRASAD25, E.L.R. 192.

-—8. 100 (1) (d) (in)—Recounting,—Prima facie case to be made out can-not be, demanded as of 'right—HELD : A recount cannot be demanded as of right.The election Tribucal should allow an inspection of the ballot papers cnly onbeing satisfied that a Prima facie case has been made out that if the ballotpapers had been properly scrutinised end counted, the party applying for inspec-tion would have got a majority of votes.—BHAIEON & /NB. v. SISEAM& OBS. 25, E. L. E. 239.

—Recounting, Circumstances justifying order of—HELD: A petitioner praying for a recount must give good leasons and make out a prima facie case beforea recount can be ordered. The mere fact that there is a small margin of votesbetween the successful candidate and the petitioner is not in itself sufficientground for ordering a recount. A roving enquiiy to fish out materials to esta-blish case for recounting cannot be peimitted ; a demand for recount is nota matter of right but a matter of discretion in the court—Baatiah v. BacMah& Ors. , 1959 Mys. L. J. 916; G. Ramalvngam v. Kandukuri Raghavidu andOrs. 1963, (1) Andh. W. E. 442 N. Pethu Reddiar v. 7. A. Muihiah & Crs.;-1963, IIM. L. J. 1.

C. Achutha Mcncn v. Election Tribunal Triclur, A.I.R. 1961, Ker. 186.

P. Kunli Raman v. V. R. Krishna Iyer, A.I.E. 1961, Ker. 188.

Inayutiallah v. Diuanchand Malojcn & Ors. A.I.E. 1959, M. P. 58, referred.—HANJI SHIVANNA v. T. E, PAEAMFSWAEIiH & OES. 25, E.L.E. 281.

Ss. 97,100(l)(d) and 10(a)—Scope of—Conduct of Elections Rules 1961s.57(1)—Scope of. After the appellant had been declared elected to the MadhyaPradesh Assembly by a majority of two votes over the respondent the latterchallenged his election by an election petition on the ground of improperreception of votes in favour of the appellant and improper rejection of votescast in his own favour and prayed that he should be declared elected instead.The Tribunal found that 10 ballot papers in favour of the respondent hadbeen improperly rejected and four had been improperly accepted in favourof the Appellant. At this stage the appellant urged before the Tribunalthat there had been improper rejection of his votes and improper acceptanceof the votes of the respondent and if recounting and rescrutiny was made, hewould be found to have secured a majority of votes. The respondent objectedto this course on the ground that the appellant had not recriminated underS. 97 of the Act and that he had not complied with the proviso to s. 97(1) asto the furnishing of security. The Tribunal rejected the respondents con-tention and held that in order to consider the relief which the respondenthimself had claimed in his election petition, it was necessary for it to decidewhether the respondent had in fct received a majority of votes under s. 101;it therefore re-examined the ballot papers of the respondent as well as theappellant and came to the conclusion that 22 ballot papers cast in favour ofthe respondent had been wrongly accepted. In the result the respondentwas not found to have secured a majority of votes and the Tribunal there-fore declared that the election of the appellant was void and refused to granta declaration to the respondent that he had been duly elected. In two cross-appeals filed before the High Court, the appellant challenged the conclusion

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of the Tribunal that his election was void, whereas the respondent disputedthe correctness of the decision of the Tribunal that no declaration could begranted in his favour that he had been duly elected. The High Court upheldthe Tribunal's decisiion and dismissed the appeals. On appeal to the SupremeCourt : HELD : (dismissing the appeals, Ayyangar, J., concurring with thedecision of the Court but on different reasoning) :

(i) The scope of the enquiry in a case falling under s. 100(l)(d)(iii) isto determine whether any votes have been improperly cast in favour of thereturned candidate, or any votes have been improperly refused or rejectedin regard to any other candidate. These are the only two matters whichwould be relevant in deciding whether the election of the returned candi-date has been materially affected or not. At this enquiry, the onusis on the petitioner to show that by reason of the infirmities specified in s.100(l)(d)(iii), the result of the returned candidate's election has beenmaterially affected. Therefore, in the case of a petition where the onlyclaim made is that the election of the returned candidate is void, the scopeof the enquiry is clearly limited by the requirement of s. 100(l)(d) itself. Theenquiry is limited not because the returned candidate has not recriminatedunder s. 97(1) [which has no application to the case falling under s. 100(1),(d)(iii)] but because what the clause requires to be considered is whetherthe election of the returned candidate has been materially affected and nothingelse. If the result of the enquiry is in favour of the petitioner who challenges"the election of the returned candidate, the Tribunal has to make adeclaration to that effect and that declaration brings to an end the proceedingsin the election petition.

(ii) It is in regard to a composite case in which the election petitionmakes the double claim that the election of the returned candidate is voidand also asks for a declaration that petitioner himself or some other personhas been duly elected that s. 100 as well as s. 101 would apply ; and it is inrespect of the additional claim for a declaration that some other candidatehas been duly elected that s. 97 comes into play. Section 97(1) thus allows,the returned candidate to recriminate and raise pleas in support of his casethat the other person in whose favour a declaration is claimed by the petitionercannot be said to be validly elected; it would be open to the returned candi-date to take these pleas' because when he recriminates, he really becomes acounter-petitioner challenging the validity of the election of the alternativecandidate, The result of s. 97(1) therefore is that in dealing with a compositeelection petition, the Tribunal enquires into not only the case made out bythe petitioner' but also the counter claim made by the returned candidate.This being the nature of the proceedings contemplated by s.97(l) it isnot surpsiring that the returned candidate is required to make his recrimi-nation and serve notice in that behalf in the manner and within the timespecified by s. 97(1) proviso and s. 97(2). If the returned candidate doesnot recriminate as required by e. 97, then he cannot make any attack againstthe alternative claim made by the petitioner. In such a case, an enquirywould be held under s. 100 so far as the validity of the returned, candidates'election is concerned and if as a result of the said enquiry a declaration ismade that the election of the returned candidate is void, then the Tribunal

9

will proceed to deal with the alternative claim, but in doing so, the returnedcandidate will not be allowed to lead any evidence because he is precludedfrom raising any pleas against the validity of the claim of the alternativecandidate. (Hi) The contention that the Tribunal cannot make a finding thatthe alternative candidate has in fact received a majority of the valid votesunless all the votes cast at the election are scrutinised and counted, is not wellfounded. As a result of Eule 57 the Election Tribunal will have to assumethat every ballot paper which had not been rejected under R. 56 constitutedone valid vote and it is on that basis that the finding will have to be made unders. 101 (a) that the petitioner or such other candidate for the declaration ofwhose election a prayer is made in the election petition has in fact received amajority of the valid votes. In the absence of the returned candidate makingrecrimination as required by S.97 there would be nothing wrong if the Tribunalproceeds to deal with the dispute under s. 101 (a) on the basis that the othervotes counted by the returning officer were valid votes and that the votes infavour of the returned candidate, if any, which are rejected, were invalid.Therefore, even in cases to which s. 97 applies, the enquiry necessary whiledealing with the dispute under s. 101(a) will not be wider if the returned candi-date has failed to recriminate. If the returned candidate has recriminatedand has raised pleas in regard to the votes cast in favour of the alternativecandidate or his vote wrongly rejected then those pleas may have to be triedafter a declaration has been made under s. 100 and the matter proceeds tobe tried under s. 101(a). In other words, the first part of the enquiry inregard to the validity of the election of the returned candidate must be triedwithin the narrow limits precribed by s. 100(l)(d)(iii) and the latter partof the enquiry which is governed by s. 101 (a) will have to be tried on a broaderbasis permitting the returned candidate to lead evidence in support of thepleas which he may have taken by way of recrimination under s. 97(1). Inaya-tullah Khan v. Diwanchand Mahajan, 15 E.L.R. 219 and Laksmi ShankarYadav v. Kanwar Sripal Singh 22 E.L..R. 47 ; disapproved. Bhim Sen v.Gopali and Ors., 22 E.L.R. 288; relied on. Vasisl Narain Sharma v. DevChandra (1955) 1 S. C.R. 509 ; Hari Vishnu Kamath v. Syed Ahmed Ishaque(1955) 1 S.C.R. 1104 and Keshav Lawman Barkar v. Dr. Devrao Laxman Anande(I960) 1 S.C.R. 902 ; explained. JABAR SINGH v., GENDALAL 25 E L R323 (S.C.)

Inspection of—Ss. 100, 101 & 102, Rule 93—Petition challening electionon ground of improper reception, refusal and rejection of votes—Tribunal dis-missing application for inspection of ballot papers produced in Court at the ins-tance of petitioner—Whether petitioner entitled to claim inspection. The appe-llant's selection to the House of the People in 1962 was challenged by the res-pondent on the ground inter alia that there was improper reception, refusaland rejection of votes at the time of counting, and in consequence thereofthe election was materially affected : and that on a true count he would receivea majority of valid votes and was entitled to be declared duly elected. The res-pondent claimed that he would be able to establish his case on these pleas andsubmitted that he be permitted an inspection of the ballot papers which hehad tendered in sealed boxes in evidence and were therefore part of the record.The Tribunal rejected this claim for inspection on the view that before an

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inspection was permitted, facts must be brought to its notice making outa prima facie case for inspection. In appeal, the High Court however heldthat as the ballot papers had actually been called for from the ReturningOfficer and were in the Court's custody, the Tribunal had wrongly rejectedthe application for inspection. On appeal to the Supreme Court. HELD :The High Court was in error in interfering with the exercise of discretion bythe Election Tribunal which proceeded upon sound principles. By themere production of the sealed boxes pursuant to the Tribunal's order, theballot papers did not become part of the record and were not liable to beinspected unless the Tribunal was satisfied that such inspection was in thecircumstances of the case, necessary in the interest of justice. An orderof inspection cannot be granted to support vague pleas made in the petitionnot supported by material facts or to fish out evidence to support such pleas.Mere allegations that the petitioner suspects or believes that there has beenimproper reception, refusal or rejection of votes will not be sufficient to suppporfcan order of inspection. An election petition must contain a concise statementof the material facts on which the petitioner relies in support of his case andif such material facts are set out, the tribunal has undoubtedly power to directdiscovery and inspection of documents with which the civil court is investedunder the C.P.C. The power of civil court that may be exercised in trial ofsuits is confined to the narrow limits of Order 11 C.P.C. and inspection may beordered under rule 15 and rule 18(2). As the returning officer is not a partyto an election petition, an order for the production of the ballot paper cannotbe made under order 11, C.P.C. But in a proper case, where the interests ofjustice demand it, the tribunal may call upon the Returning Officer to producethe ballot paper and may permit inspection by the parties before it of the ballotpapers; that power is clearly implicit in sections 100(l)(d)(iii), 101, 102 andrule 93 of the Conduct of Elections Rules 1961. This power is apart fromOrder 11 C.P.C and may be exercised subject to restrictions about thesecrecy of the ballot paper prescribed by ss. 94 and 128(1). Bhim Sen v.Gopali, 22 E.L.R. 288; distinguised. RAM SEVAK YADAV v. H, KAMILKIDWAI AND ORS. 26 E.L.R. 14 (S.C.)

—Inspection of—Refusal to grant inspection of ballot papers. It was contendedby the appellant that he had been greatly prejudiced by the refusal of the Tribu-nal to allow inspection of the ballot papers. HELD : The; Tribunal's order refus-ing the appellant's first application for inspection of ballot papers on the gro-und that the Returning Officer had not been made a party was incorrect be-cause Rule 93 of the Conduct of Elections Rules, 1961 does not require that theReturning Officer should be made a party. The reason for refusing the second-application—that the application was premature—was also wrong. Nor wasthe Tribunal justified in requiring the production of some evidence to justifythe inspection of ballot papers. The appellant could not possibly produceany evidence about ballot papers which he had not yet inspected. Thus theapppellant was deprived of an opportunity to substantiate his case by do-cuments which were first in the custody of the Returning Officer and thenin the custody of the Tribunal. The rules of the natural justice were disregardedin this respect. ARDHENDU BHUSAN v. SMT. SUSHILABAI ANDORS. 26, E.L.R. 34.

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—ss. 83 and 92—Conduct of Elections Rules, 1961, r. 93—Eecountingand recheclcing of votes—Votes rejected at first counting not re-checked at secondcounting—Recount whether vitiated—Provision that material facts must be pleadedin petition—Scope of requirement : HELD (i) A perusal of the EeturningOfficer's order of re-counting showed that he had ordered recount of the totalpolling and not only of the votes accepted as valid votes. But contrary tohis own order he did not consider at the time of recounting, the votes whichwere already rejected in the first counting. The omission after having orderedrecount of the total polling was illegal, and materially affected the result ofthe election, (ii) The final result sheet produced before the Tribunal showedthat the figures in it were not free from serious mistakes. The result sheet there-fore was prima facie evidence which entitled the petitioner to have the ballotpapers inspected and examined, and the Tribunal was in error in holding tothe contrary. (in) The word 'counting' embraces not only mechanicalcounting of ballot papers but also their scrutiny in order to determine whetherany particular ballot is to be taken into account or not. In view of the factthat re-counting as a rule is generally ordered when the difference betweenthe valid votes obtained by each candidate is very narrow, mere recountingof only valid votes of each candidate would have no meaning. The narrowmargin itself puts the Returning Officer on guard and persuades him to assurehimself as also the candidates that even after scrutiny either the narrowmargin remains intact, or that it is widened or is further reduced or resultsin the opposite direction. This assurance apparently can never be securedunless and until the initially rejected votes as also once accepted votesare scrutinised and considred afresh, (iv) The pleadings on behalf of theappellant could not be said to be vague as he had mentioned in the electionpetition that 1250 votes cast in favour of the first respondent had been illegallyrejected and 100 votes had been wrongly counted in favour of the second res-pondent. Krishna Kumar v. Krishna Gopal., A.I.R. 1964, Raj. 21; Kesheo-prasad Hariharprasad v. A.D. Mani and Ors. 1961 M.P.L. J. 1021; Ram SewakYadav v. H.K. Kidwai, A.I.R. 1964, S.C. 1249; considered—JAINARAINLALAGARWAL v. NAND KUMAR DANI & ORS. 26, E.L.R. 136.

—Inspection when can be allowed. HELD in a proper case where theinterests of Justice require or where a case has been otherwise made out for suchinspection, inspection can, and no doubt must be, allowed. Such a poweris also implicit in Section 100(l)(d)(«Y), 101,102 and R. 93 of Conduct of Elec-tions Rules, 1961. But an order for inspection cannot be made where allegationsin support of such a claim are vague and the prayer for inspection appears tobe actuated by a desire to fish out evidence in support of the pleas. A claim forinspection must be set out previously and must be supported by relevant aver-ments on material facts and when such a claim is made, the Election Tribunalmust examine whether a prima facie case for inspection has been madeout or not. Jabar Singh v. Genda Lai, 1964 (6) S.C.R. 54 ; Ram Sewak Yadav v.Husain Kamil Kidwai, 1964 (6) S.C.R. 238; referred to—SMT. DR. SUSHILABAL RAJ v. ARDHENDU BHUSHAN & ORS. 26, E.L.R. (S.C.) 146.

ss. 90(1) and 92—when petitioner allowed inspection of ballot papers ofthe elected candidate—whether simultaneous inspection should be allowed of peti-tioner's votes—requirements for such inspection. I t was contended on behalf

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of the petitioner in the present petition under Article 227 of the Constitutionthat he should be given the right to simultaneously inspect the opposite party'sballot papers ; particularly, so that while witnesses were being examined onbehalf of the opposite party to prove any alleged irregularities in the countingof votes, he would also be in a position to properly cross-examine the witnessesfor the petitioner with reference to the ballot papers in favour of the oppositeparty. HELD: The opposite party having been allowed to examine the ballotpapers of the petitioner to find out if any void votes were counted in favour of thepetitioner, there was no reason why a similar prayer by the successful candidateshould not be allowed when a recriminatory petition had been filed and a secu-rity deposit paid. Generally speaking, this was the only hurdle in the way ofsuch a prayer being granted. Both parties would then be in a position to findout what irregularities, if any, had been committed and whether any votes hadbeen improperly received. However, this was subject to the salutary rule thatan examination of ballot papers should only be allowed where a prima facieease had been made out for such examination. Bhim Sen v. Gopali, 22 ELK 288;distinguished. Halsbury's Laws of England (third edition) Volume 14 at page310, referred to—NAWAL KISHOEE SINGH v. SHIVA SHARAN SINHA& OES. 26, E.L.R. 357.

Conduct of Elections Rules—rule 39(1) (6) requiring mark on the ballotpaper to be made with the instrument provided—whether directory or mandatory.HELD: The absence of the penalty of rejection of a ballot paper under rule56(2) in the event of non-compliance with rule 39 (l)(b) shows, together withthe general law on the subject, that the requirement that a ballot paper shouldbear a mark made with the instrument supplied in accordance with rule 39(1)(b), is merely directory and not mandatory. This is in consonance with the pro-per perspective in which election laws should be construed, namely, that thereshould be a leaning in favour of allowing the voter to exercise his right to voterather than to virtually disenfranchise him by rejecting his vote on hyper-technical grounds, when his intention has been clearly indicated. Hari VishnuKamath v. Ahmad Ishaque, A.I.R. 1955 S.C. 233; Woodward v. Sarason andSadler (10 L.R. C.P. 733; Philips v. Goff (1866) 17 QBD 805; Rogers mi Elections(Vol. II); referred to. Bennett v. Shaw (70, D.L.R. 348); distinguished.—GIANIKARTAR SINGH v. JAGJIT SINGH AND OTHERS. 26, E.L.R. 328.

—ss. 83(1), 90 (1) and 92—Inspection of ballot papers—omission to give materialfacts in the petition—whether inspection can be allowed to fish out evidence—or tosupport vague pleas in the petition: HELD : (i) The candidate who seeks tochallenge an election on the ground of improper reception or rejection of voteshas an ample opportunity, at the time of the counting of votes, of acquaintinghimself with the manner in which the ballot boxes were scrutinised and thevotes counted : he should therefore be in a position to state in the petition allthe material facts and particulars with regard to the votes which were impro-perly received or rejected. The allegations made by the respondent in the elec-tion petition did not satisfy these requirements ; no lists of the votes intendedto be objected to or the heads of the objection to each of these votes were given.In these circumstances an inspection of the ballot papers could not be grantedfor enabling the respondent to fish out evidence to support his vague pleas in thepetition; the Tribunal was therefore in error in allowing the application for suchinspection. Ram Sevah Yadav vs. Hussain Kamil Kidwai and others 1964 (6)

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SCR 238, Jabar Singh v. Genda Lai, 1964 (6) SCR 54; followed.—Bhim Senv. Gopali and Others (22 ELR 288); referred to.—GIANI KARTAR SINGHv. JAGJIT SINGH AND OTHERS, 26 E.L.R. 328.

s. 92—Recount of votes—Under what circumstances justified—Tribunal'sdiscretion. HELD : (i) The grounds on which an election petition may be filed,and the powers exercisable by an election Tribunal in dealing with it must beregarded as having been exhaustively dealt with by the Act and the rulesmade thereunder, and general equitable considerations which are not recog-nised or supported by the Act or by the rules framed thereunder cannot beimported into proceedings relating to election petitions. Jagan Nath v. JaswantSingh, A.I.R. 1954, S.C. 210 referred to. There is nothing unusual in a personwinning an election even in a large constituency by a very narrow majorityof votes. There can be no recounting of votes just to assure the defeated candi-date that the counting has been correct. In the instant case the allegations ofthe appellant regarding improper reception and rejection of votes remainedaltogether unsubstantiated and there was nothing to satisfy the Tribunalprima facie that a recount was necessary. The Tribunal's discretion was exer-cised after considering the facts of the case, and applying the correct principles,and no circumstances existed which would justify interference. Mam SewakYadav v. Husain Kamil Kidwai and Ors, A.I.R. 1964 S.C. 1249, Sm. Dr. SushilaBalraj v A. Bhushan (Civil Appeal No. 222 of 1964), N. Pethu Reddiar v, V. At

Muthiah & Anr., A.I.R. 1963 Mad. 390; relied on. P. Kunhi Raman v. V. R.Krishna Iyer (1961 Ker. 188) distinguished.—TRIBENI RAI v. SATYAjDEOSINGH AND OTHERS, 26 E.L.R. 315.

Recounting of votes—demand for—when may be allowed—case lawdiscussed—whether can be allowed as of right if margin of difference is small.Conduct of Elections Rules, 1961 Rule 63(2)—Application for recount to ReturningOfficer—requirement as to contents considered. Disputed votes—considerationof—by Returning Officer—whether he may obtain opinion of candidate or hisassistants in deciding—His decision whether judicial or administrative. Theappellant challenged the election of the first respondent and sought a de-claration that she herself had been elected as she had obtained a majority ofthe valid votes. In her petition, wich was rejected by the Tribunal, it wasclaimed inter alia, that there were several irregularities in the counting of votes;that the Returning Officer, while deciding about the validity or otherwise ofdisputed votes, had improperly allowed himself to be guided by the AssistantReturning Officer and other persons; and that an application for a recount wasimproperly rejected by the Returning Officer. It was contended that for thesereasons, and also in view of the small margin of votes by which the returnedcandidate had won, the appellant was entitled to a recount. HELD : (i) I t iswell settled that a prima fade case must be made out before a recount could bepermitted. The facts mentioned in the petition were vague and the evidenceadduced in support of the allegations made did not make out such a case forrecount : Basaviah v. Bachiah & Ors. XVII E.L.R. 293: Hanji Shivanna v.T.R. Parameswaraiah & Ors. Misc. First Appeal No. 42 of 1963 reported inXXV ELR 281; Ram Sewak Yadav v. Hussain Kamil Kidwai & Ors 1964(6).S.C.R. 238; Jabar Singh v. Genda Lai 1964(6) S.G.R. 541 relied on. (ii) The conten-tion that because the margin of votes between the appellant and the returnedcandidate was very narrow, the appellant was entitled, to a recount as a matter of73.M/J(D)121B0—4

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right, could not be accepted. Basaviah's case, supra; referred to. (in) Althoughthe Returning Officer did not reject the appellant's application for a recount onthe ground that the claim for recount was "frivolous or unreasonable"—i.e.,the ground referred to in Rule 63 of the Conduct of Elections Rules, 1961—the application for recount itself did not set out any relevant ground in supportof the demand for a recount. There was thus no proper application for a re-count and therefore the rejection could not be said to be an improper rejection.(iv) On a reading of Rule 56 A of the Conduct of Elections Rules, 1961, it isclear that while deciding about the validity of a disputed vote, the ReturningOfficer does not exercise any judicial function. His function is purely adminis-trative and he need not even hear the parties. His decision is not subject toany appeal and its correctness can only be assailed in an election petition.Therefore the fact that the Returning Officer took into consideration theopinions expressed by the candidates or his assistant in deciding upon thevalidity of disputed votes could not be considered to be a vitiating circumstanceso long as the final decision was his. Commissioner of Police, Bombay v. Gordhan-das Bhanji ; AIR 1952 S.C. 16 relied upon. R. v. East Kerrier Justices; 1952ALL. E. R. 144; Distinguished. SMT. SUBHADRABAI v. BAPURAOANANDARAO PATIL & ORS. 26, E.L.R. 367.

—ss. 81(3) and 90(3)—Scope of—Conduct of Elections Rules, 1961, r. 73(2)(d)—"Any mark or writing by which the elector can be identified", meaning of.In the appeal to the Supreme Court it was contended by the appellant (i) thatthe copies of the election petition filed by the respondent were not specificallyattested as required by s. 81(3) and in view of this the petition should havebeen rejected under s. 90(3); (ii) that furthermore, the Tribunal had wronglydeclared a ballot paper invalid, under Rule 73(2) (d) of the Representation ofthe People (Conduct of Elections and Election Petitions) Rules 1951, as itwas not shown that the elector in question could be actually identified bythe mark or writing found on the ballot paper. HELD, dismissing the appeal:(i) There was substantial compliance with the provisions of s. 81(3) andelection petition could not therefore be dismissed under s. 90(3). Oh. SubbaRao v. Member, Election Tribunal, AIR 1964 S.C. 1027; followed, (ii) Theprovisions of r. 73(2)(d) do not require that there must be an actual identi-fication of the elector by the mark of writing before the vote can be invalidated.All that is required is that there could be a reasonable probability of identi-fication by the mark or writing (other than that permitted by r. 37-A) and ifthere is such a reasonable probability of identification, the ballot paper would beinvalidated. Whether the elector can be identified by the writing wouldalways be a question of fact in each case and in that connection the extent ofthe writing on the ballot paper may have a bearing on the question whetherthe elector can be identified thereby: Pala Singh v. Natha Singh, LXIV (1962).P.L.R. 1110. Woodward v. Sarsons, (1875) L.R. IOC 733; Assason v. Durant,(1886) IV OM&H 34; H. L. Lawson v. Ooloneol Chester Master (1886) IV OM&H194; Henry Edward Duke v. Richard Harold, (1911) VI OM&H 228; Lewis v. Sep-perdson, (1918) 2 All E.R. 503; Regional Pole Blundell v. Joseph Vardon, (1907)4 (Pt. 2) C. L. R. 1463; Kennedy v. Palmer, (1907) 4 (Pt. 2) C. L. R. 1481;and Kean v. Kerby (1920) 27 C.L.R. 449; referred to.—DR. ANUP SINGH v.ABDUL GHANI AND ANOTHER 26, E. L.R. (S.C.) 396.

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—Rule 63—When the Returning Officer can make an order for freshscrutiny of the ballot papers and a recount in whole or in part—-exercise of discre-tion by Returning Officer—Interference by the Appellate Court. HELD: Thelanguage which has been employed in sub-rule (3) of rule 83 of the Conduct ofElections Rules, 1961, and in particular the word "decide" which has beenused, shows that the Returning Officer is enjoined to take the grounds on which -an application for recount is made into consideration and make an objectivedecision whether to allow the application in whole or in part. He canreject the application in Mo if it appears to be frivolous or unreasonable. Inall other eventualities a decision has to be made whether it should be allowedin whole or in part. That will depend on the grounds which have been raisedas also various other matters relating to counting and scrutiny of votes whichwould be essentially within the personal knowledge of the Returning Officer.The Returning Officer is not bound to grant the application in whole or in partunless it is frivolous or unresonable. He has to exercise his discretion in aproper and judicial manner as the decision which has td be given by him wouldbe of a quasijudicial nature containing the reasons for the decision. Afterthe Returning Officer has exercised his discretion in the light of all the circum-stances of the particular case, the Appeal Court would be most reluctant tointerfere in the absence of any strong and cogent reasons.—MADHU SINGH v.RAM SARAN CHAND MITTAL AND OTHERS, 27, E.L.R. 11.

—Roman numerals use of—Conduct of Elections Rules, 1961, Rules 37A(2)(a)71 (4) and 73(2)—Election according to system of proportional representationby means of single transferable vote—Marking of preferences in Roman numeralswhether makes ballot papers invalid—1964 amendment of r. 73(2) permitted useof Roman numerals-position before amendment was the same. The appellant andthe first respondent were candidates along with twelve others at the electionheld in 1962 for membership of the U. P. Legislative Council from the RohilkhandGraduates Constituency. The election was held in accordance with thesystem of proportional representation by moans of single transferable vote.After the 13th count the appellant won the election, leading the first respondentby 47 votes. The first respondent challenged the appellant's election by anelection petition. The Tribunal allowed the petition holding that severalinvalid votes had been wrongly counted in the appellant's favour. In appealbefore the High Court the main question for consideration was whether thevoting preferences marked in Roman figures were valid. HELD : The ex-planation added in 1964 to Rule 73(2) of the Conduct of Elections Rules, 1961,made it clear that the use of Roman numerals for the indication of votingpreference was permissible. Even before the Explanation the position mustbe held to be the same. Even in the Rules as they existed in 1962 there wasno indication that the use of Roman numerals was prohibited. The objectof the rules is to ascertain the preference of an elector for a certain candidate.If that preference is clearly expressed by a certain number expressed by theappropriate figure it should not matter whether the figure is written out in theinternational form, or in the Devnagari form or according to the Romannotation. It was, therefore, open to an elector in April, 1968 to express hisfirst preference for a candidate by writing down the Roman figure 'I ' againstthat candidate. Accordingly the Tribunal was wrong in rejecting certainballot papers simply because the first preference waa indicated by the Roman

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figure 'I'. When these ballot papers which were wrongly rejected were takeninto account the appellant had a majority of votes and his election must beupheld. Sadanandanv.Madhava Men on A.I.H. 1963 Kerala 68: distinguished.— SATYA KETU v. SRI SHYAM SUNDER AND OTHERS. 27, E.L.R.58.

—s. 100(l)(d)(iv) ; Conduct of Elections Rules 1961, r. 56(2)(g)—Scope of;The first respondent challenged the appellant's election in 1962 to the U.P.Legislative Assembly on the ground that the first respondents' own name on theballot paper was inaccurately printed and as a result his chances of securing thevotes of his supporters had been materially prejudiced. The Tribunal foundthat the misprint on the ballot paper had disguised the fact from the votersthat the respondent had stood for election and made the design of the ballotpaper materially defective. It held that rules 24 and 30 of the Conduct ofElections Rules, 1961, had thus been contravened and consequently led to theviolation of rule 56 (2) (g). In appeal the High Court confirmed the Tribunal'sfindings relating to the misprinting but reversed its conclusion about theinfirmity in the design of the ballot paper and consequently did not agree thatrule 56(2)(g) had been contravened. However, the High Court held that theirregularity caused by the misprint on the ballot paper had rendered the appel-lant's election void under section 100 (d)(iv) of Act 43 of 1951. On appeal bycertificate to the Supreme Court. HELD: Allowing the appeal: The HighCourt was right in holding that rule 56(2)(g) had not been contravened by themisprinting. The design to which rule 56(2)(g) refers is the form, the patternor the outline of the ballot paper and not its contents. The High Court andthe Tribunal were in error in holding that the appellant's election had beenrendered void under section 100(l)(d)(iv) by reason of the fact that the firstrespondent's name had been misprinted on the ballot papers. Although themisprinting was an irregularity falling under the section as it amounted to non-compliance of rule 22, proof of non-compliance alone did not render theappellant's election void. To make the election void the first respondent had toprove the non-compliance and its material effect on the election. Since he hadfailed to prove such material effect on the election, Ms challenge to the appel-lant's election must fail.—MAHADEO vs. BABU UDAI PRATAP SINGHAND OTHERS 28 E.L.R. (S.C.) 72

—Sections 92,83 (I) power of Tribunal to allow inspection of ballot papers-Necessity of pleading material facts justifying inspection in election petition.HELD : The allegations made by the appellant in support of his request forinspection and recount of the ballot papers were vague and did not satisfy therequirements of s. 83(1) which lays down that all material facts in support of thepetition must be pleaded. The High Court was right in holding that theappellant had failed to make out a case for inspection of ballot boxes in thepresent case. RamSewak Yadavv. Hussain Kamil Kidwai and Others, A.I.R.1964, S.G. 249, Smt. Dr. Sushila Balraj v. Shri Ardhendu Bhushan andOthers, O.A. No. 124 of 1963 decided on 18-3-1964 and inSitaram Mahtor. SriRamanandan Rai and Others, C.A. 45 of 1965 decided on 10-2-1955 referred, to.—DR. JAGJIT SINGH v. GIANIKARTAR SINGH AND ORS. 28 E.L.R.(S.C.) 81.

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—Inspection of Concealment of serial numbers, whether mandatoryunder Sub-rule 3 of Rule 38-A—HELD : The powers of the tribunal in regard toinspection of ballot papers is restricted to the special jurisdiction and the provi-sions created by the Representation of the People Act and the Conduct of Elec-tion Rules, of which the maintenance of secrecy of voting is an integral part andthe concealment of the serial number on the ballot paper used at electionsby Assembly members is a mandate which cannot be disregarded evenindirectly. Ashfaq Ali Khan v. Darshan Singh, 20 ELR 136, referred to.—RAJENDRA PRASAD JAIN v. SHEEL BHADRA YAJEE, 28 E.L. R. 126

—R 73 (2) Before the adding of explanation—Indication of preference in Ara-bic numeral—-if mandatory. BELT) : The High Court was right in holding themarking of the Ballot paper in Roman numeral I was in full compliance withr. 73(2)(a). It is true that in r. 73(2)(a) the figure 1 is shown in the Arabicnumeral, but that does not mean that the rule intended that figure 1 on theballot paper can only be marked in Arabic form and in no other. So long it isclear that figure 1 is marked on the ballot paper the ballot paper would be validand it is only when figure 1 is not marked at all in. any form whatsoever thatit can be said, that the ballot paper is invalid. Further, if any other word is putdown like 'SD' after the Roman fi.gu.re I or the word 'one'in brackets thereafter,that would wot invalida' e the votes for the figure "I" would be there to showthe first preference, and these words can be ignored.—SHY AM SUNDERv. SATYA KETU, S» E.L.R. 222.

——-Votes thrown away—Circumstances in which petitioner can be declaredelected: HELD: The grounds on which a candidate other than the returned can-didate may be declared to have been elected are expressly mentioned in Section101 of the Act and under the provisions of said section the petitioner was en-titled to a declaration that he had been duly elected only if he established thatin fact he received a majority of the valid votes, which in the present case thepetitioner did not. The respondents were duly nominated candidates and thevotes cast in their favour could be treated as invalid votes only if the petitionerestablished that the votes polled by the respondents must be regarded asvotes thrown away as understood under the Election Law. That can be doneonly where it is established that the respondents were ineligible for filling theseats. The burden of proving that the votes cast in favour of the returned can-didate and other contesting candidates were invalid was on the petitioner.Apart from the mere allegation in the petition, the petitioner had adduced noevidence that the voters had knowledge of the fact that the Respondents werenot qualified to fill the reserved seats. Therefore the petitioner was not entitledto the declaration that he had been duly elected. Basavalingappa v. Muni-chinnappa A.I.R. 1965 S.C. 1269, Bhaiyalal v. Harihrishna Singh A.I.R. 1965S.C. 1557, Keshav Lahshman v. Dr. Deorao A.I.R. 1960 S.C. 131, and SudhirKumar v. Abhoy Pada A.I.R. 1966 S.C. 141, referred to—KATTIMANI CHA-NDAPPA JAMPANNA v. LAXMAN SIDDAPPA NAIK AND 2 ORS. 29,E.L.R. 199.

-ii. 64, 83{l)(a), W0(l)(d) {Hi) and 101—If counting of voteswas improper—whether conducted in accordance with Instruction 17of Handbook for Returning Officers. HELD: On the evidence, there

IS

was nothing to show that there was a miscount or that countingwas conducted improperly or irregularly. No prima facie casehad been made out to show that in order to decide the dispute andto do complete justice between the parties, inspection, scrutiny and. recountof the ballot papers was necessary. The petition did not contain adequatestatement of material facts for scrutiny and recount of the specified ballot papers.It was not shown that the counting supervisors without heeding the objectionsof the counting agents had put "apparently invalid or doubtful" ballot papersin the tray of the Kespondent. There was no force in the contention that be-cause the two Assistant Returning Officers did only test checking of one or two50 ballot paper bundles and did not scrutinise all the ballot papers, there wasno counting by the Returning Officer in law and that therefore the declarationof the result without counting called for recount. When section 64 of the Actprovides that the counting may be done under the supervision and directionof the Returning Officer and what Rule 56 requires is that the rejection of aballot paper can be done only by the Returning Officer, the procedure of count-ing conducted in the present case in accordance with Instruction No. 17 con-tained in the Hand Book for Returning Officers, was in accordance with law.Ram Sewalc vs. H.K. Kidwai, A.I.R. 1964 S.C. 1249; Jagjit Singh vs. KartarSingh, A.I.R. 1966 S.C. 773; referred to— SHRI GANJI VEERAPPA v. SRIH. SIDDAVEERAPPA, 29, E.L.E. 490.

—•—r. 56(2) (b), and first proviso to rule 56 (2)—Serial numbers on allballot papers—whether amounted to mark by whiih elector could be identified-—Wrong seal put on ballot papers—if Returning Officer right in acting under firstproviso to r. 56(2). HELD : (i) There was no force in the contention that all theballot papers should have been rejected under Rule 56(2) as they carried printedserial numbers, (ii) On the evidence, it was clear that the ballot papers at pollingstation No. 5, Guttur, did not carry the seal prescribed by the Election Com-mission but another T.R.O.' Seal. The defect, however, was caused by mistakeof the Presiding Officer or the Polling Officer and subsequently the ReturningOfficer was right in acting under the first proviso to Rule 56(2).—SHRI GANJIVEERAPPA'v. SRI H. SIDDAVEERAPPA, 29, E.L.R. 490.

Production and Inspection of ballot papers, consideration for—powersof Election Court. HELD : (i) On the evidence (and after scrutiny of some ballotpapers) it was not shown that there was improper reception or rejection of voteswhich materially affected the result of the election, (ii) An election court hasthe power to order production of ballot papers for its inspection and this poweris inherent in the very nature of jurisdiction in an election dispute. But, onaccount of the secrecy of vote guaranteed as a safeguard to the freedom in vot-ing, the Court would require adequate reasons to exercise that power. As anelection dispute is not an action at law or a suit in equity, the normal readinessof the Court to inspect documents material to the controversy between theparties would not extend to election disputes. Jagannaih v. Jaswant Singh :AIR 1954 S.C. 210, Jabar Singh v. Genda Lai : AIR 1964 S.C. 1200; referredto—K.S. NARAYANANNAMBOODIRIv.N.K. SESHAN& ORS. 29, E.L.R.465.

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-Number of counting agents permitted under Rule 52—whether adequateto ensure fair counting. Ballot papers—if candidate's counting agent entitled to beshown all papers or only those to be rejected—decision to reject ballot papers—whether can only be of Returning Officer or Assistant Returning Officer. HELD :S. 47 provides that the number of counting agents appointed by a candidateshould not exceed the maximum prescribed by the rules. Rule 52 of the Conductof Elections Rules, 1961, limits the number of counting agents that a candidatemay appoint to 16, whatsoever may be the number of counting officers en-gaged. The present fixation of one counting agent for each candidate at eachcounting table is more liberal than the practice under the English Act. Rule56(3) requires a Returning Officer to allow each counting agent present, areasonable opportunity to inspect every ballot paper before it is finally rejectedas invalid. This applies only to papers about to be rejected as invalid and not tothose being counted as valid votes. This limitation applies under the rule ex-pressio unius exclusio attrius, that ballot papers which are accepted as validvotes need not be particularly shown to the counting agents. Except in case ofballot papers to be rejected finally, the election law nowhere contemplates acounting agent being shown as such the ballot papers at the counting whichis more or less an official business. The counting agents are expected only tomake best use of the facility afforded to them to be present at the table wherethe counting takes place to see that no error occurs in the process. Under theinstructions to the Returning Officers on rejection of ballot papers, when theballot is doubtful or suspicious, the decision must be by Returning Officer andnot by the assistants. Thus, where the original mark is patently in the columnof one candidate but an impression due to wrong folding appears in the columnof anotb er candidate, the counting agent is right in assorting the ballot paperto be valid, but as it is prima facie doubtful or suspicious, the counting assis-tants are instructed to assort it with the invalid ballot papers and to place themall before the Counting Officer. When they are afterwards scrutinised by theReturning Officer, paper by paper, he is instructed to include such a ballotpaper among the valid votes of the concerned candidate. S. 63(5) and para 20of the instructions on counting in the Hand-book are clear that the recount isnot "a merely physical recount of ballot papers which have been sorted intobundles at the stage of counting, but a re-scrutiny and recount of each of theballot papers in respect of which the candidate properly demands a recount, inorder to see whether it is a valid vote, and if so, for which candidate". Thus,even if the complaint that the allowance of one counting agent for one table,where three officers are counting, is not adequate has any force it is wellcompensated by the three opportunities for check afforded to each countingagent in the process of counting. Conversely it may be said that since threeopportunities are afforded at different stages of counting, the allowance for oneagent to watch three officers working on the same table appears reasonablyadequate.—K.S. NARAYANAN NAMBOODIRI v. N.K. SESHAN & ORS.29, E.L.R. 465.

S. 100(1) (d) (Hi)—Improper reception, refusal and rejection of votes—acceptance of void votes, if proved. HELD : No amount of evidence can be lookedinto upon a plea which was never put forward. The determination of a causeshould be founded upon a case either to be found in the pleadings or involved

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in or consistent with the case made thereby. The version of discrimination de-veloped in Court by the Petitioner and his witnesses with regard to the votesalleged to have been rejected on the ground of faint marks of seals on the ballotpapers and there being double marks caused on the ballot papers in the processhad to be ignored.—Siddih Mohamad Shah v. Mt. Saran and others AIR 1930P.C. 57; Rahenchunder Singh v. Shamcharan Bhutto and others 11 M.I.A. 7; LalaHem Ghand v. Lala Pearey Lai and others, AIR 1942 P.C. 64; Kanda and othersv. Washu, AIR 1950 P.C. 68; Messrs Trejan and Co. v. R.M.N. Nagappa Che-ttiar, AIR 1953 S.C. 245; referred to.—RAJAJU v. BRIJ KISHORE PATARIA& ORS. 29, E.L.R. 445.

Inspection of ballot paper—if can be allowed merely because of narrowmargin of victory. HELD : The mere fact that a candidate has won by a smallmajority does not constitute a reason in law for allowing inspection of the ballotpapers and does not entitle the applicant to a recount which can only bemade on the establishment of good grounds showing that the Returning Officerhad erred or had made a mistake. Ram Sewah Yadai) v. Hussain Kamil Kidwaiand Ors. AIR 1964 S.C. 1249; H.R. GoJcJiale v. Bharucha Noshir and Ors. Judge-ment of Bombay High Court dated 1-9-1967 in Election Petition No. 5 of 1967;Harish Chandra v.Trilohi Singh, AIR 1957 S.C. 444; SriBrijRam Singh v.SriBasant Singh, Judgement of Allahabad High Court dated 16-10-1967 in ElectionPetition No. 4 of 1967; referred to. While rejecting a preliminary issue raisedby the respondent that the petition was liable to be dismissed because of thepetitioner's failure to tender copies of annexures referred to in the petition, theCourt held that: There is nothing in the contents of the election petition on thebasis of which it can be urged that the petitioner either expressly or by necessaryintendment has desired to make these annexures a part of the petition. Merelyon the ground that particular documents are tendered with the petition, suchdocuments do not automatically become part of the petition. It is well knownthat documents on which a party relies can be tendered along with the petitionunder order 7 rule 14(2) C.P.C. as the provisions of the Code of Civil Procedureapply equally well to the election petitions unless a different provision is madein the Act, 1951.—RAJAJU v. BRIJ KISHORE PATARIA & ORS. 29, E.L.R.445.

—Improper reception and rejection of votes proved.—Rule 63, if properlyfollowed. HELD: Under Rule 63 of the Conduct of Elections Rules, 1961 on anapplication for a re-count being made, it is for the Returning Officer to decidethe matter and he may allow the application in whole or in part or may reject itintoto if it appears to him to be frivolous or unreasonable. He is to give sucha decision in writing. In the present case, the Returning Officer compliedwith a request of the candidate for a general check up of the total but herefused the request for re-checking of rejected votes for which he gave reasonsthat have, on inspection of votes from four booths, been found to be sound.—KARTAR SINGH v. RANDHIR & ORS. 30.: E.L.R. 37.

—S. 97 —Conditions for allowing application under section—Conduct ofElections Rules, 1961, r. 39—Instrument for Making vote—How to be used—Vote when valid. HELD : (i) Under Rule 39 of the Conduct of Elections

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Eules 1961 the elector has to make a mark on the ballot paper with theinstrument supplied for the purpose on or near the symbol of the candidate forwhom he intends to vote. The said instruments are rubber stamps fixed onsmall wooden blocks. Upon examination of these instruments it wasobvious that the rubber stamp is to be used for indicating the elector's choiceand a mark by any portion of the wooden block cannot be used as a valid markin terms of Eule 39(l)(b) of the Conduct of Elections Rules 1961. Thisconclusion is borne out by the instructions for Presiding Officers issued by theWest Bengal Government as also by the Election Commission of India.Therefore when a mark is put on a ballot paper with any part of the instru-ment other than the rubber stamp itself, the ballot paper has to be rejected.In the instant case an examination of the ballot papers showed that at least101 votes should be deducted from the votes treated by the Returning Officers,as votes for respondent No. 1, and 7 votes should be added to the totalnumber of votes said to have been polled by the petitioner. Calculated thus,the petitioner must be held to have received a majority of the votes and under s.101 of the Representation of the People Act 1951, he must be declared electedand the election of respondent No 1 must be declared void (ii) The applicationof respondent No. 1 for a further recount of the votes under s. 97 could notbe allowed because of non-compliance with the terms of that section. He hadneither given notice of his intention to give evidence within 14 days of thecommencement of the trial nor furnished the security of Rs. 1,000/- asrequired by s. 97 (2) of the Act. There was no sufficient cause for allowingthe condonation of the delay in making the application under s. 97 by res-pondent No. 1—assuming that s. 5 of the Limitation Act applied. I t wasknown to respondent No. 1 or his agents that the Returning Officers at thetime of counting or recounting had accepted as valid votes which should nothave been ordinarily accepted; but inspite of that knowledge respondent No. 1did not choose to give notice in terms of s. 97 of the 1951 Act. In the pre-mises there was no justification for condoning the delay. Inamti MallappaBasappa v. Desai Basavaraj Ayyappa & Ors (14 E.L.R. 296); Bhim Senv. Gopali & Ors (22 E.L.R. 288); Jabar Singh v. Genda Lai (AIR 1964 S.C.1200); referred to. —BIRESWAR GHOSE v. SATYA NARAIN MITRAAND ORS. 30, E.L.R. 81.

—Ss. 64, 100 (1) (d) (hi) and 101—• Votes—Recounting of—Allegationthat ballot papers were mixed up—Proof of. The petitioner, challenging theelection of the first respondent alleged that (i) bundles of doubtful ballotpapers were mixed up with bundles of valid votes of respondent No. 1 andwere counted for him {ii) one bundle of fifty valid votes of the petitioner wascounted for respondent No. 1 and (in) thirty six ballot papers were wronglyrejected. HELD : As the first two allegations had not been proved and res-pondent No. 1 obtained 711 valid votes,more than the petitioner, the thirdallegation, even if true, would not materially affect the result of the elef-;>ion.—NATHU RAM MIRDHA v. GOBDHAN'SONI, 3<\ E.L.R. 116.

—Rule 63(2)—Application for recount—effect of delay in making applica-tion—Ballot marked by elector showing preference for candidate—Smudge causedby folding of ballot paper causing mark against name of another candidate also—

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Effect on validity of vote—Tendered votes in place of votes cast by impersona-tion earlier—Recount not needed if result of election not materic lly affected—Small margin of victory of winning candidate not by itself a ground for recount—Small break in counting for bite and sup does not attract precautions mentionedin r. 60 of Rules—What may be relevant consideration for recount under Rule63(2) is not necessarily good ground for ordering recount in election petition-Issue of ballot papers simultaneously for Assembly and Parliamentary consti-tuencies—Whether adversely affects election—Does not violate equality clause inArt. 14 of Constitution—Officers below rank of Returning Officer have no powerto scrutinise and reject ballot paper—Such rejection invalid—But election willnot be set aside if on recounting of such ballots result is not found to be materiallyaffected. HELD : (i) The evidence showed, that the application for count ofvotes presented by the petitioner under Rule 63(2) of the Conduct of ElectionsRules 1961 was belated as it was presented long after the Returning Officerhad declared the result of the election. The petitioner's explanation for thedelay, could not, on the facts,, be accepted- (ii) Ballot is the seal affixed bythe elector on the hallot-pa.por indicating his choice of the candidate. Animpression or a smudge on the column of any other candidate which is notthe conscious act of the voter cannot be characterised as his ballot. Theimpression unconsciously caused by a folding of the ballot-paper has only tobe ignored and the ballot reckoned for the candidate in whose favour the can-didate has marked it. In the present case the petitioner had been unableto show that ballots marked for fcim had been counted for respondent No. 1.

(Hi) Seven voters had given tendered votes at the election as some per-sons had falsely cast votes by impersonating them earlier. But it was notpossible to know whether the original votes were all for the first respondentor for the petitioner. An inspection to ascertain that fact need be made onlywhen it was shown that the result of the inspection would affect the election.

, (iv) Ride 60 of the Conduct of Elections Rules, 1961, relates to a sus-pension of counting for an interval when the counting officers and count-ing agents may be away from the counting tables, necessitating the keepingof the ballot papers taken out of the ballot boxes in sepled packets and someprecaution for their safe custody during the interval. A transient break fora bite-and-sup while the counting officers and the several counting agents ofthe candidates remain around the tables does not require any such securityto be taken.

(v) The near-parity of votes polled by the petitioner and respondentNo. 1 war, not by itself a good ground for the Court ordering a recount.

Stepney case 4 O'M & H 31; Inayatulla Khan v. Diwanchnd MahajanAIR 1959 M.F. 58; Jabar Singh v. Genda Lai AIR 1964 S.C, 1200; C. AchuthaMenon v. Election Tribunal, Trichur 1960 K.L.T. 1252; P. Kunju Raman v.V.R. Krishna Iyer 1960 K.L.T. 1267; Laliteshioar Prasad v. Batesviar Prasad,AIR 1966 S.C. 580; referred to.

(vi) The contention that what may be relevant consideration for theReturning Officer on a motion under s. 63(2) of the Rules must be a relevant

ground for a motion for recount before the election Court could not be accepted.The motion before the Returning Officer is before crystallisation of the pollby the completion of the Result Sheet. At that stage a recount by way ofchecking the entire ballot papers would be an innocuous process. But aftermatters have gone further, after the poll has been crystallised, after a can-didate has been returned, a recount becomes a process for annulment of anestablished, fact which is a serious matter. It then requries proof of facts toshow that the return made is piima facie incorrect and unreliable. Unlesssuch facts are proved, the machinery of the Court cannot be availed of to dis-turb the return made by the competent authority. The simultaneous issueof ballot papers for the Assembly and Parliamentary constituencies wasnot shown to have caused any confusion, nor was it in violation of Art. 14of the Constitution. Kerala had the highest percentage of literacy in thecountry, and the introduction of the experiment in this State was in conso-nance with the principle of reasonable classification. In a petition under s.80 of the Representation of the People Act, 195] only the election in a parti-cular constituency can be challenged: challenge to the election in the State asa whole is barred by the section.—FRANCIS P.E. v. A.V. ARYAN ANDANR. 30, E.L.R. 136.

—Rule 63(2)—Election—Recounting—Request to Court can be made evenwhen no application made to Returning Officer under Rule 63(2) of the Conductof Elections Rules, 1961 —Smudges on ballot paper when vote clearly marled—Effect—Recount in what circumstances permissible. HELD : (i) The absenceof an application for recount under Rule 63(2) of the Conduct of Elections Rules1961 will not be a legal bar to a motion for recount in the Court trying an ele-ction petition on the petitioner proving the return to be so erroneous as to beunreliable. But in the present case the grounds on which a recount wasclaimed by the petitioner remained unsubstantiated, (ii) Jt cannot be saidthat a ballot paper with two marks against names of the candidatesis always invalid, for it must be valid if one of the marks can be shownto be the impression or smudge caused by wrong folding of the paper and mustbe counted for the candidate indicated by the voter. The general statementwithout details or particulars, that votes which were not really marked forthe first respondent had been counted as his votes was not apt to carry any con-viction. No specific instance of any ballot paper marked, for the petitioneror for the second or third respondent haying been counted for the first respon-dent had been alleged. On such vague allegations a recount could not beallowed. Dr. Jagjit Singh v. Giani Kattar Singh, A.I.R. 1966 B.C. 773. Paras31 to 34; relied on. (Hi) Counting is an official act done by public officersand permission given to the candidates and their agents to be, present at thecounting table is only a factual assurance of the regular ity of that official a c t -such regularity is normally presumed in other cases. What is affordedby the law in this regard is only an opportunity to candidates or their agentsto 'watch'the counting and to 'inspect' ballot papers before their final rejection.Opportunity means only a chance and not an unfailing certsninty to avoidaccidental errors. The privilege of inspection is confined to ballot paper? thatare finally rejected and does not extend to other ballot papers. With regard

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to the latter the counting agents are given opportunities to watch their sortingand counting, utilising then presence at the counting table as best they canto point out mistakes to the counting officers for immediate correction, orto carry their objection to the Returning Officer at the hall for immediaterelief or to avail of their note* on such mistakes in an application for recountunder Rule 63(2) even after the total number of votes polled by each candi-date has been announced at the end of each counting. The petitioners pleaof want of satisfactory facilities to oversee the counting was therefore T-.otestablished. Dr. Jagjit Singh v. Giant Kartar Singh, A.J.E. 1966 S.O. 773;Bam Sawalc Yadav v. Hus^ain Kamil Ridwai A.I.R. 1904 S.C. ;249.—T.P.SEETHABAMAN v. K. SEKHARAN NATR i N D OR? ?0. E.L.R. 242.

Counting supervisor whether has authority to reject ballot papers. HELD:The function of counting supervisors and assistants was to sort out doubtfulpapers whether they were really invalid or not for inspection scrutiny anddecision of the Returning Officer; and it was for the Returning Officer to decidethe validity or invalidity of those papers and count them accordingly. Therejection of a ballot paper can be done only by the Returning Officer. Thepetitioner had not established by evidence that in the present case the countingsupervisors and not the Returning Officer had rejected the ballot papers.—SEETHURAMAN T.P. v. K. SEKHARAN NAIR AND ORS. 30, E.L.R.242.

Art—14.—Two ballot papers simultaneously given for assembly andParliamentary constituencies—Whether procedure violates Art. 14 of the con-stitution. HELD : (i) I t could not be accepted without proof that the issue of theballot papers to record votes for the Assembly and for the Parliament couldhave caused any confusion to anybody. It was also difficult to imagine howsuch a general confusion could have prejudiced the petitioner as against thefirst respondent, (ii) There is no prohibition on the issue of two ballot papers,one for the Assembly and one for the Parliamentary election. Reasonable classi-fication is an integral part of the doctrine of equality, and the fact that Keralahad a reputation for its high percentage of literacy and high standard ofgeneral political consciousness justified the first introduction of the experi-ment i» the State SEETHARAMAN T. P. v. K. SEKHARAN NAIR,OTHERS., 30, E.L.R. 242.

Recount of votes when permissible—HELD : A demand in an electionpetition for a recount of votes on the ground of improper reception or rejectionof ballot papers should be made at the earlier stage of the trial after layingproper foundation by evidence or prima facie proof that there was an error inreception or rejection of ballot papers. —GAJADHAR v. CHUNNILAL SINGHAND OTHERS, 31 E.L.R.l.

: \ ——Plea for recounting of voles—when such plea permissible—The presenceof some officers as Extra Assistant Commissioners on'deputation by theReturning Officer for helping the Assistant Returning Officer forcounting of votes under Rule 53(a) of the Conduct of Elections Rules had to betreated as valid. Jagan Nalh v. Jaswant Singh and Others, A.I.R. 1954, S.C. 210;Jabar Singh v. Gendalal, A.I.R. 1964, S.C. 1200; referred to. A plea in anelection petition for recount of votes is sustainable if the petitioner makesout a prima facie case that had the ballot papers been properly scrutinised and

25

counted he would have got a majority of votes. The fact of a narrow majorityof votes in favour of the respondent alone cannot in any event go to prove thatthing were manipulated in a manner not in conformity with the law and therules. If the petitioner had any grievances, he ought to have prayed for recountof the votes before the Returning Officer under Rule 63 of the Rules. If he hadmade such a petition, and if it was wrongly rejected then the Court mightconsider whether the prayer for recount should be allowed or not.——BAHARUL ISLAM v. KAMINI MOHAN SARMA AND OTHERS. 31E.L.T.351.

—100{l){d){iii)—Implication of—Recounting of votes—when and how farit can be granted. HELD : On the averments in the petition, it was not possibleto grant a general recount of the votes; only a scrutiny of rejected votes in sofar as the votes which should have been taken to be in favour of the petitionerwere wrongly rejected and were wrongly held to be invalid by the ReturningOfficer could be allowed. It is well-settled that no party, particularly in anelection petition, can be permitted to travel beyond its pleading and thatb \;ng so, if at all, and if the averments in the petition and the evidence onreco. justify it, the question of recount of rejected votes is permissibleunder section 100(l)(d)(iii); so far as the reception of votes alleged to be void isconcerned, no order for a general recount of the votes which were cast at thetime of election in a particular constituency could be ordered. Jabar Singhv. Genda Lai, A.I.R. 1964 S.C. 1.20D; referred to. -JASHBHAI CHUNIBHAIPATEL v. ANWERBEG A. MIRZA 32, E.L.R. 1.

—Inspection of—Election petition—must contain particulars of ballot papers—Secrecy of ballot paper not violated by noting number at the time of rejection.HELD » An order for inspection of baliot papers cannot be granted to supportvague pleas made in the petition not supported by material facts or to fishout evidence to support such pleas. A candidate who seeks to challengean election on the ground that there has been impropar reception, refusal orrejection of votes at the time of counting has ample opportunity of acquaintinghimself with the manner in which the ballot boxes were scrutinisedand opened and the votes were counted. It was possible for the petitioner todefinitely sat out which particular ballot paper was wrongly rejected orcast in favour of any particular candidate and why it was wrong. The state-ments made by the petitioner in this case did not bear any specific referenceto any particular ballot paper. The inspection of ballot papers can only follow ifdefinite particulars are mentioned in regard to the billoo papers called inquestion in the petition.

(ii) Noting of the serial number of the ballot paper is prohibited only asthe time of issuing of the ballot paper. There can ba no violation of the secrecyof the ballot if the number of the ballot paper is noted down at the time of rejec-tion of the ballot paper while counting.

Ram Sewah v. H. K. Kidvai, A.I.R. 1964 S.C. 1249; Jag jit Singh v. KartarSingh, A.I.R. 1966 S.C. 773; Ganji Veerappa v. Siddaveerappa, E.P. 5 of 1967(Mys); Bhim, Sen's case 22 E.L.R. 288; referred to.—MAYANNA D Tv. Y.K. RAMAIAH AND ANR. 32, E.L.R. 17.

26

—Inspection, scrutiny &nd recounting of—Circumstances in which court willorder—particulars to be pleaded. HELD: An order for inspection scrutiny andrecount of ballot papers cannot be granted as a matter of course. In order tojustify an order for inspection, scrutiny and recount two conditions have to besatisfied, viz., (a) the election petition must contain an adequate statement of thematerial facts on which the petitioner relies in support of his case; and

' (b) the court has to be prima facie satisfied that in order to decide the disputeand to do complete justice between the parties, inspection of ballot papers isnecessary. The petitioner has to make out a prima facie case that an order forinspection is necessary in the interests of justice in order to decide the dispute.It is not sufficient if the election petition contains a vague plea that invalidvotes have been improperly accepted or valid votes have been improperlyrejected or that the counting and examination of votes wa.s done in a veryirregular manner; the petitioner ought to plead the nature of the objectionsraised by him or his election agent and the ballot papers to which those objecrtions related.

In the present case the petitioner had not given in his election petition^ 4serial numbers of the ballot papers which according to him were imprc^received. The petitioner had not stated that he and his counting agentsno opportunity to examine the ballot papers. In all the circumstances the prayerfor inspection, scrutiny and recount must be rejected.—SRIKANTIAH A.C.v. B. DADDABORE GOWDA AND QRS. 52 E.L.R. 52.

Inspection and recounting of.—Prima facie case to be made out givingparticulars—Returns—irregularities in the filing of—if materially affects the.election. HELD : (i) At every stage in the process of counting the countingagents and the extra counting agents have opportunity to watch the progress ofcounting, or inspecting the doubtful votes making their representation, and offinally demanding recount if they are not satisfied with the method of count-ing. The doctrine is that the acts of the officer of election within the scopeof his authority are presumed to be correct. Therefore it is necessary to allegeand prove that their official acts are knowingly wrongful, malicious and cor-rupt. In the instant case it was clear from the evidence that the officers ofelection had discharged their duties as required by law.

(ii) The provisions in the statute prescribing specific duties of these offi-cers are directory unless the acts prescribed are in their nature essential forthe validity of the election. In an election the returns are prima facie evidenceof the truth of their contents. But the presumption so raised may be rebuttedby proof that they are fraudulent and fictitious to such an extent as to renderthem unreliable. Merely because some of the columns are not filled up, thealterations are not initialled, the figures are corrected or interpolated, wouldnot justify the rejection of the entire form if it is otherwise proved by legaland competent evidence. The defect may be remedied by oral proof and thedocuments so corrected will be competent evidence of the result of the election.Thei alleged mistakes and errors committed by the election officers in theirreturns cannot be said to have affected the result of the election in any way.

(iii) The petitioner had not made out any prima facie case either for ins-pection and scrutiny or recount. An order for inspection, scrutiny or recount

27

is not a matter of right. I t would be ordered only if the petitioner makes out aprima facie case giving specific instances with reference to particular pollingstations and the nature and numbers of ballot papers rejected.

The Taunton case, 2 O'M. & H. 66 at 74; Srinivasan v. Election Tribunal,Madras, 11 E.L.R. 278; Woodward v. Sarsons 1875 L.R. 10 C.P. 733; TheEastern Division of Clare Case 4 O'M. & H. 162; Islington, Division Case,5 O'M. & H. 120; Jagjit Singh v. Kartar Singh, A.I.R. 1966 S.C. 773; RamSewaJc v. H. K. Kidwai, A.I.R. 1964 S.C. 1249; referred to.—K.T. KOSALRAMv. DR. SANTHOSHAM, 32, E.L.R. 69.

_&?.—81(3), 83(l)(a), 100(l)(d)(iii), 101, 102,—Conduct of Elections Rules1961, Rule 93—Election by a narrow margin of votes—Order for inspection andrecount of votes requirements of —Allegations against Returning Officer that hehelped the Respondent "in all possible manner" and "in various manners"—•Whether allegations are vague—Whether sufficient grounds for an order for inspec-tion and recount of votes, HELD : The result of an election due to a narrowmargin of votes is not a sufficient ground to order an inspection or recount ofballot paper. To enable the Court to issue such an order two conditions must besatisfied, (1) there should be a prima facie case and (2) sufficient particulars ofthe grounds which form the basis for the demand for an inspection and recountof votes must be given. It is not permissible under the law to inspect the ballotpapers at large about which there are no allegations and about which no parti-culars have been given in the petition. Ram SewaJc Yadav v. Hussain KamilKidwai and Others, AIR 1964 S.C. 1249; Dr. Jagjit Singh v. Giani Kartar Singhand Others, AIR 1966 S.C. 773; Madhu Singh Mulch Ram v. Ram Saran ChandMittal and Others, A.I.R. 1966 Punjab 66; Brij Sunder Sharma v. Shri RamDutt and others, AIR 1964, Rajasthan 99; Shim Sen v. Gopali, 22 E.L.R. 288;referred to. HELD further that the contentions of the petitioner that theCounting Assistants and Counting Supervisors helped the first respondent "inall possible manner" and "in various manner" and that the Returning Officerdid not comply with the rules correctly and that the petitioner or his agentswere not allowed to inspect the ballot papers at the time of counting, wereextremely vague and unless particulars were given about the allegations, thepetitioner was not entitled for an order for an inspection and recount of ballotpapers.—SHAMSHER CHAND v. PARKASH CHAND AND OTHERS, 32,E.L.R. 97.

Allegation of tampering with ballot boxes —requirement of law beforeopening theboxes for counting. HELD: (i) Under the provisions of the Act andthe Rules and directions issued by the Election Commission it was the dutyboth of the parties and the Returning Officer, before any ballot box wasopened for counting, to notice with scrupulous care that there were no externaltraces raising suspicion that the contents of the ballot boxes had been meddledwith. If any candidate or his counting agent raises any objection in respect ofthe outer seals, that they are either damaged or lost, if the inner seal is foundintact, the objection cannot prevail and the counting shall be proceeded with.Any discrepancy between the earliest information of the Returning Officerto the Collector as to the number of votes polled and the later informationgiven on the basis of actual counting, cannot raise any inference of tamperingof ballot boxes.

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(ii) There is always a presumption that the rules have been duly followedin regard to counting of votes by the Returning Officer, unless particularinstances of non-compliance are specifically pointed out. If the petitioner failsto give any material facts or details with regard to the alleged improper rejec-tion or acceptance of votes by the Returning Officer, merely on the basis ofvague allegations, the petitioner is not entitled to a recount —VASIREDDYJAGANNATHAM NAIDU v. V.N. APPALA NAIDU AND ANOTHER 32E.L.R. 253. • ' '

CONSTITUTION

CONSTITUTION OF INDIA—ART 226—Whether High Court has discretion toentertain writ petition and grant relief even if alternative remedy available.HELD : High Court has discretion in appropriate cases to entertain aPetition under Art. 226 and to issue a writ of certiorari or make othersuitable orders, even if there are other alternative remedies.

K. KamarajaNadarv. Kunju Thevar, A.I.R.1958 S.C. 687; relied upon-Veluswami v. Raja Nainar, A.I.R. 1959 S.C. 422, 429; A. Sanjeeva Reddi vG.C. Kondaya, 1960; (1) An. W.R. 166; Collector of Monghyr v. Keshav PrasadA.I.R. 1962 S.C. 1964, 1703; referred to.—K BRAHMANANDA REDDY vTHE MEMBER, ELECTION TRIBUNAL HYDERABAD & OTHERS 24E.L.R. 196.

-Article 190(3)—Resignation of seat in the Assembly when tales effect-^.„„,.„„ ^ .«^ v^ / „„„„, .™™.,, vj WWL, v,v w«/ ^ M C T K W J wiusii tunes ejjecr,—

"Addressed to the Speaker"—meaning of. HELD : I t is open to a member ofthe legislature to tender his resignation on a prior date to take effect on a sub-sequent date specified therein. If the letter of resignation is expresslymade to take effect on a specified day, the seat would consequently becomevacant on such specified day only and not immediately on its receipt by theSpeaker. The expression "addressed to the Speaker" in Article 190(3) meansconveyed to the Speaker and not mere naming of the Speaker M KUNJUKRISHNAN NADAR v. THE SPEAKER, KERALA LEGISLATIVEASSEMBLY AND ORS. 26, E.L.R. 25.

Art. 226—Whether writ under article 226 can be sought against Elec-tion Commission after Tribunal has decided on the order passed by the ElectionCommission under section 86 of the Act. HELD : (See Election Petition De-posit of security) PARTAP SINGH KAIRON, S. v THE ELECTIONCOMMISSIONER AND ORS. 26 E.L.R. 60.

• Art. 133(l)(c)—Petition under Art. 226 challenging proceedings be-fore Election Tribunal—Petition allowed and Tribunal ordered to try petitionaccording to findings of High Court Petition under Art. 226, whether'civil proceeding'—Order of High Court whether 'final order'—Certificate Art.133(l)(c) whether can be granted against such order. The petitioner filed anelection petition against the first respondent questioning the latter's electionto the Madhya Pradesh Legislative Assembly at a bye-election held in May1963. In his election petition the petitioner made allegations of corrupt prac-tices committed by the first respondent and in support thereof he filed anaffidavit sworn before the Clerk of the District Judge's Court. An ob-jection was taken against this affidavit on the ground that it did not complywith the mandatory proviso to s.83(l) in as much as it was not sworn before

29

any of the authorities mentioned in 394-A of the Conduct of Elections Rules,1961. It was prayed before the Tribunal that in the absence of a properaffidavit the Tribunal should order the allegations of corrupt practices to bestruck out. The Tribunal found the affidavit to be defective, but'allowedthe petitioner to file another affidavit. The first respondent thereupon fileda petition under Arts. 226 and 227 of the Constitution, before the HighCourt which was allowed, the High Court holding that the proviso to s. 83(1)was mandatory and when the affidavit filed with the election petition wasdefective, the Tribunal had no power to allow another affidavit to be filed.The petitioner thereupon applied to the High Court for a certificate underArt. 133(l)(c) to enable him to file an appeal to the Supreme Court, but thiswas opposed on the ground that proceedings under Art. 226 were not 'civilproceedings', and the order of the High Court was not a 'final order'.

HELD : (i) The expression 'civil proceeding' has been used in Art. 133in a wide sense so as to cover any proceeding of a civil nature in the HighCourt whether in its original, appellate, or revisional jurisdiction. The termhas been in contradistinction to the term 'criminal proceeding' in Art. 134.Generally speaking any proceeding, taken for establishing or disputing a civilright or a 'statutory right of a civil nature' would be a civil proceeding forthe purpose of Art. 133.

In the present case the first respondent sought to enforce his statutorycivil right of having the allegation about corrupt practices made by peti-tioner in his election petition struck out because of the failure to file anaffidavit required by the imperative terms of the proviso to a. 83(1) and r.94-Aof the Rules. Thus the proceedings under Art. 226 in respect of which thecertificate under Art. 133 was sought were 'civil proceedings' within themeaning of that Article.

(U) In exercising its power under Art. 22*6 of the Constitution the HighCourt exercises original jurisdiction and a petition under that Article is nota continuation of the proceeding before an inferior tribunal or authority.This being the nature of the proceeding under Art. 226, the finality of theorder of the High Court must be determined with reference to the effect ofthe order on proceedings in the High Court itself and not with reference to itseffect on proceedings before the inferior tribunal.

The order of the High Court in the present case finally disposed of theoriginal proceedings in the High Court under Art. 226 of the Constitution andput an end to those proceedings. It was therefore a 'final order' within themeaning of Art. 133(1) (c) of the Constitution.

Hussain Kamil v. Ram Sewak. A.I.R., 1964 All, 86; Bhaskarrao v. C. V.K. Rao (A.I.R. 1964 A.P. 77); Chengalaraya v. Pattabhai, A.I.R. 1964 A.P.1964; Mahesh Prasad v. Manjay Lai, A.I.R. 1964 Pat. 53; Satish Kumar v.Election Tribunal, A.I.R. 1963 Raj 157; Chunilal Mehla v. C.S. & M. Co.Ltd., A.I.R. 1962 S.C. 1314; Slate 'of Uttar Pradesh v. Vijay dnand, A.I.R.1963 S.C. 946; Sia'x ofOrissa v. Madan Gopal, A.I.R. 1952 S.C 12; .V. P. Ponnu-swami v. Returning Officer, Namakkal A.I.R. 19t>2 S.C. 64; Collector of Monghyrv. Pratap Singh, A.I.R. 1957. Pat. 103; Jethanand & Sons v. State of U. P.,

73MJ(D)1213EC—5

30

A.I.E. 1961; S.C. 794, S. KuppuswamiRaov. The King, 1947, F.C.R.1800 A.I.R.1949 F.C.I, Ram Chanel Manjimal v. Goverdhandas Vishindas, A.I.E. 1920P.C. 86; Abdul Rahman v.D.K.Cassirn & Sons A.I.R. 1933; P. C.,S8; SouthernRoadways (P) Ltd. v. P. M. Veeraswanii, A.I.E. 1964 Mad. 194; referred to.

KAMAL NARAINSHARMA v. DWARKA PRASAD MISHEA& OES. •26, E.L.E. 382.

Art. 173 Prescribed oath or affirmation—when required to be made—The qualification of a candidate to fill a seat in terms of Art. 173 of the Consti-tution has to be inquired into with reference to the date fixed for the scrutinyof nomination papers, and consequently, it is on that date that the require-ments of Art. 173 as regards oath or affirmation must be satisfied. It is notcorrect to suggest that a nomination paper which is unaccompanied with therequired oath or affirmation is an invalid nomination. In the present case theappellant's oath was made before the scrutiny of the nomination. Therewas thus no non-compliance with Art. 1973 of the Constitution. HAEI-RAMSINGH v. KAMTA PRASAD SHARMA, 2 E.L.E. 44

ARTICLE 324 Power of Election Commission under—(See ElectionCommission, Powers of.) SHIEOMANI AKALI DAL & OES. v. THEELECTION COMMISSION OF INDIA & OES. 29, E.L.E. 53.

Articles 326, 327—"Adult" meaning of; Held—The word 'adult' in theopening words of Art. 326 of the Constitution does not necessarily mean aperson who is not less than 21 years of age, but means a person who isgrown up and has reached maturity. The opening words cannot thereforebe construed to mean that the right to vote is conferred on every person wholias attained the age of 21 years on the qualifying date. The operative partof the Article beginning from the words 'that is to say' makes it clear that thepersons who satisfy these conditions are entitled to be registered as voters atthe election. The concluding words of the section are 'shall be registeredas a voter at any such election', and not 'shall be entitled to be registeredas a voter and to vote at any such election'. It would thus seem that thefurther question as to the manner in which the vote actually east at the pollby any person who is registered as a voter is to be challeneged is left by theConstitution as a matter for legislation by Parliament under Art. 327 and bythe State Legislature under Art. 328. If that is so the omission to makea provision in s. 62 of the 1951 Act to any supposed invalidity of a vote onaccount of lack of qualification as specified in clause (a) or clause (b) of s. 19of the 1950 Act must be given its full significance.

There is thus nothing in Art. 326 of the Constitution which would enablethe High Court while hearing an election petition to declare the election ofa returned candidate void on the ground that certain persons who hadvoted at the election had not attained the age of 21 years on the qualifyingdate.

P. Kunhiraman v. V. R. Krishna Iyer, A.I.E., 1962 Kerala 190 dissentedfrom; Ghulam Mohiuddin v. Election Tribunal for Town Area Sakit and,Anr A.I.E. 1959 All. 357 followed.

31

P. Kunhiraman v. V. R. Krishna Iyer (AIR 1962 Kerala 190); BrijendralaGupta and another v. Jwalaprasad and Others (AIR 1960 S.C. 1049); N. P.Ponnuswamiy.The Returning Officer, NamaJckal Constituency, NamahhalSalem District and others (AIR 1952 S.C. 64 at page 68); Hari VishnuKamath v. Ahmed Ishaque and others (AIR 1955 S.C. 33 at page 238);Ghulam Mohi-ud-din v. Election Tribunal for town area Sakit and another(AIR 1959 All 357); Jujhar Singh v. Bhairon Lai and others (7 E.L.R. 457)Ramdayal Ayodhyaprasad Gupta v. K. R. Patil and others (20 E.L.R.

13). Mubarak Mazdoor v. Lai Bahadur (20 E.L.R. 177); B. M. Ramaswamyv. B. M. Krishnamurlhy mid others (AIR 1963 S.C.458); referred it.

I t seems that when by the Representation of the People (Amendment)Act, 1966, the High Court was given the jurisdiction under s. 100, the con-sequential amendment was by inadvertance not made in s. 30 of the 1950Act and it must be held that there has been implied modification of s. 30 ofthe 1950 Act. ROOP LAL MEHTA v. DHAN SINGH, 29, E.L.R. 113.

Art. 191(2)—Deputy Minister whether a Minister for the purpose ofArt. 191(2)—HELD : Parliamentary practice and legislative enactment inthe Centre as well as in the States have never made any distinction betweenMinisters and Deputy Ministers in the matter of conduct of business or spea-king in the legislature. Deputy Ministers are included among Ministers asthey perform similar functions and are under similar obligations. I t musttherefore be held that the respondent who was holding the office of DeputyMinister did not incur any disqualification by reason thereof from beingnominated or becoming a member of the Assembly, under Art. 191(l)(a) ofth» Constitution. SHRIRAM HARIBHAU MANKAR v. MADHU-SUDAN ATMARAM VAIRALE--29, E.L.R. 171.

[ See also DISQUALIFICATION OF CANDIDATES ]——CHIEF ELECTORAL OFFICER, APPOINTMENT OF.

Validity of whether Art. 324(4) of the Constitution contravened—Chief ElectoralOfficer for Stales appointed by Chief Election, Commissioner for India inconsultation with the State Government—

rinltnent of Government servant as such officer-•whether affects im-partiality of elections. HELD : Under the scheme of the Constitution Govern-ment servants whose conditions of service are regulated by Part XIV ofthe Constitution are expected to act honestly, efficiently, and independentlyof the party in power. If (hoy do not act in consonance with these principles,their actions would be exposed to public criticism and subjected to scrutinyin the Parliament or the State Legislative Assemblies as the case may be.The Constitution does not prohibit the employment of Government servantsin matters concerning elections. I t is impossible for any Election Commissionto enlist a complete service of its own to work for it, and consequently theConstitution relied on the ordinary officers of the Government temporarilvplaced at its disposal. The further safeguard against any possible allega-tions of partiality or unfairness is the conferring of jurisdiction on an inde-pendent judicial body namely, the High Court or the Supreme Court, toadjudicate on the merit > of the cases arising under the electoral law, whichjs certainly beyond the reach and influence of the Government of the day.

32

There is no conflict between s. 13-A of the Act of 1950 and s. 20 of theAct of 1951 on the one hand and Art. 324(4) of the Constitution on theother. That Article vests a discretion in the President to appoint RegionalCommissioners in consultation with the Election Commission. There neednot be any law enacted by Parliament for the appointment of Regional Com-missioners for the Constitution itself vests that power in the President. How-ever there is nothing to prevent Parliament in exercise of the powersander Art. 327 to enact a law relating to or in connection with the elections,which law can create or brings into being such sub-ordinate agencies for thepreparation of electoral rolls, the delimitation of constituencies and in res-pect of all matters necessary for securing the due constitution of the Houseof the People or the Houses of the Legislatures of States. This provisionread with item 72 (List I) of the Seventh Schedule empowers Parliamentto enact the impugned provisions. Section 13-A of the Act of 1950 and s.20 of the Act of 1951 are not therefore ultra vires— GOPARAJU RAMA-CHANDRA RAO ALIAS GORA v. THE ELECTION COMMISSIONER OFINDIA AND ORS. 29, E.L.R. 35.

—MAHARASHTRA ADAPTATION OF LAWS—(—States andConcurrent Subjects) Order, 1960 effect of—s. 13 whether a law passed by theLegislature of Maharashtra State is within the meaning of s. 88 of the BombayReorganisation Act—(See INTERPRETATION of STATUTES)—SHRIRAMHARIBHAU MANKAR v. MADHUSUDAN ATMARAM VAIRALE. 29,E.L.R, 171.

Art. 101 (2)—Prohibition of Simultaneous Membership Rules, .19 iO —Election to the State Assembly of Jammu and Kashmir and also to the House ofthe People—-Commencement of time for submitting resignation of Assembly seat.

S. 50 (Act 43 of 1950) and Conduct of Elections Ruls, 1960, rule 91—Applicability of—Quo Warran'o writ of—Jurisdiction of Court to test validityof Election to Parliament.

HELD '• Respondent 6 was elected both to the Legislative Assembly ofJammu and Kashmir and also to the House of the People. The resultof the election for the Assembly was declared on 26-2-1967 and of electionto Parliament on 28-2-1967. In regard to the Assembly Constituency the declara-tion that respondent 6 was elected was published in the Official Gazette ofthe State on 6-3-1967. The declaration that he was elected to the House of thePeople was published in the Government of India Gazette dated 12-4-1967.As he could not retain both the seats he filed his resignation from the Assemblyseat on 7-3-1967 under s. 79 of the Jammu and Kashmir Representation of

' the People Act, 1967 by a letter addressed to the Chief Electoral Officer. On18-3-1967, he addressed a letter to the Speaker of the Assembly stating thathe proposed to retain hiss i t in the House of the People and also makingreference to his letter of 7-3-1967 to the Chief Electoral Officer. The Speakeraccepted the resignation of the respondent. The petitioners sought a writof quo warranto restraining the respondent from functioning as a Memberof the House of the People. It was urged that the respondent did not submitits resignation to the competent authority on 7-3-1967 and therefore his

33

resignation Was not a valid resignation; that the letter which he wrote to theSpeaker on 18-3-1967 purporting to be his resignation from membership ofthe Assembly was beyond time and therefore it could not be validly acceptedby the Speaker and therefore the respondent not having resigned in accor-dance with the law, his seat in the House of the People fell vacant by ope-ration of law. The respondent contended that the only provision whichgoverned his case was Article 101 of the Constitution and the Prohibition ofSimultaneous Membership Rules, 1950, made thereunder hy the President,and that as the publication of the declaration that the respondent was chosenas Member of Parliament was made on 12-4-1967, so, at any time before theexpiration of 14 days from that date he could resign his seat in the Assembly.The respondent also took objection to the maintainability of the petition asParliament and the Election Commission were beyond the territorial limitsof the High Court. HELD : A writ of quo warranto could be issued againstrespondent 6 who was a permanent resident of the State. He might have to goto Delhi to attend Parliament but that would not take away his status asa permanent resident of the State. A writ of quo warranto would lie to testthe validity of elections to Parliament. Section 70 of the Representation ofthe People Act and rule 91 of the Conduct of Elections Rules had no applicationto the case of the respondent which fell under Article 101(2) of the Consti-tution. The only rule which covered the respondent's case was rule 2 of theProhibition of Simultaneous Membership Rules. In the present case thenotification showing the name of respondent 6 having been elected to theHouse of the People was issued on March 4, 1967 whereas the State Gazettepublication of the respondent's election was made on 6th March, 1967. Thisdate being later the time will commence from that date for submittingresignation from the Legislative Assembly of the State. The resignationwas submitted within 14 ays from 6th of .March, 1967. The intention ofthe respondent had to be gathered from what he had stated in his letterstogether with attendant circumstances. There could be no doubt thatthe words used by respondent 6 showed that he tendered his resignationfrom the membership of the Legislative Assembly. —ALI MOHAMMADTARIQ AND OTHERS v. ELECTION COMMISSION OF INDIA ANDOTHERS, 31, E.L.R. 142.

CORRUPT PRACTICE

CORRUPT PRACTICE—(1) GENERAL PRINCIPLES.' ss. 78, 79(6) 100(l)(d)~123, sub-ss (1) to (7)—corrupt practices—standard of proof.—The commissionof a corrupt practice by a returned candidate not only vitiates his election,as provided by the Act, but also attaches to him a number of other incapa-cities, in addition, some of the corrupt practices are also made offences and arepunishable under the provision of Chapter IXA of the Penal Code. Havingregard to the grave consequences emanating from the commission of corruptpractices the proof to be produced in support of a charge should be sufficientlyclear and unequivocal. Suspicion alone is not sufficient. However, theElection Tribunal or a court investigating into the truth of the charge is notbound by the strict practice applicable to criminal cases and may even actupon uncorroborated testimony if it conforms to established standards as

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to weight and sufficiency. Harish Chandra Bajpai v. Triloki Singh, AIR1957 S~C. 444; Tauntm's case. (Wigan, 2 0. & H.'l92); II. Narasimha Reddyand another v. Bhoomaji and another. AIR 1959 Andhra Pradesh 111; AhmedmiyaSherumiya Shaikh v. Chhipfa Ibrahim, Nuraji and others, 17 E.L.R. 218referred to. SANGAPPA v. SHIVAMUKTHISWAMY, 23, E.L.R. 51.

• Inference of consent to commit corrupt practice from, evidence whethera mixed question of law and fact —concurrent finding of fact—whether conclu-sive. An election petition was filed by an elector challenging the election oftwo successful candidates on the grounds, inter alia, that the nominationpaper of the appellant was wrongly rejected and that during the election,a corrupt practice, was committed by the successful candidates in that voterswere carried in mechanically propelled vehicles to the polling booths. Onthe first ground, the appellant's contention before the election tribunal wasthat as his sentence was remitted by the State Government under s. 401 ofthe Code of Criminal Procedure and in effect the period of the sentencewas reduced to less than two years, he could not be said to suffer froma disqualification under s. l(b). The election tribunal held that the appe-llants nomination paper was improperly rejected and set aside the electionbut the High Court took a' contrary view and dismissed the election peti-ion. Both the courts found that the corrupt practice alleged was not

proved. On appeal to the Supreme Court. HELD : The only question in thepresent case was whether the corrupt practice alleged was committed with theexpress or implied consent of the candidates. Whether such content couldbe inferred from the evidence was a question of fact and not one of mixedfact and law and was concluded by the concurrent findings of the two lowercourts. Sri Meenakshi Mills 'Ltd., Madurai v. Commissioner of Income-taxMadras, 1956 SCR 691 - AIR 1957 SC 49, referred to.—SAEAT CHANDRARABHA AND OTHERS v. KHAGENDRANATH NATH AND OTHERS,23, E.L.R. (S.C.) 125.

Objection regarding lack of particulars in election petition—Whento be taken. HELD: There was no justification for the grievance thatsufficient particulars of the corrupt practice were not given by the appellant.After the evidence was led by the appellant, the respondent knew fully wellwhat his case was and had ample opportunity to lead evidence in rebuttalthereafter. If an objection that sufficient particulars are not given is not raisedbefore going to trial, it cannot be raised at a later stage. Bahoant Singh v. Laks-hmi Narain & Ors. A.I.R. 1960 S.C. referred to.——SHRINIVAS' T.TWARIv. RUKMINI RAMAN PRATAP SINGH, 23 E.L.R. (S.C) 131.

—Representation of the People Act, 1951 ss. 100(l)(<Z) and 123(1) and (3)—Charge of corrupt practices—similar to criminal charge—nature of proof—appeal tovoters in the name of caste—"The result of election lias been materially affected"—Meaning of. HELD: I t is settled law that a charge of corrupt practcie is of a qu-ass criminal nature. Such a charge has to be proved beyond all reasonable doubt.Badri Narain v. Karndeo Prasad A.I.R. 1961 Patna 41; referred to. The Tribu-nal had rightly held on the evidence that the respondent had failed to show

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the alleged irregularities had "materially affected" the result of the election.Vashisht Narain Sharma v: DeV Chandra, A.I.R. 1954 S.C. 413, referred to.—KHAMANI SINGH v. DAU DAYAL KHANNA, 23 E.L.R. 146.

—•—Representation of the People Act, 1951, ss. 123 (2), 124—Corruptpractise—evidence of accomplices—standard of proof required. HELD: Theevidence of witnesses as regards the commission of corrupt practices wasnot of that high standard required to establish the serious charge made. Beforeupsetting an election, the court ought to be satisfied beyound doubt that theelection is void. The Tribunal had overlooked the fact that most of thewitnesses who appeared for the petitioner were not only deserters from theappellant's camp but some of them were also accomplices within the meaning ofof the Evidence Act. The Tribunal had also failed to give due weight to theinference arising out of the inaction on the part of the petitioner in bringingthe matter to the notice of the appropriate authorities at the earlier opportunity.Hilsbury's Laws of England SrdEdn. Vol. 14, P. 288; Warringtons Case; (1896)L.T.R. 813, 816; 12 E.L.R. 461, 17 E.L.R. 101. 19 E.L.R. 417;AIR 1959 M.P. 58 referred to—RAJ DEB v. SHRI GANGADHARMOHAPATRA AND OTHERS, 23 E.L.R. 213.

-Witness giving evidence of speeches given some months earlier—Considerations of accepting HELD : The evidence of witnesses deposing to theirrecollection of certain speeches made in public meetings some months previouslyand such evidence consisting of a few words taken out of their proper contextcould not be called firm evidence to show what precisely was said at thosemeetings and in what particular context. The important considerationwas that in a matter of this kind, it was not wholly safe to hold on to witnesses'recollection and so depend on the oral testimony that had been offeredto establish the precise nature of the speeches made at these meetings therebeing no record of the speeches.—KULTAR SINGH S. v. S. MUKHTIARSINGH., 24 E.L.R. 419

—•—S. 83— Proviso —• Allegation of corrupt practice— not filing affi-davit—if fatal to the maintainability of petition—SEE EJECTION PETITION (1)GENERAL PRINCIPLES—KIDWAI HUSSAIN KAMIL v. YADAV RAM SEWAK& ORS 25, E.L.R. 35.

—SS. 79 (6), 82 (b) 99 and 123—Persons withdrawingcandidature—Allegation of corrupt practices against him in election petition—whether necessary Party—whether corrupt practice alleged must have been committedby candidate in his capacity as such—HELD : A candidate who has withdrawnhis candidature also falls within the purview of s. 82 (b) of the Act.

Mool Chand Jain v. Rulia Ram, A.I.R. 1963 Pun]. 516; referred to.

If a corrupt practice vitiates an election, it matters little whether it hasbeen committed by a candidate for the purpose of advancing his own electionand in his capacity as a candidate, or for the purpose of advancing theelection of another candidate.

Aminlal V. Hunna Mai AJ-R- 1964 Punj 213 ; referred to—RAO ABHBSINGH v. RAO NIHAL SINGH, 25 E. L. R. 113.

—•—Art. 226, Petition under—whether 'civil proceeding'—see Constitutionof India—Art. 133 (1) (c)-KAMAL NARAIN SHARMA v. DWARKA PRASADMISHRA & ORS 26 E.L.R. 382.

-Indian Evidence Act, s. 47—Corrupt Practice in Election—Leafletcontaining appeal based on caste—proof of handwriting—Examination by handwriting expert, whether necessary—See Corrupt Practice—Appeal on the groundof religion etc.—BHUPENDRA NARAIN MANDAL V. E. K. NARAIN LALDAS AND ORS. 26 E.L.R. 407

Ingredients of corrupt practice under s. 123 (4)—Proof of—'Settingaside of election on ground of such corrupt practice—Difference between require-mmfs ofs. 100 (l)—flELD :' Under s. 100 (1) (b) of the Act the corrupt practicementioned in s. 123 (4) cannot render an election void unless the publicationsin question are affirmatively proved to have been made with the consent ofa returned candidate. Having regard to the language of the section it wasdifficult to envisage that the law permitted ratification of corrupt practicesor implied an express authorisation thereof after the date when the practicewas completed. Direct evidence of such consent can hardly be availableto the defeated candidate. The consent can accordingly be proved byproving facts and circumstances from which inference of consent can bedrawn.

In the present case the facts and circumstances disclosed by evidence onrecord were not sufficient to make a finding that consent of the respondentto any of the publications in question was obtained prior to their publica-tion.

Jagdev Singh v. Pratap Singh AIR ; 1965 SO 183 ; Gurunath Rady v.Seshaiak, AIR 1966 Andlua Pradesh 11; Braj Bhushan vs. Raja Anand BramaShah 22 E. L. R. 225; Harish Chandra Bajpai v. Trilohi Singh AIR 1957 SC444.—D.K. KHANVILKER v. D.N. PATIL, 30, E.L.R. 1.

—8s. 83 (1) (b), 100 (b), (d) (ii), 123 (%)— Explanation, 123 {4)—Election-Corrupt practice—Burden of proof—whether full particulars necessaryin election petition.

The petitioner challenged the election of the Respondent on the groundof corrupt practices. He alleged that the Respondent had produced a circu-lar letter dated 25th January 1967 bearing the signature of the General SecretaryMaharashtra Pradssh Congress Committee, stating that the Election Committeeof the Congress Party had decided to withdraw its support to the petitionerand that the contents of the circular were displayed on two black-boardsin a public place by the Respondent deliberately; and that the petitioner'selection was materially affected by this false propaganda. The Respondentdenied the allegations— HELD: In the matters of election petition on thebasis of mere preponderance of evidence, ordinarily it should not be held thatthe charge of corrupt practice is proved.

Jagdev Singh v. Partap Singh A.I.R. 1965, S.C. 183; Braj Bhushan v.Raja Anand Brahma Shah 22 E.L.R. 225; Harish Chandra Bajpai v. TriloJciSingh, A.I.R. 1957 S.C. 444; referred to.

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Under clause (b) of sub-section (1) of section 83 of the Act, the petitionerwas bound to set forth full particulars of corrupt practice and as full a statementas possible of the names of the parties alleged to have committed such corruptpractice.

The language of section 100(1) (b) justifies the construction that any-corrupt practice which is not committed by a returned candidateor his election agent must, to render the election void under thissub-section, be proved to have been committed by any other person with theconsent of the returned candidate or his election agent. This is so inspite ofthe fact that the person committing such practice is by reason of explanation(I) to section 123 to have acted as an agent in connection with the electionwith the consent of the returned candidate. The consent must be anteriorto the commission of corrupt practice.

Biswanath Upadhaya v. Haralal Bass, 16 E.L.E. 450; Sudhir Hendrav. Shripat Dange, A.I.K. 1960 Bombay 249; Vashist Narain Sharma v. DevGhand 10 E.L.R. 30; Gurdaspur North (sikh) Constituency, Indian ElectionCases, Vol 1, 341 (348) Hissar North {General) Constituency, Indian Electioncases, Vol. 1, 297 (304), Prannath Patnaih v. Banamali Patnail 16 E.L.R.[357;Krishnaji Bhimrao v. Shankar Shmtarcm, 7 E. L.E. 100 (117), referred to.

Abdul Majeed v. Bhargava, AIR 1963 Kerala 18 ; relied on. Biswanath v.Haralal and Others, AIR 1958 Assam 97 differed from— BAPUSAHEBBHIMRAO SALIMKHE v. GANPATRAO ANNASAHEB DESHMUKH, 30E.L.R.258.

(2) APPEAL ON GROUNDS OF RELIGION ETC.—SS. 101. 116(d) and s. 123 (1), (2), {3), (4), (5), (6) and (7f) condition precedentfor declaring another candidate elected. Whether Or. 41 r. 22 C.P.C. applies inappeals under s. 116 A. Whether corrupt practices committed under s. 123.Standard of proof. Portrait or bust of Mahatma Gandhi—• National Anthem"Vande Mataram"—whether national symbols. Picture of Gandhi, Nehru andPatel described as " Brahma", "Vishnu" and "Rudra", etc.—• whether representedreligious symbol. Mere fact of appeal by Muslims addressed to Muslims—whetheramounts to appeal on ground, of religion. Newspaper attach on ethics of rivalparty—whether by itself amounts to attach on personal character or conduct ofeach parly member. Expenditure in contravention of s. 77—whether Tribunal candetermine expenditure in the absence of particulars. HELD : A portrait or bustof Mahatma Gandhi is not a national symbol for the purposes of s. 123(3)Desai Basawaraj v. Daranhop Hasansab, 4.E.L.R, 380; Koran Singh v. Jammu-na. Singh AIR 1959 All. 427 and Ghayar Ali Khan v. Keshav Gupta, AIR1959 All. 264; referred to.

The use of the words "Vande Mataram" did not have the effect of convertingtwo pictures, in which they appeared, into national symbols, Venkataramaiah v.Naryana Gowda, 37 Mys. Law Journal 952 ; referred to.

A picture in a pamphlet showing portraits of Ghandhi, Nehru and Vallabh-bhai Patel inserted in a letter "Om" where they were described as"Brahma", Vishnu" and Rudra" together with a picture of "Bharata Mata"(in which Lord Shiva's third eys was drawn over "Tripundra") with the words

"VandeMataram" and showing the sun flag in one hand and a star and crescentin the other, did not represent any religious symbol within the meaning ofs. 123 (3).

The mere circumstance that an appeal may happen to be made by Muslimsor that it may happen to be addressed to Muslims , does not by itself make itan appeal on grounds of caste, race, community or religion.

A statement in an editorial to the effect that members of a rival politicalparty were devoid of all virtue and were only after money, did not amount toan attack against the personal character or conduct of each member of thatparty within the meaning of a. 123 (4).

An allegation of a corrupt practice under s. 123' (6) of expenditure in contra-vention of s. 77 cannot be considered in the absence of particulars of theexcess expenditure in the petition. Namsimhan v. Natesh Chettiar AIR 1959Mad. 514 and Muthiah Chettiar v. Ganesan, AIR 1960 Mad. 85 referred to.

The degree of proof required to establish a corrupt practice is the same asis required to establish a criminal offence. Harish Chandra v. Trilohi Singh AIR1957 S.C. 444; Narasimha Reddy v. Bhoomaji, AIR 1959 Andhra Pradesh 111;Gojculnanda Praharaj v. Jogesh Chandra, AIR 1959 Orissa 47 and Ban, Ram v.Smt. Prasanni, AIR 1959 S.C. 93; referred to.

The Tribunal could have declared the petitioner elected only if, as requiredby s. 101, it was of the opinion either that in fact the petitioner received amajority of valid votes or, that but for the votes obtained by the respondentby corrupt practice, the petitioner would have obtained a majority of the validvotes. The declaration of the Tribunal that the petitioner had been duly electedwithout recording the necessary opinion could not be sustained. JamunaPrasad v. Lachhi Ram, AIR 1954 S. C. 686; referred to—SHANKARAGAUDA vs.SIRUR VEERABHADRAPPA, 23, E.L.R. 1.

.SS. \00{l){d)jl23 (3)—Appeal to voters to vote for star of 'Dhruva' whichwas party symbol—whether appeal in name of religious symbol—therefore whethercorrupt practice—Considerations for determining whether a symbol is religious—Whether party sponsoring candidate is agent of candidate—Consent requiredunder S. 100(l){d)—may be expressed or implied—HELD: An appeal to thevoters in the name of 'Dhruva' was proved to have been made on the evidenceand such an appeal was an appeal to a religious symbol and constitutes a corruptpractice within the meaning of S. 123 (3).

In considering whether a symbol is a religious symbol, a Judge has notto bring to bear on the problem his individual beliefs or sentiments. What theCourt has to consider is whether there is a section of the electorate in the con-stituency in question to whom the symbol is religious, to whom the symbol hasa religious appeal, in whose mind religious sentiments or associations are attractedby that symbol.

Shubnath Deogan v. Ramnarain Prasad, 22, E.L.R. 1; Abdul Rahiman Khanv. Radha Krishna Biswas Roy, 19 E.L.R. 278; Sengappa v. Skivamurthi-swami A.I.R.l%l;Mys. 10$. ShivramSavjani v. PratapRao Deorao, 17 E.L.R.37; Rustam Satin v. Dr. Sampoomanad, 21 E.L.R. 221; referred to.

' RAMANBHAI ASHABHAl PAIEL v. DHABHI AJITKUMARFULSINHJI AND ORS., 24 E.L.R. 92.

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-—Section 83 (Proviso), Conduct of Elections Rules, 1961, r. 94-A—Affidavitin support of petition not in the prescribed form—if Petition ineffective andliable to be dismissed—Competency of Tribunal to allow filing of fresh affidavitand to condone delay. HELD: The penalty of dismissal of the election petitiondoes not attach to non-compliance with the requirement of S. 83 that the peti-tion should be accompanied by an affidavit when allegations of corruptpractices are made.

Jagan Nath v. Jaswant Singh, A.I.E. 1954, S.C. 210; Balwan Singh v.Lahshmi Narain, A.I.R. 1960, S.C. 770; relied on.

Barker v. Palmer, 1881 VIII G.B.D. 9; Edwards v. Robert, 1891, I.G.B.D-302; State of Uttar Pradesh v. Tobit, A.I.E. 1958, S.C. 414; Mallappa Basappav. Basavaraj Ayyappa, A.I.E,. 1958, S.C. 698; Harish Chandra v. Triloki SinghA.I.E. 1957, S.C. 444; Jagat Dhish v. Jawahar Lai, A.I.R. 1961, S.C. 832;State of Uttar Pradesh v. Lahshmi Ice Factory,. AIM. 1963, S.C. 399, referredto.—DANTU BHASKARAEAO v. C.V.K. RAO, 24 E.L.E. 168.

— s. 123 (3)—Posters containing appeal that every Sikh Vote should go tothe Ahali Dal—Whether appeal on ground of religion—HELD: The Tribunalhad rightly held that the appellant had published and distributed duringhis election posters containing an appeal on the grounds of religion and hiselection was therefore void.

When the appellant distributed the posters containing an appeal fromSikhs living abroad and stating : "Every Sikh vote should go to the representa-tives of the Akali Dal and we hope that this prayer of ours from far off willbe accepted by you and you will once again preserve the honour of the Panth",he was clearly appealing to the voters to vote for him as he was the true repre-sentative of the Sikh faith and there was no escape from the conclusion thatthis was an appeal to get votes on the ground of the appellant's religion.

There was no force in the contention that since both the contesting can-didates were Sikhs, there could in fact, and consequently in law, be no appealto the voters by the appellant on the ground of religion; what s. 123 prohibitsis an appeal by a candidate or by his supporters with his consent on the groundof his religion with the object of getting votes and the actual effectivenessof such an appeal in the particular circumstances of a case was hardly a materialfactor. The fact that both the candidate and his opponent belonged tothe same religion d id not make the appeal to voters on the ground of religionless effective.—KULTAR SINGH S. v. S. MUKHTIAE SINGH, 24, E.L.R.419.

— Ss. 123 (3), 100 (1) (b)—use of "Om Flag" during election campaign—whether amounts to use of religious symbol—Appeal to voters that if appellantelected Punjabi language instead of Hindi would be forced on Hariana—Whether appeal on ground of language—Whether amounts to corrupt practiceExpression 'Community' in s. 123 (3)—HELD : I t was established, on theevidence, that corrupt practices under s. 123(3) were committed by the firstrespondent or by some of the agents or supporters with his consent by making

40

use of an appeal to a religious symbol, namely, the "OnrFlag" for further-ance of the prospects of the election of the first respondent and by appealingto the electors to vote for the first respondent on the ground of his language.His election was therefore void under s. 100(1) (b).

A flag containing only the inscription "Om" becomes a religious symbolof the Hindus in general and the Arya Samaj in particular. It was established,on the facts, that the "Om Flag" was used by the first respondent in his electioncampaign.

When the party which sponsored the election of the first respondentadmittedly included the protection of Hindi language and script as a partof the electioneering programme and in his speeches the first respondent kepton emphasising that if the appellant was elected, Punjabi language would beforced on the Hariana people as the latter was an opponent of the Hindi languageand when the claims of the first respondent were based also on the prominentand active part which he had taken in the Hindi Satyagrah Movement in1957, there could be little doubt that an appeal was made to all the Hindispeaking persons to vote for the first respondent on the ground of his language,namely, Hindi and to refrain from voting for the appellant for the reasonthat Hindi was not his language.

It was not opan to the first respondent to invoke the provisions of Art.29 of the Constitution so as to contend that the provisions of s. 123(3) as tolanguage are derogatory of the fundamental rights covered by that Article,

Jamuna Prasad Muhhariya v. Lachhi Ram, 10 E.L.R. 120; relied on.

It was not s'own that an app3al was ma le to the electors on the groundsof religion, caste or community.

The people living in the Hariana region cannot be regarded as a com-munity in the sense in which that word has b3en employed in s. 123(3). Theword 'Community' in that Section must be restricted and it should be readas meaning a sectional body which exists or has been organised more or lesson the basis of fissiparous and anti-national objections. It cannot be saidthat people belonging to a particular area or region cannot ask for redressof their grievances in the matter of policy of the Government towards educa-tional, economic and other matters vis-a-vis the people inhabiting a particulardistrict or combination of districts or a geographical unit.

.Khilumal Topandas v. Arijundas Tulsidas, 22 E.L.R. 401; relied on.—PRATAP SINGH DAULTA v. JAGDEV SINGH SIDHANTI., 24 E.L.R.378. •

—•—S. 123(3)—Corrupt Practice—Scope of expression "for ami personon the ground of religion, race, caste, community or language'; HELD : The expre-ssion "for any person on the ground of his religion, race, caste, community orlanguage" in s. 123(3) distinctly lays down that the appeal to be made bythe candidate to the voters to support him should be on the ground that hebelongs to a particular religion, caste, etc.

41

On the facts, a pamphlet issued by the respondent appealing to trembersof certain castes to vote for him as their organisations supported his partydid not fall within the mischief of s. 123(3).—SANT PRASAD SINGH v.DASU SINHA, 25 E.L.E. 181.

—•—-S. 123. "Dharmakanta" whether a religious symbol. HELD: Inasking the voters to vote for 'dharmakanta' when his election symbol was'kanta' or 'balance' the first respondent was not guilty of making an appealbased on religion. If the word 'dharmakanta' was used in the brackets atthe same time it was clearly stated to be 'Takkadu gurtu'. Thus the wayin which this term was used could admit of no argument as to its meaningfor it was explained in simple words within the brackets and at the same timehad been represented by drawing the figure of the balance. The oral evidencein this regard also did not show that the dharamkanta was an object of worshipor represented certain religious sentiment so that any disrespect to it wouldbe visited with religious sanction or lead to ur.propitious results. The useof the words 'Samskruti' and 'Skhitya', in one of the pamphlets could notbe narrowly construed as intended to be applied to Hindus. These are termsof wide amplitude and in the context had been used in the widest sense. Theuse of these terms did not therefore amount to appeal based on religion. InderLai v. Inder Singh & Ors. A.I.R. 1962 S.C. 1156; K.O. Sharma v. Krishi PanditRishabkumar & Ors, 20 E.L.R. 401; Sarla Devi Pathalc v. Birendra Singh &Ors., 9 E.L.R. 20, 275; (M.P.); Kdnhaiyalal Tiwari v. Shyam Sunder Namyan Mushran, 10 E.L.R. 284; Ramanbhai Ashabhai Patel v. AjithumarA.I.R. 1963 Guj. 315, referred to.—SHANKAR RAJA & ANR. v. M. RAMREDDY & ORS. 26 E.L.R. 252.

—•—s. 123(3)—•Election petition—Publication and distribution of posterscontaining an appeal to vote for Akali Dal candidate to uphold honour of "Panth"and achieve Punjabi Suba—If amounts to appeal on ground of religion—word'Panth' used in the Pamphlet—Meaning of.—HELD: In considering the questionwhether the particular appeal made by a candidate falls within the mischiefof section 123(3), Courts should not be astute to read into the words usedin the appeal anything more than can be attributed to them on its fair andreasonable construction. In construing an election poster, it must beconsidered as a whole and is purport and effect determined in a fair, objectiveand reasonable manner. In the context where the word 'Panth' occurredin the poster and in relation to the reference made to the support of the AkaliDal party for a Punjabi Suba, 'Panth' did not mean Sikh religion. The appe-llant had been adopted as a candidate by the Akali Dal party which was recog-nised as a political party by the Election Commission notwithstanding allof its members were only Sikhs. So long as the law does not prohibit theformation of such parties and in fact recognises them for the purposes of electionand parliamentary life, the appaal made by the candidates of such partiesfor votes may if successful lead to their election and in an indirect way mayconceivably be influenced by considerations of religion, race, caste, communityor language. This infirmity cannot perhaps be avoided so long as the partiesare allowed to function though their composition may be predominantly basedon membership of particular communities or religions.

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Sardul Singh Caveeshar v. Huham Singh and Ors. 6 E.L.R. 316; BabeGurdit Singh v. Sardar Partap Singh Kairon, 1 Doabia Elec. Cases 92 (Punj),and Jagdev Singh Sidhanti v. Partap Singh Daulta, A.I.R. 1965, S.C. 183,referred to.—KULTAR SINGH v. MUKHTIAR SINGH, 26 E.L.R.(S.C.) 300.

s. 123(3) and (3A), s. 83(1), s. 99{l){a){ii), s. 100(l)(6), s. 101(6)—Conduct of Elections Rules, 1961, r. 94-^t—Indian Evidence Act, s. 47'-—Corruptpractice in election—Leaflet containing appeal based on caste—proof of hand-writing—-Examination by handwriting expert whether necessary—Form of affi-davit in support of allegations of corrupt practice—Requirement of proviso tos. 83(1) whether mandatory—Naming of candidate for hailing committed corruptpractice—Declaration of defeated candidate as elected—Conditions to be satisfied.

Againsu the first respondent it was alleged that he, his election agent,and other agents, with his consent, distributed a leaflet among voters ofthe Yadav caste asking them to vote for him because he was Yadav andnot to vote for the third respondent because he was a Brahmin.Allegations of corrupt practice were also made against the second respondent.The Tribunal set aside the election of the first respondent under s. 100(l)(6)of the Representation of the People Act, 1951, holding him guilty of the corruptpractice alleged, against him. He as well as the second respondent, werenamed under s. 99(l)(a)(ii) of the Act as persons who had committed corruptpractice during the election. However, the Tribunal declined to declareunder s. 101(6) that the third respondent was duly elected.

HELD: (i) Although the affidavits filed in support of the allegationsof corrupt practice were not in the form prescribed under r. 94A of the Conductof Elections Rules, 1961 as required by the proviso to s. 83(1) of the representa-tion of the People Act, the petitioners were not thereby debarred from agitatingthe question of corrupt practices before the Tribunal. The proviso to s. 83(1)is not mandatory.

(ii) The first respondent examined a large number of witnesses to meetthe allegations of corrupt practice against him and at no stage during thetrial was any plea taken on his behalf that for want of sufficient parti jularshe had been embarrassed in his defence. In the circumstances it could notbe held that any prejudice, much less material prejudice, had been occasionedon account of the alleged non-furnishing of full particulars in regard to thecorrupt practice alleged in the election petition and the annexures.

{Hi) The first respondent had not bean able to establish that the copyof the election petition received by him from the Election Commission didnot bear the first page and was not duly attested by the petitioner as a truecopy. The Election Commissioner had accepted the five copies of the petitionfiled along with the original petition and was satisfied that they were in order.The petition was therefore not bad for non-compliance with s. 81(3) of theAct,'

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(iv) On the evidence, the Tribunal rightly held that through the distribu-tion of the offending leaflet at different places within the constituency bythe election agent of the first respondent and therefore with his implied consent,an appeal was made to the voters belonging to the Yadav caste to vote foraim on. the ground that he was a Yadav and to refrain from voting for thethird respondent on the ground that he was a Brahmin. Such an appealmust be taken to have produced an atmosphere of hostility and acrimonyso as to promote enmity and hatred between the people of Yadav and Brahmincastes. Commission of corrupt practice within the meaning of sub-sections(3) and (3A) of s. 123 of the Representation of the People Act having beenthus established the Tribunal's order declaring the election of the firstrespondent void must be affirmed.

(v) The manuscript of the leaflet in which the communal appeal wasmade on behalf of the second respondent and the covering letter which wassent to the press were in the handwriting of the election agent of the first res-pondent had been sufficiently proved by the oral evidence of two witnesseswho had personal knowledge of his handwriting. In the circumstances ofthe case there was nothing wrong in the Tribunal rejecting the belated applica-tion filed by the first respondent for examination of a handwriting expert,and in comparing the disputed writings with the admitted writing v in thepresence and assistance of tho lawyers appearing for the parties.

(vi) The order of the Tribunal under s. 99(l)(a)(w) of the Act namingthe first respondent as personally guilty of corrupt practice was unjustified.There was not sufficient evidence to establish his liability for acts of corruptpractice committed by his elsetion or other agents. On the evidence the find-ing made against tho second respondent under s. 99(l)(a)(n) was also unjustified

(vii) The Tribunal was justified in not passing an order in favour of thethird respondent under s. 101(6) of the Act declaring him to be elected inplace of the first respondent. The difference in the number of votes wasvery large and it had not been shown that the difference was due only to thecaste appeal.

Bhagwan Datta Shastri v. Ram Ratanji Gupta, A.I.R. 1960, S.C. 200,Balwan Singh v. Lakshmi Narain, A.I.R. 1960, S.C. 770, Doe v. Sucker more5-AD&E 703, Kessarbai v. Jeihabhai Jivan, A.I.R. 1928, PC. 277, DarshanSingh v. Parbhu Singh, A.I.R. 1945 All. 67, Saurendra Mohan Basu v.Suroj Ranjan Sarkar, A.I.R. 1961, Cal. 451, Barindra Kumar, v. Emperer I.L.R.37. Cal 467, Bisseswar Poddar v. Nabadwip Chandra Poddar A.I.R. 1961,Cal. 300.—BHUPENDRA NARAIN MANDAL v. E.K. NARAIN LAL DASAND ORS. 26 E.L.R. 407.

Sec. 123 (3)—Whether poster regarding candidates participating inAkali agitation amounted to appeal in the name of religion. Held: Whether a posterpublished by the election agent of the appellant emphasising that the appellanthad joined the Akali movement and had participated in various morchas in thePunjabi Suba agitation and courted arrest in the civil disobedience movementattracted the provisions of Section 123(3) of the Representation of the PeopleAct. The impugned poster was innocuous and unobjectionable. It did notamount to an appeal in the name of religion within the meaning of s. 123(3),

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Kultar Singh v. Mukhtiar Singh AIR 1965 SO 141 ; Jagdev Singh Sidhantiv. Partap Singh Daulta AIR 1965 SO; followed.—DIDAR SINGH CHEEDA v.SOHAN SINGH AND OTHERS 27 E.L.R. 110.

X—Cow whether is symbol of religion.

HELD:— The cow may be an object of reverence among Hindus but it is not asymbol of Hindu religion, and an appeal to save the cow is not ther fore anappeal on the ground of religion or caste. N.H. Qureshi and Ors. v. State ofBihar and Ors. A.I.E. 19-58 S.C. 731; Lachhi Ram & Ors. Jamuna PrasdMuMariya and others; 9 E. L. B. 1493; Mulchariya & Ors v. Lachhi Ram & OrsA.I.R. 1954 S. C.686. referred to.-VISWANATH PRASAD v. SALAMATULLAH, 27 E.L.R. 145.

S. 123 (3)—Appeal to electors on the basis of caste and communiUyGonds' whether a caste or community. HELD : Pamphlet Ex. P-l distributed byrespondent No. 1 was an appeal by a 'Gond' to his Gond and Adiwasi brothersto vote 'for our Gond brother'. When a person belonging to a particular casteappeals to electors of the same caste to vote for "their caste brother" he appealsto them on grounds of caste. The appeal may not be expressly made orutheground of caste, but this may be inferred from the tenor and effect of the wordemployed. The Tribunal was wrong in holding that Pamphlet Ex. P-l wasnot an appeal on the basis of caste and community, and did not constitutecorrupt practice under s. 123 (3) of the Act.

Jjaohhiram v. Jamuna Prasad Mukhariya, 9 E.L.R. 149; referred to; JamunaPrashad v. Lachhiram, AIR. 1954 S.C. 686; applied; Habib Bhai v. PyarelalA.I.R. 1964 MP. 63; and Kuliar Singh v. Mukhtar Singh A.I.R. 1965 S.C. 141;distinguished. Although 'Gond' is not a caste in the sense of being an exclusivesocial class of Hindus, but in the larger sense it can be regarded as a caste,(laving regard to the object of s. 123 (3) of the Act the word 'caste' has to begiven a wider connotation so as to include the word 'Gond'. In any event Gondswould constitute a community in the sense of having several interests.—AMI-CHAND v. PRATAP SINGH AND ORS. 27 E.L.R. 135.

—S. 123 (3) ' Community meaning of—Appeal to particular community thai,the community is safe in the hands of the candidate, whether corrupt practice underSection 123 (3). HELD: The word 'community' cannot be construed in its widersense when it is used in Section 123(3), but the meaning of the word 'community,must be restricted to mean a body which has been formed, organised or hascome into existence on the basis of caste, race or religion or any other factorcontributing or leading to the division of the Nation. An appeal to the Muslimand Chamar voters that the interests of their communities are safe in the handsof the First Respondent is not a corrupfc practice within the meaning of S.123(3) of the Act.

Khilumal Topandas v. Arjundas Tulsidass A.I.R. 1959 Raj. 283; referred toMARDA B.G. v. K.R. MARDA AND ANR. 30 E.L.R. 158.

S. 123 (2) Expression of the opinion that Muslim interest only safe unierCongress Rule whether threat of interference under section 123 (2) of thz act. HELD :An appeal to Muslim voters to vote for the Congress Party and pat it in office

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again, and to the effect that the religious freedom that was given in India,was not found even in any Muslim State,thus emphasising the secular characterof our Constitution, did not come within the purview of section 123(2) of theAct. An expression of opinion does not amount to a threat or interference inthe free exercise of the right of voting within the meaning of section 123(2) ofthe Act.

BireshMismv.RamNalhSharma, 17 ELE 243; referred to—GOVINDABHAT v. D. VITTALDAS SHBTTY, 30 E.L.R. 382.

S. 123 (2)—Interference with the free exercise of electoral right by members ofMuslim Community at the peril of personal safety—whether offence under section123(2). Held: Any interference with the free exercise of electoral right by membersof Muslim community by holding out threats that their life would be difficultand at peril of personal safety if they do not support a candidate will attract theprovisions of section 123(2) of the Act. When any charge is made that in aparticular speech resort was made to appeal on communal lines or communalbasis, it had to be established beyond doubt that appeal on communal lines orcaste prejudices was made at a particular meeting or at a particular place withauthority of the first respondent or to his knowledge.

Bhagwan Datla v. Ram Ratanji, A.I.R. 1960, S.C. 200; referred to.—GAJADHAR v. CHUNNILAL SINGH AND OTHERS, 31 E.L.R. 1.

S. 123(2)-Issue of ban on cow slaughter-To come within s. 123(2)-statementsshould hold out threat of divine displeasure.—Held: Merely saying that an electorwould be committing a sin by voting for a particular party does not mean holdingout any threat of divine displeasure or spiritual censure. According to Hindureligious beliefs a man commits different kinds of sins but all sins do not necess-arily involve any divine displeasure or spiritual censure of the type contemplatedby s. 123 (2), proviso (a) (ii) of the Act. Whether slaughter of cows and bullocksshould or should not be banned is a matter of controversy regarding a particularpublic policy; and therefore whatever may kave been said in the course of theelection campaign touching that particular controversy and regarding thatparticular matter of public policy has to be considered in a commonsense wayin the light of the feelings of the people; but at the same time applying this testof commonsense approach, one must try to find out whether there was anythreat of divine displeasure or spiritual censure. In the instant case the evi-dence did not disclose any such threat. Kumara Nand vs. BrijmoJian LaiSharma, A.I.R. 1967, S.C. 808; Sheopal Singh vs. Ram Pratap A.I.R. 1965,S.C. 677; Jagdev Singh v. Pratap Singh, A.I.R. 1965, S.C. 183; Kultar Singh v.Muhhtiarsingh, A.I.R. 1965, S.C. 141; refe-ed to—GANPATRAO KALIDASRUPLA v. PALABHAI NARANDAS PARMAR 31, E.L.R. 121.

S 123—appeal to protect mother cow—not appeal on the grounds of re-ligion—Held: In an election petition the allegations of corrupt practice if mademust be clearly and specifically stated and their full particulars must be given,These requirements are of paramount importance. In the petition itself theallegations pertaining to the alleged appeal on the ground of religion orreligious symbols were absolutely vague and the evidence adduced in supportwas also equally vague. Cow is not a religious symbol. An appeal to vote forthe candidate to protect mother cow is not an appeal on the ground of religion.M,'J(D;12 1EC—6

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Lacchiram v. Jamuna Prasad, 9 E.L.E. 149; K. 0. Sharma v. Krishi PanditRishabh Kumar, A.I.R. 1960, M.P. 27; Surendra Nath Khosla and Another v-S. Dalip Singh and Ors. A.I.R. 1956, S.C. 242; referred to—UDAI BHANSHAH v, SHANKER SINGH & ORS. 31, E.L.R. 318.

• Appeal made by person holding religious position in favour of candidatewhether a religious appeal Held: The mere fact that the person who makes an ap-peal on behalf of a candidate holds a religious position does not make the appealone to religion unless the appeal itself has a religious colouring, or there is anelement of threat or persuasion of superhuman or divine displeasure or rewardin the appeal. Bhagwan Datt Shastri v. Ram Rattan Gupta and Bhagwan DattShastri v. Badri Narayan Singh II ELR 448 Ram Dial v. Sanl Lai 20 ELR 482 ;referred to—LAXMINARAYAN v. BANKATLAL, 32 E.L.R. 191.

(3) BRIBERY—Representation of the Peoples Act, 1951 s. 123—corruptpractice of bribery—standard of proof required—Accomplice evidence—reliability—Charity when amounts to corrupt practice. The election of the respondentto the Orissa Legislative Assembly was challenged by the appellant in anelection petition on the grounds that he had committed various corruptpractices of bribery by making promises of payments or benefits and in oneease of an actual payment. The Tribunal dismissed the petition. HELD: Thecorrupt practices alleged were not proved. Though an election petition has to betried in accordance with the procedure applicable to civil suits, the standard ofproof required in respect of alleged corrupt practices is the standard applicableto criminal cases that is to say, corrupt practices must be proved beyond anyreasonable doubt. The statutory requirements of election law must be strictlyobserved and though the election of a successful candidate is not to be lightly-interfered with, one of the essentials of that law is to safeguard the purity ofthe election process. Jagannath v. Jaswant Singh A.I.R. 1954 S.C. 210. referredto. It is the rule of practice so invariable and peremptory that it must be regardedas having hardened into a rule of law that the judge must be fully and expresslyalive to the need for independent corroboration in material particulars bothwith regard to the offence and the offender that one accomplice cannotcorroborate another ; and that although no doubt a previous statement of anaccomplice satisfying the requirement of s. 157 of the Evidence Act can beused to corroborate his testimony, it is not the independent corroborati onrequired, by this rule. Save in most exceptional circumstances, no Court willrecord a finding of corrupt practice on such evidence. The imminence of anelection is an important factor to be taken into consideration in decidingwhether a particular act of charity amount to bribery. Where the object of thecandidate in promising or making gifts is at the most to make himselfpopular in his constituency this cannot amount to bribery and as such does notconstitute corrupt practice.—BANKABEHARI DAS v. CHITTARANJANNAIK, 23 E.L.R. 343.

-ss.37, 82 (b), 90 (3), 90 (4), 123—Allegation that respondent offered pay-ment to candidate as inducement for withdrawal—candidate not made party—•

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Whether the expression "withdraw" in s. 123 means withdrawal before date fixedunder s. 37-if allegation of 'payment after such date amounts to charge of corruptprec'Ace against candidate receiving payynent—Whether he is necessary partyWhether non-compliance with s. 82(b) —if such defect can be cured by applicationunder s. 90 (4).-Held: (i) the right to drop out of the election, which is technicallyknown in the election law as a right of withdrawal, is inherent in the very act ofstanding for election and can be exercised by a candidate at any stage unless ifc isprohibited by any specific provision of the statute. In this view, the expre-ssion "withdraw" used in section 123 of the Act simply means dropping out as acandidate for iha elebion, no matter whether he chooses to do so befor oraftar tho data of wi:hdrawal under s. 37. Therefore, any gratification paid to acandidate to secure his withdrawal fixed under section 37 would constitutecorrupt practice.

(«) The Court cannot take such a strict view of the pleadings in an elec-tion petition so as to hold that unless specifically pleaded by the parties, it isno1; open for the Tribunal to read a thing in an election petition which could bediscovered by implication from the language of the averments made : such astrict view would have the effect of condoning the malpractices employed bycandidates in the process of election.

(in) Though unler s. 90(4) a candidate has a right by making an applica-tion :o be impleaded as a p.xrfcy to a petition, this right is not conferred toremedy the defects of the petition; if the petition suffers from some such defectthat goes to the root of the matter and it is not capable of being tried by theTribunal, then in that event no resort can be allowed to the provisions ofs. 90 (4) to remedy a defect which renders the petition liable to be dismissedundvrs. 90(3).

Rananjaya Singh v. Baijnalh Singh and Ors A.I.E. 1954 S.C. 749; Sham-rao Bishnu Parulekar and another v. The District Magistrate Thana and othersA.I.E. 1957, S.C. 23; Case No. 2 in Mr. Daveshwar Verma v. Mr. Dev RajSethi, The Indian Election Cases 1935 to 1950 by H. S. Doabia,—Vol. II, Tri-cumdas Dwarhadas v. Sir Vasantrao A. Dadhorkar and others, The IndianElection cases 1864 to 1953 H.S. Doabia Vol. I. Sultan BaJcsh and Ors. v. AbdulHumid, A.I.R. 1924, Allahabad, 134 ; Harish Chandra Bajpai and Anr. v.Triloki Singh & Am. A.I.R. 1957, S.C. 444. Jagan Nath v. Jaswant Singh &Ors., A.I.R. 1954 S.C. 210. —VAID PRAKASH v. POHUMAL, 24 E.L.R. 58.

. 123(1)(B)—Scope of 'gratification'—meaning of: Held : What was alleg-ed by the appellant in his election petition against J and Z amounted to thecorrupt practice of "bribery" within the meaning of s. 123. The scope andmeaning of the word 'gratification' as used in s. 123(1)(JB) is very wide andwill cover any return which pleases for some favour done. The explanationto the clause does not give a complete definition of the term 'gratification'and all that it does is to remove any possible ambiguity stating negativelythat the term is not restricted to pecuniary gratifications in the ordinary andsimple meaning of the term gratification ; but in addition Parliament hasfurther taken care to make it clear that the term includes "all forms of enter-tainment and all forms of employment for reward", Further the first part

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of the Explanation to s. 123(l)(b) is taken verbatim from the second explana-tion to s. 161 of the Penal Code and the meaning of the expression in bothis the same."

Gokulananda Praharaj v. Jogesh Ghandra (1959) 18 B.L.R. 76; distin-guished.

(Dua J., expressed doubts about the correctness of the view adopted byMehar Singh, J., as to the meaning and scope of the term 'bribery' as usedin reference to the withdrawal of a candidate's candidature). MOOL CHANT)JAIN v. EULIA RAM & ANR. 24 E.L.R. 358.

S. 123(1}—Request to rival candidate to withdraw from contest—offerto help him secure nomination for another election—Whether corrupt practice.Held:—An offer to a candidate to secure for him nomination in some otherelection is not an offer of gratification or bribe under s. 123(1) of the Act,and does not amount to a corrupt practice.

Behra Ram Gopal v. Dr. Ladli Prasad Tandon (Allahabad High CourtFirst Appeal No. 6 of 1961 decided on 26-3-62); Mohan Singh v. BhanwarLai, A.I.R. 1964 S.C. 1366 referred to.—RANDHIR SINGH v. RAJ NARAINAND ORS. 27, E.L.R. 79.

8. 123(1)—Provision of water taps just before the election—whether amountsto corrupt practice—The appellant was elected to the Madhya Pradesh LegislativeAssembly at the 1962 general election. His election was challenged on theground of corrupt practice within the meaning of s. 123(1) of the Representa-tion of the People Act, 1951. It was alleged that as Chairman of the StandingCommittee of the Municipality he, along with his election agent who wasthe President of the Municipality, had grossly abused his status and powerin order to unduly influence the voters of the Municipality by laying waterlines and opening some public fountains (taps) within the week precedingthe poll. The Tribunal found the oral evidence produced by the electionpetitioner in this regard to be untrustworthy, but on the admissions of theappellant and his witnesses it held that three public fountains were opened bythe Municipal Council during the relevant period. This exhibition of publiccharity according to the Tribunal could not but be viewed as a method ofcatching the votes of those who were thus obliged. The election of the appe-llant was on this ground set aside by the Tribunal. The appellant challengedthe order of the Tribunal before the High Court. In the appeal the respondent(election petitioner) also raised several cross- objections in respect of the pointsdecided against him by the Tribunal. HELD : The appellant could not beheld guilty of a corrupt practice under s. 123(1) and the Tribunal was wrongin setting aside his election.—HARIRAMSINGH v. KAMTA PRASADSHARMA, 28 E.L.R. 44.

S. 123—proof of—Gode of Givil procedure, applicability of in electionpetitions—Defendant not expressly denying allegations of corrupt practice —whether precluded from leading evidence in defence—0 8 r. 5 of Gode—-Whetherto be applied in full rigour. HELD : The High Court had given good and satis-factory reasons for reversing the findings of the Tribunal in respect of an

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alleged offer of bribe by respondent No. 1 to one of the candidates and inrespect of an alleged payment of money for including voters of one villageto vote for him. On an examination of the evidence there was no justificationfor interfering with the findings of the High Court on these issues.

The appellant had failed to prove that respondent No. 1 made statementabout his personal character and conduct or about his candidature within themeaning of s. 123(4). A corrupt practice under s. 123(4) cannot be held provedmerely on the ground that no specific denial has been made by the returnedcandidate in his written statement in that behalf. The onus to prove theessential ingredients of s. 123(4) is on the petitioner, and so it would be forhim to prove that the statement alleged to constitute corrupt practice is falseand that the essential ingredients of the section are satisfied.

Having regard to the nature of the corrupt practice which is laid downin s. 123(4) it is not possible to hold that the strict rule of pleadings prescribedby 0 • 8 r. 5 of the Code of Civil Procedure can be blindly invoked in election pro-ceedings of this type. Even under 0 • 8 r. 5 the Court has a discretion to requirea party to prove a fact although an admission of the said fact by the opponentcan be inferred by the strict application of 0 • 8 r. 5; and that is what the Tri-bunal did in the present case when it examined the arguments urged by bothsides and held that in the interest of justice it was necessary to allow respondentNo. 1 to lead evidence in rebuttal. Both the Tribunal and the High Courtconcurrently held that respondent No. 1 was not guilty of a corrupt practiceunder s. 123(4) and there was no reason to interfere with their findings.—Inder Lai v. Lai Singh (1962) 3 Suppl. S.G. R. 114 and T.K. Gangi Reddyv. M.G. Anjaneya Reddy and others 22, B.L.R. 261 referred to.—DR. JAGJITSINGH v. GIANI KARTAR SINGH & ORS. 28 E.L.R. (S.C.) 81.

Evidence of voting against party's mandate whether justifies inferenceof bribery—SEE HIQH COURT.— RAJENDRA PRASAD JAIN v. SHEELBHADRA YAJEE, 28 E.L.R. 126.

——Section 123(1)—offer of bribery—Whether must, be a specific amount toconstitute a corrupt practice—-Facts that court should take into consideration—Held: The fact that the appellant was a man of means and had no politicalbackground in Bihar could not be said to be irrelevant in considering alle-gations of bribery against him.

Emperor v. Amiruddin Salebhoy Tyabjee, A.I.R. 1923 Bom. 44;

Emperor v. Qhoube Dinhar Rao & Ors. A.I.R. 1933 All. 513;

In the matter of Balls v The Metropolitan Board of Works (1865-66) 1Q.B. Casts 337; Mohan Singh v. Bhanwarlal & Ors. A.I.R. 1964 S.C. 1366;and Union of India v. H.G. God, A.I.R. 1964, S.C. 364 distinguished.Ghatturbhuj Vithaldas Jasani v. Moreshwar Parashram & Ors. (1964)S.C.R. 817, Case No. XII of Borough of StaUybridge, (1869) I.O.S. Mallei/and Hardest Le. 97 relied on.—RAJENDRA PRASAD JAIN v. SHEELBHADRA YAJEE & ORS. 29 E.L.R. (S.C.) 96.

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—-S.iOO(i) (d)(ii)—"Extended Constructive Agency" of English law —How far applicable to Indian Law of Elections—The scope of corrupt practiceunder the Representation of the People Act, 1951 is different from that underEnglish Law where the principle of "Extended constructive agency" is reco-gnised. This principle of "extended constructive agency" is applicable toIndian law where a corrupt practice under section 100(l)(d)(&'£) is committedby a person other than a candidate or his election agent and where there hasbeen no proof of the consent of the candidate or his agent for the commissionof the particular corrupt practice and is limited to such cases where there isproof that the corrupt practice has materially affected the result.

Great Yarmouth Case, 5 0. M & H 178 Lai Singh v. Vallabhdas, A.I.R.1967 Gujarat 62; referred to.—T. NAT AR AT AN v. D. VIJAYARiJ ANDOTHERS, 30 E.L.R. 321.

—Ss. 80, 81,123— Bribery—undue influence—-Minister sanctioning grantsin the course of ordinary duties to Gram Panohiyats for works of public utilityand Harijan welfare—prior to date of his election—-Ingredients of bribery andundue influence, absence of—whether Minister liable for corrupt practices.—-Held:It is not "bribery" or "undue influence" under Section 123 of the Representationof the People Act, 1951, if a candidate in the course of his ordinary duties as aMinister sanctioned grants from his discretionary funds to Gram Panchayatsfor public utility works and Harijan welfare just a few weeks before the date ofelection; that is not prohibited by the Statute unless the evidence is reason-ably sufficient to prove that the motive of the Minister in sanctioning the grantsor promising to sanction grants was to win over the voters' sympathies andsupport in the election as consideration for promise by the electors or a sectionthereof to vote for the Minister.

Mohan Singh v. Bhanwarlal, A.I.R. 1961, S.G. 136'i; Mehar Singh v.Umrao Singh, A.I.R. 1962 Punjab 244 : Ram Phal v. Bra-ham Parhash, A.I.R.1982, Punjab 129; Balwant Rai Tyal v. Bishan Saroop, 17 E.L.R. 101 refer-red to GHASI RAM «. DAL SINGH AND OTHERS, 30, E.L.R. 344.

—•—-S. 123 (1) (A)—Inducing a candidate to withdraw from contest on anassurance that he would be supported to be elected to an elected office,—whetheramonts to a gift of offer or promise of any gratification under section 123 (1) (A)—Inducing a candidate to withdraw his candidature on an asurance by the firstrespondent that he would secure for the candidate withdrawing from the con-test, the office of President of Municipal Council, an elected office, would notamount to a gift or offer or promise of any gratification under section 123(1) (A) of the Representation of People Act, 1951.

Mohan Singh ii. Bhanwarlal, A.I.R. 1964, S.C. 1366; referred to—GAJADHAR v. CHUNILAL SINGH AND OTHERS, 31 E.L.R. 1.

—,_g. 123 (1) (a) requirement of—offer or promise of any gratification*—whether an offence under section 123 (1) (a)—scops of.— The essence of the offenceunder section 123 (1) (A) (a) of the Act stood not only in making a gift but alsowhen it is established that there was an offer or promise of any gratificationby a candidate or his agent or by another person with the consent of the candi-date or his agent. Thus even where there is an offer of a gratification, without

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subsequent payment which is made with the object of indirectly inducing theperson to withdraw his nomination, the charge can be said to be established.—GAJADHAR v. CHUNNILAL SINGH AND OTHEES, 31, E.L.R. 1.

Corrupt Practice—Onus of proof: Held—Evidence in support of corruptpractice of bribery must of necessity satisfy that test which is applied to the proofof criminal charges. In the case of evidence to prove a charge of bribery by a wit-ness who is himself involved in the offence, his position is in no way better thanthat of an accomplice; unless there is corroboration, it is difficult to accept histestimony. Proof of bribery to unseat a candidate must be clear and cogent, andshould admit of no reasonable doubt. Such proof cannot be afforded by the tain-ted testimony of a witness. The onus lies heavily on the petitioner who bringsthe charge of bribery to establish it by clear and cogent evidence beyond allreasonable doubt. This onus never shifts. The fact that certain witnesses werenamed by the Respondent but were not examined, cannot reduce the burdenof the Petitioner to the charge. Londonderry case, (18G9) IO'M & H. 274 (278);Ahnedmiya Sherumiya v. Chippa Ibrahim Nuraji, (1939). 17 E.L.R. 218; D.Muralidhar Reddy V: Paga Pulla Reddy, (1964) 2 An. W.R. 242; A.I.R. 1964A.P. 530; Jayalahshmi Devamma v. Janardhan Reddy, 17 E.L.R. 302; Chada-lavada Subba Rao v. Kasu Brahmananda Reddy, (1966) 2 An. W.R. 401, HarishChandra Bajpai v. Trilohi Singh, 12 E.L.R, 461, referred to—VASIREDDYJAGANNATHAM NAIDU v. V. N. APPALA NAIDU AND ANOTHER. 32E.L.R. 253.

—S. 123 (2)—Announcement by Chief Minister of measures for relief from landrevenue already ta7een and to be taken by Government—-Whether amounts to briberyof voters.Held:—An announcement by a Chief Minister at a public meeting of ameasure that the Government had taken for the benefit of cultivators was withinthe exception, contained in the proviso to s. 123 (2) and did not amountto the corrupt practice of bribery of voters.—LAXMINARAYAN v.BANKATLAL, 32 E.L.R. 191.

(4) POBLISHINGJ FALSE STATBMENTS—relating to personal character.—S. 123 (4) —illegal and corrupt practices—personal character or conduct of candi-date and his political position or reputation—Distinction between : HELD—•The publication of the statements complained of in the pamphlets did not fallwithin the mischief of s. 123 (4) of the Act.

Although the language of the pamphlets was objectionable aad deservedcondemnation, they could not be regarded as a direct attack on the personalcharacter, integrity or honesty of the second respondent. A political beinghas to face criticism and cannot be too sensitive if his political views and affilia-tions are criticised. Criticism of his public activities, even though ill-manneredjunfair, or exaggerated, does not come within the mischief of the law unless"the man underneath the politician" is attacked and his honour, integrity orveracity assailed. The reference to the personal character or conduct of theindividual attacked must be explicit and derivable from the plain meaning ofthe words used in the document. Cockermouth Divison Case, 5 0. M. & H,155(1901); referred to.

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There is at times a very thin line of demarcation between the personalcHirnie? or conduct of an individual and his conduct as a political being.\3-y oeS3n, the personal charaoter overshadows the political career and condi-tion the siH3. Nevertheless, there is a line of denrnxntion, however thinit miy be, between the two and for practical purposes, it cannot be argued inevery case that any strong denunciation of an individual's conduct as a poli-tical being mist nesessatily bd regarded also as ai attack on his personalcharactar— ItsTDfiR LiL u. LAL SINGH AND OTHERS, 23 E.L.R. 41.

Attach on personal charaoter or conduct of candidate within s. 123 (4) —ingredients to be established.—Held: In order to establish a corruptpractice under s. 123 (4), it should be shown that both the personwho traduced or on whose behalf the traduoement was made andthe person who was traduced were both candidates at the relevanttime. The false statements forming the subject matter of thecorrupt practice should have been directed against the person whowas a candidate. The impugned statements should be shown to be state-ments of acts and it should be established that not only were the statementsfalse but that the traducer believed them to be false or did not believe themto be true. The statements disseminated should relate to the personal characteror conduct of the candidate, or to his candidature, or withdrawal or retirementfrom contest and should be established to have been reasonably calculated toprejudice the prospects of the adversary's election.

There is a distinction between the personal character or conduct of acandidate and his political position and reputation. While the law protectsthe former, it does not protect the latter. The question to be examined whenit is alleged that any statement within the meaning of s. 123(4) derogatory tothe personal character or conduct of an adversary candidate is published iswhether that publication is about his public conduct or whether that publica-tion is an attack on the honour, veracity and purity of the man beneath thepolitician, Gangi Reddy v. Anjaneya Reddy & Ors. C.A. No. 412 of 1959 (unrep);The Cockermouih Division Case : 5. 0. M. & H. 155 (1901); The North LouthCase :6O.M. <&H. 103 (1911); referred to.

On the facts, the publications complained of could not be regarded astraducements made by the appellant or anyone on his behalf, in his capacity as acandidate, which is an essential ingredient of s. 123(4); A clear and unambiguous

, declaration by him at the relevant time to stand as a candidate within themeaning of s. 79(h) had not been established. Khader Sheriff v. Munuswami :A.I.R. 1955 S.C 775. Rel. upon.—SANGAPPA v. SHIVAMURTHISWAMY,23 E.L.R. 51.

— - S . 123(4)—scope of —Allegation in pamphlet of "Purchase" of theopponents of Congress by means of money—If affects private character.—Theappellant, an elector, challenged the first respondent's election by a petitionon the ground of various corrupt practices, but the Tribunal dismissed the peti-tion. Ac appeal to the High Court was also dismissed. The only questionin the appeal before the Supreme Court was whether in view of the contents ofcertain pamphlets issued by or on behalf of the first respondent, the latter hadcommitted a corrupt practice under s. 123 (4). HELD—The allegation made in

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the pamphlet that the second respondent was a purchaser of the opponents ofthe Congress clearly attracted the provisions of s. 123(4). The statement,in plain terms, amounted to an allegation that the second respondent bought,by offering bribes, the votes of the opponents of the Congress. Offering abribe in an election introduces an element of moral turpitude and it cannot bedenied that a person who offers a bribe loses reputation as an individual in theeyes of the public. In dealing with the question whether a false statement con-tained in a document amounted to corrupt practice or not the document hasto be read as a whole before determining the effect of any particular objection-able statement. Reading the present document as a whole there was no justi-fication for the view expressed by the High Court that the criticism made inthe document was directed against a body of persons and not against the secondrespondent himself. The failure of the High Court to deal with the severalspecific statments in the pamphlet had introduced a serious infirmity in itsfinal conclusion. When Section 123 (4) of the Representation of the PeopleAct prescribed the requirement that the false statement should have relationto the personal character of the candidate, a distinction is intended to be drawnbetween his personal character and public or political character. But a sharpand clear-cut dividing line cannot be drawn to distinguish one from the other.There may be some false statements of fact which clearly affect the privatecharacter of the candidate; there may also be cases on the border line where thefalse statement may affect both the private and the public character as well.Therefore, in dealing with borderline cases, a working line has to be drawn.—INDER LAL v. LAL SINGH AND OTHERS. 23 E.L.R. (S.C.) 252.

-S-123 (4) Whether proof of publication of false statement enough—•or whether court to be satisfied as to prejudicial effect on Candidate's prospectsExpression "Calculated", Meaning of-HELD: The contention that s. 123(4)enacted an absolute bar and that therefore if there was a publication offalse statements of fact in relation to the personal character or conductof a candidate with the intention or design of prejudicing the prospects ofthat candidate's election, then the court must hold that the publicationwas hit by the provisions of that section, could not be accepted. To sohold would render the concluding clause of sub-section (4) being a statement"reasonably calculated to prejudice the prospects of that candidate'selection, superfluous. While the other corrupt practices mentioned in s. 123are established on proving the existence of facts as prescribed in sub-sections(1) (2) (3) (3A) (5) (6) and (7), so far as the corrupt practices contained in sub-section (4) is concerned, the legislature has added a further clause contained inthe concluding portion of the sub-section mentioned above. In view_of the useof the expression "calculated" instead of "designed" or "intended" in sub-section (4), it would be reasonable to hold that what is provided in that sub-section is that the publication of false statement of fact relating to the personalcharacter or conduct must be such as would in the estimation of the court,having regard to the nature of the publication, evidence tendered in Court andthe surrounding circumstances, have its natural and probable consequence ofprejudicing the prospects of the candidate relating to whose personal characteror conduct the publication has been made. In defining corrupt practices, theemphasis is not so much on the intention of a publisher of a false statement offact relating to the personal character or conduct of a candidate, but on the

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probable consequence of prejudicing the prospects of the candidate by sucha publication. Sudhir Laxman Hendre v. Shripat Amrit Dange, 61 B.L.R.500; Gangi Reddy v. N. C. Anjaneya Reddy and others, 22 E.L.E. 261; Amirchandv. Srnt. Sucheta Kriplani, 18 E.L.R. 209 ; Emperor v. A. A. Alwe, 37 B.L.R.892 ; Bhitnrao v. Anlcush Rao, 22 E.L.R. 385; Abdul Rahimkhan v. RadhahrishnaMswas Roy, 19 E.L.R. 278; Inder Lai v. Lai Singh, A.I.R. 1962 S.C. 1156, 1159;Abdul Sattar Mohammed Hussain Jumader v. Badri Narayan Bansilal Pattod,63 B.L.R.—563; referred to DATTATRAYA NARAYAN "PATIL v. DATTA-TRAYA KRISHNAJI KHANVILKAR AND OTHERS, 25 E.L.R. 143.

-S. 123 (4)—Leaf'lei referring to candidate as 'dalal' of minister—Impliedlyaccusing candidate of remaining silent on payment of money, etc.—if false state-ments as to personal character or conduct in the context.—Leaflets to be interpretedas a whole—-Burden of proof—when shifts—-Statement must be of facts and notopinion.

The appellant challenged the respondent's election on the ground thathe had committed various corrupt practices, including one under s. 123 (4)by the publication of a pamphlet in which the appellant was referred to asa 'dalal' of an impliedly dishonest minister and was, in effect, alleged to havekept his mouth shut because of payment of money to him. It was contendedthat these amounted to statements of fact which were false and which therespondent believed to be false or did not bolieve to be true in relation to thepersonal character or conduct of the appellant. The Tribunal dismissed thepetition.

HELD :—On the facts, the publication of the leaflet did not fall withinthe mischief of s. 123(4) and the appeal must therefore fail.

To fall within the mischief of s. 123(4), a false statement need not neces-sarily be libellous under the ordinary law. It must, however, bear a definiterelation to the personal character or conduct of the candidate as distinct fromhis public or political character.

It must also be a "false statement of fact" as opposed to a false statementof opinion.

Documents of the nature of election leaflets have to be read and inter-preted as a whole and the statements contained therein construed in theirproper context and perspective.

The burden of proving that the respondent published false statementsand either believed them to be false or did not believe them to be true is onthe petitioner. It however shifts, if the petitioner examines himself and statesthat he did not commit the alleged acts and also proves circumstances in-dicating a motive on the part of respondent to make false allegations againsthim.

T. K. Gangi Reddy v. M.C. Anjaneya Reddy & others, 22 E.L.R. 261 S.C;Krishna Kumar v. Krishna Gopal, I.L.R. (1963) 13 Raj 726; S. Mehar Singh v.Umrao Singh & another, A.I.R. 1961 Punjab 244; and Inder Lai v. LaiSingh, A.I.R. 1962 S.C. 1156; referred to.—BHANWAR LAL v. HARIPRASAD, 25, E.L.R. 265.

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-S. 123(3A) and (4) -Corrupt practice—False statements in relation tothe candidature of a candidate to be distinguished from statements in relation toa candidate.. HELD : (i) The statements in the pamphlet in question did notamount to a corrupt practice under s. 123(4) because they were not in relationto the "candidature of a candidate". The words "in relation to the candidature"are used in. the section, in juxtaposition of the words "or withdrawal"of any candidate. The theme dealt with in this part of the section is only therrutter of candidature—its continuance or withdrawal. To come under themischief of the section there must be a statement of fact which is connectedwith the candidature of a candidate and which affects his continued candi-dature in the election.

Inder Lai v. Lai Singh and others, A.I.R. 1962 S.C. 1156 relied on :Maganlal Radhahishan Bagdi v. Hari Vishnu Kamath, AIE 1960 M.P.

362; Krisknaji Bhimrao v. Shankar Shanta Ram More 7 B.L.R. 100; SarlaDevi i'. Birendra Singh Benisingh and others, A.I.R. 1961 M.P. 127: referredto.

(ii) The statements in the pamphlet did not amount to corrupt practiceunder s. 123 (3A) either because the attack was on the Congress party andsome of its workers, and its overall effect was not to create any ill-feelingsbetween the Hindu and Muslim communities.

{Hi) There was not sufficient evidence to show that the pamphlet was pub-lished by the second respondent or his agent or with their consent or knowledge.—SALIGRAM v. GOVTNDRAO AND 3 ORS. 27 B.L.R. 123.

—•—S. 123(4)—-candidate making false statement about his own candidature—Whether guilty of corrupt practice—-See Scheduled Castes & Tribes—•—-A. S.KHONGPIIAI t>. STANLEY D. D. NICHOLS ROY AND ANR. 27B.L.R. 196.

——S. 123(4)—•Corrupt Practice—False statements about personal charac-ter and conduct of candidate—-Standard of proof—Desirability of examiningwitnesses of same incident on same day—-Section 79(b)—-When does person be-come 'candidate'—-Defeated candidate when may be declared elected if corruptpractice proved against winning candidate—-ss. 99 and 116-A—Corrupt practiceproved against persons not party to petition—Procedure and expediency of talcingaction against the Agents of candidates—statements by—extent of candidate'sresponsibility.

The election held in 1962 to the Madhya Pradesh Vidhan Sabha fromthe Sitamau Assembly Constituency was set aside by the Election Tribunal.A bye-election was held in 1963 at which K and B were candidates along withtwo others. K won the bye-election and B filed an election, petition allegingcorrupt practices by K, by his election agent, and also by others with theirconsent. The Tribunal declared the election to be void on these grounds. Kand B both appealed to the High Court. B contended that the Tribunalshould have declared him elected in place of K consequent on its finding thatK was guilty of corrupt practice, and secondly, that the Tribunal should haveissued notice under s. 99 of the Act and named those persons who, not being

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parties to the petition had been found to have committed corrupt prac-tices.— HELD, {i) On the evidence the Tribunal's finding that K was guiltyof corrupt practice under s. 123(4) of the Act, was correct.

(M) Propriety demands that witnesses relating to a particular incidentshould be examined on one and the same day, in order to avoid criticismthat possibly the evidence of one witness was made known to others fordefeating the purpose of cross-examination. But the Tribunal's finding couldnot be reversed merely on the ground that this rule of propriety was not ob-served, especially when both parties were equally guilty of its breach, andthe breach was not brought to the Tribunal's attention.

{Hi) In the context of the facts of the case, when it was said that a Go-vernment servant was conducting propaganda for the 'Congress', the state-ment must be taken to refer to the Congress candidate, namely, B. Suchstatements, when false, fall within the mischief of s. 123(4).

{iv) From the mere fact that corrupt practice was proved against K, itdid not follow that the candidate who got the next highest number of votesshould be declared elected. For such a declaration to bs made the latter mustprove that he would have secured sufficient votes to be elected, out of thevotes that went to the winning candidate on account of corrupt practice.Such proof not having been produced by B in the present case, his prayerto be declared elected in place of K could not be granted.

{i)) When a person who is not a party to the petition is found by theTribunal after enquiry undir a. 99 to be guilty of corrupt practice and isnamed, he has under s. 116-A of the Act, a right of appeal against the order.But if, as in the present case, the Tribunal has not given any notice under s.99, no appeal lies against the Tribunal order in this respect.

(vi) By virtue of sub-sec. (2) of s. 116-A of the Act the High Courtis invested with all the powers of the Tribunal. Where an appeal is filedagainst the Tribunal's order the High Court can make an enquiry unders. 99 if moved by the parties; it can also do so suo tnotu. In the present case,however, no such action was expedient because giving notice to the personsconcerned and recording evidence for and against them would inevitablytake considerable time. In the present situation of this case avoiding anyfurther delay would be the out-weighing factor. The election of 1962 wasset aside, and the bye-election of 1953 had also been declared void. Anyfurther delay in holding the second bye-election would not be just and proper.

(itii) In regard to the responsibility of a candidate for statements madeby his agents the law is clear that.

(a) When a corrupt pratice of publishing a false statement is committedby a person who is not a candidate or the election agent, the consent of a can-didate or an election agent must be established ;

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(b) This is so even if such a person is an agent but not an election agent,so that an election cannot be held to be void merely upon the proof of acorrupt practice by an agent ;

(c) A political party setting up a candidate, sponsoring his cause andpromoting his election may be called an agent, but a candidate is not res-ponsible for what the members of the political party to which he belongs,do to further the interest of the party as a whole. His responsibility is limitedto the acts to which he or his election agent consents.

(d) The consent required under s. 123(4) of the Act may be express orimplied.

(e) To prove consent direct evidence is not always necessary. Consentcan be implied or inferred from acts and conduct of the candidate or fromother facts or circumstances.

(/) Whether the consent proved is express or implied the higher standardof proof—beyond reasonable doubt—is required.

Jagannaih. v. Jaswant Singh and Ors. 9 E.L.R. 231 ; Horpal v. NeubergerProducts Ltd. (1957) 1, Q.B.D. 252; Jagdev Singh v. Pratap Singh A.I.E. 1965,S.C 183; In Baruram v. Smt. Prasaari, A.I.K. 1959 S.C. 93, at p. 97; Punja-barao v. Meshram, A.I.R. 1965 S.C. 1179 at p. 1183; S. Khadar v. MannuSwami A.I.R. 1955, S.C. 775. Mohansingh v. Bhanwarlal A.I.E. 1964S.C. 1366; Sheopal Singh v. Ram Pratap A.I.R. 1965 S.C. 677; Inderlalv. Lai Singh, A.I.R. 1962 S.C 1156; Sheopat-singh v. Harishchandra,A.I.R. 1953 Raj 324; Sheopatsingh v. Harishchandra A.I.R. 1960, S.C.1217; Badrinarayan Singh v. Kamdeoprasadsingh, 21, E.L.R 64: SudhirLaxman Hendre v. S. A. JDange 17 E.L.R. 373; Nani Gopal Swami v. HamidGhoudhari 19 E.L.R. 173; Saratchandra i). Khagendranath; A.I.R. 1961S.C. 334; Jamuna Prasad v. Lachhi Ram, A.I.R. 1964 S.C. 686; Ram Phal v.Brahma Prakash, A.I.R. 1962 Pun. 129; Amjad AH v. Barua 13, E.L.R. 285;Pratap Singh Kairon v. S. Kartar Singh 17 E.L.R. 236; Pashottamlai v.Lalubhai, 14 E.L.R. 402; referred to. KISHORE SINGH v. BHANWARLAL NAHTA AND ORS, 27 E.L.R. 243.

8S. 123(2) and 123(4) Allegation of corrupt practice under section 123(2) and 123(4), against a candidate who had withdrawn from election :—HELDIn Ground 'E' of the petition the petitioner had alleged that : (a) RespondentNo. 1 and his agents and workers with his consent had published or causedto be published in the weekly 'Shivsphuri' false statements, and statementswhich they believed to be false, relating to the personal character and con-duct of the petitioner;!('j) The weekly 'Shivsphuri' was owned by 'A' whowas the election agent of respondent No. 1; (c)]|Respondent No. I f and hisworkers T and agents had thus recommitted'corrupt jpractice within the mea-ning of s. 123(4) of the Act. Although there was'no'airect or express avermentin the entire paragraph that the false statements relating to^the personalcharacter and conduct of the petitioner in ^question were j published inShivsphuri' by 'A', but that did not mean that in the absence of such a direct

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or express averment no commission of corrupt practice could be alleged againstany candidate. Read as a whole the allegations amounted to sayin^ thatrespondent No. l's agents committed the specified corrupt practice and 'A'was his agent with the result that a clear imputation of corrupt practiceunder s. 123(4) of the Act against 'A' was spelled out.

Harish Chandra Bajpai and Am. v. Trilohi Singh and Am. A.I.R. 1957S.C. 444, and Shriniwas v. Ruhnini Raman Pratap Singh 16 E.L.R. 190,referred to.

Although in Ground 'H' of the petition 'A' was not mentioned, the parti-culars given in the connected Schedule VI were that the owners (which wouldinclude 'A'), the editor and co-editor of 'Shivsphuri' were the workers andagents of respondent No. 1 and as a result of their propaganda the railway-workers carried certain apprehensions in their minds because of which theyabstained from voting for the petitioner. In view of this it must be heldthat Schedule VI clearly made an allegation against 'A' that he was takingpart in the election propaganda of respondent No. 1 which would include theparticular item of propaganda mentioned in that Schedule. The allegationclearly amounted to an allegation of corrupt practice of undue influencewithin the meaning of s. 123(2) of the Act.

Therefore, in view of the allegations in paragraph 'B' of the petition,and in paragraph 'H' read with Schedule VI, the petjtionar's contentionthat he had made no allegations of corrupt practice against 'A' in his peti-tion must be rejected HIRUBHAU M. GAVALI v. SHIVARA.M DADAHIRE AND ANR. 29 E.L.R. 178.

Agent of candidate who is—Tests for determining—News-paper editorwhen agent—Consent of candidate for publication of statement constitutingcorrupt practice how to be determined —Election when materially affected for thepurpose of s. 100{l)(d): HELD, (i) It was not established by the evidence thatthe editors of the three newspapers and R believed the statements containedin the publications in question to be false and/or did not beleive them tobe true.

Having regard to the above findings the election could not be declaredvoid under s. 100(l)(6).

(ii) The election could also not be declared void under s. 100( l)(d) be-cause the corrupt practices alleged did not materially affect the result of theelection. 'Materially' means 'substantially' or to a considerable extent.Both the petitioner and the respondent were extremely well-known to thewhole electorate in the constituency The difference of 2888 votes whicharose between the parties was not the result of the publication but in factthe resu-lt of the work done by the two rival candidates between 1962 and1967 and other reasons which affected the result in favour and/or againstdifferent political parties.

(Hi) The statements in the publications suggesting that a warrant forthe presence of the petitioner in Court had baen issued on 11th Februaryor a warrant of arrest had been issued on that date by the Magistrate's.

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Court were admittedly false. On the evidence in the case the statement aboutthe petitioner having issued a threat to shoot and kill Wazekar was not false.The statements about the petitioner having got himself scot-free werefalse. There was no substance in the contention on behalf of the respondentthat these publications and/or facts in the said publications did not relateto the personal character and conduct of the petitioner. It was difficult tounderstand how they could be said to refer to his , public character orconduct.

(iv) There could be no doubt that the false facts contained in the publi-cations in question were in themselves such as were calculated to prejudicethe prospects of the petitioner in the election. The contention on behalf ofthe respondent that because there was a band of workers who were workingfor the petitioner to make counter—propaganda of denial and thereforethe publications could not be held to be calculated to prejudice his pros-pects at the election could not be accepted.

(v) Though there may not be positive evidence showing that acandidate had appointed a particular publisher of statements as his agent,but the candidates' consent to his acting as agent can be inferred fromthe circumstances. The editor of the 'Weekly Nav KrishivaP was the brotherof the respondent and was in intimate touch with the respondent during theelection period. Having regard to the totality of the facts proved itmust be held that he acted as agent in connection with the election of the res-pondent. In view of the article dated February 4 and the facts that the can-didature of the respondent who belonged to the Peasants and Workers' Partywas put up by that party and supported by the Sampoorna MaharashtraSamiti, and the 'Maratha' was the organ of the Samiti, a finding could be madein favour of the petitioner that the 'Maratha' and its editor were agents inconnection with the election with the consent of the respondent. Agencywas however not proved in respect of the 'Rashtratej weekly'—Dattatrayavs. Dattatraya A.I.R. 1964 Bombay 244; Kumara Nand vs. Brijmohan LaiSharma A.I.R. 1967 S.C. 808; Gangi Reddy vs. Anjaneya Reddy 22 E.L.R.261; Bhagwan Datta vs. Ram Ratanji A.I.R. 1960 S.C. 200; Mani Gopal Swamivs Abdul Hamid Chowdhury 19 E.L.R. 175 Sudhir Hendre vs. Shripat Dange,A.I.R. 1960 Bombay 249; Biswanath Upadhaya vs. Haralal Dass 16 E.L.R.405 ; Abdul Majeed vs. Bhargovan, A.I.R. 1963 Kerala 18; Mathai MaihewManjuran vs. K. C. Abraham 10 E. L. R. 376; Vashist Narain Sharma vs. Dei)Chandra 10 E.L.R. 30: referred to.—D. K. KHANVILKER v. D. N. PATIL,30, E.L.R.I.

123(4)—Election pamphlet containing false statement and instructionsin an implied manner suggesting that the petitioner was corrupt and a drunkard—•whether an offence under s. 123(4). Held: On the evidence it was proved that thefirst respondent had committed the corrupt practices under section 123(1)(A)(a), section 123(4), and 123(2) of the Act and the election of the First Res-pondent must therefore be set aside.

The first respondent was proved to have issued a pamphlet containingan insinuation and false statement giving a double meaning which would.

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make an ordinary elector carry an impression that the petitioner was acorrupt man and a drunkard and this would attract the provisions of section123(4) of the Act.

Jagdei) Singh Sidhanti v. Pratap Singh Daulta, A.I.E. 1965 S.C. 183; Dr.Jagjit Singh v. Kartar Singh, A.I.R. 1966 S.C. 773; Mohan Singh v. Bhanwmlal,A.I.R. 1964, S.C. 1366, referred to. GAJADHAR <u. CHUNNILAL SINGHAND OTHERS, 31 E.L.R. 1.

Leaflets decrying profession of advocates, whether amounts to personalattach:—-If the statement of fact amounts to an allegation regarding the moralfibre or the moral character of a particular individual then it will amount toa personal attack upon the particular candidate. In the instant case a chargewas made, if at all it could be said to be a charge, that the petitioner, an ad-vocate, whose profession was to extract money from the people if elected,would foment troubles and by means of disputes and dissensions would takeaway money from the people. In the context in which these words were setout in the leaflets and readmg the document as a whole it could not be said thatthere was any personal attack on the petitioner. Kultar Singh v. MuhhtiarSingh A.I.R. 1965, S.C. 141; Kumara Nand v. Brij Mohan Lai Sharma A.I.R.1967, S.C. 808; referred to. GANPAT RAO KALIDAS RUPALA v.PALABHAI NARANDAS PARMAR, 31 E.L.R. 121.

S.-—123(4)—Corrupt practice—Candidate falsely stating that she was a holder ofBachelor of Arts degree—"In relation to personal character of any candidate",meaning.

The election of the respondent was challenged on the ground inter aliathat he falsely stated to the electorate in leaflets issued by him that he wasthe holder of the Bachelor of Arts degree and thus was guilty of the corruptpractice mentioned in s. 123(4) of the Act. On the question whether this falsestatement made at the instance and with the consent of respondent No. 1 isa corrupt practice as defined in s. 123(4).

HELD : Though literally interpreted, the words "in relation to personalcharacter of any candidate" will include cases where the candidate himselfis indulging in self laudation by making statements of acts which arefalse to his knowledge, tribunals and courts have restricted the applicationof this section to statements against the personal character of any othercandidate, calculated to prejudice unfavourably the contesting candidate'schances. However, it does not mean that even on this interpretation a candi-date will always get away _ with his success secured by making a false state-ment of fact about his own" personal character. Such statements can resultin undue influence, which, if proved would become a corrupt practice.

Majibar Rehman v. Abdul BarJcat, 4 E.L.R. 481; Srinivas v. Rukmini, 14E.L.R.*190; Shanti Sivaroop Sharma v. Abdul Rehaman, A.I.R. 1965 M.P. 551;referredjto.—SAHEBLAL v. PHOOLCHAND & ANOTHER, 31, E.L.R. 281.

—•—-S. 123(4)—Corrupt practices—False statements published in pamph-lets and made^in^speech&s—Held : On the evidence, the first respondentmade false statements as to the personal character of the petitioner in

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pamphlets published and distributed and in his speeches, which allegationswere not believed by him to be true. He was guilty of having committedcorrupt practices within the meaning of section 123(4) of the Act; hiselection was, therefore, void and must be set aside. Allegations in apamphlet published by the first respondent that the petitioner had exploitedand harassed poor people to benefit his selfish and pretentious friends andsuch harassment had caused untold miseries, were scurrilous and they weredefamatory per se. Every citizen is entitled to be presumed to be innocentuntil the contrary is proved. If allegations of a personal character of anotherperson are made by any one, it is the maker of such allegations who has toestablish that there is truth in the allegations.—VITHALRAO v. JIVTODE,31 E.L.R. 291,

—S. 127A—-Failure to Comply with—Inference. Held :

If the candidate fails to comply with the provisions of section 127A ofthe Act in respect of printing and issuing of election pamphlets, it is legiti-mate for the court to draw an adverse inference against the candidate holdinghim responsible for such publication. VITHALRAO v. GURUJI SHRI-HARI BALIRAM JIVTODE & ORS.' 31 E.L.R. 291.

(5) HIRING OR PROCURING OF VEHICLES ss. 123 (5), 100 (1) (b), 83(1) (b) and Expln. to s. 123.—Hiring or procuring of Vehicle for conveyance ofelectors—Whether consent of candidate proved—whether could be inferred—Defi-nition of "Agent".—Result of election not alleged to have been materially affected—effect of—Petitioner having names of electors conveyed by candidates' agent—Whether petitioner can withhold or must disclose as particulars.—Standardof proof required for establishing corrupt practice. HELD—(i) The appellant'selection could not be set aside on the ground of a corrupt practice committedby an agent unless it was further shown that the act was done with the consentof the returned candidate or that the result of the election was materiallyaffected thereby.

A person acting in furtherance of the prospects of the candidate's electioncannot be regarded as an agent of the candidate unless it is proved that in soacting he had the consent of the candidate. The consent may be either ex-press or implied. I t would follow that all members of a political partycannot be regarded as agents of the candidate set up by that party unless it isshown that they had acted in furtherance of his prospects with his consent.

The Tribunal was wrong in taking the view that the implied consent ofthe candidate could be inferred from the mere fact that the person who trans-ported the voters in the vehicle on the single occasion proved, was a memberof the candidate's party. It was not the petitioner's case that the result of theelection was materially affected by the corrupt practice and, on the facts,it did not appear that it was so affected.

(ii) The disclosure of the names of electors alleged to have been carriedby irucks]to'the polling stations did not amount to disclosure of evidence inthe circumstances of the present case but only amounted to disclosure of

M/J(D)121EC—7

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facts on which the petitioner intended to rely in support of the charge of thecommission of the corrupt practice ; and since the petitioner alleged thathe had ascertained the names of some of those electors, he was not justifiedin withholding the information. I t cannot be said that in every case in whicha corrupt practice under section 123(5) is alleged, the names of all the electorssaid to have been transported should be specified, for it is hiring or the pro-curing of a vehicle for the conveyance of electors that constitutes the corruptpractice. The particulars required under section 83 (1) (b) would vary fromcase to case as the section itself contemplates that full particulars should bespecified "as far as possible". Failure to give the particulars required by thissection is only a defect of procedure and not one of jurisdiction and is notincurable. Badri Narain v. Kamdeo Prasad, A.I.R. 1961 Patna-41-21-ELR. 64;Braj Bhushan v. Anand Bhrahma A.I.R. 1961, Allahabad. 356; AhmedmiyaSherumiya Shaikh v. Chhippa Ibrahim Nuraji, 17-ELR 219 Bombay High Court;Jammuna Prasad v. Shri Ramnivas A.I.R. 1959-Madhya Pradesh-226; AmjadAli v. Nazmul Haque, A.I.R. 1961, Assam-81 ; V. B. Raju v. RamachandraRao, 21, ELR-81, Andhra Pradesh High Court ; Harish Chandra Bajpai v.Triloh Singh, 12 ELR-461-A.I.R. 1957/S. C.-444; Sheopat Singh v. HarishChandra A.I.R. 1958, Rajasthan—324 ; Rustom Satin v. Sampoornanand,29-ELR-221; Siidhir Hendre v. Shripat Dange, A.I.R. 1960, Bombay-249 ;Khagendra Nath v. Umesh Chandra, A.I.R. 1958, Assam, 183; Barat Chandrav. Khagendranath, A.I.R. 1961 S.C. 334 ; Anjaneya Reddy v. Oangi Reddy,21-E. L. R. 247; Abdul Majeed v. Bhargavan, A.I.R. 1963 Kerala-18; Chandresh-war Narain v. Basu Prasad (Misc. Judicial case No. 36 of 1954), decided on12-4-55. Chandrashehhar Singh v. Sarjoo Prasad Singh A.I.R. 1961-Patna,189; Kandasami v. 8. B. Adityan, A.I.R. 1959-Madras-288; Balwan Singhv. Lahshmi Narain A.I.R. 1960 S.C. 770 ; Nani Gopal v. Abdul Hamid,A.I.R. 1959 Assam 200; Bhagwan Datta v. Ram Ratanji, A.I.R. 1960, S.C.200; Dina Nath v. Peer Mubarak, A.I.R. 1962 J. & K-28 ; Chenna Byre Gowdav. S. R. Ramiah, 20, E.L.R.-37, Mysore High Court; Sheopat Singh v. HarishChandra, 16 E.L.R. 435; KapiUeo Singh v. Suraj Narayan Singh, A.I.R. 1959,Patna- 250; Inamati Mallappa Basappa v. Desai Basavraj Ayyappa & OrsA.I.R. 1958, S.C. 698 ; Pandit K. C. Sharma, v. Krishi Pandit Rishab Kumar& Ors, 20, E.L.R. 401, referred to.—KRISHAN KUMAR v. KRISHNA GOPAL24, ELR 316.

s. 123 (5)- Charge of Free conveyance of voters-proof requirements of—HELD: A charge under section 123(5) cannot be sustained unless it is amrma-tively established that a candidate consciously, deliberately, or with fullknowledge had consented to or instructed free conveyance of voters in a vehicleor vessel. If the identification of that vehicle is not made by properdisclosure of particulars in the petition, the complaint so far as the carryingof voters to the polling station is concerned cannot properly go for trial. Thiscannot be supplemented at the stage of evidence.—GAJADHAR v. CHUNNI-LAL SINGH AND OTHERS 31 E.L.R. 1.

ss. 86(4), 97, 101, 100(1) (B)(l)(m), 117,118, 123 (5) — Code of CivilProcedure, 1908, Order I Rules 9 and 10, Order 6, Rule 17-Recrimination statement-application for amendment of statement by returned candidate on new ground-Rule of limitation-Section, 100(l)(6)-^implication of—Recounting of votes—

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When and how far it can be granted. HELD:—For declaration of an election asvoid under section 100(1) (b) (a) for corrupt practice committed under Section123 (5) what the petitioner has to establish in order to succeed is, firstly, thatthere was a hiring or procuring of vehicles by the Respondent or his agent or byany other person with the consent of the respondent. Secondly, that such vehicleso hired or procured had been used for the free conveyance of any elector otherthan the candidate himself, member of his family or his agent, to or from anyPolling Station. Thirdly, that this corrupt practice of the use of such vehiclefor the free conveyance of electors was committed by the Respondent or byany other person with the consent of the Respondent.

Lai Singh Rehavar v. Vallabhdas, 71 G.L.R. 753; Jagdev Singh v. PratapSingh, A.I.R. 1965, S.G. 183; referred to.—JASHBAHAI CHUNIBHAIPATEL v. ANWERBEG A. MIRZA, 32 E.L.R. 1.

(6)—INCURRING UN-AUTHORISED EXPENSES—SS. 78,123 (6) ̂ -Election Accounts—form of—filing of true copy of account—whether sufficient for the require-ment ofss. 78 and 123(6). HELD.- In order to comply with the provisions of s. 78all that a candidate has to do is to produce only a true copy of the account keptby him.. It is not necessary for him to produce before the Returning Officerthe original account maintained by him, nor is it necessary for him, havingregard to the provisions of Rule 131 which prescribes particulars to be enteredin the accounts to be maintained by a candidate, to maintain the account in anyparticular form. Likewise, unless circumstances justifying that necessity areestablished, it is unnecessary for the candidate to examine any one who main-tained his accounts. The burden of establishing that any excessive expensewas incurred or authorised is upon the person challenging the election. Inorder to make out a corrupt practice under s. 123(6) it has to be establishedthat expenses in excess of Rs. 25,000 had been incurred acd it would not beenough for the person challenging the election to merely establish that theaccount kept by the candidate and lodged with the Returning Officer was anincorrect return.—SANGAPPA v. SHIVAMURTHI SWAMY, 23 E.L.R. 51.

s. 123(6), r. 86—Inclusion of Election deposit in the return of electionexpenses—whether a corrupt practice under section 123(6): HELD:—-The lapseon the part of a candidate to maintain a separate and a correct account ofhis election expenses in accordance with the provisions of Rule 86 would notconstitute a corrupt practice within the meaning of section 123 (6) of the Act. . :

Venkataramaiah v. Narayana Gowda, 1959 Mys. L.J. 952; referred to. , ,

Inclusion of the election deposit as an item of expenditure, would notamount to corrupt practice and such inclusion is not a violation of provisionsof section 123(6) of the Act. — K. GOVINDA BHAT v. D. VITTALDAS-SHETTY, 30 E.L.R. 382.

ss. 77 & 123(6)—Joint responsibility of candidate and agent not toexceed prescribed limit of expenditure—Both guilty of corrupt practice, if soexceeds: HELD:— If the total expenditure authorised or incurred by the candi-date and by his election agent exceeds the prescribed limit, both of them areguilty of the corrupt practice under s. 123(6) even if neither the candidate rvar.the

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election agent individually exceeds the prescribed limit. It s their joint res-ponsibility to see that the expenditure incurred or authorised by the twoof them does not exceed the prescribed limit. —MOHAN RAJ v. SURENDRAKUMAR TAPARIA AND ORS. —31 B.L.R. 416.

ss-77,123(6)—The word "incurring" means pecuniary liability on thecandidate himself: HELD— It was necessary for the petitioner to prove that theamount in respect of the hire of the jeep was actually incurred by the respondenthimself or, in the absence of an election agent as in this case, by any otherperson under an authorisation of the respondent. The word ' 'incurring'' insection 77 necessarily postulates pecuniary liability on the candidate himself eventhough the expenses may have been authorised by the candidate or his electionagent. The petitioners had not discharged the burden of proving that theexpenses in relation to the jeep were incurred as authorised by the respondentwithin the meaning of section 123 (6) of the Act.

Ravanjaya Singh v. Baij Naih Singh A.I.R. 1954 S.C. 749; Sheopatsingh v.Hanschandra A. 1.R. 1958 Raj 324; Biresh Misrav. Ram Naih Sharma A.I.R.1959 Assam 139; Muthiah Chettiar v. Genesan A.I.R. 1960 Madras 85; referredto.—SADHU RAM & ORS v. HIRA SINGH PAL, 32 B.L.R. 28.

—ss-98 or 99, 100(l){b), 123(6)—r. 86.—Return of election expenses —Expenditure incurred for repairs of motor cars used in election campaign whetherthat expenditure should be included in the return—High Court's decision in anelection petition under Section 98 or 99 of the Act—Whether High Court haspower to review its decision. Held:—The Respondent had incurred expenditureexceeding the statutory limit prescribed by law and thereby had committedthe corrupt practice under Section 123(6) of the Act and his election wasvoid under Section I00(l)(b) of the Act.

K. T. Maganaihan v. K. T. Kosalram and others, 9 E.L.R. 242; Differedfrom.

HELD further : that items of expenditure incurred by the Respondent onrepairs of cars which were used for his election campaign, are items of expen-diture incurred by him in connection with the election and have to be includedin the return of Election Expenses as required under Rule 86.—BEOHARBHAI PARMABHAI HARJIVANDAS v. DEVJIBHAISADABHAI PARMAR, 32 E.L.R. 133.

• s-123(6)—Return of election expenses—irregularity in maintainingelection accounts—whether contravention of Section 123(6)—Election return—ingredients of.—Held—It is manifest that a corrupt practice within the meaningof Section 123(6) consists in the act of incurring or authorising the expenditurein contravention of Section 77. The act of maintenance of accounts or keepingfull particulars thereof, is certainly an act distinct from the act ofincurring or authorising expenditure, and hence is not within the ambit ofsub-clause (6) of Section 123 and it does not therefore constitute a corruptpractice within the meaning of the Representation of the People Act.

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in computing the tabie of expenditure, free services given to a candidateby others cannot be included. Notional estimate of the expenses for rindingout whether the total expenditure had exceeded the maximum limit prescribedis not permissible in law. A candidate is not bound to account for the cost ofthe jeep or its reasonable hire or repairs nor is he bound to account for the salaryand batta paid to the driver, when he did not incur that expense at all andwhen it is clear that it was gratuitous offer of both the driver and the jeep.In the circumstances the question of damages or depreciation cannot arise sothat it may be urged that a definite amount ought to have been included in thereturn of election expenses.

Ghayar Ali Khan v. Keshav Gupta. A.I.R. 1959 All. 264; Sheopat Singh V.Barish Chandra, A.I.R. 1958 Rajasthan 324; 0. R. Narasimhan V. M. 0. NatesaCMtiar, A.I.R. 1959 Mad: 514 ;MuthiahChettiarv. Ganesan, A.I.R. 1960 Mad.85; Vasantha Pai V. Srinivasan, A.I.R. 1962 Mad. 239; Rananjaya Singh v.Baijnath Singh, A.I.R. 1954 S. C. 749 referred to:—VASIREDDY JAGAN -NATHAM NAIDU v. V N. APPALA NAIDU AND ANOTHER, 32E.L.It. 253.

—(7)—•PROCURING ASSISTANCE OF GOVERNMENT SERVANTS—S.123(8)— Government servant persuading voters in candidate's favour—if corruptpractice. Merely because a Government servant has persuaded voters to cast theirvotes in favour of a particular candidate does not by itself bring his conductwithin the mischief of section 123(7). That section does not place any disabilityon the right of a citizen of India who happens to be in the service of theGovernment, to persuade his friends, of his own volition, to vote for one ofthe candidates seeking election to Parliament. It merely invalidates an attempton the part of a candidate to obtain or procure the services of a Governmentservant. The policy of law is to keep Government servants aloof from politicsand protect them from being imposed upon by those with influence or in posi-tion of authority or power. Mere canvassing by a Government servant does notby itself attract the provisions of section 123(7). Kishore Chandra DeoBhanj v. Raghunath Misra and others, 19 E.L.R. (S.C.) 1, Mehta Gordhandas Gir-dharilal v. Chavada Akbar Dalumivan and others, 7 E.L.R. 374; Nyalchand Vir-ohand Sheth v. Vithalbhai Ranchod Bhai Patel and others, 9 E.L.R. 451; referredto.RAM PHAL v. BRAHAM PARKASH AND OTHERS, 23, E.L.R.92.

——S. 123(7)—Parliamentary Secretary to Chief Minister acting as Electionagent—whether Gazetted officers in the service of Government—Whether amountsto corrupt practice—HELD • The respondent was not guilty of a corruptpractice by virtue of appointing S as his election agent. From the mere fact thatreference has not been made to a Parliamentary Secretary in the Constitutionand from the mere fact that he may not be liable to be regarded as aMinister, it does not follow that merely because his appointment has been madeby the Governor and Gazetted that he has become a person who is in the ser-vice of the Government. Parliamentary Secretaries in the State of Gujarat formpart of the Government and they cannot be regarded as being in the serviceof the Government within the meaning of Section 123 (7). There was no evidenceto show that the Minister to whom a Parliamentary Secretary might be attached,exercises that degree of control over the Parliamentary Secretary's work

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as' ntotild give rise to the relationship of master and servant between them.• Nor was there anything to show that the Governor, who appoints a ParliamentarySecretary, was in a position to control the manner of doing this work.

Dhrangadhra Chemical Works Ltd. v. Stale of Sources him 1957, S.C.K. 152'Stevenson Jerdon & Harrison Ltd. v. Macdonald & Lavans 1952-1 T.L.R'101 (110); V.J. &W Henderson Ltd. (1946) 62.T.L.R. 427 (429); Emperor vSibnath Banerji & Ors. A.I.R. 1945 P. C. 156 referred to.—LALJIBHAI JOD-HABHAI BAR v VINODCHANDRA JBTHALAL PATEL, 24 E.L.R.145.

(8) UNDUE INFLUENCE—Public promise by Home Minister to granttax relizf—if undue influence. In a welfare state like India, where the popularlyelected representatives of the people hold reins of the Government an runthe State's administration solely for the general benefit of the people, it is onlyfit and proper that those in power actually and promptly react to the needsand demands of the people whose chosen representatives they profess to be.If the Home Minister felt that a provision of law imposing tax on certain commo-dities was, in fact, too harsh and called for relaxation, the action taken by theMinister could not be construed as amounting to a corrupt practice or undue in-fluence. His action may have influened some voters in their decision for whomthey should vote, but that could not be described as undue influence. The ElectionTribunals and the High Courts cannot go into the question whether it is unjustand unfair on the part of the party in power to give relief at a psychologicalmoment for they are not concerned with the policy of the law. They have onlyto see whether the facts in the case fall within the statutory definition of undueinfluence. Jagan Nalh v. Jaswant Singh and others, A.I.R. 1954 S .C .210; referredto. RAMPHAL v BRABAM PARKASH AND OTHERS, 23 E.L.R. 92.

Ss. 123(1), (2), (3).—Preventing voting by threats to voters —appealto voters in the name of religion, caste etc.,— Undue influence by threats of divine

, displeasure, social ostracism, etc.— The oral and documentary evidence didnot show that \ oters were prevented from casting their votes or undue influencewas exercised, Furthermore, the percentage of votes cast at the three pollingstations in respect of which the allegations were made, did not support theseallegations.

On most of the other allegations of corrupt practices the evidenceWas entirely oral and many of the witnesses could not be considered independent.There were also many discrepancies in the evidence. The Election Tribunalhad therefore rightly rejecte such evidence. Jagan Nathv. Jaswant Singh AIR1954 SC 210; referred to—TIKA RAM v. ASRAR AHMED AND OTHERS,23 E.L.R, 116.

S. 123 (2)—-Allegation against agent of elected candidate threateningelector with personal injury if he did not vole for elected candidate—Whetherthreat a corrupt practice under S. 123 (2). HELD : The allegation of a threatof personal injury to the elector was clearly a corrupt practice within the mean-ing of S. 123 (2),—HAH SWARUP AND ANOTHER v. BRIJ BHUSANSARAN & OTHERS, 24 E.L.R. 214.

'•——8s. 123 (2) andftd)—Corrupt practice- False statements about personal cha-racter of candidate—Statements in pamphlet attributing certain view to Congressleaders in the matter of cooperative farming etc. Such statements, if wrong, whetheramount to undue influence on electorate—Voters of one village not casting theirvotes—whether undue influence can be inferred.

The appellant was the winning candidate from a constituency in BastiDistrict in Utter Pradesh, for membership of the State Legislative Assembly.Respondent No. 1 who secured the next highest number of votes challengedthe appellant';) election by a petition alleging corrupt practice. It was allegedthat in certain pamphlets the appellant had made false statements about thepersonal character and conduct of respondent No. 1, that in these pamphletsstatements had also been made misrepresenting the views and policies ofthe Congress party to which respondent No. I belonged, and its leaders had beenmisrepresented, and thus undue influence had been exercised on certain voterswho had been prevented by force and intimidation from going to cast theirvotes. The Tribanal held it was not proved that the appellant made any falsestatements about the personal character and conduct of respondent No. 1 butit was proved that undue influence had been exercised on the electorate by thepamphlets issued on behalf of the appellant; it held that the voters of onevillage had been prevented by the appellant from going to the polling booth.Accordingly the Tribunal set aside the election of the appellant who, thereuponappealed to the High Court. In regard to the pamphlets the appellanturged before the High Court that their contents did not amount to exercise ofundue influence as they only brought out a declaration of public policy of hisparty, namely the Swatantra Party, in respect of land reform and the coopera-tive movement: HELD:

(i) The Tribunal rightly held that the appellant was not guilty of makingfalse statements about the personal character and conduct of respondent No.lwithin the meaning of s. 123 (4) of the Act.

(ii) The Tribunal was wrong in holding that by issuing the pamphlets inquestion the appellant was guilty of exercising undue influence within themeaning of s. 123 (2).

In order lo make out a case of undue influence, it has to be establishedthat the influence was such as to deprive the person affected of his power offree exercise of his will. It must amount to imposing a restraint on thewill of another whereby he is prevented from doing what he wishes to do, oris forced to do what he does not wish to do. A persuasion which leaves a personfree to adopt his own course, is not undue influence.

The pamphlets in question referred to certain speeches of political leadersand this was followed by the appreciation of implications of such statements.It cannot be presumed that the voters who came across the pamphletsnecessarily lost their discretion. That being so the voters wereabsolutely free to exercise their right of vote in favour of the candidate of theirliking. It had not been suggested nor proved that the quotations or speechesmentioned in the pamphlets were incorrect or amounted to distortion of theviews expressed in the said statements and resolutions.

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Kultar Singh v. Muhhtar Singh A.I.R. 1965 S.C. 141; Ghayar Ali Khanv. Keshav Gupta A.I.R. 1959 All 264; Amir Chmd Tola Ram v. SrimatiSucheta Kripalani A.I.R 1961 Punjab 383 ; relied on. f̂ (iii) Merely becausethe voters of a certain, village did not participate in the voting it could notbe said that they were prevented by others from doing so, and the Tribunalwas wrong in so holding. It had not been proved that the appellant forciblyprevented voters from going to the polling booths. Jagdev Singh Sidhanli v.Pratap Singh A.I-R- 1965, 183. referred to— SHYAM LAL v. RAM LAL,28 E.L.R. 58.

Minister sanctioninggrant" in the courss of ordinary duties ti Gram Paneha-yatsfor works of public utility and Harijan welfare—prior to dal°, of his election —Ingredients of bribery and undue influence, absence of—whether Minister liablefor corrupt practices.—(See Corrupt Practice (3) Bribery)'—GHASI RAM v.DAL SINGH AND OTHERS, 30 E.L.R. 344.

• 5s. 123 (2), (6)~Conduct of Elections Rules, 1961, Rule 86—Corruptpractice —-undue influence—influence of any hind—-Whether undue influenceunder the Act—-Election speeches—-Candidate claiming that he secured,some benefits to the people from Government through his intercession—-whetherundue, influence under Section 123 of the Act—If the candidateclaims that a particular benefit from Government has been securedto the people at his intercession, it does not amount to any undueinfluence under section 123(2) or interfering with the free exercise oftheir electoral rights so long as the securing of the benefit is not madea condition of the voters exercising their electoral rights in a particularmanner. What the law prohibits is undue influence and not influence of anyother kind. The very idea of election campaign and canvassing implies thatan attempt is made to influence the voters to cast their votes in favour ofone candidate or another. It is open to the candidates to place before thelectors their past achievements and also policies and programmes that theypropose to put through if they should get into power through election mani-festos which is an established and common practice adopted at the election.Hence, what the Respondent was alleged to have said in his speeches did notcome within the purview of undue influence .under section 123 of the Act.Unless there was material to connect the Respondent with the action takenby the Government for the suspension of the recovery of the land revenueand water-rate, which action was within the scope of the governmental business,such action could not be said to have been actuated by ulterior motives. RamPhal v. Braham Prakash A.I.R. 1962, Punjab 129; 5. Mehar Singhv. Umrao Singh A.I.R. 1961, Punjab, 244; referred to.—K. GOVINDA BHATv. D. VITTALDAS SHETTY, 30 E.L.R. 382.

e

Proof of—Allegation of threatened voilence-failure to plea of alibi bydefence--whether presumption in favour of petitioner.—{See Corrupt Practice—Bribery).--S. KHADER SHERIFF v. ABDUL GAFOOR SAHIB ANDOTHERS 30 E.L.R. 401.

—— Onus of proof—If there are allegations that somo persons committedcorrupt practices of interference with the free exorcise of the electoral rightsof voters in the in.fcora.sfc of the refcu.rn.odl Candidafco, under section 100(l)(d)(ii)of the Acfc, the pefcifcionor would have fco show fch-afc by reason of such inter-ference the result of the election was materially affected. Harish Chandra-Bajpai v. Trilolci Singh, A.I.R. 1957 S.C. 444; Jagdev Singh v, Pratap SinghA.I.R. 1965 S.C. 183; S. Kawlaswami v. S.B. Adityan, A.I.R. 1980 Madras 170JagjU Singh v. Kartar Singh, A.I.R. 1966 S.C. 773; Sheopal Singh v. Ram Para-tap, A.I.R. 1966 S.C. 677; KumaraNandv. Bnj Mohan, A I R . 1967 S.C. 808;MasaUi v. State of Uttar Pradesh, A.I.R. 1965 S.C. 202 and Prithvi Singh v.Ajaib Singh, A.I.R. 1965 Punjab 463; referred to.—RAMA PR. ROY CHOW-DHURY v. BAIDYANA.TH BANDOPADHYA AND OTHERS, 31 E.L.R. 167

(9) USE OF NATIONAL OR BETLIGIOUS SYMBOLS—Appeal to Lingayatvoters representing Congress symbol equated with Kalyana Basava—Shiva's Nandi—whetJier corrupt practice within s. 123 (2) and (3) Portrait of Mahatma Gandhi—Whether national symbol.—Held: An attempt to influence Lingayat voters byrepresenting that the Congress symbol of yoked bullocks had something todo with Kalyana Basava, the great reformer or with "Shiva's Nandi", themount of God and that a vote for the Congress symbol would really be a votefor Kalyana Basava or for "Shiva's Nandi" would not only amount to undueinfluence under s. 123(2) but would also constitute a systematic appeal ongrounds of Religion or Caste falling within s. 123(3). However, such anattempt was not established in the present case. The portrait of MahatmaGandhi is not a national symbol within the meaning of s. 123(3). Shankara-gouda v. V eerabhctirappa 23 E.L.R. 1 referred to.—SANGAPPA v. SHIVA-MURTISWAMY, 23 E.L.R. 51.

——S. 123(4)—whether cow is symbol of Hindu religion. Held:-The cow maybe an object of reveience among Hindus but it is not a symbol of Hindu religionand an appeal i o save the cow is not therefore an appeal on the ground of religionor caste. Kanchi Ram & o;s. v. Jamuna Prasad and ois. 9E. L. R.; JamunaPrasad v. Lachhiram and or s. A.I.R. 1954 (SC), 686, referred to VISWANATHPRASAD v. SALAMATULLAH AND OTHERS. 27 E. L..R.145.

—— S. 123 (3)—Portrait of the Prime Minister—whether National symbol—•HELD: The portrait of the Prime Minister of India cannot be regarded as a*National symbol within the meaning of Sec. 123(3) of the Representationof the People Act, 1951. The Management of Itakhoolin Tea Estate v. ItsWorkmen, A.I.R 1960 S.C. 1349; referrecd to.—HASBI FAKRIAPPAMUDDAPPA v. D. BAYYAPPA, 28 E.L.R. 103.

—•— Election Manifesto—use of national emblem or symbol with inscriptionof'Satyam Eva Jay ate" and without the consent or implied consent of a candidate—whether candidate liable under Sub-Section (3) of Section 123.—HELD: further;where in an election manifesto the national emblem or symbol was printedand circulated with the words "Satyam Eva Jayate" by a candidate on hisown behalf and on behalf of other candidates including the First Respondentit cannot be presumed that the manifesto was issued with the implied consentand knowledge of the First Respondent unless it is brought home to the FirstRespondent to attract the provisions of S. 123(3) of the Act read with theprovisions of S. 100(l)(b).

jagdev Singh v. Pratap Singh, A.I.R. 1965 S.C. 183; referred to—MARDA B. G. v. K.R. MARDA AND ANR. 30, E.L.R. 158.

——Ss. 77, 100 (1)(&), 123 (3)—Election Posters with pictures of MahatmaGandhi with Rajaji—whether a national "symbol"—Considerations for deter-mining ivhether a symbol is National—use of quotation from one of the speechesof Mahatma Gandhi advising that the Congress should be dissolved and that ofRajaji "Remove Congress—Rajaji—1967" —whether a corrupt practice undersection 123(3) HELD.-The correct test in judging whether a particular object issymbol for another object or not is to find out whether by common acceptanceby a fairly large number of people there is such an association of ideas betweenwhat is stated to be the symbol and the concept or the idea or the objectof which it is the symbol that by looting at the symbolic object the wholeidea or the whole concept is evoked in the mind of the viewer. ThoughMahatma Gandhi is revered as the Father of the Nation, and as one of themakers of Independent India, it is difficult to say by looking at his pictorialrepresentation that it evokes any national idea : or national sentiments, norit evokes the ideas of the nation as a whole. The use, therefore, by the res-pondent of the pictorial representation of Mahatma Gandhi, cannot be saidto be use of a national symbol and the respondent cannot be said to haveoommitted the corrupt practice laid down in S. 123(3). of the Act.

Ramanbhai v. Dabhi Ajit Kumar, A.I.R. 1965 S.C. 669; Karan Singhv. Jamuna Singh, A.I.R. 1959 S.C. Allahabad, 427; Sengappa v.Shivamurthiswamy, A.I.R. 1961 Mysore 106; S. Mahar Singh v. UmraoSingh, A.I.R. 1961 Punjab 244; relied on. Desai Basawraj v. Dasanlcop.

Hassnat and others, 4 E.L.R. 380(390) Differed from. — BECHARBHAIPARMABHAI HARJIVANDAS v. DEVJIBHAI SADABHAI PARMAR,32, E.L.R. 133.

(10) MISCELLANEOUS —Hindu candidates deciding only one of them shouldcontest—whether illegal.—It was not illegal for the three Hindu candidatesand members of the community to get together and decide that only one ofthem should contest the election to defeat a muslim candidate.—TIKA RAMv. ASRAR AHMED AND OTHERS, 23 E.L.R. 116.

—— S. 123(1)—Corrupt practice—Free entertainment to voters in the shapeof a drama—By itself will not amount to corrupt practice—Motive to influencevoters essential—-Every act that gains popularity for a candidate or that wouldproduce a good effect upon the electorate or which might increase his chancescould not be described as a corrupt practice. Whether an act amounts toa corrupt practice or not depends upon the governing motive. To bring anact within the ambit of s. 123(1), it must be made out that the treating wasadministered "with the evil feelings and evil intensions" of procuring votes.Therefore even if a drama is within the connotation of treating, if it was notgot up with the sole object of influencing the voters, it cannot be regardedas a corrupt practice. The evidence was wholly insufficient to justify theconclusion that the drama was put up with corrupt motives. The standardof proof required in election matters where allegations of corrupt practices

s>

nare made, from which penal consequences would flow, is not in any waydifferent from that required in regard to a criminal charge. The absenceof moral turpitude would not make any difference as to the burden of proof.

Wigan, (1881) 4 O'M & H 13; East Division of the Borough of Nottingham,(1911) 6 O'M & H. 292 Kingston, (1911) 6 O'M & H. 372; Hexham, (1894)40 ' M & H 147; Windsor, (1874) 2 O'M & H. 89; Rochester (1) 1892 5 O'M &.H. 157; Stroud (1874) 2 O'M & H. 174; Sarup Narayan v. Raja Durga NarainSingh, Doabia's Election Cases Volume I, 383; KY-Bargo v. Tedders, (71)S.W. 2nd 660, 254 Ky. 341; Sambhu Nath Mahanti v.Gobinda Prasad Singh, Doabia's Indian Election Cases—Vol. 11-411; BrajBhushan v. Raja Anand Brahma, I.L.R. 1960 (2) All. 146; Harish Chandrav. Trilok Singh, 12 E.L.R. 461; Namsimha Reddy v. Bhoomaji, 17 E.L.R.207; Jaya Lakshmi Devamma v. Janardhan Reddy; 17 E.L.R. 302; V.B. Rajuv. Ramachandra Rao, 21 E.L.R. 1; Kandaswami v. Adityan, E.L.R. Vol. 21,435; Bowdley (1869) 1, O'M & H. 16; referred to.—D. MURALLDHARREDDY v. PAGAPULLA REDDY & ORS. 26 E.L.R. 116.

DELIMITATION COMMISSION

Delimitation Commission Act, 1962, s. 10(2)— Delegation of powerto Commission-whether execessive—Inclusion of Mo Assembly Constituenciesof Udaipur District in Ajmer Parliamentary constituency— Whether validif not whether votes polled in Udaipur constituencies to be taken into considera-tion : HELD : (a) The legislature in India can, as a rule, delegate its legislativepower to other bodies subject to its exercising essential legislative functionswhich consist in laying down a policy or rule of conduct to guide the exerciseof delegated authority. Legislative policy cannot be left to the discretionof the delegate, but when such a policy is laid down by the legislature, therest can be validly delegated. In re. Delhi Laws Act, A.I.R. 1951 S.C. 332relied on. Under s. 9 of the Delimitation Commission Act, 1962, Parliamentlaid down the principles on the basis of which the constituencies were todelimited. I t made provision for the publication by the Commission ofits proposals for delimitation of constituencies, for inviting objections, andfor the consideration of these objections at public sittings. I t was after suchconsideration that the proposals were to be finalised. In these circumstancesit could not be held that Parliament abdicated its legislative functions andeffaced itself. On the above view, the inclusion of the two Udaipur Assemblyconstituencies in the Ajmer Parliamentary Constituency was valid, (b) TheDelimitation Commission Act, 1962, was made by Parliament in exerciseof its power under Art. 327 of the Constitution. Under Art. 329 (a) of theConstitution the validity of this law cannot be challenged in any Court. I tcannot be challenged in an election petition under s. 80 of the Representationof the People Act, 1951 which is to be tried by the High Court by virtue ofthe provisions contained in s. 8 (1) of the Representation of the People Act1950. Under the latter section the Consolidated Delimitation of Parliamentaryand Assembly Constituencies Order, 1966, published by the Election Commi-ssion of India had the force of law and could not be called in question in, anycourt. Meghraj Kothari v. Delimitation Commission, AIR 1967 S.C 669referred to-RAM LAL v. VISHVESHWAR NATH, 29 E.L.R. 306.

to

DISQUALIFICATION OF CANDIDATES[See ALSO NOMINATION OF CANDIDATES]

(1) AGE—Art. 326—ss. 16, 19—Representation of the People Act 1951*ss. 36(7), 62, lOO(l)(d)(iv)—Scope of Art. S2b—Whether Election Tribunal ascompetent to go into question of age of voter whose name is on the electoralroll —and to exclude vote of minor from count— or whether content ofelectoral roll are final- Whether right under Art. 326 is to be registered asvoter—or to vote.—HELD: In the case of a person whose name appears in theelectoral roll and who has exercised his vote, the Election Tribunal can go intothe question whether or not he had attained the age of 21 on the qualifyingdate and, on the finding that he had not, exclude his vote from the count.

The direction in Art. 326 that the elections shall be on the basis of adultsuffrage car. mean one thing and one thing alone: that the representatives of thepeople shall be chosen on tnat basis. Suffrage means the right or privilegeof casting a vote at an election, and adult suffrage—in the contextof Art. 326—must mean that right or privilege as extended or confined toall adults who are (1) citizen of India; (2) not less than 21 years of age on thequalifying date fixed in that behalf; and (3) not otherwise disqualified underthe Constitution or under any law made by the appropriate legislature onground of non-residence, unsoundness of mind, crime or corrupt or illegalpractice.

There was no force at all in the contention that the right or privilegeconferred by Art. 326 is only "to be registered as a voter" at an electionand not to vote therein and what was given to the citizens of India by theConstitution was the mere processual right of registration unaccompanied bythe substantive right of voting.

A provision like the one embodied in s. 100(l)(d)(iv) of the Representationof the People Act, 1951 should be considered as a residuary provision coveringevery infraction of the Constitution or of the Act and the Rules and ordersthereunder, which have not been specifically enumerated in the other portionsof the Section.

Per Vaidialingam, J.—The age entered in the electoral roll cannot beconsidered to be final, either under the scheme of the Constitutionor the Representation of the People Act of 1950 or 1951 so as to precludethe Election Tribunal from going into that matter when deciding an electionpetition.

There is nothing in the two Acts of 1950 or 1951 to indicate that thelegislature intended to make the entries in the registration roll final for allpurposes. On the other hand the intentions are that they are all consideredto be final only to enable the progress of the elections at a quick pace andgiving a right to the concerned parties to challenge all these aspects at thefinal stage after the elections are over, namely, before the election tribunal.Art. 329(b) of the Constitution, read with s. 80 of the 1951 Act clearly indicatesthat it is the election tribunal that will have jurisdiction in such matters.

Stowe v. Jolliffee, 43, L.J.C.P. 269, Pembroke Borough Case, 5 O.M& H. 135, Jujhar Singh v. Bhairon Lall, 7 E.L.R. 457, Ramdayal Ayodhya

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Prasad Gupta v. K.R. Patil, 18 E.L.R. 378; Brijendra Lai v. JawalaprasarA.I.R. I960 S.C. 1049 (1960), 3 S.C.R. 650; Gopalan v. Kannan, 1958, K.L.T388, A.I.R. 1959 Ker: 12; N. P. Ponnuswamy v. Returning Officer, NamakhalAI.R. 1952 S.C. 64,1952 S.C.R. 218;Z)r. N. B. Khare v. Election Commissionof India, A.I.R. 1957 S.C. 694; Durga Shanhar Mehta v. Raghuraj Singhand others, A.I.R. 1954 S.C 520 (1955) 1 S.C.R. 267; Ramdayal Ayodhya PrasadGupta v. K. R. Patil, 20 E.L.R. 13; Worcester Borough Case (1880) 3 O.M.& H. 184, referred to.—P. KUNHIRAMAN v. V.R. KRISHNA IYER,23 E.L.R. 208.

Art. 173(6)—Disqualification—Allegation regarding age—School Certi-ficate, evidentiary value of—Standard of proof.— The first respondent's electionwas challenged on the ground, inter alia, that his age was less than 25 yearsat the time of election. The Tribunal, relying on the horoscope evidenceas against the date of birth recorded in the School Certificate, held that therespondent was more than 25 years of age on the date of his election. InApeal, HELD: The Appeal must be allowed. There was no evidence onbehalf of the respondent to negative the accuracy of the school age as repre-senting the real age. The respondent had merely averred that the matricula-tion certificate could not be taken as conclusive proof of the fact in issue.Apart from the other evidence showing the genuineness of the entry of theage in the School Certificate the publication of the matriculation result withthe age and description of the candidate is a fact of a public nature. TheCourt has to form an opinion as to the existence of this fact and the recitalof age contained in the Orissa Gazette is a relevant fact. The Gazette itselfis presumed to be genuine under s. 81 of the Evidence Act. Entry of a person'sname in the electoral roll does not raise any presumption that he is qualifiedto be a candidate for the election. Brijendra Lai v. Juiala Prasad A.I.R. 1960S.C. 1049, referred to. The allegation of a disqualification on account of ageis not a charge of corrupt practice which is quasi-criminal in character andthe appellant need not prove beyond doubt that the constitutional disabilityexists. The burden of proof to be discharged is the same as applicable tothe determination of civil disputes, i.e., the balance of probabilities and notproof beyond reasonable doubfc.—MA.N0HAR JSTAIK v. BINODE BEHARIBARIHA, 23 E.L.R. 379.

-Art. 173—Allegation of candidate being below 25 years—burden ofproof.—-Evidence Act, 1872 s. 35—Illiterate chowkidar maintaining record ofbirths but entry mide by someone else—whether admissible evidence. HELD: (i) Ifan entry relating to the appellants' birth made in hatJi-chiiha maintained by avillage chowkidar, had been made by the chowkidar himself that entry wouldhave been relevant under section 35 of the Evidence Act. The reason why anentry made by a public servant in a public or other sufficient book, register orrecord stating a fact in issue or a relevant fact has bsan made relevant is thatwhen a public servant makes it hirmelf in the discharge of his official duty, theprobability of its bsing truly and correctly recorded is high. That proba-bility is reduced to a minimum when the public servant himself is illiterate andhas to depand oa somsbady else to mike the entry. However much on s maycondemn an act of miking a false statement of age resulting in entry in theschool admission register with a view to se3ure an advantage in getting public

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service, a judge of facts cannot ignore the position that in actual life this happensnot infrequently, (ii) The Tribunal had rightly decided on the evidence that thecommission of any corrupt practice by the appellant under s. 123 (4) had notbeen proved.—BRIJ MOHAN SINGH v. PRIYABRAT NARAIN SINGHAND ORS. 26 E.L.R. (S.C.) 78.

Art. 173(fr)—Disqualification—Age—Candidate if should be 25 yearsal the timz of nomination or at the time of polling.

Election Petition—result of the election being m%f,erially affected if should bsaverred in the.Petition—Stay—-If has to be unconditional—Representation of thePeople Act, Section 116.

The petitioner challenged the election of the first respondent on the groundthat on the date of filing of the nomination as well as on the date of electionthe respondent was not qualified to be chosen as a member of the Assemblyunder Art. 173(&) of the Constitution, because he was less than 25 years ofage on that date and consequently there was an improper acceptance of hisnomination; the result of the election was thus materially affected. HELD :On the date of nomination and even on the last date of filing of nominationpapers, the respondent had not completed 25 years of age and therefore therewas non-compliance with Art. 173'b) of the Constitution of India. The casetherefore would fall under s. 100(1) (d) (iv) of the 1951 Act. The result of theelection being obviously materially affected, the respondent's election had tobe declared void, (i) If on the date of nomination a person has not completedthe age of 25 years he cannot be said to be qualified to be chosen with referenceto the date of nomination under Art. 173(b) of the Constitution. This con-clusion is supported by s. 36(2) (a) of the Act.

(ii) It is not necessary that there should be an averment in the petitionitself that the result of the election has been materially affected. The re-quirement under s. 100(1) (d) that the result of the election has been materiallyaffected is not a material fact to be averred by the petitioner but is the conclu-sion to be reached by the High Court.

(in) S. 116-B (3) which is the deeming provision in s. 116B must be readwith the operative part of the section namely, sub-section (1) and the HighCourt is not bound to grant the stay order in the first place and secondly at thetime of granting the stay it can impose such terms and conditions as it thinksfit.

V.V. Giri vs. T. Suri (A.I.R. 1959 S.C. 1318) distinguished; Bri/j Mohanvs. Priya Brat (A.I.R. 1965 S.C. 282) ; Durga Shankar vs. Raghuraj Singh(A.I.R. 1964 S.C. 520); Brijendralal vs. Jwalaprasad (A.I.R. 1960 S.C. 1049);S. M. Banerji vs. Sri Krishna (A.I.R. 1960 S.C. 368); Innamati MallappaBasappa vs. Desai Basavraj Ayyappa (A.I.R. 1958 S.C. 698); Shri GurbantaSingh vs. Piare Ram (A.I.R. 1960 Punjab 614); referred to .—HIMATBHAIGOMANBHAI PATEL v. AMRUTLAL AMBALAL PATEL AND ANR.30 E.L.R. 293.

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(2) CITIZENSHIP, WANT OF -Constitution of India—Arts. 5 (c) and 173(a) —acquisition of citizenship or domicile—proof of.

The appellant challenged the respondent's election to the Bihar Legis-lative Assembly on the ground that he was not duly qualified under Article173 of the Constitution of India to be a candidate for election, as he was nota citizen of India. It was contended that his parents and grand-parents wereall born in Nepal, the respondent was related to the royal family of Nepal andthat the respondent's father owned immovable property in Nepal in which therespondent had a share. The Tribunal held that the respondent was not acitizen of India and therefore was not qualified under Article 173 of the Con-stitution for being chosen to fill a seat in the Legislative Assembly. However,the High Court allowed an appeal and held that the respondent had acquiredthe status of a citizen of India both under Article 5(a) and (c) of the Constitution.HELD : Taking all the events and circumstances of the respondent's life beforeand after the material time (1949), under Article 5 of the Constitution he hadacquired a domicile of choice in India. He had formed a deliberate intentionof making India his home with the intention of permanently establishing him-self and his family in India and the requisite animus manendi had been proved.The finding of the High Court that he had been ordinarily resident in India for5 years immediately preceding the time when Article 5 of the Constitution cameinto force was correct. The decisions of the English Courts in Udny v. Udny(LR 1 HL SC 441) and Deucet vs. Geoghegan (9 Ch. D. 441) represent the correctlaw with regard to change of domicile of origin. The only intention requiredfor proof of a change of domicile is an intention of permanent residence. Whatis required to be established is that the person who is alleged to have changedhis domicile of origin has voluntarily fixed the habitation of himself and hisfamily in the new country not for a mere special or temporary purpose, but witha present intention of making it his permanent home. For the determinationof the question of domicile of a preson on the date of coming into force of theConstitution of India the course of his conduct and facts and circumstancesbefore and after that date are relevant and should be taken into account.In re. Grove Varxher v. The Solicitor to the Treasury (1889) 40 Ch. D. 216; Winonsv. Attorney'General (1904) AC 287; Munrov. Munro of 7 Cl. and Win. 876;Aikman v. Aikman 3 Mac. Q. H.L.C. 854; Moorhouse v. Lord 10 H.L. Cas 272;referred to.—KEDAR PANDEY v. NARAIN BIKRAM SHAH 27 E L R(S.C.) 97.

(3) CONVICTION—S. 7 (b)—remission of sentence under s. 401 Gr. P.O.whether has effect of reducing sentence to remove disqualification under s. 7 (d).HELD : The appellant was disqualified under s. 7(b) and his nomination paperwas rightly rejected.

The remission of a sentence by Governmsnt under s. 401 Cr. P.C. does nothave the same effect as an order passed by a court of law in appeal or revision.The order of remission affects the execution of the sentence imposed by thecourt but does not affect the sentence as such, which remains what it was. Sec-tion 7(b) speaks of the conviction and sentence passed by a court of law;it does not speak of the period of imprisonment actually suffered by the convic-ted person. Venkatesh Yeshwant Deshpande v. Empzror, A.I.R. 1938 Nagpur

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513, distinguished and Ganda Singh v. Sampuran Singh, 3 E.L.E. 17 over-ruled.—SAEAT CHANDEA RABHA AND OTHEES v. KHAGENDRA-NATH AND OTHEKS, 23 E.L.R. 125. (S.C.)

(4) INTEREST IN CONTRACT WITH GOVERNMENT—8. 7 (d).—Grain supplyscheme undertaken by Government—Contract for stocking and storing grain—whetheramounts to a contract for a service undertaken by Government— The appellant'snomination paper for election to the Bihar Legislative Assembly was rejectedby the Returning Officer on the ground that as he was a member of a jointHindu family which carried on the business of Government stockists of grainunder a contract with the State Government, he had an interest in a contractfor the performance of services by the Government and was therefore disqualifiedunder s. 7(d).

An election petition filed by the appellant challenging the respondent'ssubsequent election on the ground that his own nomination paper was impro-perly rejected, was dismissed by the Tribunal; but the High Court, on appeal,reversed this decision. On appeal to the Supreme Court.

HELD : The contract in question was not for the performance of anyservice undertaken by the Government and did not therefore attract the pro-visions of S. 7(d) of the Act.

The Government had to stock and store food-grains for sale in pursuanceof its Grain Supply Scheme for which a proper custodian and bailee for rewardwas necessary. The contract of bailment whereby the appellant's firm wasappointed such bailee and which imposed on the bailee the obligation to stockand store the food grains in his godown, could not be said to be a contract for thepurpose of the service of the sale of foodgrain which the State Government hadundertaken.'55Although remuneration was payable to the bailee under the con-tract on the basis of value of stocks moved or taken over from his custody thiswas only a mode adopted for determining the remuneration. It did not showa relationship of the contract with the sale of goods.

N. Satyanathan v. K. Subramanyam (1955) 2 S.G.R. 83 and V. V. Bama-swamy v. Election Tribunal Tirunelveli (1933) 8 E.L.R. 233 ; distinguished.—RAM PADARATH MAHTO v. MISHRI SINHA AND ANOTHER, 23 E.L.R.(S.C.) 110.

s. 7(d)—subsisting contract—expression 'in the course of his trade orbusiness'—explained. HELD : The appellant's election to the State LegislativeAssembly was set aside by the Election Tribunal on the ground that he wasdisqualified from contesting the election by reason of the provisions of s. 7 (d)of the Representation of the People Act, 1951, in that he had a subsisting con-tract with the Government at the relevant time.

It was contended on behalf of the appellant that s. 7 (d) was inapplicableto a case where there was no subsisting contract other than the one which issupposed to bring the appellant within the mischief of the section ; that inview of the expression "a contract entered into in the course of his trade orbusiness'' used in the section, it was necessary for s. 7(d) to be invoked that thereshould be other contracts unfinished or incomplete when the contract in ques-tion was entered into,

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The appellant's contract with the Government, which pertained to hisbusiness was a subsisting contract within the meaning of s. 7(d) for a con-tract to be "in the course of his trade or business", it was not necessary thatthere should be a series of unfinished contracts.

The expression 'in the course of only means 'connected with', or 'in con-nection with' or "part of. Sano Kashinath v. Patitto Subuto A.I.R. 1942, Patna384; Sitaram Shrawan v. Bajya Parya, A.I.R. 1941, Nagpur, 177. Distinguished.

State of Travancore-Cochin v. S.V.O. Factory, A.I.R. 1953 S.C. 333;In re. Pryce Ex Parte Rensburg (1877) 4 G.H.D. 685; referred to.—MAKUNURIDHARMA RAO v. D. HANUMANTHA RAO, 24 E.L.R. 1.

S. 7(d)—Elected candidate holding Mining Lease from Government—whether disqualified. HELD : The appellant had not incurred a disqualification,under S, 7(d) and was entitled to stand for election.

The terms of S. 7(d) do not show that every kind of connection with Go-vernmental activities on every benefit received by a person from Governmentfalls within the sweep of that section. It is only contracts within the connota-tion of that section that will serve as grounds of disqualification. Under a pro-vision of the Mining lease the State Government was given the right of preferen.tial purchase. It did not fro prio vigore create a contract between the partieslIt only amounted to an offer by the lessees and there could be no contract untilit was accepted by the Government by the exercise of its option of preferentialpurchase. The undertaking given by the appellant was merely an arrangementhaving the potentiality or possibility of becoming a contract.

Ram Padarath v. Mishri Sinha, A.I.R. 1961 S.C. 480; Chalurbhuj Vithaldasv. Moreshwar Parashram, A.I.R. 1954 S.C. 236; Jethelal v. R. N. Kapur, A.I.R.1956, Bom. 74; Bengal Coal Company Ltd. v. House Wedia and Co. I.L.R. 24,Bombay, 97 ; Coope v. Ridout, 1921 Ch. Division 291; Gian Chand v. RamBansal, 2 Election Law Reports 136 ; Bholanalh v. Krishna Chandra Gupta,6; E.L.R. 104; Kushwant Rai v. Karan Singh 11 E.L.R. 1— relied on.

Kamkhja Narain v. I.T. Commissioner, A.I.R. 1943; P.C. 153 ; D.I.P.Narain Sinqh v. Nageshar Prasad, A.I.R. 1930 ; All, 1; Lapish v. Braith Waite1925—1--K.B.D. 474; Ballas & Co. Ltd. v. Arocos Ltd. 1932 A.I.C.E.R, 494;Jawala Prasad Misra v. Mahadeo and Ors, 3 E.L.R. 473; Maharaja of Parla-liimidi v. Vijya Chandra Das & Ors, 4, E.L.R. 101; Shankar Nanasaheb Karpev. Maruti Sitaram Sawanl & Ors., 1 E.L.R. 302, referred to.

Satyanathan v. Subramanyam, A.I.R. 1955 S. C. 459, distinguished—'DANTU BIIASKARARAO v. C.V.K. RAO, 24 E.L.R. 168.

7(d)—subsisting Contracts on date of filing nomination—Contractsadmittedly entered into but claimed to have been assigned before relevant date—*/ burden of proof on candidate.—Subsisting contract in capacity other than per-sonal capacity—if proved.

The first respondent, an elector in the constituency, challenged the appel-lant's election to the Bihar Legislative Assembly on the ground that the appe-llant had various subsisting contracts with the State Government on the date ofhis nomination and he was therefore disqualified under s. 7 (d) of the Act.It was alleged that the appellant undertook the construction of certain Block.

73-*M/J(D)21EC—3

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Headquarters and a hospital under two separate contracts which were subsistingon the date of the filing of the nomination paper. Another allegation wasthat the appellant entered into a third contract for the construction of a schoolwhich was also subsisting at the relevant time.

The appellant contended that although the contracts with regard to theconstruction of Block Headquarters and the hospital were in his name, hewas not the real contractor as he had no personal financial or pecuniary interestof any kind in the contracts; that he had assigned the contracts, to anotheruerson on 18th January, 1962, i.e. two days before the date on which he filedhis nomination papers. As regards the third contract for the construction ofa school building, the appellant contended that he was a non-official Mukhiaof the Panchayat where the school was located and the Secretary of the Schoolhad undertaken the work in that capacity; he was oot the contractor inhis personal capacity and had no personal interest in that contract.

The Tribunal allowed the petition and held that the appellant's nomina-tion was invalid. HELD : (i) It was not proved, on the facts, that the appellanthad assigned the first two contracts to another person before the date of filinghis nomination paper. According to the terms of the two contracts, the con-tracts in question could be assigned or sublet only after the written approvalof the Executive Engineer was received and not before that. That approvalwas not proved to have been given before the date of nomination or election.The appellants therefore suffered the disqualification provided in section T(d)of the said Act. G. Raja Nainar v. iV. T. Velusami Thevar, A.I.R. 1958 Mad. 198,N. T. Veluswami Thevar v. G. Raja Nainar A.I.R. 1959 S.C. 422 ; HarichandManchamn vs. Govind Luxman Gokhale, 50 I.A. 25 ; Currimbhoy and Go. Ltd.v. L. A. Creet, A-I.R- 1940 Cal. 113 ; referred to. While normally the onusis on the petitioner who has challenged the election to prove that there was asubsisting contract on the date of the filing of the nomination paper whichwould disqualify the appellant from seeking election, the position in thepresent case was that the appellant was admittedly a contractor in respect ofthe two contracts and the work in connection therewith was not complete onthe date of filing of the nomination paper in as much as the rights and interestsin respect of those contracts were being sought to be transferred by the appellantin favour of another person. In a case like this it was for the appellant to proveand establish by positive evidence that his contract had come to an end thathe had got himself relieved of all the burden and obligations relating to thosecontracts and that they did not subsist on the date he filed the nominationpaper. The fact that the contracts came to an end was within his special know-ledge and the burden of proving that the contracts had terminated was on him.(ii) It was clear from the terms of the agreement for the construction of theschool that this agreement was executed by the appellant in his personal capacityand not either as Mukhia of any Panchayat or as Secretary of the said school.The Tribunal was therefore right in holding that this contract was also subsist-ing on the date of filing of the nomination paper and came within the purviewof s. 7(d). Bhagwan Sing v. Rameshwar Prasad Shastri, A.I.R. 1959, S.C.876; refeiTed to.—BRIJ MOHAN SINGH, v. NARAIN PRASAD SINGH & OTHERS, 24,

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Section 7(d)—Andhra Pradesh Mining Corporation created by govern-ment with own capital—registered under the Companies Act—Whether contractwith Corporation tantamount to a contract with Government—Whether Corporationhas attributes of a Government—therefore wliether "appropriate government"under s. 7(d).—The respondent challenged the validity of the appellant's elec-tion mainly on the ground that he had incurred disqualification under section7(d) of the Act as the firm of which he was a partner, entered into a contractwith the Andhra Pradesh Mining Corporation, a State-owned Corporation, forraising iron ore from the mines and for transporting the same. The Tribunalupheld this contention and set aside the appellant's election. HELD :—Theappellant was not disqualified under S. 7(d). Ingredients like the creationby the Government of a Corporation to give effect to its policy, contributionof the whole capital thereof, nomination of Directors by Government, transferof shares only with the approval of Government, etc. do not alone make a Cor-poration a State-owned Corporation to bring it within the terms "appropriateGovernment" in section 7(d). Certain other factors like registration of tlteCorporation under the Indian Companies Act, provision for it to own property,to carry on a business, borrow and lend money of its own, provisions in theArticles of Association for private individuals to own shares, provisions forliquidation of the Corporation, had also to be borne in mind and showed thatthe Corporation had the characteristics of an ordinary company with an inde-pendent existence and could not be treated as a department of Government.Andhra Pradesh State Road Transport Corporation v. l.T.O. Hyderabad, (1962)-II-An. W. E. 393; Tamlin v. Hannaford, (1949)-II-AU England Eeports-327;Lapish v. Eraith Waite— (1925-I-K. B. D. 474). referred to—CHENNUPATRAMAKOTAYYA v. MYNENI LAKSHMANASWAMY AND OES. 24E.L.E. 229.

-S. 7{d) —Burden of proof . HELD : The appellant had established thatbefore he filed his nomination he ceased to have any contract with the TrustBoard. Corrupt Practice under the election law is akin to criminal offences.Therefore the standard of proof required for establishing corrupt practice isthe same as that required to establish criminal offence. Anjaneya Reddi v.Gangi Raddi, 21. E.L.E. 247; Sankara Oouda v. Sirur Veera Bhadmppa,A.I.E. 1963 Mys, 81, referred to. D. MUNICHINNAPPA v. B.BASAVALINGAPPA & OES. 25 E.L.E. 247.

S. 7 (d)—mining lease containing right of Government to pre-emption ofminerals—if a subsisting contract for supply of goods by lessee—Expression ''in thecourse of trade or business'—meaning of. On appeal to the Supreme Court.HELD : The High Court had rightly dismissed the election petition. Thedisqualification which results from s. 7(d) is conditioned by a number ofcircumstances. First, there mut be a subsisting contract between the appro-priate Government and the candidate. Then the contract must be in the courseof the trade or business of the candidate and, finally, it must be inter alia forthe supply of goods to such Government. Even if the lease in the presentcase was regarded a contract and one which was entered into in the course ofthe respondent's business, Clause 21 did no more than to keep intact a rightof the Government to obtain the minerals as and when the Government sorequired and until (government made up its mind and served the requisite

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notice, there was no obligation to make any deliveries; it could not thereforebe said that the contract for sale of goods subsisted because a contractrequires an offer and its acceptance and is not a mere reservation of a vichtHELD Also : The mining lease could be regarded as being in the courseof the business of the respondent. It is not necessary that a course of businessbased upon other transactions must first,exist before the offending contractcan be said to be in the course of the business./ The contract may itself be thestart of the business and the words "in the course of the business'' would still beapt.—EAO C.V.K. v. DENTU BHASKAEA RAO, 26 E.L.R. (S.C.) 310. .,

—8. 7 (d)—Printing Press firm executing printing work for governmentdepartment-If member, proprietor of firm—whether firm had subsisting con-tracts—if member disqualified,—See {Opinion) Election Commission RAM-CHAEAN RAI, Dr. IN RE, 27 E.L.R. 66.

Article 299—Contract not in the prescribed form—If disqualifies unders. 7(d) of the Representation of the People Act (43 of 1951). The appellant filed apetition alleging that the election of the respondent was void as he was dis-qualified under s. 7(d) of the Act. The appellant's complaint was that therespondent had entered into various contracts with the Government and thatthese contracts were subsisting on January 14, 1962, the date fixed for filingnomination papers. The tribunal found against the respondent and declaredthe election void. In his appeal to the High Court the respondent contended:(i) That he was not a contractor under the State Government but that at allrelevant times he was a sub-contractor under S who was a contractor underthe State Government; (ii) That assuming there was a contract within themeaning of s. 7(d) of the Act, there was no subsisting contract when theappellant had filed the nomination paper ; and (in) That assuming therewas a contract, the contract alleged was void in view of Art. 299(1) of theConstitution. The High Court held that the respondent had not incurredany disqualification. It came to the conclusion that the respondent wasonly a sub-contractor. It further held that the decision of the SupremeCourt in Challurbhuj Viihaldas' case was distinguishable because the StateGovernment had not accepted the performance of the contract by the respon-dent and that the effect of the amendment to s. 7(d) was that a candidatewas disqualified only if there existed in sxibstance at the relevant time avalid and binding contract between him and the appropriate government. Onappeal to the Supreme Court: HELD : (Per majority)—There was no subsist-ing contract between the respondent and the State Government at the relevanttime and therefore the respondent was not disqualified under s. 7(d). Eventhough the correspondence discloses an agreement for execution of work betweenthe executive engineer and the respondent, a mere agreement entered into incontravention of Art. 299 and in fact not ratified by the State Governmentcannot be called a "contract" within the meaning of s. 7(d) of the Act. Theevidence on record showed that as far as the government was concerned theoriginal contract withstood and the government had not chosen to treat therespondent as a contractor, but only as a sub-contractor. The decision inChaMurbhuj Vithaldas' case cannot be extended to cover a case where the govern-ment has in fact not ratified the contract: were it to be so extended, it would be

81

giving no effect to the word 'contract' in s. 7(d) and would amount to substi*tuting the word 'agreement' for 'contract' Chaturbhuj Vithaldas v. Moreshwa/fPrashmm and others (1954) S.C.R. 817; distinguished. New Marine Goal Co.V. Union, A.I.R. 1954 S.C. 152; State of West Bengal v. B. K. Mandel, A.I.R.1963, S.C. 779; referred to. (Per Hidayatullah and Shah, JJ., dissenting)— Therewas a subsisting contract between the respondent and the State Governmentand the contract was made in the course of the respondent's trade or business.The Court was only called upon to decide whether there was a contract betweenthe respondent and the State Government and was not concerned with thequestion whether the contract was enforceable against the State. A contractthough not enforceable by action against the State can still be regarded as dis-qualifying a person under s. 7(d), because it is always open to the State, not-withstanding noncompliance with the form prescribed by Article 299, to acceptliability arising under the terms of the contract. In the instant case the res-pondent had performed his part of the contract.

Chaturbhuj Vithaldas v. Moreshwar, 1954, S.C.R 817; Bikhraj Jaipuria v .. Union of India (1962) S.C.R. 830; referred to LALITESHWAR PRASADSAHAI v. BATESHWAR PRASAD AND ORS 27, E.L.R. (S.C.) 265.

—•—-8-7(d)—-Miller's contract with State Government to cleanse rice pur-chased by it from Central Government—-Cost of cleansing to be deductible fromprice—Central Government to jointly supervise cleansing, storage etc. along iviththe State Government and to have right to bye-products—Miller's contract whetherwith State Government or with Central Government or with both—•Disqualificationunder s. 7(d)for election to Parliament, whether incurred.

The Tribunal held that the respondent's contract was with the AndhraPradesh Government only. And there was no privity of contract between himand the Central Government. On this view the Tribunal allowed the electionpetition and set aside the appellant's election. The appellant in his appealbefore the High Court contended that the aforesaid contract was between therespondent and the Andhra Pradesh Government as well as the CentralGovernment, thus changing the stand he had taken before the Tribunal thatthe contract was with the Andhra Pradesh Government as an agent of theCentral Government. HELD : (i) The Tribunal was right in holding that therewas no contract between the respondent and the Central Government. Thedocument embodying the contract showed that the contracting parties were theElection Petitioner and the Government of Andhra Pradesh. The evidence alsoshowed that it was the Government of Andhra Pradesh which had undertaken theduty of getting the rice cleansed. The Andhra Pradesh Government undertooksuch duty in pursuance of a separate agreement and understanding which ithad with the Central Government and with which the Election Petitioner hadno concern as a party or otherwise. The contracting party in the document wasthe Government of Andhra Pradesh and not the Central Government, evenif it be taken that the source of the power and duty of the Andhra PradeshGovernment to get the rice cleansed was the agreement of the Andhra PradeshGovernment Avith the Central Government. The provision in the contractfor the association of the Central Government with the supervision ofthe cleansing process did not support a contrary conclusion. I t was nobody' 8

82

ase that the respondent could directly claim the cleansing charges from theCentral Government or had a right of action against the Central Government

to collect the amount. The delivery of the bye-products (Konda and Param)by the respondent to the Central Government also did not go to establishthat his contract was with the Central Government. It was clear from theevidence that the respondent delivered these to the Central Government andnot by way of recognising any contractual right of the Central Governmentagainst him. (ii) Although the contention of the appellant before the HighCourt as to the manner in which the Central Government was a party tothe contract with the respondent was different from that raised before theTribunal, it was based on the material already on record, and therefore couldbe allowed to be raised. Bhagwan Singh v. Rameswar Parshad Sastri, 21,E.L.R. 126: Badri Vishal Pittie v. Narsing^ Rao, (1959) (I) Andhra WeeklyReporter 31; A. J. Arunachalam v. Election Tribunal, 9 E.L.R. 471 at p.477; Kariamanigkam v. Ramahrishna Thevar, 13, E.L.R. 275; N. B. S.ingh v.DuryodhanPradhan, A.I.R. 1959 Orissa 58; Etieretv. Griffiths, 1924(1) K. B. 941;Nation v. Wilson, (1839) 22 Q. B. D. 744; Norton v. Allan Awilvr Taylor, 1906A. C. 378, at 380; Chatturbhuj Vithaldas v. Moreshwar Parashratn, A.I.R. .1954 S. C. 236; Collector of Masulipatnam v. Cevaly Venkata Narainapay, IMoo, Indian App. 529 at p. 554; Bhihraj v. Union of India, A.I.R. 1962 S.C.113; State of West Bengal v. B. K. Mandal and Sons, A.I.R. 1962 S.C. 779; MarineGal Co. v. Union of India, A.I.R. 1964 S.C.152; Karamshi v. State of Bombay,A.I.R. 1964, S.C. 1714; Deb Narayan Duit v. Chuni Lai Ghouse, I.L.R. 41, Cal.137; Kwaja Muhammad Khan v. Hussain Begum, 1910, 32 AH. 410; Sabbuv. Arunachalam, A.I.R. 1930 Mad. 382; Tweddle v. Atkinson, 18711. B. & S.393; 30 L.J.Q.B. 265; Dunlop Pneumatic Tyre Co. v. Selfridge & Co. Ltd.,1915 A.C. 847; referred to.—AHMED MOHIUDDIN v. G. MALLA REDDY,28 E.L.R. 1.

-s. QA—-Disqualification arising from, subsisting contract with Govern-ment—Contract subsists even if repudiated by contractor and repudiation accepted by Government if accounts remain to be settled.

The.petitioner and the respondent among others filed nomination papersfor election to the Mysore Legislative Assembly at the 1967 general election.The petitioner's nomination paper was rejected on the ground that he hadsubsisting contracts with the State Government for the erection of certainbuildings and therefore he was disqualified to stand for election under s. 9A ofthe Representation of the People Act, 1951. The respondent won the election.In an election petition the petitioner contended that there was no subsistingcontract because the contracts in question had been repudiated by himand the repudiation had been accepted by the Government, though the finalaccounts remained to be settled. HELD: On the facts and evidence in thecase it was not proved that the contracts in question had been repudiated bythe petitioner or that the said repudiation had been accepted by the Govern-ment. Even though a contract may be repudiated by one party and repudiationis accepted by the other, and there is a discharge of the contract by agreement,or there is a discharge of the contract by breach, the mutual claims betweenthe parties require to be determined under the terms of the contract which

83

exists though for ancillarry purposes, giving rise to the conflict betweeninterest and duty visualised in the observations of the Supreme Court in Chattur-bhuj Vithaldas' case. Therefore in the circumstances of the present case thepetitioner must be held to be disqualified under s. 9A of the Eepresentationof the People Act 1951, even though there may be a determination of thecontract between him and the State.

Chattnrbhuj VitJialdas v. Moreshwar Parashram AIE 1954 S.C. 236;Gauri Shanhar v. Mayadhardas AIR 1959 M.P. 39; and Brojo Gopal Das v.Kalipada AIR 1960 Cal. 92; referred to—MUDALIAR H.KA. v. DEVA-RAJB URS, 29, E.L.R. 291.

—•—-s\ 9A and 123—-Director of Private Limited Company which Jiassubsisting contracts with Government, whether incurs disqualification under S.9A—Corrupt practice, proof of. HELD : The suggestion that a Director of aPrivate Company should for all practical purposes be identified with theCompany when he is the real motivating force and represents the Companyactively while entering into contracts cannot possibly be accepted. I t hasbeen made very clear in the State of Rajasthan v. Mrs. Leela Jain (AIR 1965S.C. 1296) that unless the words are unmeaning or absurd, it would not be inaccord with any sound principle of construction to refuse to give effect to aprovision on the very elusive ground that to give the words their ordinarymeaning leads to consequences which are not in accord with the notions ofpropriety or justice entertained by the Court. I t has been provided by s. 9Athat there should subsist a contract which has been entered into by a person inthe course of his trade or business. In the present case the contracts were notentered into by respondent No. 1 with the appropriate Government in the courseof his trade or business. Respondent No. 1 was only a shareholder and an officerof the company because he was a Director, but the Company was a distinctjuridical person. It could not therefore be said that Respondent No. 1had entered into any contracts in the course of his trade^or business. Nor wasthere any evidence to show that Respondent No. 1 had taken such an activepart or interest in the negotiations of the contracts which were entered intoby the two private companies with the Central Government which could byany stretch of reasoning be brought within the ambit of s. 9A.—JAGANNATH v. SOHAN SINGH BASI AND ANR. 29, E.L.R. 367.

Explanation to Section 9JA , ss, 100, 101—-Constitution of IndiaArticle 299, cl (1)—Respondent partner in construction firm—firm had P.W.D.contract with Government—building handed over to Government by contractor—completion certificate issued by Executive Engineer before the Respondent filed hisnomination— Subsequent withdrawal of completion certificate by the Executivewhen the Respondent's nomination was under scrutiny—withdrawal whetherultra vires of his poivers—Doctrine of" substantial performance" whether appliesto building contract—Whether Respondent disqualified under Explanation toSection 9A—-: HELD Dismissing the petition :

(i) On facts and evidence: The Construction Company of which the FirstRespondent was a partner before its dissolution on 24th December, 1966, hadno subsisting contract with Government on the 21st January, 1967, the date

34

of the scrutiny of the nomination of the First Respondent; he was therefore notdisqualified to be chosen as a member of the Assembly and his election was notvoid by reason of the provisions of the Explanation to Section 9-A of theAct.

(ii) Clause (2) of the Mysore Governor's order dated the 7th April, 1961issued under Article 299 Cl. (1) of the Constitution of India, authorising theExecutive Engineer to execute contracts on behalf of the Governor is not incontravention of Article 299 Cl. (1) of the Constitution.

(Hi) If under the terms of a P.W.D. contract the work had to be executedto the satisfaction of the Executive Engineer and when he had issued a comple-tion certificate after satisfying himself that the work was complete, he had nopower to withdraw the completion certificate and such withdrawal was ultravires his powers.

In a building contract where the contractor completes the building andthe Government takes delivery of the building, it cannot be said that thecontractor has not performed the contract, notwithstanding the fact that theperiod of maintenance has not expired as the rule of "substantial performance"applies to a building contract. Laliteshwar Prasad v. Bateshwar Prasad, A.I.R"1966 S.C. 580; Ch'Murbhuj Vuhcddas Jasani v. Moreshwar Parashramand others; I, E.L.R. 301; referred to.— KONAPPA RUDRAPPA NADGOW-DA«. VISHVANATHA REDDYANDTHE ASSISTANT COMMISSIONERAND RETURNING OFFICER FOR YADAGIRI ASSEMBLY CONSTI-TUENCY, YADAGIRI, 31, E.L.R. 64.

—S. 9A—-Contract with Government subsisting for ancillary purposes ondate of nomination—whether contract subsists—if candidate disqualified, HELD:The Contracts by the second respondent with the P.W.D. for execution of someworks were subsisting on the date of election for ancillary purpose, viz., to deter-mine the rights and obligations of the parties and he was therefore disquali-fied for standing for election under 9A of the Act; and the acceptance of hisnomination paper was, therefore, improper.

Ohaturbhuj ViihaMas Jasani v. Moreshwar Parashram and- Others,A.I.R. 1954, S.C. 236; Gauri Blanker v. Mayadhardas, A.I.R. 1959, MadhyaPradesh. 39; Brojo Gopal Dass and Others v. Kali Pada Banerjee and OthersA.I.R. 1960, Cal. 92; H.R. Annamalai Mudaliar v. Devaraja Urs. II . E.L.R.823 (Election Petition No. 21 of 1967 ) relied on. SRIDHARA H. PAI AND

ANR v. S.K. AMIN AND ANR. 31. E.L.R. 329.

S.9-A—Contract with government—-cancellation of contract after work,half done—order stating final measurements had to be done before payments made—If contract subsisting—Constitution of India, Article 299—Non-Compliance with,effect of .—HELD : A person would not be disqualified under s. 9 Aif the work had been executed but payment had not been made by the Govern-ment. To this extent the decision of the Supreme Court in Laliteswar v. Bateswar ,(A.I.R, 1966 S.C. 580) stands modified by the introduction of s. 9A in the ijAct, in 1966. But if on the other hand the work had been executed^

8o

but the contractor had liability to pay to the government in relation to thecontract, he cannot be said to have performed his part of the contract. Lalitewarv. Bateswar, will have full application in such a case and the contractorwould be disqualified from being a candidate. On the facts of the instant casethe contract was not rescinded either in whole or in part. The positionthat was accepted by the Executive Engineer was that the petitioner was exo-nerated from the liability of doing the further work as-originally contracted.But the contract in respect of part of the work was not closed or terminatedand the matter was kept pending until final measurements were done and finalbills were prepared. The principle that if a contract is not in conformity withArticle 299 of the Constitution it is void and unenforceable is not wholly appli-cable to contracts under section 9A of the Act. If there could be ratificationof the contract it would be valid for the purpose of the section. K.P.Choudharyv State of M.P., A.I.R. 1967 S.C. 203; Ohathurbhuj v Moreswar. A.I.R. 1954 S.C.236; BMkraj v. Union of India, A.I.R. 1962 S.C 113; State of W.B. v. Mondal,A.I.R. 1962 S.C 779; Laliteswar v. Bateswar, A.I.R. 1966 S.C 58; referred to.The contract was being carried out according to its terms by both parties andtherefore there was ratification by the Government. The contention thataccording to clause (b) of the tender call notice the written agreement to beentered into between the contractor and the Government shall be thefoundation of the rights of the parties and as no such agreement was executedthe contract was unenforceable in law, had no force. The principle thatthough the contract is unenforceable on account of non-compliance withthe provisions of Article 299 yet it is s valid under s. 9A if there was ratifi-cation would apply even in this case. Curimbfioy v. Greet, A.I.R. 1933 P.O.29 held inapplicable.—ABDUL RAHMAN v. SADASIVA TRIPATHY,31 E.L.R. 380.

—SS. 7 (b) 9A, 80A, 98,100 (1) {a)—-Respondent's contract with the Govern-ment, Department of Archaeology on 25th February, 1954 Respondent'selection in 1957 to Parliament held void as a contract with Government subsistedon relevant dates—Respondent again elected to Parliament in 1967—ElectionPetition alleging that the same contract continued to subsist on relevant dates in 1967election—whether the previous decision of the Tribunal on 1957 election op-erates as 'Res-judicata' against the respondent in 1967 election-conditions as towhen a contract ceases to subsist. HELD : The recession of a contract must bepleaded definitely, clearly, in unequivocal terms. The party relying on re-cession must expressly plead the manner in which and the date on which oneparty repudiated the contract, the date and the manner when and in whichsuch repudiation was communicated to the other party; whether the otherparty accepted such repudiation and if so when and in what manner; and itis then that the other party is usually said to have rescinded the contract.It was further held on the facts that the respondent had not fully perfor-med his part of the contract in question nor had he accepted the alleged repu-diation as breach of contract and rescinded the said contract before the relevantdates. As the contract subsisted on the relevant dates in 1967 the respondenthad suffered disqualification as contemplated by section 9A read with section7 (b) of the Act and therefore his election was void under section 98 read withsection 100 (1) (a) of the Act. Chaturbhuj Vithaldas Jasani v. Moreshwar

86

Parasram and Others. A.I.E. 1954 S.G. 236; Lalileshwer Prasad Shai v.Bateshwar Prasad and Others, A.I.E. 1966 S.C. 583; Gaurishankar Shastri v.Mayadhardas, 1959, J.L. J. 10 referred to—SURIYA PRASAD v. ATAMDAS,32 E.L.R. 116.

~r—S.9.A—Contract with Government controlled corporation—whether acontract within the meaning ofs. 9 A of the Act. Supply of molasses to Governmentcontrolled Corporation under the provisions of the Industries {Development andRegulation) Act 65 of 1951 and the Molasses Control Order made by CentralGovernment (S. 0. 7/0 of Central Government Gazette dated 8lh April, 1961)—Whether amounts to a contract—No contract where party has no volition in anymatter relating to the supply but acts wholly under orders of the MolassesController: HELD—The purpose of s. 9A is to safeguard against the possibi-lity of influence by the legislator being actively interested in the businesswhich works the contract with the Government. Looked at that way themanaging director or for that matter any director of a company would be hitby s. 9A on account of contract of his company with Government while amere shareholder may not be so hit. A statutory corporation such as in thepresent case is really owned by the Government and is run under the super-vision of the same class of officers who are answerable to Government onthe administrative side. Thus the likelihood of influence is just the samewhether the enterprise is run in what is called the "departmental form"or through a statutory corporation. The words "appropriate Government"in s. 9A must therefore be interpreted in the same wide sense in which theCourts have interpreted the word "State" in Article 12 of the Constitution.However in the present case there was no contract between the appellantcompany and the statutory corporation. In case of controlled distributionthere is no contract between the person who under threat of prosecution isto supply goods and the one who if he wants the goods at all has to takethem from the person, at the time in the manner, and at the price fixed bythe controlling authority. One can certainly envisage a situation where acontract is hedged in with conditions that narrow the choice of the parties;but as long as there is some choice it can be said there is a contract, whenthere is altogether no choice, there is no contract and there is only compul-sion. Further, on the facts of the present case there was no subsisting contractas the permit under which the goods were to be supplied had already expired atthe relevant time. Satya Pralcash v. Bashir Ahmad Qureshi A.I.R. 1963 MadhyaPradesh 316; Mjs New India Sugar Mills Ltd. v. Commissioner of Sales Tax,Bihar A.I.R. 1963 Supreme Court 1207; Mangaldas v. State of MaharashtraA.I.R. 1966 Supreme Court 128; Singareni Collieries Co. Ltd., v. Commissionerfor Commercial Taxes Hyderabad A.I.R. 1966 Supreme Court 563—LAXMINA-RAYAN v. BANKATLAL, 32 E.L.R. 191.

(5) HOLDING OFFICE OF PROFIT—Art. 191—disqualification for holding oMceof profit under State Government—whether Hyderabad Legislative Assembly {Pre-vention of Disqualification) Act, 1955, operative after Hyderabad Assembly ceasedto exist—whether benefit of s. 3 of the Act available to remove disqualification frommembership of new legislature of re-organised Mysore State under the HyderabadAct read with States Reorganisation,Act. 1956, ss. 120, 121 and Mysore {Ad-aptation of Laws) Orders 1956. para 6{1)—whether Hyderabad Act impliedly

87

repealed by Mysore Act 4 of 1957. HELD : The Hyderabad Legislative Assem-bly (Prevention of Disqualification) Act, 1955, did not continue to be ope-rative after the Hyderabad Legislative Assembly became defunct. Neitherunder s. 120 of the States Re-organisation Act, read with paragraph 6(1)of the Mysore (Adaptation of Laws) Order nor under s. 121 of that Act, wasit competent or permissible to construe the references to the LegislativeAssembly of the Hyderabad State under the Hyderabad Act as references tothe Legislative Assembly of the re-organised State of Mysore. The HyderabadAct could not be regraded for the purpose of Art. 191 of the Constitution asa law made by the Legislature of the re-organised State of Mysore, declaringthe offiee of profit held by the appellant as not disqualifying him for beingchosen as a member of the Legislative Assembly of th? re-organised Si ate ofMysore. The Mysore Legislature (Prevention of Disqualification) Act.1956, the subject matter of which is the same as the Hyderabad Act, byimplication repealed the latter Act. Ramappa v. Sangappa, 36 (1958) Mys.Law Journal 733; Joshi v. Stale of Bombay, A.I.R. 1959 Bom. 363;Satyanarayanamurti v. Income-tax Appellate Tribunal, Madras Branch, A.I.R.

1957 A.P. 123; Channabasappa Shivappa v. Gurupadappa Murigappa, A.I.R.1958 Mys. 184; In. re. Sridhar Rao; A.I.R. 1958 A. P. 60; HarishankarBagla v. State of Madhya Pradesh, A.I.R. 1954 S.G. 465; Rajnarain Singh v.Chairman, Patna Administrative Committee, A.I.R. 1954 S.C. 569; ZaverbhaiAmaidas v. State of Bombay, A.I.R. 1959 S.C. 752; Case of Pitla Gangaram,1958 Andh. W.R. 116 and Hind IranBank v. Messrs. Ishar Singh A.I.R. 1960Punj HI , referred to.—SHANKARAGAUDA v. SIRUR VEERABHAD-RAPPA. 23 E.L.R. 1.

(5) HOLDING OFFICE OF PROFIT— Art. 191— Office of profit, —AgraUniversity Act, 1926 as amended by XJ.P. Act No. 27 of 1956, S.6—General Clauses Act, 1897, S. 3 (60)~post of paid Vice-Chancellor of University, whether office of profit under State Govern-ment—• Distinction between Governer and Chancellor—U.P. State legislature

, members (Prevention of Disqualification) (Supplementary) Act, 1956 s. 2 —effectof amendment by U.P. Act 5 of 1960. HELD:—The respondent as the Vice-Chancellor, did not hold an office of profit under the State Government orthe Government of India and was not in any manner disqualified from standingfor election aad being chosen as a member of the Lagislative Council. TheVice-Chancellor was appointed by the Governor in his capacity as Chancellorof the University as distinct from his office as the head of the Executive,The appointment can not be deemed to have been made by, nor can the officeof the Vice-Chancellor be said to be undei% the State Government by virtueof the appointment having been made by the Governor, in another capacity.Despite the provisions of s. 3(60) of the General Clauses Act, 1897, bv whichthe term "State Government" is defined to mean the Governor, the Governorcannofc in each and every case be equated with the State Government. Whenthe same person performs the duties of the Chancellor he doesnot exercise thepowers no/does he perform the duties of the office of the Governor. Provinceof Bombay v. Khushaldas S. Advani, Air 1950 S. C. 922; referred to HELD:also the holder of an office of profit under an authority subj net to the controland supervision of the Government (as the Agra University is subject to thecontrol and supervision of the State Government by virtue of various

mprovisions of the Agra University Act, 1928), is not disqualified from beingchosen as and from being a member of the Legislative Assembly or Council.Abdul Shakur v. Rilehab Chand and another, A.I.R. 1958 S.C. 52; referred to,Persons disqualified for being chosen as, and for being, members of theLegislative Assembly or Council of a State, are detailed in els. (a) to (d) ofArt. 191(1) of the Constitution. Clause (e) of the Article gives power toParliament to lay down which other persons shall be so disqualified. Suchpower has not bee:i conferred on the State Legislature. The only power conferredon the State Legislature is under cl. (a) to declare by law that the disquali-fication • laid down in clause (a) shall not apply to and shall not disqualifythe holders of certain offices of profit. When the State Legislature has thepower to make a law to remove the disqualification of the holders of anyoffice of profit, it cannot'pass a law directly laying down which holders ofthe office shall also stand disqualified. Hence, the deletion by U. P. Act 5 of1960 of cl. (b) of Sec. 2 of the U. P. Act of 1956, cannot by implication ordirectly, lay down the additional offices of profit, the holders of which cannotbe chosen as and from being members of the State Legislature.—PT. JOTIPRASAD UPADHAYA v. SRI KALKAPRASAD BHATNAGAR ANDOTHERS, 23, E.L.R. 195.

Article 102(l)(a)—partner of firm of auditors of the Life InsuranceCorporation and of two "government companies" within the meaning of s.2(18)read with s. 617_o/ the Companies Act, 1956, receiving remuneration as such—also a director of State Financial Corporation nominated by State Government—receiving fees or remuneration of a director—whether holder of an -office of profitwithin the disqualification in Art. 102 (1) (a). Representation of the People Act,19517Section 7{e), 8 (e), 9 (1) (a); Constitution of India, Articles 58(2), 66(4),102(l)(«) and 199(l)(a)—Disqualification under the two sets of provisions—scope and effect. HELD : The appellant was disqualified under Art. 102(l)(a)from membership of the House of the People by reason of his being a partnerof the firm of auditors in their capacity as auditors of the Life InsuranceCorporation of India, and the two Government Companies and by reasonof his being a director of the West Bengal Financial Corporation. The testfor determining whether one holds an office of profit under the Government,depends on the seat of effective control over the office in question, suchcontrol being manifested and determined, primarily, by the power of appoint-ment and power of dismissal though in some cases, the sources of the funds,out of which the remuneration is paid, may also require consideration and mayusefully aid the final conclusion. This last factor, however, is normally ofcomparatively minor importance and is often neutral and not decisive byitself. Where the powers of appointment and dismissal are vested in diff-erent authorities and the remuneration is paid by another, the office shouldbe deemed to be held under all of them. Maulana Abdul Shakoor v. RikhabChand and Another 13 E.L.R. 149; Dr. Deo Rao Lakshman Anande v. KeshavLakshman Barker, 13 E. L. R. 334; M. Ramappa v. Sangappa and others;A.I.U.1958S.C.dS7;GazulaDasarathaRama Rao v. State of Andhra Pradeshand others, A.I.R. 1961 S.C. 564; relied on. Raja Bahadur K. C. Deo Bhanj vRtighunath Misra and others; A.I.R. 1959 S.C. 589 referred to. Tamlin v.Hannaford (1950) I. K. B, 18; G. Narayanaswamy Naidu v. C. Krishnamwth ^

89and others 14, E.L.E. 21; Suhodh Ranjan Ghosh v. Sindhri Fertilisers Che-micals Ltd., and another A.I.R. 1957 Patna 10; 8m. Ena Ghosh v.State of WestBengal and others, A.I.R. 1962 Calcutta 420; Joti Prasad Vpadhya v. KalikaPrasad Bhatnagar and others, A.I.R. 1962 Allahabad 128; Sri Ram and anotherv. Niranjan Singh and others A.I.R. 1962 H. P. 52—Distinguished. By virtueof s. 619(2) of the Companies Act, 1956, which provides for the appo-intment of auditors of Government Companies by the Central Governmenton the advice of the Comptroller and Auditor General of India, the power ofappointment and dismissal as auditors of the two government Companieswould be with the Central Government and their remuneration would also befixed by that Government and, even though such remuneration would bepaid by the two companies concerned, that would not make any differencein the ultimate conclusion that the auditors would be holding office underthe Central Government, there being sufficient and requisite control vested inthat Government. The relevant power of appointment and dismissal orat least the requisite and sufficient control of auditors of the Life InsuranceCorporation of India was also in the Central Government. Their remunerationwas to be fixed by and they held the office at the pleasure of the Central Govern-ment. Accordingly, the appellant held an office of profit under the CentralGovernment. Camden (Marquies) v. L. R. C. (1914) 1 K. B. 641; Nutlon v.Wilson L. R. (1889) 22 Q.B. 744 referred to. The appellant as a director ofthe West Bengal Financial Corporation also held an office of profit under theState Government within the meaning of Art. 102(1) (a). The power of appoint-ment, or nomination of a director and the power of dismissal, that is, removalfrom office or termination of the office, is vested in the State Governmentwhich makes the appellant the holder of an office under that Government.Since the appellant admittedly received a fee or remuneration, the office wasan office of profit and was not exempt under the provisions of s. 3(i) read withs. 2 (a) of the Parliament (Prevention' of Disqualification) Act, 1959. Ravan-na Subanna v. G. S. Kaggemppa, A.I.R. 1954 S.C. 653; Murugesam Pillaiv. D. Gnana Sambaddha Sanadhi, 44. I.A. 98; Gurubaksh Singh v GurdialSingh and another, 32 C.W.N. 119 (P.C.); Mt. Lai Kunwar v. Chiranji Lai37 A.A.I. Referred to. Obiter : Section 7(e) read with section 8(e) of theRepresentation of the People Act. 1951 was not meant to be an exception toor under Article 102 or a restriction to its disqualifying provisions. Section7(e) constitutes, on the other hand, an extension of the rule of disqualification,though within the limits prescribed in and subject to sections 8(e) and 9(l)(a)namely, that it makes the holder of the office, mentioned therein, disqualifiedto the extent indicated in the said section 8(e) and 9(l)(a), irrespective of thequestion whether it is an office of profit or not. GURU GOVINDA BASU v

SHANKA.Hi PROSAD GHOSAL & ORS. 23 E.L.R. 356.

Art. 102(l)(&)—Constitution of India, 1950,--Article 102(1) (a)—Office of profit—Holder of an oiUce of profit under the Government—meaning of—Tests for determining—The appellant, a chartered accountant, was a par-tner of a firm of auditors which acted as auditor of two companies. The entiretyof the shares in one of the companies was owned by the Union Governmentand in the other by the State Government. The appellant's election to theLok Sabha was challenged on the ground that he was at the relevant period

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the holder of an office of profit under the Government of India and the StateGovernment and as such was disqualified under Art. 102(1) of the Constitution.The Tribunal declared the election void and an appeal to the High Court wasdismissed. In the appeal to the Supreme Court, the appellant contended thatall elements showing subordination to the Government, namely, power toappoint, power to remove, payment of remuneration by the Government,nature of the functions exercised and the extent of the control exercised by theGovernment in the discharge of the functions, must co-exist before a personcan be said to be holding an office of profit "under the Government of Indiaor the Government of any State". HELD : The appellant heldan office of profit under the Government of India within the meaning of Art.102(1) (a) of the Constitution and as such was disqualified for being chosenas a member of Parliament. For holding an office of profit under the Govern-ment one need not be in the service of Government and there need be no re-lationship of master and servant. The constitution itself makes a distinctionbetween "the holder of an office of profit under the Government" and "theholder of a post or service under the Government." There is no doubt thatwhere the several elements, the power to appoint, the power to dismiss, thepower to control and give directions as to the manner in which the duties ofthe office are to be performed, and the power to determine the question ofremuneration, are all present, the officer in question holds the office underthe authority so empowered. It is not necessary that all these factors mustco-exist and each must show subordination to the Government. The circum-stance that the sourc >. from which the remuneration is paid is not from publicrevenue is a neutral factor not decisive of the question. In the instant caseso far as the two companies were concerned, the appellant was appointed asan auditor by the Central Government was removable by the Central Govern-ment, the Comptroller and Auditor-General of India exercised full controlover him and his remuneration was fixed by the Central Government thoughit was paid by the companies concerned. Maulana Abdul Shakur v. RilchabChanel 3958, S.C.R. 387; distinguished. Eamappa v. Sangappa, (1959) S. C. R.1167, referred to.—GURU GOVINDA BASU v. SHANKARI PROSADGHOSAL & ORS. 25 E.L.R. (S.C.) 77.

Arts. 19, 191—Resignation from office of profit not accepted beforedate of scrutiny of nomination papers—Rejection of nomination paperswhether justified—Effect on election—Freedom to carry on profession ofservice whether includes right to resign unilaterally—Acceptance of resig-nation whether necessary for termination of service. Rajasthan PanchayatiSamiti and Zila Parishad Act, 1959, ss. 31(4), 84(3) and 89(4)—Rajasthan Ser-vice Rules, r. 23A— Panchayati Samiti appointing authority for headmasterof school—Pradhans acceptance of resignation whether effective—Applicabilityof s. 21 of Specific Relief Act.

In the 1962 general election the first respondent won the election tothe Ilajasthan Legislative Assembly from Mandawar constituency. Theappellant who was among the losing candidates, challenged the election on

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the ground that the nomination paper of the second respondent was wronglyrejected by the Returning Officer who had held that the second respondentwas holding an office of profit under the Government at the time in as muchas his resignation from the post of headmaster of the primary school at Karwarhad not been accepted at the date of scrutiny. The second respondent, desir-ing to stand for the election, submitted his resignation to the Vikas Adhikariof the Panchayat Samiti which was responsible for running the school, witha request to be relieved within 24 hours. The Standing Committee of theSamiti before which the matter came up left it to the Pradhan to take thedecision. The Pradhan at first accepted the resignation, persuant to whichthe second respondent gave charge of his post to another teacher. Next dayhowever the Pradhan rescinded his order and stayed its operation. Thematter then went before the samiti itself which formally accepted the resig-nation, but this was done after the second respondent's nomination papers hadalready been rejected by the Returning Officer. The Tribunal upheld the Re-turning Officer's order and accordingly dismissed the appellant's electionpetition. HELD : (i) The Pradhan had no authority to accept the secondrespondent's resignation as he purported to do by his first order. Unders.31(4) of the Rajasthan Panchayati Samiti and Zila Parishad Act. 1959, theappointing authority in respect of the second respondent was the PanchayatSamiti. The resolution of the Samiti authorising the Standing Committeeto make certain appointment of clerks and teachers could not be interpre-ted to mean that the Samiti had delegated all its powers as an appointingauthority to the Standing Committee including the power to accept resigna-tions of the teachers of the school. In any case in view of the maxims 'Dele-gates potests non yotest delegari", and 'delegalun non polest delcgare', theStanding Committee could not further delegate the said power to the Pradhan.S 84(3) of the Act could not be interpreted to confer such power on the Stand-ing Committee.

(ii) S. 89(4) of the Act refers to disciplinary proceedings and does notconfer power to accept resignations. Moreover the power under s. 89 (4) can-not be exercised without obtaining prior approval of the District EstablishmentCommittee, which had not been done in the present case.

(iii) The termination of the second respondent's services could onlybe by mutual agreement between the parties and not by the unilateral actof the secon respondent. The resignation could only be effective from thedate of its acceptance by the competent authority, though it would not beopen to the employer to refuse to accept the resignation or to put off its acce-ptance by an unreasonable length of time. The resignation of his office by thesecond respondent did not have the effect of terminating his employmentwithout its acceptance by the competent authority.

When by his original letter of resignation the second respondent gaveonly 24 hours notice to his employer, it was against r. 23A of the RajasthanService Rules which requires at least one month's notice.

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(iv) Art. 19(1) of the Constitution does not justify the argument that acitizen who chooses to practice the profession of service has the fundamentalright to give up that profession in favour of any other profession, occupation,trade or business without putting an end to the service in a manner whichwould not prejudice the employer.

(v) S. 21 of the Specific Relief Act was not applicable to the case asthere was no question of directing the specific performance of a contract ofservice at all.

Dr. 8. Dutt v. University of Delhi, A.I.R. 1958, S.C. 1050; In re. Duru-vasula Venkata Subbarao, A.I.R.1944, Mad. 132; BhasJcar Mukherjee & Anr. v.Nilmoni Nath, A.I.R. 1962, Cal. 285; Ram Sahai v. Gajja & Anr. I.L.R. (1959)'9 Rajasthan 339; Maharana Shri Bhagwat Singhji of Udaipur and others v.Keshu Lai, I.L.R. 1963 (13) Raj. 370; Ganesh Ramchandra v G.I.P. RailwayCo., (1900) 2 Bom.. L.R. 790 referred to MAHENDRA SINGH V. HARIPRASAD & ANR. 26 E.L.R.158.

Arts 191(l)(a), 191(2)—Whether Mayor of Pondicherry if held an"office of profit" under Arts. 191(1) (a) and 191(2) of the Constitution of India.HELD : Even if the office of Mayor of Pondicherry was capable of being re-garded as an office of profit by virtue of the allowance attached to it, it couldnot be regarded as an office under the Government. The Mayor was not in-debted to the Government in any way for securing the office but was elected bya body of municipal councillors; in order to become effective, the election didnot require the approval or concurrence of the Government. Furthermore,no power of control over the Mayor vested in the Government and the powerof dismissal which could be exercised only in extreme cases for good and suffi-cient reason would not be sufficient to make an elective office of this type anoffice of profit within the meaning of Art. 191(l)(a): EDOUART GOUBERT,IN R E . (OPINION—ELECTION COMMISSION, INDIA), 26 E.L.R.297.

36(£)(a)—Disqualification as candidate under Art. 191(l)(a)—WhetherGhatwal holds office of profit after Notification by State taking over his estateand before he hands over charge. Returning Officer rejecting nomination paper ofappellant maintaining he is still Ghatwal—correct decision at the time—-Whetheraffected by appellant subsequently taking contrary and correct position.—Thenomination paper filed by the appellant for election in 1962 as a member ofthe Bihar Legislative Assembly was rejected by the Returning Officer on theground, that the appellant was a Ghatwal of a Government Ghatwali and,as such, he was the holder of an office of profit within the meaning of Article191(l)(a) of the Constitution and therefore disqualified from being a candi-date. HELD : If the appellant's Ghatwali tenure had come to end as a resultof the Notification under the Bihar Land Reforms Act, the mere fact that hehad not made over charge of the estate would not necessarily mean that hisstatus as the holder of an office of profit continued. His status having been

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terminated by the notification, the mere holding over would be the act of atrespasser for which he might be liable to the State Government in damagesor otherwise but it could not be said that he was still a Ghatwal.

However, in the present case, the appellant himself having told the Re-turning Officer that he had not ceased to be a Ghatwal and his estate couldnot be taken over, and the Returning Offioer having acted on this basishis order was correct at the time when it was passed and the election of thesuccessful candidate could not be affected by a subsequent declaration thatthe appellant was no longer holding the status of a Ghatwal. —MANMOHANDEO v. SMT. SHAILBALA ROY AND ORS. 26 E.L.R. 363.

-Arts. 191(l)(a) and 192(2) 'Consultant' to Govt. of India—paidfee for actual work done-—if holding office of profit under Government.HELD: The post of a Consultant to the Government of India held by a memberof the Andhra Pradesh Legislative Council in which he was paid a fee of Rs. 150per day for the actual days of work was an 'office' of profit and a disquali-fication within the meaning of Article 191(l)(a) of the Constitution. i

Devrao Lahshman v. Keshav Lahshman (13 ELR-334) referred to.—SHRIM. JAFFER ALI IN RE-ELECTION COMMISSION, INDIA (OPINION) 26

- E.L.R. 443.

Constitution,of India, Arts. 102(1), 191(1) and 327 and Entry 72 ofList I Sch. VII—•Disqualification arising out of the holding of an office of profitunder the Government—removal of. The first respondent challenged the appellant'selection to the Mysore Legislative Assembly in 1962 on the ground, interalia that the appellant was disqualified under Art. 191(1) of the Constitutionand Section 7(e) of the Representation of the People Act, 1951, for beingchosen and for being a member of the Legislative Assembly; and on the groundof having committed corrupt practices during the election. The allegationof disqualification was based on the fact that the appellant was a member ofthe Board of Management of the Mysore Iron and Steel Works, Bhadravathi,which was a State owned concern, and therefore held an offi.ce of profit underthe State Government. Although the Tribunal dismissed the allegations ofcorrupt practice, it set aside the appellant's election on the ground that hewas disqualified as he held an office of profit under the State Government. Inthe appeal to the High Court the respondent, in addition to supporting theTribunal's findings on the appellant's disqualification, also pressed the alle-gations of corrupt practices and the allegation that the appellant had failedto file-complete accounts of election expenses. HELD (i) As the appellant asDirector owed his position to an appointment by the Government and receivednot merely allowances to meet his out of pocket expenses but also sittingfees, he held an office of profit under the Government. However, the Board ofManagement of the Mysore Iron #nd Steel Works, Bhadravathi fell withinthe definition of "Committee" given in sec. 2(a) of the Mysore Legislature(Prevention of Disqualification) Act, 1956. Since the sitting fee is also includedin tlie definition of "Compensatory allowance" given in sec, 2(b) of that Act

M/J(D)121EC—9 • ' " , • .

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the appellant was not disqualified for being chosen as a member of the StateLegislative Assembly, (ii) Though the entire Representation of the PeopleAct, 1951, may be traced to the legislative power, not merely under Entry72 of the Union List but also to the provisions of Article 327 of the Consti-tution, the specific provision regarding disqualification contained in Sections 7and 8 of the Act are clearly traceable to Clause (e) of Article 102 as well asclause (e) of Article 191. (Hi) The word 'being' in Sec. 8(l)(e) of the Repre-sentation of the People Act, 1951, which forms part of the expression "by reasonor his being a Director" in the context of the Section has the same meaing asany of the following expressions, viz., 'for the reason that he is a Director','because he is a Director' 'if he is a Director'. All these expressions are 'ntendedto state nothing more than the fact that a person is a Director is thereason for his disqualification. The disqualification imposed by section 7 isnot merely on the right of sitting as a member but the general electoral rightof entering legislatures and sitting as a Member of the Legislature. The rightsought to be protected by the saving clause in section 8(l)(e) must be thatgeneral electoral right and. not merely the right of a person who has alreadyentered the Legislature in exercise of that electoral right, HASBIFAKIRAPPAMUDDAPPA v. D.B. AYYAPPA, 28 E.L.R. 103.

—Art. 191(1)—Director of a Government Company—if disqualified,Constitution of India, Article 191(1) : HELD : An elected member of the MadrasLegislative Assembly was appointed a Director of the Neyveli Lignite Corpo-ration (Private) Limited, which was a company owned and controlled by theGovernment of India. As a non-official Director of the Corporation he wasentitled to payment of Rs. 100 for each meeting of the Board, travellingallowances and incidental expenses. HELD : the member had become subjectto the disqualification under Art. 191(l)(a) when he began to hold office asa Director of the Corporation which was an office of profit.—SHRI N. MAHA-LINGAM: IN RE). OPINION ELECTION COMMISSION; 28 E. L. R.231.

—Art. 191(1) (a)—Disqualification under—Office of profit under Government,what is—Vice President of Zilla Parishad and Chairman of Sub-Committees—Emoluments payable under s. 84 of Maharashtra Zilla Parishads and PanchayatSamitis Act 1961 (Act 5 of 1962)—Powers of State Government under the Act—Vice President of Zilla Parishad whether disqualified under Art. 191(1) (a) fromcontesting election for Legislative Assembly. HELD : (i) Looking at the functionsand duties of the Vice President and the fact that it was a whole time job,the conclusion would seem irresistible that the payment of Rs. 300/- a monthwas made by way of a remuneration though described only as an honorarium.The euphemistic use of the word "honorarium" would not change the factthat the respondent was getting a regular salary or remuneration. In view ofthis and the free accommodation and free conveyance that the respondentwas getting there could be no doubt that he was holding an office of profit.Morality vs. Regents Garage and Engineering Co. Ltd. 1921 (1) King's BenchDivision 423 at p. 446, and R. Ganesa Ayyer vs. Lakshmi Cooperative BuildingSociety, AIR 1937 Mad. 379; referred to (ii) However, an analysis of the provisions of the act showed that none of the teats laid down by the Supreme Oourt in

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Guru Govinda Basu v. Sanhari Prasad Ghosal and Others which would make therespondent a person holding an office under the Government were satisfied.The provisions of the Act only showed that the respondent was subordinateto, and an office bearer of the Zilla Parishad. Even if the contention of thepetitioner that Zilla Parishads are subject to some control by the Govern-ment were to be accepted, the respondent would come under clause (2) ofArt. 58 of the Constitution as holding an office of profit "under a Local Authoritysnbject to the control of the State Government". That however did not andcould not make him the holder of an office of profit under the State Govern-ment within the meaning of Art. 191 (1) (a) of the Constitution. The respon-dent was therefore not disqualified for being chosen a member of the Legis-lative Assembly under s. 100(1) (a) of the Representation of the People Act,1951. Guru Gobinda Basu v. Sanlcari Prasad Ghosal and others AIR 1964 S.C.254, and Deorao Laxman Ananda v. Keshav Laxman Borkar, AIR 1958 Bom.314, applied—MOTI SINGH v. BHAIYYALAL, 29 E.L.R. 215.

——Art. 102(l)(a)—Disqualification under Pramuhh of Zila Parishadunder RajaslJian Panchayat Samiti and Zila Parishads Act, 1969—Whetherholds an office of profit under the Government—Whether disqualified for electionto LoJc Sabha. HELD: (i) Held: As Pramukh of the Zila Parishad the respondentwas entitled to an honorarium of Rs. 300 a month and he was therefore, theholder of an office of profit.

But it was not an office of pro fit under the Government. Merely becausethe Zila Parishad performs, governmental functions and the State Governmentexercised control over it, it connot be held that it is merely a department ofthe State. Within the four corners of the Rajasthan Panchayat and ZilaParishads Act, 1959, the Zila Parishad had full power -to act independently.There is no provision in this Act or the Rules framed thereunder under whichthe State Government can dictate to it in what manner it should discharge aparticular duly or perform a particular function. The power of the StateGovernment to extend the term of appointment indirectly by extending theterm of the Zila Parishad and the power to terminate the appointment in-directly by superseding the Zila Parishad cannot be regarded as powers ofappointment and removal.

A Pramukh no doubt holds an office under the Zila Parishad which is alocal authority subject to the control of the State Government. He isdisqualified for the office of the President of the Union under Article 58 (2)of the Constitution; but he is not disqualified for being chosen as a member ofthe Legislative Assembly of a State under Article 102 (l)(a). case law consi-dered—RAM LAL v VISHVESHWAR NATH, 29 E.L.R. 306.

——Art. I91{l){a), Ss. 100{l){a) and 100{l){d) (iv)—Holding an office of pro-fit under the Government of India—Constitution of India, Art. 191(1)(&).HELD : (i) the respondent was holding the office of Extra-departmental MailCarrier which is an office of profit under the Government of India on thedate of his filing the nomination paper, and his election was void under s.10( l ) ( )

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(ii) the respondent was holding the office of profit on the date of hiselection and his election was void under s. 100(l)(d)(iv) also as there was anon-compliance with the requirements of Art. 191(l)(a).

Durga Shanker v. Raghumi Singh AIR 1954. SC 520; referred to.—CHARUGONDLA RANGA RAO v. KOMARAM RAMAYYA 30, B.L.R. 52. .

Art. 191(a), s. 123—Corrupt Practice—Constitution of India Art. 191 (a)—Disqualification—Office of Profit —Termination by employee by noticepending departmental enquiry—if still in service—Honorary otfice of profit—Ordinance by Governor—-if can be deemed to be on behalf of successful candi-date—The petitioner, a termporary Government servant challenged the elec-tion of the Respondent on the grounds that (i) his nomination paper had wronglybeen rejected for the reason that he was still in service as he was under sus-pension pending a departmental enquiry against him even though he had senta notice terminating his service; (ii) the nomination of the Respondent waswrongly accepted since the Respondent held an office of profit as she wasthe Honorary Family Planning District Education Leader for the District and(iii) by issuing an Ordinance not requiring Land Revenue to be paid on hold-ings of 7.5 acres or less the Governor had acted as an agent for the Respondentand thereby used undue influence which was a corrupt practice under theAct. Dismissing the petition. HELD : (i) The petitioner could not terminatehis service during the pendency of the departmental enquiry against him byserving a notice.

V.P. Gidronia v. State of Madhya Pradesh, 1967 M.P.L. J. 39, applie d

(ii) The office of honoray Planning District Education Leader is notan office of profit and therefore the respondent was not disqualified for beinga candidate at the election. To constitute an office of profit prestige and likeadvantages attached to the office do not suffice. Pecuniary advantage is anessential element.

Ram Dayal Ayodhyaprasad Gupta v. K. R. Patil & Ors. 18 E.L.R. 378;Lachhman Singh v. Harparkash Kaur, 19 E.L.R. 417; Chikati Parasuram Naiduv. Vyricherla Chandra Chudamni Dev 13 E.L.R. 66; Shivaram Karanth v. Venka-taramana Gowda 3 E.L.R. 187; referred to.

(iii) The Ordinance was not an act of the State Government which had beendone as an agent of the Respondent or with her consent and the Ordinancecould not be said to have been issued malafide to facilitate the election of theRespondent.

Jagdish Mitter v. Union of India, A.I.R. 1964 SO 449; LakhiNarayan Dasand Others v. The Province of Bihar A.I.R. 1950 FC 59, referred to.-TJPENDRA LAL v. SMT. NARAINEE DEVI JHA, 30 E.L.R. 372.

—SsM, 77, 123 (1)(A),(2), (3), (6)—Conduct of Elections Rules, 1961. Rule94-A—President of Municipal Council—Whether an office of profit—Chair-man of a Panchayat Samiti—Whether an office of profit. HELD : The office of

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the Municipal President of Mangrulpir Municipal Council, a 'C class Muni-cipal area, is not an office of profit under the State Government and the holderof that office is not disqualified from being a candidate at the election.The office of the Chairman of a Panchayat Samiti is not an office of profit underthe State Government. Election Petition 5 of 1967 followed.—GAJADHARv. CHUNNILAL SINGH AND OTHERS, 31. E.L.R. 1.

-Article 191(1 )(a)—Punjab Panchayat Samitis and Zila Parishad Aot>1961, s. 103—Punjab Panchayat Samitis and Zila Parishads Non-officialMembers (Payment of Allowances) Rules, 1961 and Rules, 1965, Rules 3 (1) and-5(3)—Punjab Government Ordinance No, of 1967, section 2—Validity of—Consti-tution of India, Arlical 191 (I) (a)—Ghairmsnship of Panchayat Samit Paymentof consolidated monthly allowance to Chairman—Whether an office of •profit.The petitioner, challenged the election of the first respondent, on the groundthat the first respondent being the Chairman of the Panchayat Samiti, at therelevant time held an office of profit under the Government, inasmuch ashe was paid a sum of Rs. 100 per month as consolidated allowance under aState Government notification. HELD: To incur disqualification underArticle 191 of the Constitution the office must have some profit attached to itand the office must be an office under the Government of India or the Govern-ment of a State. The payment of a consolidated allowance of Rs. 100 per monthto the Chairman of the Panchayat Samiti under the Punjab PanchayatSamitis and Zila Parishad Non-official Members Payment of AllowancesRules, 1961 and the Rules of 1965, is in essence a compensation for out-of-pocket expenses, and the amount so paid can in no manner be said tobe profit to the Chairman. Ramlal v. Vishveshwar Nath, Election PetitionNo. 20 of 1967 Rajasthan; Motisingh v. Bhaivyalal, Election Petition No. 5 of1967, Bombay (Nagpur Bench); referred to. The Punjab GovernmentOrdinance No. 10 of 1967 is valid. The State Government has no powerof appointment of the members of the Panchayat Samiti or itsChairman. They are elected or co-opted. There is no absolute power ofremoval vested in the Government. The Panchayat Samiti is a localauthority being a corporate body with a common seal. It has the powerto acquire, hold and dispose of property and enter into contracts. It can sueand be sued as such. The Panchayat Samiti therefore cannot be termed eitheras a department of the Government or a body belonging exclusively to theGovernment and the Panchayat Samiti cannot be equated with a departmentof Government. Therefore the Chairman of the Panchayat Samiti is not aholder of an office of profit under the State Government or the Governmentof India and it does not attract the provisions of Article 191 of the Constitu-tion.

The matter is not res-integra. Ramlal v. Vishveshwar Nath, ElectionPetition No. 20 of 1967 (Rajasthan); Motisingh v. Bhaiyyalal, 29 E.L.R. 215Abdul Shakur v. Rikhab Ghand, A.I.R. 1958, S.C. 52; M. Ramappa v.Sangappa, A.I.R 1958, S.C. 937; Mangal Sain v. The State of Punjab,

••' 9 8

A.I.E. 1952 Punjab 58; Guru Gobinda Basu v. Sanhari Prasad Ghosal, A.I.E.1964j S.C. 251; Hakikatullahv. NathuSingh, 6 B.L.R. 10; referred to.—UMRAOSINGH v. DARBARA SINGH & ORS. 31 E.L.R. 99.

-Art. 102(l)(a)—Parliament (Prevention of Disqualification) Act, 1959, s.3(a)—If beyond the powers conferred by Constitution of India Art. 102(l)(a)—Office of Profit held by Minister—HELD: There is no limitation imposed on thepowers of Parliament to pass an Act with regard to declaring by law that anoffice would not disqualify its holder. When the power was un-limited and untramelled and was subject only to the discretion of the Parlia-ment itself, there was no force in the contention that Parliament had exceededits power in enacting clause (a) of s. 3 of the Act 10 of 1959. Further, by thisprovision it is not left to the individual to decide to which office held by himthe disqualification, should attach.

In the instant case the record disclosed that the office was imposed on therespondent by the Prime Minister who had appointed him to be the DeputyChairman of Planning Commission.—RAM PRASAD & ANR. v. ASHOKRAJITRAM MBHTA 31 B.L.R. 195.

—Chairmanship of Panchayat Samiti an elective office—whether an Office ofprofit under Slate Government— Chairman removed by State Government—whether incurs disqualification for being a candidate for Assembly. HELD. :As the Chairmanship of a Panchayat Samiti is not an office of profit under theState of Maharashtra, removal of the first respondent from such office by theState Government would not amount to his incurring a disqualification forbeing a candidate for the Assembly.

Moti Singh ViBhaiyyalal (Election Petition No. 5 of 1967 Bombay (decidedon July 25, 1967) relied on. —VITHALRAO v. GURUJI SHRIHARI BALIRAM JIVTODB AND ORS. 31 E.L.R. 291.

Art. 14—-SS. 10,81—-Co-operative Societies—exception provided in Section10—whether discriminatory—whether ultra vires Article 14—Presidentship ofCo-operative Society—if an office of profit. HELD : The exemption provided inSection 10 of the Act in respect of Cooperative Societies is not opposed toArticle 14 of the Constitution and is not discriminatory; therefore the FirstRespondent was not disqualified from standing for election. The petitionerscould not question the vires of any of the provisions of the Act in proceedingunder section 81 of the Act.—H. SRIDHARA PAI AND ANR. v. S.K. AMINAND ANR. 31 E.L.R. 329.

—•—Art. 191(1)—Office of Profit—Inclusion in the Panel of lowyers forRailway Administration—Continuing obligation to watch cases—If office ofprofit—Continuance as professor after superannuation—If still holder of officeof profit. HELD :—(i) The respondent was the holder of an office of profit inthe Railway Administration. The respondent, under the terms of his apoint-ment, even when working in any particular case in which the railway was in-volved could not accept a brief against any railway administration and wasfurther charged all tke time with the duty of watching the court cause-lists

and spotting if there were cases against the railway and taking necessary steps.The test is not whether the appointment ia made In accordance with a contractor with a statutory provision, but whether having been made it imposes con-tinuing obligations on the holder in return for which he may reasonably beexpecting to make some money profit. To constitute office of profit all thatis necessary is that the office is capable of yielding a profit to the holder though at

particular time there may be no actual income.

Govind Malaviya v. Murlimanohar, 8-E.L.R. 84; State of Rajasthan v.Madan\Swarup, A.I.R. 1960 Raj, 138; Dr. Dearao Lashman v. Keshav Lahhman13 B.L.R. 334; referred to. (ii) There was no evidence to show that therespondent had accepted the office of the President of the Tribunal constitutedunder the M. P. Town Improvement Trust Act. (in) The respondent was ingovernment service actually working in the Madhav College on deputation tothe University during the period of election and as such was holding an officeof profit. What is necessary to make an office of profit is the defacto holdingof the post whether or not the appointment orders are in full accord with therules. A government servant who is continued in the appointment after theage of superannuation without a formal written order of his employer and drawshis pay during the period cannot assert that he was not in govenment service.I t is not for him when faced by a third party to assert that his appointment wasnot fregular. State of Rajasihan v. Sripal Jain, A.I.R. 1963 S.C. 1323;Statejpf Assam v ; Padma Ram, A.I.R. 1963 S.C. 473; L. N. Sahsena v, State ofMP ;A.I.R. 1967 S.C. 1264; referred to.—SHANTI BHAI ». MAHADEOAND ORS 32 E.L.R. 232.

(6) UNDISCHARGED INSOLVANOY'——Art. 191(l)(c)—'Member adjudgedinsolvent—his appeal pending —if disqualified. An elected member of the Legis-lature who had been adjudged insolvent had become subject to disqualificationunder Art. 191(l)(c) although his appeal against the order adjudicating himinsolvent was pending in.—R. SIVASANKARA MEHTA, IN R E . ELECTIONCOMMISSION OF INDIA (OPINION)—28 E.L.R. 233.

——Articles 191{l) ani 192(2)—Undischarged insolvent—Finality of deci-.sion by Governor—HELD : The jurisdiction to decide questions of disqualifica-tion under Art. 191(1) vests exclusively in the Governor and no court has juris-diction to go into it, whether in writ proceedings or otherwise. A sitting mem-ber gets the opportunity to put forward his objection to an alleged disqualifica-tion at an enquiry which is to be held by the Election Commission before thelatter forwards its opinion under Art. 192 (2) to the Governor. When suchan opportunity has been afforded by the Election Commission and the ElectionCommission has come to a decision on the disqualification and conveyed it3opinion to the Governor and the Governor has acted upon that opinion anddisqualified the member, there can be no more occasion for the court to questionthe decision, either on account of its merits or on account of the member nothaving been given proper opportunity to show cause. Jyoti Prakash Mitter v.Chief Justice Calcutta High Court, A.I.R. 1965 S.C. 961; referred to.—R.SIVASANKARA MEHTA v. THE ELECTION COMMISSIONER OFINDIA AND ORS. 29 E.L.R. 104.

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ELECTION AGENTS

—-—S. 123—Corrupt practice—AgSnt, who' is ̂ -Appeal on grounds of reli-gion—HELD : (1) Before a charge of corrupt practice could be said to havebeen proved it must be established that (1) the appeal complained against wasbased on the ground of religion, race, etc. as set out in sub-sec. (3) of s. 123;and (2) that the appeal was made by (i) the candidate himself, (ii) his agent(iii) any other person with the consent of the candidate or his election agent.None of these conditions were established in the instant case. Shubnath Deogamv. Ram Narain Prasad, A.I.R. I960, S.C. 148; distinguished.

(2) A voluntary canvasser who canvasses without authority is not anagent. It must be established before any inference of presumption is drawnin. the matter that a person who is doing the work of canvassing for a candidateis not doing so voluntarily but he is doing It under the authority of the candi-date.

(3) It is open to the High Court sitting in first appeal to examine in detailthe evidence and the findings of the election tribunal. The Court will notinterfere with the findings of the Tribunal unless it is satisfied on such exa-mination either that the findings are manifestly erroneous or that they werenot justified on a correct assessment of the evidence but merely proceeded on asuperficial consideration thereof.

Shri Babu Ram v. Prasanni, A.I.R. 1959, S.O. 93; Commissioner orHindu Religious Endowments, Madras v. Sri Lcihshmindra Thiriha Swamiarof Sri Shirur Mutt, A.I.R. 1984 S.C. 282; Nani Qopal Swami v. Abdul HamidChouMury and another, A.I.R. 1959, Assam, 200, referred to.—HEMDHONMOHAN i). J.B. HAGJER, 26 E.L.R. 90.

——-Agent of candidate, who is—-Tests for determining—Newspaper editorwhen agent—(Sas C3rru.pt; Practice—'Publishing false statement^)—-D. KKHANVILKER v. D. N. PATIL, 30 E.L.R. 1. « ,,

—•—S. 40—Candidates how far responsible for the acts of party which se thim up—party whether an agent of the candidate. HELD : A tirade against theparty setting up a candidate does not amount to an allegation of fact relateableto the personal character or conduct of a candidate. Therefore the distributionof a pamphlet by the Congress party holding the party which set up the peti-tioner as a candidate, namely the Jana Sangh, responsible for a certain incidentof violence against the Prime Minister did not amount to corrupt practice. Thecandidate is not ipso facto liable for the doings of his party, e.g., distributionof pamphlets and literature, as if the party was his agent. He would still beliable for certain acts of the party; but for that purpose there should be a definiteindication of his having connived at these acts.—LAXMINARAYAN v.BANKATLAL, 32 E.L.R. 191.

i o i

ELECTION COMMISSIONI

—.—'POWERS ov—whether can give special direction to change the symhoallotted to candidate—{See—•SYMBOLS)—MANI LAL YADAV V. BUDHINATHJHA KAIRAVA, 23 E.L.R. 159.

Powars of Election Commission—Dismissed Govt. Servants—-jurisdi-ction of Election Commision and Tribunal to enquire into reasons for dismissal—In every case, where a Govt. servant, who has been dismissed from servicewishes to contest an election to the Parliament or Assembly it is incumbenton, him to obtain a certificate from the Election Commission to the effect thathe has not been dismissed for corruption or disloyalty to the State. Thejurisdiction of the Commission in this regard is exclusive and the Tribunalcannot go into this question. Under Section 9(3), the finding of the Commissionon this point is conclusive and cannot be challenged by an election petition.

S. M. Banerji v. Shri Krishna Agarwal, 22 E.L.R. 61, followed.—SUNDER LAL CHECHANI v. SAMPAT LAL, 24 E.L.R. 340.

—•—'Affidavit to be filed with election petition—Election Commission whethermust publish affidavit in Official Gazette and cause it to be served on respondentbefore referring petition to Election Tribunal.—{See—Election Petition—General Principles—D. SANJEEVAYYA i). THE ELECTION TRIBUNAL,HYDERABAD. 26 E.L.R. 475.

Acts. 191(l)(e); 192(2)—If Election Commission competent to conduct an enquiryinto allegations before tendering opinion to the Governor on questions raised.

Representation of the People Act, 1951 s. 7{d) printing press firm executingprinting work for Government departments—if member proprietor of firm—whether firm had subsisting contracts—if member disqualified.

When a question is raised before the Governor by means of a petitionof disqualification incurred by a sitting member of the Legislative Assemblyof the State and when that question is referred by the Governor to the Com-mission for opinion, the Commission is competent to hold an enquiry and toask the parties and other persons to produce such evidence bearing upon thequestion as they may have in their possession.

Brundaban Nayak v. Election Commission of India, A.I.R. 1965 S.C.1892; followed. HELD, on the facts, that Dr. Ramacharan Rai was theproprietor of a printing press which had entered into contracts with theState Government for printing and supply of printed material and wastherefore disqualified for being a member of the Legislative Assembly underArt. 191(l)(e) of the Constitution read with s. 7(d) of the Representation ofthe People Act, 1951.

It is not necessary for a contract within the meaning of s. 7(<?) with theState Government to be executed in accordance with the constitutional re-quirements of Art 299 i.e., that it must be expressed to be made by theGovernor and executed on his behalf by an authorised person. A Col-lector is competent to enter into contracts of this nature on behalf of theState Government.

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Vithal Das Jasani v.^Parashram (9 *E.L.R. 301); referred to.A contract by a printer to supply printed material to a Government

including the cost of the paper is a contact for the .supply of goods and nota contract for work and labour.

Badri Vishai Pittie v. J. Narsingh Rao (16 E.L.R. 183): referred to.

After the amendment of s. 7(d) by Act 58 of 1958. it is no longer sufficientto show that the member has, by some other person in trust for him or forhis benefit or on his account, an interest in a contract with the Government.It is only when the member, in the course of his business enters into a con-tract for the supply of goods to the State Government that he becomes dis-qualified for being a member of the State Legislature and his seat thereuponbecomes vacant under Art. 190(3)(a) of the Constitution.—DR. RAM-CHARAN RAi, IN R E . ELECTION COMMISSION, INDIA (OPINION), 27E.L.R. 66.

——Art. 191,(l){s).7(d)—Member of Legislature proprietor of manufacturingconcern—output of his factory sold through another firm—allegation memberalso proprietor of second firm—if disqualified. • . .

Held, on the facts, that Shri Brundaban Nayak was proprietor of a fhvnmanufacturing and selling cement pipes and that although the sales to Go-vernment and others were effected through an agency firm, the memberwas also proprietor of the latter firm and had : therefore become disqualifiedunder s. l{d)~BRUNDABAN NAYAK (OPINION) ELECTION COMMIS-SION, INDIA, 27, E.L.R. 210.

•—•—-If Election Commission bound hold bye-election forthwith.(See—Election Petition—Alternative Reliefs)—SANJEEVAYYA D. v.ELECTION TRIBUNAL, ANDHRA PRADESH & ORS. 29 E.L.R. (S.C.) 28

Art. 324-Power of Election Commission under-Split in A kali Dal—Elec-tion Commission naming one group as Shiromani Ahali Dal {Master Tara SinghGroup), and the other group as Shiromani Ahali Dal {Sant Fa',eh Singh Qrouf)-and assigning them different symbols—Competence of Election Commission topass such orders.

The Shiromani Akali Dal was one of the political parties which tookpart in the 1962 general election in the State of Punjab. After the electiondifferences arose among the members of the Dal, and there came into beingtwo groups, one headed by Sant Fateh Singh and the other, headed by MasterTara Singh. Each of these groups, claimed to represent the Shiromani AkaliDal. For the 1967 general election, the Election Commission recognised both thegroups as political parties. The group..of the petitioners was named by theElection Commission as the Shiromani Akali Dal (Master Tara Singh Group)and was given the 'hand' as its election symbol; the group of the second res-pondent was named by the Election Commission as Shiromani Akali Dal(Sant Fateh Singh Group) and was given the symbol of 'scales'. The petitioners,fialed a writ petition under Art 226 of the Constitution challenging the com-petence of the Election Commission to pass such orders. HELD : (i) Aftera reasonable enquiry the Election Commission came to the conclusion that

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the Shiromani Akali Dal had split into two groups. Both the groupswere engaging themselves in political activities. Therefore it recognisedboth of them as political parties. In view of the powers of superintendence,direction and control of elections conferred by Art 324 of- the Constitution,the competence of the Election Commission to pass the impugned orderscould not be disputed. —SHIROMANI AKALI DAL & ORS. v. THEELECTION COMMISSION OF INDIA & ORS. 29 E.L.R. 53.

Powers of—Order -passed by Chief Election Commissioner whether tobe treated as order passed by Election Commission. (See Electoral Roll)—RAO K. R. v. THE CHIEF ELECTION COMMISSIONER AND ORS. 29E.L.R. 63.

ELECTION EXPENSES

The Indian Evidence Act, 1872, Sec. 114—-Account of Election Expenses—entries not made from day to day contemporaneously with the expenditure in-curred —whether adverse inference to be drawn under illustration (g). HELD:On the facts, the corrupt practices alleged were not proved.

An account of election expenses which does not carry with it the gua-rantee of accuracy usually associated with account kept day to day contem-poraneously with the transactions is not of any evidentiary value and cannotbe considered. For that reason it is not, however, obligatory on the partof the Court to draw any adverse inference under illustration (g) in s. 114C.P.C. that ererything contained therein is false or that the appellanthas incurred expenditure in addition to what has been recorded therein.That is not a matter of inference but a matter of proof and the burdenwas heavy on the respondent. — HASBI FAKIRAPPA MUDDAPA v. D. B.AYYAPPA.28E.L.R. 101. r . t - ,

—S. 78—Return of election expenses, whether Validly submitted, toReturning Officer, Ajmer.

8. 77(1){2)—Return of Election Expenses—Failure to keep separateand correct account whether breach of Section 77(1){2) of the Act. HELD :—Sub-Section (6) of Section 123 of the Act makes "the incurring or authorising ofexpenditure in contravention of section 77" a corrupt practice. The failureto keep an account containing such particulars as may be prescribed cannotbe said to be "incurring or authorising of expenditure". The words "in-curring or authorising of expenditure" occurring in s. 123(6) of the Act canonly apply to sub-section (3) of section 77, which relates to the incurring orauthorising of expenditure for election purposes. The correct practicecoatemplated can only be for a breach of section 77(3) and not for a breachof section 77(1) and (2).

Narasimhan v. Natesan, A.I.R. 1959 Mad. 514; Muthiah Chettiarv.Ganesan, A.I.R. 1960 Mad. 85, relied on.

Dr. K. C. Nambiar v. State of Madras, AIR 1953, Mad, 351 referred to—KHADER SHERIFF'S, v. ABDUL GAFOOR SAHIB AND OTHERS,30 E.L.R.401.

1104

——failure to "keep and maintain election expenses as required unders. 77—whether a corrupt practice under section 123 (6)—inclusion of depositmade by candidate in the election expenses under section 34—whether infractionof the Rules—Return of expenses—requirement under [rules. HELD: (1) A corruptpractice under section 123(6) is committed only when there is a contra-vention of the provisions of sub-section (3) of section 77, where the candidatehas incurred or authorised expenditure exceeding the prescribed limit;failure to maintain account of election expenses in the manner prescribedin sub-sections (1) and (2) of section 77, does not amount to a corrupt practiceunder section 123(6). Failure to maintain such an account is a matter forthe consideration of the Election Commission and not the Election Tribunal,As the section now stands as amended, the legislature has deliberately usedthe words "incurred or authorised by him j or by his election agent betweenthe date of publication of the Notification calling the election and the dateof declaration of the result, thereof, both days inclusive". Other expensesincurred by a candidate would not fall within the operation of section 77,even if these are incurred in connection with the election. Expenses in-curred or authorised during the period prescribed alone are to be consideredand nothing earlier or beyond that period can be considered What is, there-fore, to be established by the petitioner is whether expenditure between thetwo termini provided by section 77 was in excess of the maximum permisibleunder the Rules.

Shivram Sawant Bhonsale v. Pratap Rao Deorao Bhonsale 1959, 17E.L.R. 37; referred to.

Obiter : If the Legislature intended to curb excessive expenditure bycandidates at these vitally important elections, the present provision ofsection 77 has completely neutralised such an intention. It ia therefore forthe Legislature to consider whether it is high time to re-examine this matterand extend the period artificially fixed under section 77(1) to cover the periodbetween declaration of his intention to be a candidate and the declaration ofthe result of his election, under section 77 of the Act. If this prohibitionagainst excessive expenditure as a ceiling is to have any meaning and de-terrent effect, it would be necessary for the Legislature to have the matterre-examined.

(2) The amount of deposit made by the first respondent under section 34of the Act cannot be termed as election expenses and the omission to includethis amount in the return of expenses is not an infraction of the rules.

Ohandrashekhar Singh v. Sarjoo Prasad'Singh, 22 E.L.R. 205; relied on.GAJADHAR v. CHUNNILAL SINGH AND OTHERS, 31 E.L.R. 1.

—z=Vehicles lent gratituously to a candidate-Whether reasonable hirecharges could be charged to the election expenses of candidate—HELD i In thecase of use of vehicles which were lent gratuitously to a Candida te by his friends,relatives or by the party organisation to assist the candidate in his election,he ia not bound to include in his election expenses any estimated figure forsuch use as election expenditure incurred or authorised by the candidate.

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Vasanthapai v. Dr. V.K. John, XII E.L.R. 107; M.R. Meganafhan, v. K.TtKosalram, IX E.L.R. 242; Muthiah Chettiar v. Ganesan, A.I.R. 1960 Madras85} Ranenjaya Singh v. Baijinath Singh, A.I.R. 1954 S.C. 749; Joseph FosterWilson v. $ir Christopher Furness, 6 0' Malley and Hardcastle's Report ofElection Case P. 1.; Sheopat Singh v. Harish Chandra A.I.R. 1958, Rajasthan324; referred to.—NARSINHBHAIKiRSANBHAI MAKWANA v. JESING-BHAI GOVINDBHAI PARMA.R & ANR. 32, E.L.R. 152.

Expenses incurred by candidate's party or by his supporters out of theirown pocket cannot be included in expenses incurred, by candidate. HELD :The expenses a political party incurs towards the propaganda for a candidatecannot be counted against the candidate if he for his part had been havinga separate agency and had been accounting for his own expenses. No doubtthe candidate is one of the beneficiaries of the expenditure incurred by theparty; but that is no reason why, the expenditure incurred by the partyshould be included in the candidate's expenditure for the purpose of thelimits prescribed in s. 77.—LAXMINARAYAN v. BANKATLAL, 32E.L.R. 191. . ! : , ; ; '

ELECTION PETITION

(1) GENERAL PRINCIPLES—S. 81 (3), 83(1), 85, 90(3) and 116-k—Non-production of certified copy of judgment of Tribunal with the appeal—Failureto furnish a copy of affidavit with eaoh copy of the petition—Omission to attachwith petition important documents constituting the foundation of the charge ofaorrupt practice—Whether amount to non-compliance with s. 81.

The appellant challenged the election of the respondent before the ElectionTribunal alleging various corrupt practices committed by the respondent.The Tribunal dismissed the petition on a finding of fact that certain importantpamphlets constituting the foundation of the charge of corrupt pratice men-tioned in an Annexure to the petition had not been attached to the petitionand that was a material omission: HELD~—(i) The omission to attach to thepetition copies of certain pamphlets which were material documents on whichcharges of corrupt practices had been founded against the respondent wouldrender the copies of the petition not real copies thereof and would be violativeof s. 81(3) entailing dismissal of the petition under Ss. 85 or 90(3).

(ii) the preliminary objection that the appeal under section 116-A wasnot maintainable if it was not properly presented with a certified copy 'of thejudgment appealed against within the period of 30 days, could not be sustainedas, even assuming that the copy should be a certified copy, under section 12of the Limitation Act, the time requisite for obtaining the certified copy is tobe excluded.

(in) the affidavit accompanying the petition is something separate fromthe petition and does not form an integral part of it; therefore , a copy of thepetition not accompanied by a copy of the affidavit cannot be regarded as anincomplete copy. Non-compliance with the provisions of the proviso tosection 83(1) requiring an affidavit to accompany the petition would not entaildismissal of the petition.

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Obiter. The Tribunal's interpretation that the words "whose duty is tocollect land revenue and who are remunerated by a share of, or commissionon, the amount of land revenue collected by them, but who do not dischargeany police functions" in section 123(7)(f) governed the first two words "revenueofficers"̂ was]wrong. The better view is that the above quoted words wouldgovern the words "village revenue officers" known as lambardars, malguzars,patels, deshmukhs or by any other name" in that section.

State of Vttar Pradesh v. Babu Ram, A.I.R. 1961, S.C. 751; KamarajaNadar v. Kunju Thevar and others, 14 E.L.R. 270 referred to.—ACHARYARASIKCHANDRA DEVSHANKAR v. ADANIRATUBHAIMULSHANKER24 E.L.R. 262.

s. 83(1) proviso, ss. 85 and 90—Requirement that affidavit to accompanyelection petition containing allegations of corrupt practices—Whether directoryor mandatory. Constitution of India Art. 329(6)—Whether contemplates enact-ment of only mandatory provisions: HELD: I t was not mandatory that theaffidavit required by the proviso to s. 83(1) should accompany the electionpetition when the petition was presented before the Election Commission,and it was open to the Election Tribunal to receive the affidavit when thepetition had been transferred to it for trial. By the amendment of ss. 85and 90 in 1956, Parliament expressly intended to exclude non-compliancewith the provisions of s. 83 from the penalty of dismissal of a petitionprovided in those sections.

Sardar Singh v. The Election Tribunal, Civil Misc. Writ No. 2733 of 1962decided on September 21, 1962; relied upon.

State of Uttar Pradesh v. 0. Tobit, (1958) S.6.R. 1275; Dr. N.B. Kharev. The Election Commission of India, (1958) S.C.R. 648; and Jagat DhishBhargava v. Jawahar Lai Bhargava, A.I.R. 1961 S.C. 832 ; distinguished.

Although Art. 329(b) of the Constitution provides that an election can-not be questioned except by an election petition presented to such authorityand in such manner as may be provided under any law made by the appropriatelegislature, the statute framed may contain provisions, some of which callfor strict or exact compliance and others merely for substantial compliance.The legislature was free to include both mandatory and directory provisionsand it could not be said that Art. 329(b) contemplated the enactment of onlymandatory provisions.

Woodward v. Sarsons, (1875) L.R. 10 C.P. 733, 746, and Jagannath v.Jaswant Singh, (1954) S.C.R. 892 ; referred to.

The object behind the enactment of the proviso to s. 83(1) appears to bethe prevention of frivolous allegations of corrupt practices and to invest thepetitioner with a sense of responsibility when filing the election petition.It could not be held that this object can be effectuated only if the affidavitis filed along with the petition. It would serve its purpose just as adequatelyif it was filed before the Election Tribunal before any effective proceedings

107

were taken by the Tribunal for the trial of the petition, for example, beforeissues were framed and evidence recorded. —BEIJ MOHAN DAS AGAE WALv. Z.A. AHMAD AND OTHEBS, 24 E.L.E. 371.

—S. 83—Whether provisions mandatory or only directory: HELD : Non-compliance with the provisions of s. 83 is not a ground for dismissal of thepetition by the Election Commission and is not fatal to the petition. Therequirments of the proviso to s. 83 are merely directory and not mandatory.

Jagan Nath v. Jaswant Singh 9 E.L.E. 231; Nani Gopal Swami v. AbdulHamid Choudhary, A.I.E. 1959 Assam 200; Rus'om Satin v. Dr. Sampoornana-and 20 E.L.E. 221; Abdul Majjed v. Bhargavan, A.I.E. 1963 Kerala 18; BhagwanDatta Shastri v. Ram Ratanji Gupta, A.I.E. 1960 S.C. 200; Karan Singh v.Jawaina Singh, 15 E.L.E. 370; Sanganna Andanappa v. Shivamurthi SwamySiddappalya Swamy, A.I.E. 1961 Mysore 106; Shanharagouda v. Sirur Yeera-bhadrappa, A.I.E. 1963 Mysore 81; Seopat Singh v. Harish Chandra, A.I.E.1960 S.C. 1217; Sarla Devi PathaJc v. Birendra Singh, 20, E.L.E. 275; ShubnathDaogan v. Ram Narain Prasad, A.I.E. 1960 S.C. 148; Ram Dial v. Sant Lai,19 E.L.B, 430; Moinuddin B. Haris v. B. P. Dirgi, 3 E.L.E. 248, Ashfat AliKhan v. Darshan Singh, 20 E.L.E. 136; Sudhir Lachman Handre v. shripatAmrit Dange, A.I.E. 1960 Bombay 249; RajayVijay Kumar Tripath v. RamSaran Yadav, 22 E.L.E. 289; Shiv Dutta v. Banarsidas Dhanager, 9 E.L.E.324; Katoria Takandas Hemraj v. Finto FredariJc Michael, 18 E.L.E. 403;Ghayur Ali Khan v. Kashav Gupta, 16 E.L.E. 154; and Maharaja Sirs ChandraNandy v. Rukhalananda Thakur, A.I.E. 1941 P.C. 16; referred to—PEATAPSINGH DAULTA v. JAGDEV SINGH SIDHANTI, 24 E.L.E.^378.

—•— S. 83—Necessity of full particulars—Election Petition—CorruptPractice—HELD ;Where full particulars of corrupt practice are not suppliedin the election petition, but evidence on both sides is allowed to be given andtaken, the petition cannot be dismissed for want of full particulars unless thewant of full particulars has caused material prejudice.

Bhagwan Dutt Shastri, v. Ram Ratan Gupta, 11, E.L.E. 448; SheopatSingh v. Harish Chandra, 16 E.L.E. 103; Saw Ganesan v. M.A. Muthiah,19, E.L.E. 16— referred to.—SANT PBASAD SINGH v. DASU SINHA, 25E.L.E. 181.

Pleadings, issues and evidence—Tribunal's duly for considerations rega-rding evidence beyond pleadings—HELD ; The appellant's case in the petitionwas that the posters complained of contained various false statments over aname which was a pseudonym for the first respondent. I t was not therefore per-missible for him to show that the pseudonym was that of the first respondent'sagent and that the original manuscript of the posters was also in the latter'sname. Election Tribunals, when dealing with serious questions of commissionof corrupt practices, are expected, during the course of trial, to keep to thefore-front in their mind the precise allegations in the pleadings and to seethat no evidence outside them is brought on the record. Parties are thereto safeguard their own interests, but an election petition is not only a privatecontest between the parties to it. The whole constituency is interested in itsproper and fair trial.—EAM PHAL v. BBAHAM PAEKASH AND OTHEES23, E.L.E. 92. l

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R. 10—Onus on petitioner in election petition to show result of electionmaterially affected—It is well settled that in an election petition, the onus ison the petitioner to prove that, on the facts of the case, the result of the electionin so far as it concerned the returned candidate, had been materially affectedby the breach of or non-compliance with Eule 10.

Vashisht Narain Sharmav. Dev Chandra and Others, A.I.E. 1954 S.C. 513and Karu Lai and another v. Fida Hussain and another, A.I.E. 1960 Patna556, relied on.—MANI LAL YADAV v. BUDHINATH JHA KAIEAVA, 23B.L.E. 159.

Practice and Procedure—Pleas not raised before Tribunal canot beallowed to be urged in appeal. Pleas not urged before the Tribunal cannotbe allowed to be raised in appeal. MOHINDEE SINGH & ANE. v.GUEMIT SINGH, 25 E.L.E. 27.

—S. 83 Proviso—Allegation of corrupt practice —Not filing affidavit—if fatal to the maintainability of petition—The defect of the chargerelatingto corrupt practice not being supported by an affidavit is not fatal to themaintainability of an election petition. If the legislature intended the non-observance of the proviso to s. 83 as fatal either to the entertainment or to themaintainability of the petition it would have provided either for the dismissalof the petition on that ground or for any other penal consequence. Nothingdepends on the use of the word 'May' or 'Shall' and an enactment, in formmandatory, might in substance be directory.—Narayana Rao v. State ofAndhraPradesh, A.I.E. 1957 S.C. 737; K. 8. Srinivasanv. Union of India, A.I.E. 1958S.C. 419; Rani Drigraj Kuer v. Raja A.K.N. Singh, A.I.E. 1960, S.C. 444;Banwarilal Agarwalla v. State of Bihar & Ors. A.I.E. 1961, S.C. 849; Collector,ofMonghyr & Ors. v. Keshav Parsad Goenha. A.I.E. 1962 S.C. 1694; referred to.~-KIDWAI HUSSAIN KAMIL>. YADAV EAM SEWAK & OES., 25' E.L.E. 35.

Sections 109, 110— Failure to prosecute petition—sections if applicable,Interpretation of Statutes—'Casus omissus'—if can be cured by construction.—Although the policy of the law appears to be to afford an opportunity to thevoters in a constituency to see that right persons are elected and personsdo not get elected by flagrant abuse of the process of law, there are loop-holesin the machinery provided for the safeguarding of the interests of the electors.The Act provides for an interested voter to come on record when he finds thatthere is collusion between the contesting election petitioner and the successfulcandidate by reason of which the election petitioner attempts to withdrawthe proceedings and in cases where the petitioner or respondent in the electioncontest dies. But significantly the procedure envisaged in sections 109 and 110cannot be invoked in cases where the petitioner is remiss or deliberately failsto place the evidence before the Court to enable the Court to adjudicate onthe matter arising in the conflict. There is therefore a lacuna in the Acfc or,in other words, it is a case of casus omissus. The Court cannot by constructioncure a casus omissus however just and desirable it might be.

Albridge v. Hurst, 18761. C.P.410; Jagannaih v. Jaswant Singh, A.I.E. 1954S.C. 210; Mallappa Basappa v. Basavaraj Ayyappa A.I.E. 1958 S.C. 698; RoopChand Sohoni v. Rawait Man Singh— 5 E.L.E. 327 (Tr); Laheri Singh v. AtarSingh, 3 E.L.E. 403 (Tr.); Dr. V.K. John v. Vasanta Pai, 11 E.L.E. 278; Harish

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Chandra v. Triloki Singh, A.I.R. 1957 S.C. 444; Basappa v. Ayyappa, 1958S.C.J. 953; Ponnuswami v. Returning Officer, 1952 S.C.J. 100; WoolverharnptonNew Water Works Co. y. Hawkrford, 6 C.B. (N.S.) 336; Mohd. Bahadur Khanv. Collector of Bareilly, 1, l.A. 167; Adityan v. Kandamvanwj, 1958 S.C.J. 1072;A.I.R. 1958 S.C. 856; Craies on Statute Law ; referred to. —KODUR SUBHABAMIAH v. ANNAM CHANCHU SUBHA REDDI, 25 E.L.R. 97.

S. 83(1) proviso—affidavit to be in the prescribed form—requirementof mandatory proper procedure to be adopted for remedying defects.—The respon-dent field an election petition challenging the election of the petitioneron the ground of corrupt practice. The petitioner took a preliminary objec-tion, before the Tribunal that the proviso to s. 83(1) of the Act was mandatoryand therefore, in as much as affidavit filed with the petition was not in theprescribed form, it was no affidavit in the eye of law and the allegation aboutcommission of corrupt practices in the petition ought to be struck out asbeing unnecessary under O.VI r. 16 of the Code of Civil Procedure. TheTribunal held that the affidavit substantially complied with the requirementof the proviso to s. 83(1) and the defect did not effect the jurisdiction ofthe Tribunal as it did not require any rectification. The High Court's jurisdic-tion under Articles 226 and 227 of the Constitution was invoked against theorder of the Tribunal. HELD: The Tribunal must be directed to requirethe party to file another proper affidavit either in the.prescribed form or inthe form in which it has already been filed after removing the defects there-from. The requirements of the proviso to s. 83(1) that the petition shall beaccompanied by an affidavit in the prescribed form is only directory and notmandatory. Before the Amending Act 87 of 1956 the penalty for non-com-pliance with the provisions of s. 83 was the dismissal of the application bythe Election Commission but no such penalty is provided after the amend-ment of 1956. The intention of the legislature in introducing the provisoby Act 40 of 1961 is to prevent the petitioner filing an election petition frommaking wild allegations about corrupt practice and that intention is substantiallyachieved if an affidavit is filed in support of the allegations of corrupt practiceand the particulars thereof. State of XJ.P. v. Manbodhan Lai Srivastva, A.I.R.1957 S.C. 912 ; Jagannath v. Jaswant Singh, A.I.R. 195-1, S.C. 210; BhikajiKeshav Joshi v. Brij Lai Nandlal Biyani, A.I.R. 1955, S.C. 610; KamqrajNadarv. Kunju Thevar, A.I.R. 1958, S.C. 687; Sat/ishKumar v. Election Tribunal,A.I.R. 1963. Raj. 157; State- of Bombay v. Purshollam Jog NaiJc, A.I.R.1952, S.C. 317; Padmabati Dasi v. Basik Lai D'har, I.L.R. 37; Gal. 259; HarishChandra Bajpai v. Triloki Singh, A.I.R. 1957, S.C. 444; People v. Be Henna2NYS (2)694; Liverpool Borough Bank v. Turner (1860) 30 L.J. Ch 397; Howardv. Bodington (1877) 2 P.D. 203; Thomas v. Kelly, 13 A.C. 506; referred to.Jagal DJmh Bhargava v. Jawahar Lai Bhargava, A.I.R. 1961, S.C. 832, dis-tinguished. An affidavit filed in compliance with the proviso to sub-section(1) of s. 83 cannot be allowed to be amended by a petition of amendmentfiled in accordance with O. VI r. 1.7 G.P.C. , because it is only a statement onoath by way of evidence and is not part of the pleading. The defect can beremoved by another affidavit either in the prescribed form or substantiallyin the form in which it has been filed after removing such defects.—MEHESHPRASAD SINHA v, MANJAY LAL & ORS. 25 E.I^R. 130,

M/J(D)121EC—l0

——s.83(l), proviso—Allegation of Corrupt Practice —Omission to file affi-davit—if fatal to the maintainability of petition. HELD:—The omission to filean affidavit along with the election petition as required by the proviso toa. 83(1) is not fatal to the maintainability of the petition. The provisions ofwotion 83 are not mandatory. The question whether any requirement is manda-toty or directory has to be decided not merely on the basis of specific provisionwhich, for instance, sets out the consequences of the omission to observe therequirement, but on the purpose for which the requirement has been enactedpaiticularly in the context of the other provisions of the Act and the generalscheme thereof. No penal consequences have been provided for non-compliancewith the provisions of s.83. I t is only non-complpiance with the provisions ofs. 81 or 82 that would empower the Election Commission or the Tribunal todismiss a petition. The use of the word "shall" does not make s. 83 mandatory.Order VI r. 15, C.P.C. uses the word "shall" and it is well settled that if apleading is not verified in the manner prescribed by the Order, the defect isone of procedure and not of jurisdiction. Collector of Monghyr v. Keshav PrasadGovnka, A.I.E. 1962 S.C. 1694; Jag an Nath v. Jaswant Singh, A.l.R. 1954,S.C. 210; Balwan Singh v. Lakshmi Narain, A.l.R. 1960, S.C. 770; relied on.JDantu Bhaskar Rao v. C. V. K. Rao, Sp. App. No. 52 of 1962; Ram GopalGhose v. Dhirendra Nath Sen, I.L.R. 54, Cal. 380; Ali Mohammad v. IslahA.Khan, I.L.R.. 54, All, 57; Ephrayim v. Turnsr Morrison & Co., A.l.R. 1930Bom. 511; Balakrishna Industrial Works v. Venkatachari, 195-4, 2 M.L. J. 290,Jagai Dhish Bhargava v. Jawahar Lai Bhargava; A.l.R. 1961, S.C. 832— referredto.—CHENGALRAYA NAIDU N. P. v. G.N. PATTABHI REDDI, 25E.L.R. 168.

——s.81(3)—Attestation of copies—s.81(3) Requirement that copies shouldbe attested as true by the petitioner—if mandatory or directory. The Tribunalfound that the petition was not maintainable on account of non-compliancewith sub-section (3) of section 81 of the Act which lays down that every elec-tion petition shall be accompanied by as many copies as there are respondentsand every such copy shall be attested by the petitioner under his own signatureto be the true copy of the petition. The copy served on the respondent wascertified as true copy of the original by the Election Commission and not bytho appellant. In appeal the appellant contended that since the copy forwardedto the tribunal by Commission tallied in all respects with the copy served onthe respondent the irregularity, if any, was only formal and not real. HELD:Where a specific penalty has been provided for in a statute for non-compliancewith the particular provision in the Act itself no discretion is left to the Courtto determine whether such a provision is directory or mandatory. If it were notso there would be no sense in the legislature laying down the consequence ofnon-compliance. Kamaraj Nadar v. Kunju Thevar, 14 E.L.R. 270 (S.C);Kaushalendra Prasad Narain Singh v. Nand Kishore Prasad Singh, 22 E.L.R.484; distinguished; Collector of Monghyr v. Keshav Prsad Goenka, A.I.R.1962,S.C. 1964; referred to. Bam Ramv. Smt. Prasaiv i & Ors. A.l.R. 1959 S C 93-relied on,—SANT PRASAD SINGH v. DASU SINHA, 25 E.L.R. 181.

—-Provision that material facts must be pleaded in petition—Scope ofrequirem* nt.—(See—-Ballot paper—Inspection of.).—JAINARAINLALAGARWAL v. NAND KUMAR DANI & ORS. 26 E.L.R. 136.

I l l

Representation of the People Act, 1951, ss 83, 92 and 100

Conduct of Elections Rules, 1961, r. 93.—Election challenged on groundof improper acceptance and rejection of voles—Inspection of ballot papers—inwhat circumstance to be allowed—Material facts in support of petition, whatare.

Per Mehrotra C.J. and Nayudu, J. Held : (i) The petition could not bedismissed on the ground of vagueness. The allegations set out the groundson which the election was challenged with sufficient clarity and these werecovered by s. 100(l)(«Z)(iii). At that stage the petitioner-appellant coulddo no more than to make a statement that she believed that there hadbeen wrongful rejection of valid votes and wrongful acceptance of invalidvotes. The considerations which apply to allegations of corrupt practiceas contemplated by s. 83(1)(6) would not be relevant in the case of otherallegations which will be covered by s. 83(l)(a).

(ii) Section 92 gives power to the Tribunal to order discovery and ins-pection of documents. In order to maintain the secrecy of the ballot paperrule 93(1) of the Conduct of Elections Rules makes it clear that ballot paperscannot be-inspected except by the orders of the court or Tribunal. It iswithin the discretion of the Tribunal, to be exercised judicially, to order orrefuse inspection of the ballot papers. The order of inspection no doubtcannot be granted as a matter of course but only in cases where in thepetition one of the grounds is that the result of the election has beenmaterially affected by wrongly refusing to count some votes cast in favourof the petitioner and wrongly counting some votes in favour of the respon-dent: and further when the Tribunal is satisfied that in order to decidethe dispute and to do complete justice between the parties the inspection ofthe ballot papers is essential. The present case was not one of mere suspicionor fishing for evidence. There was a positive assertion of material facts fromwhich the Tribunal was asked to infer that the counting was not properlydone. The petitioner appellant had clearly alleged that more than 10,000votes were rejected as improper and had asserted that if recounting wasordered the respondent would get less votes than the appellant. The Tribunalwas therefore fully justified in ordering an inspection of the ballot papers. Theconditions laid down by the Supreme Court in Ram Sewak Yadav's casefor allowing inspection of the ballot papers were satisfied in the presentcase.

Ram Bewah Yadav v. U.K. Kidwai, A.I.R. 1964 S.C. 1249: Bhim Senv. Gopali, 22 E.L.R. 288, applied.

(iii) The Tribunal's first order allowing inspection of the ballot papersreferred to the whole of Jorhat Parliamentary Constituency. It took accountof the appellant's allegation that 10,653 votes had been rejected as improperwhich necessarily meant that the petitioner had challenged the counting inthe whole constituency. On the finding that in order to do justice between theparties it was necessary to allow the appellant to inspect the ballot papers, theTribunal could not by later order reasonably restrict the right of the peti-tioner-appellant to inspect the ballot papers of the Jorhat Sub-division.

H2

Dutta J. (dissenting). There was complete absence in the originalpetition and even in the subsequent petition of any fact necessitating ins-pection of the ballot papers of the Golaghat Sub-division, and in the originalpetition recounting of votes only in the Jorhat Sub division was prayed for.The Tribunal should not have allowed inspection of the ballot papers evenof the Jorhat Sub division, but that was a fait accompli. As regards the ballotpapers of the Golaghat Sub division no inspection could be granted as therewas not an iota of material fact in the original or subsequent petitiou andconsequently there was no Prima facie case to justify such an inspection.

Basaviah v. Bachia & Ors, XVII (1959) B.L.E. 293; Stowe v. Jolliffe (1874)L.E. 9 C.P. 466.22 W.E. 911; 30 L.T. referred to. —BEGUM MAFID A. AHMEDv. EAJENDEA NATH BA.RUA & ANR: 26 E.L.E. 172.

——s. 83(l)(a)—Material facts in support of allegations must be mentionedin petition —In absence of such facts cause of action does not arise and evidencecannot be allowed to be led. —HELD:—(i) The Tribunal erred in allowing theappellant to lead evidence as to the number of votes cast in the name ofdead voters, or those who could not vote. Th.3 election petition did not containthe material facts in this regard and therfore no cause of action was dis-closed as to these matters. If a, party fails to plead material facts he cannotgive any evidence of those facts at the trial. Nor was leave to do so sought inthe present case. In fact what the appellant did was to take the Tribunalon a fishing expedition.

In not supplying the material facts as to the allegations made in the petitionthere was non-compliance with s. 83(l)'(a) of the Eopresentation of thePeople Act, and the petition was liable to be dismissed.

Bruce v. Odhams Press IM. 1936 1 K.B. 697 at 712, and C.R. Narasim-Jian v. Election Tribunal Madurai and Ors., 16 E.L.E. 327; applied.

The Tribunal was not right in placing reliance on the deaths registersmaintained by the village Managers which did not comply with the provisionof the statute in that area. None of the witnesses who had given evidenceconcerning the death of 104 voters had stated that they were either presentat the death or that they were living in the house in which . such death hadhappened. The evidence concerning the death of the voters in these circum-stances did not establish the appellant's case even assuming he was entitledto lead evidence on that question. .—NAGAPPA v. H. G. VENKATEGOWDA26 E.L.E. 224.

s. 83(1)-—Conduct of Elections Rules, 1961, r. 94-A.Affidavit in support of corrupt practices alleged' in election petition—•

Rule 9&-A prescribing authorities before whom, affidavit to be sworn—Affidavitsworn before Clerk of District Judge's court, and not before one of the authori-ties named in r. 94-A—Such affidavit whether satisfies prom so to s.83(l)—•Proviso whether mandatory—Tribunal whether can order fresh affidavit to befiled.

HELD.—The requirement of s. 83(1) of the Act that where the electionpetitioner alleges any corrupt practice the election petition shall be accom-panied by an affidavit sworn before the authority prescribed in r. 94.A to

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support the allegations of corrupt practice and their particulars is mandatory.There was no compliance with this requirement in the present case when res-pondent No. 1 filed with the election petition an affidavit sworn before the

• Clerk of the Court of the District Judge. The omission to comply with theproviso to s. 83(1) of the Act could not be cured by permitting the first res-pondent to file a fresh affidavit; and the Tribunal erred in granting leave tohim to file an affidavit in proper form, (ii.) The result of the failure of thefirst respondent to comply with the proviso was that the allegations made byhim in the election petition about corrupt practices could not be enquired intoand the Tribunal had no jurisdiction to try any issue raised by those allegations—Jagan Nath vs. Jasvant Singh (9) E.L.R. 231/A.I.R. 1953 S.C. 210Gh. Subba, Rao vs. Member, Election Tribunal, Hyd. C.A. NO. 971 of 1963decided on 13th January 1964; Amichand vs. Pratap Singh 1963 M.P.L.J.533: Husain Kamil vs. Ram Sewak 1964 A.I.R. ALL. 86: Bhashararao vs. G.V.K.Rao, A.I.R. 1964. A.P. 77; MahesJi Prasad vs. Manjay Lai, A.I.R. 1964 Pat. 53;Hari Vishnu v. Ahmad-fshaqua 1955-1 S.C/Et. 1104 A.I.R. 1955 S.C. 233;Banwarilal v. State of Bihar, A.I.R. 1961, S.C. 849: In Collector of Monghyr vs.Keshave Prasad A.I.R. 1962 S.C. 1694 ; R. vs. Bishori of Oxford (1879)4 Q.D. 245 at P. 261; P. K. Banerjee v. L. J. Simonda A.I.R. 1947 Cal. 307 ;S.W. Factory v. Industrial Court A.I.R. 1950 Bom. 206; Balwan Singhvs. Lahshmi Narain A.I.R. 1960 S.C. 770; referred to.—PANDIT DWARKAPRASAD MISHRA v. KAMALNARAIN SHARMA & ORS. 26 E.L.R. 269.

s. 83(1).—Proviso to—Form of affidavit in support of allegation of corrupt practice. Requirement of s. 83(1) whether mandatory.—-(See—Corrupt Prac-tice—Appeal on the grounds of religion etc.) BHUPENDRA NARAINMANDAL v. E.K. NARAIN LAL DAS AND ORS. 26 E.L.R. 407.

——s. 86(1)—Affidavit to be filed with election petition—Election Commissionwhether must publish affidavit in Official Gazette'e and cause it to be served on res-pondent before referring petition to Election Tribunal.

At the general election held in 1962 for membership of the Andhra PradeshLegislative Assembly, the present petitioner and the second respondent werethe contesting candidates from a constituency in Kurnool District. The peti-tioner was elected and the second respondent filed an election petition challeng-ing the election, alleging certain corrupt practices. The particulars of thecorrupt practices were mentioned in the petition. As required by the provisoto s. 83(1) of the Representation of the People Act. 1951, the petition wasaccompanied by an affidavit in support of the allegations and the particularsmentioned therein. In compliance with s. 86(1) of the Act the Election Com-mission published a copy of the petition in the Official Gazette and also causeda copjr thereof to be served on the present petitioner. Thereafter the petition wasreferred to the Election Tribunal. Four months after filing the written state-ment, the petitioner filed an interlocutory application challenging thereference to the Tribunal as incompetent in as much as the affidavit filedwith the election petition was not published in the Official Gazette, nor servedon the present petitioner. The application was dismissed by the Tribunalwhereupon the petitioner came to the High Court with a writ petition under

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Act. 226 of the Constitution. Only one day before the hearing of the writpetition the petitioner made an application praying that the Election Com-mission be also made a party.

HELD: (i) The application for impleading the Election Commission wasmade at the eleventh hour, a year after the filing of the writ petition. Onaccount of the delay and because the Election Commission was neither anecessary nor a proper party, the application must be rejected.

(ii) There is nothing in the terms of s. 86 which countenances the argu-ment that in addition to a copy of an election petition a copy of the affidavitaccompanying such petition should also be published in the Gazette andserved on a respondent to an election petition. If the legislature had intendedto put an affidavit on a par with an election petition, one would have expectedsome reference to an affidavit in subs. (1) of s. 86 ; but there is no mentionat all of an affidavit in that sub-section.

The affidavit referred to in s. 86 is more or less a replica of the verificatioalready provided for by s. 83(l)(e) and as envisaged by Order VI. r. 15 of theCode of Civil Procedure, except that the affidavit is required to be solemnlyaffirmed or sworn to before a magistrate of the First class or a notary, orCommissioner of oaths. Besides, an affidavit in Form No. 25 does not furnishany additional information touching the corrupt practices alleged and ampli-fied in the election petition, and it could therefore be of little use to the res-pondent in an election petition in preparing his written statement in answerto the allegations made against him. That being so, the publication of theaffidavit would be a purposeless formality. It is significant that s. 81(3) requiresto be filed along with the petition only five copies thereof obviously so thatthe Election Commission may serve them on the respondents. This sub-section does not require copies of the affidavit to be filed. It would not havebeen so if it was intended that copies of the affidavit should be published inthe Gezette, and also served on the respondent.— SANJEEVAYYA D. v.THE ELECTION TRIBUNAL, HYDERABAD. 26 E.L.R. 475.

—•—Section 100(l)(d)(iv)—non-compliance of—HELD : The word "non-compliance" in Sec. 100(l)(d)(iv) of the Representation of the People Act,1951, denotes an omission to do what is directed to be done, and does not derotedoing of an aot which is prohibited such as carrying identity cards of candi-dates by voters to the polling station which is punishable under section 130(2).

Naunihal Singh v. Kishore Lai Paliwal, (A.I.R. 1961 M.P., 84); approved—MADHU SINGH vs. RAM SARAN CHAND MITTAL 27 E.L.R. II.

Civil procedure Qode (1903) 0-6 r. 2-Rules of Pleading—object—Construction of.—- HELD :

It is no doubt true that rules of pleadings are meant to help the Courtin narrowing controversies, but it is equally true that pleadings in this countryare not to be construed too technically. The object of pleadings is generallyto see where the parties differ, so that each side may be fully alive to thequestion in issue in order to be able to bring forward appropriate evidence.—DIDAR SINGH CHEEDAw.SOHAN SINGH AND OTHERS 27 E.L.R. 110

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S. 81—whether to be read with s.29(3) of the Indian Limitation Actknd ss. 9 and 10 of the General Clauses Act in computing period of limitation

,for filing elec'Aon petition.

—S. 90(3).—-if amendment to petition un.ier order 6 rules 17—s. 151 C.P.C.only in respect of charge of corrupt practice already in petition—not raising nswgrounds or altering the character of the petition—if permissible.

—S. 123(4)—if corrupt practice proved—Burden of proof.

—8. 116—A interference with Tribunal's findings of fact—High Court'spowers.

Indian Evidence Act, ss. 35, 63, 65, and 81—Burden of proof—Secondaryevidence as to leaflets distributed, when admissible—Presumption as to genuine-ness of newspapers.

Election Petition—filed by elector—proof of being elector—copy of electoralroll supplied under rule 11 of Registration of Electoral Rules, 1960—whether copymust, bear official seal or signature—presumption as to entries in public rzcords.At the election for the State Legislative Assembly of Uttar Pradesh fromVaranasi Constituency held in 1962. the appellant was the candidate of theJan Sangh party and won the election. The next highest number of voteswas secured by the Congress candidate who was a Muslim. Three electorsof the constituency filed an election petition challenging the election of theappellant on the ground that he was guilty of corrupt practice under s. 123(4)of the Representation of the People Act. The corrupt practices alleged inclu-ded the cariying or. of communal propaganda against the Congress candidate,representing him to be a Muslim League-, and that a vote for Con.gs.ess was avote for cow-killers. The p opaganda was alleged to have been carried on atmeetings, through hand-bills, and through a local paper called Samachar. TheTribunal allowed the petition and set aside the election of the appellant. Inhis appeal before the High Court it was urged on behalf of the appellant :

(i) That the three petitioners were not proved to be duly qualifiedelectors as the copies of the electors rolls which had been filed to show thatthey were recorded as electors, were without any official seal or signatures,nor were they certified to be true copies;

(ii) That the election petition was not filed within 45 days from the dateof election of the returned candidate as required byp) • 81 of the Act. The IndianLimitation Act was not applicable to cases under the Act, and therefore the dateon which the returned candidate was elected could not be excluded, nor couldholidays extend the period of limitation;

HELD '• (i) The copies of the electoral rolls in which the petitionernames appeared were officially supplied to the office of the Congiess party, aswas proved by oral evidence. They were produced from proper custody.They were admissible as entries in public records under s. 35 of the IndianEvidence Act. The fact that the petitioners were electors of the constituency

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fvas also proved by oral evidence. There is nothing in the Act that requireseopies of the electoral rolls supplied to the parties to bear the seal or(signature of any officer. In the result the petitioners were duly qualified-electors of the constituency, and were entitled to file the election petition.

(ii) The Rep:esentation of the People Act dose not expressly exclude theapplication of the India Limitation Act. In view of s. 29(8) of the Indianlimitation Act and ss. 9 and 10 of the General Clauses Act, the petition wasfiled within the period of limitation provided in s. 81 of the Representationof the People Act.

(iii) The amendments to the petition allowed by the Tribunal were onlyin respect of the charges of corrupt practices already mentioned in thepetition. The amendments did not raise new grounds of charge or alter thecharacter of the petition so as to make it in substance a new petition. Theamendments were therefore rightly allowed by the Tribunal.

(iv) The documents Exhibits 14 and 15 were admissible as secondaryevidence under ss. 63 and 65 of the India Evidence Act. One of the witnes-ses for the petitioners had deposed that he had received notices like Exhibits14 and 15, that he had lost them, and therefore precluded front producing thesame. These facts made the documents admissible as secondary evidence.As for Exhibits 16 and 17 which were copies of the newspaper Samaihar,their genuieness was presumed by the Tribunal under s. 81 of the IndianEvidence Act, and theie was no reason to differ fiom that view.

(v) The Tribunal wrongly held on the evidence in the case that theappellant was guilty of the corrupt practices alleged against him. The evit-dence produced by the petitioners was after a set pattern showing the appellantto be present at every place where corrupt practice was alleged to havetaken place. The appellant was a man of status and an experienced piiblicworker; it was therefore unlikely that he would indulge in the corrupt pract-ces alleged against him in the manner alleged.

(vi) The Tribunal was wrong in drawing an evidence inference againstthe appellant fo-the non-production of certain witnesses. Proceedings in atrial of an election petition to set aside an election on the ground of corruptpractice are of a quasi-criminal character. The corrupt practices must beproved beyond reasonable doubt. The burden to prove the alleged corruptpractices against a candidate who has been elected in the election is alwayson the petitioner in the election petitioa. This burden seldom shifts to therespondents in an election petition.

(viii) The various defects in the appraisal of the evidence by the Tribu-nal justified a re-appraisal of the facts by the High Court. Under s. 116-Aof the Act the jurisdiction of the High Court in the disposal of an appeal issimilar to that which it has in the disposal of appeals against original decrees.The appellate court is not bound to ditto the findings arrived at by the

in

Tribunal. The proposition is untenable that the High Court has no jurisddic-tion to set aside the findings of the.Election Tribunal on questions of factarrived at on an appreciation of the evidence.

(ix) The Tribunal was wrong in setting aside the election of the appel-lant and his appeal must be allowed.

BMJcaji Kesliao Joski and another V. Brijlal Nandlal Eiyani and othersA.I.R 1955 S.C 610; Harish Chandra Bijpai and another v. Tritoh Singh andanother A.I.R. 1957 S.C. 444; S. M. Banerji v. Sri Krishan Agarwal A.I.R.1960 S.C. 388; Devaiah v. Nagappa and other A.I.R. 1965 Mysore 102; HariPrasad Deb v. Bhanuganga Tribhuban Dev A.I.R. 1964 Orrisa 8; V. B. Rajuv. V B. Ramachandra Rao and other 21 E.L.R. 1 at page 16 (S.C.) Sri RvjDev v. Sri Gangadlmr Mohapalra and Ors A.I.R. 1954 Chissa 1; GolulandandaPmhraj v. JagdisJ/ Chandra Rout and another A.I.R. 1859 Orissa 47; BombayCot'.on Manufacturing Company v. Moiilal Shivalal (1915) I.L.R. 39 Bombay396; Inayatullah Khan v. Diwanchand Mahajan ami Ors 15 E.L.R. 219; BamRam v. Prasanni and ors 16 E.L.R. 450; Nani Gopal Swami v. Abdul HaqChoudhury and another 19 E.L.R.. 175; Moliansingh Laxmansing v. BhanwarlalRajmal Nahata and ors. A.I.R. 1964, Madhya Pradesh 137; Emperor v.Mahomed Usman A.I.R. 1933 Sind 325; Emperor v. Baharuddin A.I.R. 1938Patna 49; Ibrahim and ors v. Emperor A.I.R. 1935 Patna 95; Bhuilan v.Emperor A.I.R. 1926 Oudh 245; Sarju Pershad v. Raja Jwaleskwan PratapSingh and ors 1951 A.L.J.I.; Sara Veerasawi alias Sara Veerraju v. TaliuriNarayayya and ors A.I.R. 1949 P.C. 32; Watt {or Thomas) v. Thomas 1947(I) AH E.R. 582; T. K. Gangi Reddy v H. C. Anjaneya Reddy and ors 22E.L.R. 261; referred to. VISHWANATH PRASAD v. SALAMATU-LLAH AND ORS. 27 E.L.R. 145.

Election Tribunal-if has duty to re-examine and recount ballot papersitself at the hearing. Pleadings-Necessity ,o state grievances clearly. HELD:When the appellant's lawyer was not able to make out any prima facie case insupport of his allegation with refeience to the notes that he had prepa; ed onthe inspection of the ballot papers, it was not necessary for the Tribunal tore-examine and recount the balbt papers. The appellant did not put hiscase in a pointed and specific manner either in his petition or in the crossexamination of [the election officer. In an election petition it is expectedthat the grievances must be specifically and straightforwardly stated sothat the ottier side, particularly the person who has been declared dulyelected, shall have a complete picture of the allegation against him which heis called upon to meet, —RAM NARYAN PRASAD YADAV v RAMPRAKASH LALL & ORS. 27 E.L.R. 222

Objections under clause (3) of Rule 26-Whether objesior a party to proceeding.Application under Rule 26 Form 6, Clause (V)—Requirements of—Failure tostrike one of the alternatives—Effect of. (See High Court—Powers of)—H.HMAHARANA SURENDRASINHJI JORAWARSINGHJI JHALA v. SHRIU. M. BHAT, CHIEF ELECTORAL OFFICER, GUJARAT AND ORS 29EX.R. 1.

Section 81—Delay in filing petition within 45 days of "date of election"under section 67A—if could be condoned. Limitation Act. S.5. if applicableto Election petitions—Together with an election petition, challengirtg the first

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respondent's election, the petitioner, an elector in the constituency, filed anapplication for condonation of 10 days delay in the presentation of thepetition. In support of the application he pleaded that he was under awrong impression about the meaning of the expression "the date of election"as denned in section 81 of the Eepresentation of the People Act, 1951.Furthermore, that he was unable to command funds to pay the security atthe time of filing the petition. HELD :. (i) The court has jurisdiction undersection 5 of the Limitation Act. 1963 to condone delay in the presentationof an election petition if the petitioner satisfies the Court that he had suffi-cient cause for not presenting it within the time mentioned in section 81.(ii) The grounds for delay pleaded by the peititoner in the present case wereinsufficient to explain the delay in the oresentation of the petition. VidyaSulla vs. Khubchand BagheP AIR 19C4' S.C-1099; A.D. Portia Sara'hy vs.Stale of Andhra Pradesh] AIR 1955 S.G. 520; Siiaram Ramckarn vs. M.N.Nagrashana AIR I960 S.C. 250; referred to. JOHN C J v N IDEVASAY KUTTY AND OKS. 29 E.L.E. 134.

—Representation of the People (Amendment) Act, XLVII of63—Provision applies to election petitions arising out of elections called beforeamendment—Law in force before amendment includes s. 86(4) "of Representationof People Act, 1951. HELD: Section 63 of the Representation of the People(Amendment) Act (XLVII of 1966) provides that if an election has been calledbefore the commencment of the amended Act, and an election petition arisesout of that election, whether it is pending at the commencement of the Actor is presented afterwards, it shall be tried in accordance with the provisionsof the "law in force immediately before the amendment. The law in forcebefore the amendment would Include also section 86(4) which provides thatany vacancy arising in the office of meinbef'of an election Tribunal'shall befilled up by the Election Commission, by appointing a suitable person andthat person shall continue to hear the petition as if he had been on the tribunalfrom the very beginning. Bengal Chemical and Pharmaeeautical Worlcs Ltd.,v Their employees; (1959 S.C.J. 647); referred to.—KESAVAN V. v. I KKUMAEAN AND ANOTHER 29 E.L.R. 168.

— S. 81 (3) of Act requiring copies of election petition to be suppliedto respondents—Copies of annexures to petition not filed for being so supplied—•Section whether complied with.—HELD: (i) requirement of copies being suppliedto the respondents according to s. 81(3) is as important a requirement of thesection as the necessity of supplying the requisite number of copies after gettingthem attested under the signature of the petitioner. Section 81(3) in un-mistakable terms lays down the mannerlri "which an election petition shouldbe presented and it is clearly laid down in s. 86(1) as to what the consequencewould be in case the provisions of s. 81 are not complied with. The require- •ment in section 81(3) must therefore be held to be mandatory.

K. Kamaraja Nadar v. Kunju Thei)ar A.I.R. 1958 S.C. 1)37 and ShriBaru Ram v. Smt. Prasanni and others A.I.R. 1959 S.C. 93; applied.

Sardar Malv.'Smt. Gayatri Devi A.I.E. 1964 Eaj. 223, referred to.

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(ii) The copies of the petition served on the respondents with the omissioiiof the annexures could not be treated to be copies or true copies of the petitionwithin s. 81(2) of the Act. The defect was of a fundamental nature as withoutthe copies of the annexures the respondents could not file written statementsmeeting the objections raised against the returned candidate in the petition.

MurarJca Radhey Shyam Ram Kumar v. Roop Singh, A.I.R. 1964 S.C.1545; referred to.

(iii) The filing of copies of the petition to be supplied to respondents isa condition precedent for the proper presentation of an election petition.Without such copiefTthe "petition is not properly presented and~is liable tobe dismissed.

Ch. Subbarao v. Member Election Tribunal, Hyderabad, A.I.R. 1964 S.C.1027;'followed .—RAMSHANKAE v. JUGAL KISHORE AND ORS. 29B.L.R. 233.

ss. 81(3), 83, 86 and 117—copies of annexures to election petitioncontaining'allegations of corrupt practice not suppliedto respondents as requiredby s. 81(3)—Petition whether liable to be dismissed'under s. 86—s. 83 whethermandatory. HELD: Section 83 of the Act is not mandatory and the defectin the affidavit filed by the petitioner in Form 25 prescribed by the Conduct ofElections Rules, 1961, mentioning that the statements in paragraphs ]1(A)and 11(C) of the petition were true to his personal knowledge but not men-tioning that they related to corrupt practices "and their nature, was notfatal to the petition. The'petition must however be dismissed for non-com-pliance with the provisions in s. 81(3). Whenever any statute requires thecompliance of certain acts in a particular way and also provides for the conse-quences of non-compliance with the said requirements, and if there is a breachof such requirements then there is no other alternative left but to impose thepenalty provided for its breach. Judged by this'test s. 81(3) is mandatoryand if its provisions are not complied~with, it "will entail the dismissal of theelection petition. According to s. 81 (3) it is not necessary that there shouldbe any list of schedule or annexure stating the material particulars of anycorrupt practice, but if the petitioner annexes any schedule or annexure orlist detailing therein the material particulars of any corrupt practice, then itshall form a part of the petition and has to be verified in the same manner asthe petition, and the copies thereof have necessarily to be supplied to theother side, viz., the respondent. In the instant case it was not a questionof any substantial or sufficient compliance but of non-compliance. Thepetitioner had mentioned in paragraphs 8 and 15 of his petition the lists whichcontained the names of the persons bribed and officials transferred respectivelywith a view to induce the voters to vote for respondent No. 1. This being anessential part of the material particulars of the corrupt practice pleaded itcould not be said that the non-supply of the aforesaid lists to the respondentwas not fatal to the petition under s. 86(1) of the Act, because that omissionhad rendered the presentation of the petition not in accordance with theprovisions of s. 81(3) of the Act.

Chandriha Prasad Tripaihi v. Shiv Prasad Ohanpuria (21 E.L.R. 172);Kamraja Nadar v. Kunju Theiiar and Ors. A.I.R. 1958 S.C. 687; Jagan Nath

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v. Jasivant Singh & Ors. A.I.R. 1954 S.C. 210; Chengalmya Naidu v. G. N.Pattabhi Reddi A.I.R. 1964 A.P. 164; Atnin Lai v. Hunna "Mai A.I.R. 1965S.C. 1243; Shri Bam Earn v.~Smt. Prasanni and others A.I.R. 1959 S.C. 93;Sardar Mai v. Smi. 6%afn DCTI A.I.R. 1964 Raj. 223; Collector of Monghyrand Ors. etc. v. ZesAaw Prasad Goenla & Ors. A.I.R. 1962 S.C. 1964; Kausha-lenctra Prasad v. Nand Kishore Prashad Singh and others (22 E.L.R. 484);Murarka Radhey Shyam Ram Kumar v. Roop Singh Rathore and another A.T.R.1964 S.C. 1545; Subbarao v. Member Election Tribunal Hyderabad and othersA.I.R. 1964 S.C. 1027; Ram Shankar v. Juggal Kishore and 13 others Electionpetition No. 36 of 1967; referred to.—JAGESHWAR NATH v. RAVINDRANATH AND OTHERS, 29 E.L.R. 241.

—•—Applicability of O.I.R. 10 and s. 161 of Civil Procedure to electiontrials. (See Election Petition—Parties to the petitition.)—.—THAKUR MAN-SINGH KHATUJI fl.'DR. VASANTLAL VRAJLAL PARIKH ANDOTHERS, 29: E.L.R. 249.

——s. 81—non-supply of annecures tendered with petition not intended tobe part of petition—if petition liable to dismissa funder s. 86. HELD: It has notbeen provided in the rules that if any particular objection is not raised imme-diately after the counting of votes, such an objection cannot be raised for thefirst time in the ekction petition. I t is true that if an obvious objection hasnot been taken before the Returning Officer and no satisfactory explanationfor its not having been advanced at the earliest point of time is subsequentlygiven when the election petition is tried, the objection raised may not findfavour with the Court and the Court may view such an objection with sus-picion, but this does not amount to saying that the objection cannot be raisedsubsequently. Ram Seivalc Yadav v. Hussain Kamil Kidwai and others: AIR1964, S.C. 1249 referred to—RAJAJU v. BRIJ KISHORE PATARIA &ORS. 29 E.L.R. 445.

ss. 79(6), 82(6) and 86(1)—-corrupt practice alleged in election petitionagainst person who had filed nomination papers but had withdrawn—-such personwhether a 'candidate' within meaning of s. 79(6)—Non-impleadment of suchcandidate in violation of s. 82(6)—Petition whether liable to be dismissed unders. 86(1)—-Judge trying petition whether a Court for the purpose of s. 86(1)—Amendment of petition to implead such withdrawn candidate or to strike out chargesagainst him whether to be allowed—non-availability of rr. 9, 10, and 13 of Order1 C.P.C. to petitioner whether violates Art. 14 of Constitution—Application fordismissal of petition wider s. 86(1) whether may be filed after framing of issues.HELD: (i) The contention that a Judge trying an election petition functionsas a persona designata and not a High Court and is therefore not empoweredto dismiss an election petition under s. 86(1) could not be accepted.

Section 80(a) specifically mentions that the jurisdiction to try an elec-tion petition is in the High Court and also calls it as Court having jurisdic-tion. Section"81 mentions that jurisdiction is to the High Court, and s. 86mentions that dismissal for non-compliance with the provisions of s. 82 etc.is to be done by the High Court. The explanation to sub. s. (1) of s. 86 speci-fically mentions that dismissal under s. 86(1) should be deemed to be an ordermade under s. 98(a).--An order under s. 98(a) can be made only by a Judge

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after full trial i.e. only by a Judge to whom that election petition has beenassigned by the Chipf Justice under s. 86(2) and who has followed the proce-dure provided in other portions of s. 86 and conducted the trial. This showsthat an order of dismissal for non-compliance passed under s. 86(1) is by thesame authority which can pass an order under s. 98(a). From this it followsthat the Judge to whom an election petition is assigned by the Chief Justiceunder s. 86(2) functions as High Court.

(ii) A duly nominated candidate who had withdrawn from the electionis a candidate under s. 79(6) of the Act. When the nomination paper of suchperson had been accepted by the Keturning Officer, the petitioner could notbe allowed to "raise the question as to whether such candidate was a dulynominated candidate. The term includes a person who considers himself aduly nominated candidate. If an allegation of corrupt practice is made againstsuch a person that person has to be impleaded under s 82(6) of the Act and ifsuch person is not impleaded, the election petition has to be dismissed under8. 86(1) of the Act which is a mandatory provision.

(iii) A petition to amend an election petition by impleading a withdrawncandidate against whom a corrupt practice has been alleged in the originalelection petition cannot be allowed and has to be dismissed.

(iv) The fact that the respondent's application praying for a dismissalof the election petition under s. 86(1) was filed after issues were framed andnot at an earlier stage did not affect the validity of the contention or affectthe liability of the election petition to be dismissed under the mandatoryprovisions of s. 86(1) for non-Compliance with s. 82(6).

(v) It cannot be said that the provisions of s. 86(1) of the Act contraveneArt. 14 of the Constitution on the alleged ground that the benefit of Order 11Rules 9, 10 and 13 of the Code of Civil Procedure are not available to the elec-tion petitioner.

As an election petition is not an action at law or a suit in equity andif a court dealing with an election petition lias no common law power, itcannot be said that the court should apply to an election contest a proce-dure which is prescribed for a suit in equity or an action at law. As an electioncontest is a purely statutory proceeding unknown to common law it is opento the statute to prescribe procedure suitable for such proceedings, and thestatute is not bound to prescribe any procedure which is the same as the pro-cedure for trial of a suit in equity or for dealing with a civil action at law.Section 87 clearly lays down that the provisions of the Civil Procedure Codeare to be followed subject to the provisions of the Representation of PeopleAct and of any rules made thereunder. The High Court in trying an electionpetition is not bound to follow civil procedure.

Q. A. 0. K. Lahshmanan Chettiar vs. / . S. Kannapar and Ors. (AIR1927 Madras 93); Municipal Corporation of Rangoon vs. M. A. Shahur (AIR1926 Rangoon 25); Ear Swamp and another vs. Brij Bhushan Saran and others(AIR 1967 S. C. 836); Ainin Lai vs. Hunna Mai (AIR 1965 S. C. 1243); In;Main Sukh Da and others vs. The State of Uttar Pradesh and others (AIR 195

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S. C. 384); State of West Bengal vs. Anwar Ali Sarhar and another (1952 S. 0.55); Habib Mohammad and two others (Intervenes), AIR 1952 S. C. 75; State ofBombay and another vs. F. N. Balsara (AIR 1951 ~S. C. 318); RamaierisJmaDalmia vs. Justice TendoTkar (AIR 1958 S. C. 438); Truax vs. Corrigan (66Lawyers' Edition) (54); Bowmanvs,. Lewis (25 Lawyers' Edition 989);FrancisBarbier v. Patrick Connolly (28 lawyers' edition 923); Harish ChandraBaipzi and anther vs. Tnloh Singh and other (AIR 1957 S.C. 444); Jagannaihvs. Jaswanih singh and others (AIR 1954 S. C. 210); Shamlal Talar DassAggarwal vs. Punjab National Bank Ltd. and others (AIR 1960 Punjab 870)referred to.—PUTTI VENKATA SUBBIAH v. SMT. B. K. RADHABAI,30 E.L.R 100.

SS. 83, 123(3)—Election Petition—Particulars of corrupt practice Section83—requirement of—onus of proof— HELD: under section 83 of the Act it isthe primary responsibility of the petitioner to furnish full particulars of thealleged corrupt practices. He cannot take shelter behind the fact that neitherthe Court nor the Respondent had in terms called upon him to furnish betterparticulars. The onus of proving corrupt practices under Section 123 lies onthose who assert their commission. The evidence in their support need not neces-sarily be direct but the circumstantial evidence and the inference dedu-cible therefrom must be such as to lead to the reasonable conclusion of thecommission of the corrupt practices alleged. No conjecture or surmise, how-ever attractive or even plausible, can take the place of proof; and if equalreasonable inference or conclusion are possible, one innocent and the otherguilty the former should necessarily prevail. Jagdev Singh v. Prataf Singh, A.I.R.1965 S.C. 183 Jagjit Singh v. Kartar Singh, A.I.R. 1966 S.C. 773; referred to.—MARDA. B.G. v. K. R. MARDA AND ANR. 30 E.L.R. 158.

— Election —Practice—Rejection of nomination papers by ReturningOfficer—Rejection whether can be supported on other grounds at trial of electionpetition—Caste—Column showing caste wrongly filled in case of nominationpaper j"or general constituency—Nomination paper ivhether liable to be rejected-Nomination of candidate whether can be rejected on the ground that he was set up bya party merely to split votes of other parties. (See NOMINATION OF CANDI-DATES)—REGHUVEERSINGH v. AMOLAKCHAND, 30 E.L.R. 189.

—S 100(l)(d)(iv)—Violatimt of provisions of 1950 Act if outside purview of s.100 (l)(d)(iv) of 1951 Act and Constitution of India, Article 326. HELD : Thepetitioner challenged the election of the first respondent on the ground thatthe respondent never was "ordinarily resident" at the premises given as hisaddress and included in the electoral roll of the Constituency. The questionthat arose for determination was whether "'non-residence" was a disquali-fication under the Constitution to bring the case within the scope of sec-tion 100(l)(d)(iv) of the 1951 Act. I t was urged that an infraction of the pro-visions of the 1950 Act and the Rules made thereunder could be said to be in-fraction of Art. 326 of the Constitution with the result that the result of theelection could be said to have been materially affected by non-compliance withthe provisions of the Constitution within the meaning of s. iOQ(l)(d)(iv) ofthe Representation of the People Act, 1951.

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HELD -. A violation or non-observance purely of the Act of 1950 orany rules made thereunder is outside the purview of s. 100 (l(d)(iv) of theAct of 1951 and as such an election court which derives its jurisdiction from the1951 Act is not entitled to look into that violation or non-observance. Inclusionof a "non-resident" in the electoral roll of a constituency is not a violation ofArt. 326 of the Constitution and cannot be considered by a court trying electionpetition under s. lQQ(l)(d){vi) of the 1951 Act. There may be only one dis-qualification to be registered as a voter provided in the Constitution itself: but adisqualification laid down in some other law passed by an appropriate legislatureis not and cannot be for purposes of Art. 326 a constitutional disqualification.

A High Court trying election petitions under the 1951 Act is in the positionof a Civil Court ; it has no jurisdiction to question the legality of inclusionof a person's name in an electoral roll except where it can be shown that therehas been a violation of an express provision of the Constitution.

Stale of West Bengal vs. Union of India AIR 1963 S.C. 1241; State ofBengal v. Union of India, AIR 1954 S.C. page 92 ; Slate of West Bengal v. SubodhGopal Bose and Ors. A.I.R. 1955 S.C. 832; Ramdayal v. K.R. Patel 20 E.L.R.13, P. Kunhiraman v. V. R. Krishna Iyer (AIR 1962 Kerala page 190); RoopLai Mehla y. St. Dhan Singh & Ors. Election Petition No. 35 of 1967 of thePunjab and Haryana High Court; Ghulam Mohi-ud-din vs. Election Tribunalfor Town Area SaJcel & Anr. A.I.R. (1959) All. 357; Kerala Education Bill, 1967,A.I.R. 1958 S.C/ 956; In Chktoor Varadaraja v. Slate of Travancore CochinA.I.R. 1953 Travancore Cochin 140; Durga Shanher v. Raghu Raj A.I.R. 1954S.C. 520; His Majesty the King v. William Singer 1941 Canada Law reports 111Brijendralal vs. Jawalaprasad A.I.R. 1960 S.C. 1049 ; K. Kamaraja Nadarv. Kunju Thever A.I.R. 1958 S.C. 687 ; Inamati v. Desai Basavaraj A.I.R. 1958S.C. 698; B. M. Rama.swamy v. B. M. Krishnamurthy A.I.R. 1966 S.C. 458;Shiv Ram v. Shiv Charan A.I.R. 1964 Rajasthan 126; Viswanaihdhuni v.Election Commission A.I.R. 1955 Andhra 109; P. Kunhiraman v.V. R, Krishana Iyer A.I.R. 1962 Kerala 190; referred to —• KANAILAL

BHATTACHARJEE v. NIKHIL DAS AND ORS. 30 E.L.R. 353.|

—Affidavit under Form No. 25, Part 'B' under rule 94-A requirements ofpara x. HELD:—The Form No. 25 under Rule 94A does not require a personswearing the affidavit to disclose the source of information, Part' 'B' of theForm requires the deponent to state which paragraphs in the petition aboutthe commission of corrupt practice or the particulars of corrupt practice aretrue to his information. Nothing more is required by the prescribed Rule in theForm and the affidavit.—GAJADHAR v. CHUNILAL SINGH AND OTHERS,31E.L.R.1.

—Section 81(3)—Requirement of supply of copies of petition mandatory—petition includes awnexures containing particulars of corrupt practice—EvidenceAppreciation of—HELD, dismissing the election petition ;

(i) The evidence established that copies of the pamphlet were not filed atthe time of the presentation of the election petition.

(a) Though the objection about the non-compliance with s. 81 (3) was takenafter filing the written statement it could not be said to be malafide and couldnot be thrown out only on the ground of delay.

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(h) If there are inherent improbabilities even in the absence of cross exami-nation , it cannot be urged that the fact on which cross examination has notbeen directed must be accepted. If there is anything in a witness's statementwhich is questionable or which requires explanation and the opponent avoidsasking questions on those matters in cross examination it must be assumed thatthe evidence in chief examination must be accepted unless there are inherentimprobabilities.

Karaidan Sarda v. Sailaja Kanta Mitra, A.I.R. 1940, Patna 683; Jayalak-shm,idevamvma v. Janardhan Reddy, A.I.R. 1959, A.P. 272; Ambika Singh v.Stale, A.I.R. 1961 All. 38; Bourda v. Jones, 110 wis. 52-85 N.W. 671—referredto.

(ii) The provision contained in s. 81(3) with regard to the supply of copiesof the petition to the respondent is mandatory. The Avord 'petition' as used ins. 81(3) includes the annexures to the petition containing particulars of corruptpractice alleged therein. The requirement of an election petition to be accom-panied by the requisite number of copies is a condition precedent for the properpresentation of an election petition. The defect produced by the non-supply ofcopies is a defect of presentation. Ch. Subha Rao v. Election Tribunal Hydera-bad A.I.R. 1964 S. C. 1027; followed.

Kamaraja Nadar v. Kunju Thevar and Others, A.I.R. 1958, S.C. 687,Sardar Mai. v. Smi. Gayatri Devi, A.I.R. 1964 Raj.-223; Shri Bam Ram v. Smt.Prasanni, A.I.R. 1959, S.C. 93; Murarka Radhey Shyam Ram Kumar v. RoopSingh, AIM. 1964. S.C. 1515; referred to—SMT. SAHODRABAI RAI v,RAMSINGH AHARWAR & ORS. 31 B.L.R. 266.

—S. 81— Election petition by electors— whether electors entitled to file election*'petition under Section 81. HELD'-—The petitioners as electors were entitled tofile the election petition under the provisions of Section 81 of the Act, since theyhad no opportunity of raising the objection against the acceptance of the nomi-nation paper of the second respondent before the Returning Officer. The pleaof the petitioner should be treated as one coming under the provisions of clause(IV) of sub-clause (d) of section 100(1) of the Act.

Durga Shankar v. Raghuraj Singh A.I.R. 1954, S.C. 520 ; Veluswami v.Rajcnainar. A.I.R. 1959, S.C. 422; S. M. Barterji v. Sri Khishna, A.I.R. 1960S.C. 368; referred to— SRIDHARA PAI H. AND ANR. v. S. K. AMIN ANDANR. 31 E.L.R. 329.

—Plea that election result materially affected-proof of—HELD: On the factsdue to the existence of so many uncertain factors it was impossible to accept thepetitioners had established that if the Second Respondent's nomination hadnot been accepted, the results of elections, in so far as the First Respondent wasconcerned, would have been materially affected. Evidence adduced by thepetitioners was conjectural and speculative and did not lead to any definiteconclusion that the result had been materially affected.

' Vastest Narain Sharma v. Deva Chandra, A.I.B,. 195L S.C. 513; Inayattullah v. Diwanehand, A.I.R. Madhya Pradesh, 58, Surendra v. Dalij) Singh,1957, S.C. 442; Yamuna Prasad v, Jagadish Prasad Khare, 13. E.L.R, S. C. 1;

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Mahadeo v. Udai Pratap, A.I.R. 1966, S.C. 824, and Surendra Nath Khosla andanother v. Dalip Singh and Others ; A.I.E. 1957, S.C. 242 referred to—H.SRIDHARA PAI AND ANR. v. S. K. AMIN AND ANR. 31 E.L.R. 329.

—Section 86(1) i°, mandatory.—Duty of Court to dismiss petition for non-compliance with section. HELD:—Under s. 86(1) it is the duty of the court todismiss the petition if it does not comply with the provisions of Ss. 81 or 82 or117. Even if the court omits to notice the defect at the earlier stage it is boundto dismiss the petition under s. 86(1) whenever it is brought to its notice thatthe petition as filed originally suffered from any such defect. A petition whichis liable to be dismissed under this section cannot be allowed to be amended.If an amendment of such a petition is permitted by the court the amendmentitself is void. Amin Lai v. Hunna Mai, A.I.R. 1965, S.C. 1243; distinguished. —•MOHAN RAJ v. SURENDRA KUMAR TAPARIA AND ORS. 31 E.L.R. 416.

—-Election petition must contain particulars of ballot papers (See Ballotpapers). —MAYANNA D.T. v. Y.K. RAMATAH AND ANR., 32 E.L.R. 17.

— Plea ofthe petitioner alleging one hind of corrupt practice—whether can beallowed to raise another kind of corrupt practice under section 123 (6)— Plea ofimproper acceptance of nomination of respondent and votes cast in his favourbe treated as invalid votes—Whether sustainable.—HELD—The petitionercannot be allowed to plead one kind of corrupt practice and try to prove anotherkind of corrupt practice.

No petition can be dismissed for want of particulars or non-compliance withsection 83(1)(&). If the Court finds that no particulars are given or better parti-culars are required and an opportunity has to be given to the petitioner tocomply with it and in case of failure only the corrupt practice alleged may notbe allowed to be proved.

—NARSINHBHAI KARSANBHAI MAKWANA v. JESINGBHAI GOVINBHAJ PARMAR & ANR. 32' E.L.R. 152.

S. 81 (3)—Failure of election petitioner to supply annexures filedw.th the petition to the respondent—Effect—Petition whether liable to be dismissed.—HELD:~(i) While under s. 81(3) it is mandatory to serve a copy of thepetition on the respondent it is not every annexure that can be treated asan essential and inevitable part of the petition for this purpose. Where,as in the present case, most of the annexures were a superfluity and sufficientportions thereof were either quoted or summarised in the petition, it shouldbe held that copies of the 'petition' had been filed even when the extra copiesof the annexures had not been supplied. Certainly when in respect of anyparticular allegation or detail the petition is not clear or self-contained andcopies of annexures have not been supplied for service on the respondent, thatparticular allegation or detail should be ignored. On this view the presentpetition could not be dismissed for alleged breach of the requirement in s. 83(3).Sardar Mai v. Shrimati Gayatri Devi A.I.R. 1964 Raj, 223; Ch. Subbarao v.Member Election Tribunal Hyderabad A.I.R. 1964 Supreme Court 1027; Murar-ha Radhe Shyam v. Roop Singh Rathore A.I.R. 1964 Supreme Court 1545.—LAXMINARAYAN v. BANKATLAL, 32 E.L.R. 191.

M»J(D)121SC—U

1£6

Petition dismissed for default — Power of Court to restore petition forsufficient clause—Date fixed for considering question regarding joinder of partieswhether a date of hearing—-Rule (v), Chapter 2, Madhya Pradesh High GourtManual—whether applicable—Power of Deputy Registrar to fix date.

After the General Election held in February, 1967, the petitioner filedan election petition challenging the first respondent's election to the LokSab ha. The petition was filed in the High Court at Jabalpur, but was directedto be heard by the High Court Bench at Indore. On 17th August, 1967 theDeputy Registrar fixed 25th August, 1967 for determining the question asto the propriety of impleading respondents 2 to 7. On 25th August, 1967 noone appeared on behalf of the petitioner and the court fixed 29th August, 1967to hear Counsel for the respondent on the question whether the election peti-tion could be dismissed for default. On 29th August, 1967 the Court followingthe decision of the Madhya Pradesh High Court in Sunderlal v. NandramdasA.I.R. 1958 M.P. 260, dismissed the petition in default. The petitioner there-upon filed an application for restoration of the petition. Dismissing the applica-tion; HELD—(*) The power to dismiss an election petition in default upheldin Sunderlal's case implies a corresponding power in the Court to restore sucha petition if sufficient cause is shown by the petitioner for his absence. Theinherent power being the residuary power has to be exercised on considerationof the evidence adduced on behalf of the petitioner for his absence, togetherwith the entire circumstances of the case including the diligence shown bythe petitioner or otherwise in prosecuting the petition.

(ii) In the present case the petitioner's contention that he had no noticethat his case had been transferred from Jabalpur to Indore Bench could not,on the evidence, be accepted. The entire conduct of the petitioner showedthat he had shown no care or diligence in prosecuting his election petition.There was no sufficient cause shown by the petitioner for his absence eitheron 25th August, 1967 or 29th August, 1967.

(Hi) The contention that 25th August, 1967 was fixed merely for effectingamendment as per earlier order, and under Chapter 2 Rule (xv) of the MadhyaPradesh High Court Manual this could have been done in the office of theDeputy Registrar, could not be accepted. Rule (xv) had no applicationin the present context, as that rule empowers the Registrar and not the DeputyRegistrar to require any petition, application etc. to be amended in accordancewith the procedure and practice of the Court. In the present case the Registrarwas not there and even the Deputy Registrar did not require the petitioner,in the exercise of his own power, to make any amendment of a petition,etc.

• (iv) Nor could the contention be accepted that 25th August, 1967 and29th August, 1967 were not dates fixed for hearing of the petition. In everyproceeding with reference to an election petition which is fixed for hearingeither under the order of the Court or under the direction of the Deputy Regis-trar who is authorised to do it, it is not necessary to mention what would bedone at such date. It is not correct to say that if this is not done theabsence of the party would be immaterial.

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(v) It was also not correct to say that 25fch August, 1967, had been fixednot by the Court but by an incompsfcsnb person, namely the Deputy Registrar.He was fully competent under the Rule to fix the date.

Sunderlal v. Nandramdas A.I.R. 1958 M.P. 260; Vishwanath v. MalkhanSingh A.I.R. 1964 Allahabad 181 ; Maung Ahmin v. Maung Saung, A.I.R.1938 Rangoon 360; Hukam Chand v. Mani Shibrat Dass, A.I.R. 1934 Lahore984; Basanti Basi v. General Manager M.P. S.R. Tr. Corporation, 1965 M.P.Law Journal Short Note No. 58; Bam Nath v. Paul Singh 1959 Punjab 257.—BABU LAL v. SHIV SHARMA AND ORS, 32 E.L.R. 246.

[See ALSO BURDEN OF PROOF]

(2) ALTERNATIVE RELIEFS—s. 150-Election petition with a prayer for adeclaration that the petitioner was duly elected—Resignation by returned candidate—If Election Commission bound to hold bye-election forthwith.

The appellant was elected to the Andhra Pradesh Legislative Assemblyin February, 1962. The second respondent, who was the losing candidate,challenged the appellant's election on the ground that various corruptpractices had been committed: He therefore sought a declaration that theappellant's election should be declared void and also prayed that he himselfshould be declared to have been duly elected. While the election petitionwas pending the appellant was appointed a Minister in the Central Cabinetand thereafter was elected as a member of the Rajya Sabha. He thenresigned his seat in the Legislative Assembly and in September, 1965, fileda petition for a Writ in the nature of mandamus commanding the electionCommission of India to act under section 150 of the Representation of thePeople Act 1951 to hold an election for filling up the vacancy caused by theappellant's resignation. The High Court dismissed the petition.—HELD:(i) The High Court was right in holding that no case was made out for theissue of a Writ of mandamus to the Election Commissioner. The ElectionCommission is not bound under section 150 to take steps to hold a bye-electionimmediately upon a vacancy arising.

{ii) The provisions of s. 150 of the Act must be interpreted in the contextof ss. 84 and 98(c) and other relevant provisions of Part III of the same Act.If the interpretation contended for by the appellant is accepted as correctthe vacancy must be filled by a bye-election as soon as a member resignshis seat notwithstanding the pendency of an election petition challenginghis election. If the candidate who filed the election petition eventually getsa declaration that the election of the member is void and that he himself hadbeen duly elected there will be two candidates representing the same consti-tuency at the same time, one of them declared to be duly elected at the GeneralElection and the other declared to have been elected at the bye-electionand an impossible situation would arise. It cannot be supposed that Parlia-ment contemplated such a situation while enacting s. 150 of the Act. Parlia-ment could not have intended that the provisions of Part VI of the Act pertainingto election petitions, should stand abrogated as soon as a member resignshis seat in the Legislature.

(Hi) When an election petition has been referred to a Tribunal by theElection Commission and the former is seized of the matter, the petitionhas to be disposed of according to law. The Tribunal has to adjudge at the

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conclusion of the proceeding whether the returned candidate has or has notcommitted any corrupt practice at the election and secondly, it has to decidewhether the second respondent should or should not be declared to have beenduly elected. A returned candidate cannot get rid of an election petitionfiled against him by resigning his seat in the Legislature, whatever the reasonfor his resignation may be.

(iv) It is open to the Election Commission to await the result of theelection petition and thereafter decide whether a bye-election should be heldor not.

(v) No time-limit is fixed in the section for the Election Commissionto call upon the Assembly constituency concerned to elect a person for rillingthe vacancy. Nor does the section say that the Election Commission shallhold a bye-election "forthwith" or "immediately". It is also conceivablethat there may be a situation in which the Election Commission may nothold a bye-election at all or may hold the bye-election after a delay of 2 or3 months.—SANJEEVAYYA D. v. ELECTION TEIBUNAL, ANDHEAPEADESH & OES. 29 E.L.E. (S.C.) 28.

(3) AMENDMENT OF PETITION—##. 81(3), 83(1), 85 and 90(3)—Whetherrequirements of Ss. 81(3) and 83 (1) mandatory or directory—therefore whethernon-compliance therewith entails dismissal of petition under S. 85 or S. 90(3)—Whether Court has discretion to allow rectification.—The petitioner's electionwas challenged by the third respondent (one Subbarao), a voter in the consti-tuency, before the Election Tribunal on the ground, inter alia, that variouscorrupt practices, etc., were committed by him. The petitioner raised pre-liminary objections as to the maintainability of the petition claiming (i) thatthe election petition did not comply with the provisions of S. 83(1) in that itwas not accompanied by an affidavit in the prescribed form; and (ii) that theelection petition was liable to be dimissed as its copies were not attested tobe true copies as required by S. 81(3). The Tribunal rejected these conten-tions holding that the word "shall" in the proviso to S. 83(1) and S. 81(3) wasnot mandatory but only directory. The petitioner thereafter challengedthis order by the present writ petition under Art. 226 of the Constitution.—HELD: (i) The Tribunal committed an error of law apparent on the faceof the record in holding that the election petition was not liable to be dismissedfor non-compliance with S. 81(3) of the Act. S. 85 enjoins the Election Commi-ssion to dismiss the petition if the provisions of SS. 81, 82 or 117 have notbeen complied with. If any defects hit by Ss. 81 and 82 happen to be over-looked by the Election Commission, the Tribunal is again enjoined, underS. 90(3) to dismiss the election petition for those defects. It is manifest thatthe Legislature attached great importance to the procedural'requirementof SB. 81 and 82.

Eari Vishnu v. Ahmed Ishaque, A.I.E. 1955, S. C. 233; Tirath Singhv. Bachittar Singh, A.I.E. 1955 S.C. 830; Grey v. Pearon, (1857) 6, H.L. C.61 at p. 106; Link Emperor v. Benoari Lai Sarma, 72 I.A. 57, at pp. 70 and71; Satyanarayana v. Venkata Subbaiah, A.I.E, 1957, A.P. 172, 181- State

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' mof UP. v. Babu Ram, A.I.E. 1961 S. C. 751, 765; Montreal Street Rly. Co.,v. Normandian. 1917 A.C. 170 (B); State of U.P. v. Manbodhan Lai, A.I.E.1957 S.G. 912, 917; Chaiidriha Prasad v. SMv Prasad, A.I.E. 1959 S.G. 827;831; Hill v. East and West India Dock, (1884) 9 App. Cases. 448, at p. 464;Jagat Dhish v. Jawahar Lai, A.I.E. 1961 S.C. 832 at p. 837; referred to.

(ii) The provisions of S. 83 are not mandatory as that Section isnot mentioned in SS. and 90 (3) of the Act entailing dismissal for non-compliance therewith. The Election Tribunal had a discretion either to dismissa petition for such non-compliance or to allow the defect to be rectified.

Jagan Nath v. Jaswanl Singh, A.I.E. 1954 S.C. 210; Dinabhandu v. Jadu-moni, A.I.E. 1954 S.C. 411; Bhikaji Eeshao v. Brijial Nandlal, A.I.E. 1955S.C. 610; Balwan Singh v. Lakshmi Narain, A.I.E. 1960 S.C. 770 referredto K. BEAHMANANDA EEDDY v. THE MEMBE E, ELECTIONTEIBUNAL, HYDEEABAD & OTHEES, 24 RL.E. 196.

Ss. 7(0, 9(3), 33-36 and S. 90(2)—Civil Procedure Code—applicabilityto election petitions—Amendment of petition after expiry of limitation. —HELD:In view of Section 90(2) of the Kepresentation of People Act, 1951, the provt-sions of Order 6 rule 17 C.P.C. are subject to the Act and rules made there-under. There being no power conferred on the Tribunal to extend the periodof limitation prescribed, an order of amendment permitting a new groundto be raised beyond the time limit for filing an election petition contravenesthese provisions and is consequently beyond the ambit of the authority ofS. 90 (2) of the Act. The Tribunal may, however, under Section 90 (6) allowthe particulars of any corrupt practice, alleged in tiie petition to be amendedor amplified in such a way as may, in its opinion, be necessary for ensuringa fair and effective trial of the petition. But where a petition is not basedon the commission of any corrupt practice, the question of amendment doesnot arise.

Harish Chandra v. Triloki Singh A.I.E. 1957, S.C. 444; followed.—SUNDEE LAL CHECHANI v. SAMP AT LAL, 24 E.L.E. 340.

Ss. 82 (b), 90(3), 90(1)—Non-impleading of Candidate against whomcorrupt practice alleged—-Subsequent petition to implead—if permissible—ifliable to be dismissed under s. 90(3)—S. 90(1)" subject to the provisions of theAct and any rules made thereunder" —effect of—Section 82(b) if confined onlyto the allegations of corrupt practice against candidate, when committed by himin his capacity as candidate : HELD : The order of the Tribunal refusing to im-plead S must be upheld and the appeal dismissed. The effect of the words"subject to the provisions of this Act and of any rules made thereunder"in s 90 (1) clearly is that the provisions of the Code of Civil Procedure becomeapplicable to the trial of an election petition subject to two limitations sofar as the question of permitting amendments is concerned. One limitation is

hat the power of amendment under the Code cannot be exercised so as topermit new grounds of charge to be raised or to so alter the character of thepetition as to make it in substance a new petition, if a fresh petition on thoseallegations will then be barred. The second limitation is that the power ofamendment under the Code cannot be exercised so as to defeat the mandatoryprovisions of the Act. Befor the amendment of Act 43 of 1951 in 1956, amend-ment by impleading other candidates, was upheld; but since the amendmentincluding s. 82 in s. 90(3) of the Act made it mandatory for the Tribunal todismiss an election petition which does not comply with the provisions of,

• inter alia s. 82, the view prevailing at the present time is that such an amend-ment cannot be allowed. Chaturbhuj Chunilal v. Election Tribunal,A.I.E. 1958, All. 809; BabufaoTatyaji Bhosle v. Madho Shrihari Aney, A.I.R.1961 Bom. 21; followed, (ii) The scope of s. 82 (b) is not confinedonly to the allegations of corrupt practice against a candidatewhen it is committed by him in his capacity as such. Babufao Tatyaji Bhoslev. Madho Shrihari Aney, A.I.E. Bom. 29., Inamati Malappa Basappa v. DesaiBasavaraj Ayyappa, A.I.R. 1958, S.C. 698; K. Kamamja Nadar v. KunjuThevar & Ors., A.I.R. 1958, S.C. 687; Chaturbhuj Chmnilal v. Election Tribunaland others, A.I.R. 1958, All. 809 ; Harish Chandra Bajpai v. Triloki Singh,A.I.R. 1957, S.C. 444 ; Jagan Nath v. Jaswant Singh & Ors. A.I.R. 1954, S.C.210; Jagannath Dalai v. Rama Chandra NahaJc & Ors. A.I.R. 1959, Orr. 26 ;Ganpat Singh v. Brijmohan Lai, A.I.R. 1959, Raj. 114; M.A. Muthiah Choltiarv. Saw Ganesen, A.I.R. 1958, Mad. 187; Gulaher Ahmed v. The Election Tribunal,A.I.R. 1958, M.P. 224 ; S. B. Adityan v. Kandaswami & Ors., 1958, B.L.R.394 ; S.M. Banerji v. Sri Krishna Agarwal, A.I.R. 1960, S.C. 368 ; IlarishChandra Bajpai v. Triloki Singh, A.I.R. 1957, S.C. 444 ; referred to—AMINLAL v. HUNNA MAL, 25 B.L.R. 116.

Ss. 19(1), 83, 90(5) and 123 (4) —Petition not containing material allegationas to corrupt practice—Tribunal allowing amendment after expiry of limitationunder s. 83 to include such allegation—if permissible.—The power to allow amend-ment of petition— scope of HELD, (i) It is well settled that the right to questionthe validity of an election being a statutory right, can only be exercised inaccordance with the provisions Of the statute. Charges of corrupt practice beingquasicriminal in character, the allegations relating thereto must be sufficientlyclear and precise. Section 83 of the Act requires that the election petition ' 'shallcontain a concise statement of the material facts on which the petitioner relies."If the allegations in the election petition taken as a whole do not constitutea corrupt practice, then it could not be urged that the petitioner intended tosay something which by mistake he omitted to say, and therefore he must bepermitted to prove what he intended to say but in fact failed to do.

Harish Chandra Bajpai vs. Triloki Singh, XII ELR 461; M. A. MuthiahChettiar vs. Sa. Ganesan and Anr. XIV ELR 432; Ram Abihlakh Tewarivs. Election Tribunal Gonda & Ors. XIV ELR 375; Savithri Devi vs.Prabhawaihi Misra & Anr. XV ELR 358; followed.

(ii) The allegations made in the petition being insufficient to make outthe corrupt practice, the Tribunal was in error in allowing amendment of ma-terial facts mentioned in the petition because under s. 90 (5) of the Act; onlythe particulars even in an election petition can be amended or amplified and notmaterial facts.

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Although a Tribunal also has power to allow amendment of a petitionunder s. 91 (1) through the application of Order VI rule 17 C.P.O., this poweris expressly subject to the provision of the Act and therefore, s. 83 of the Act,which prescribes that a petition must be filed within 45 days. If, after the ex-piry of this period, a petitioner is permitted by amendment to plead a corruptpractice which he had not included in the petition, this would in effect amountto permitting him to file a new petition outside the prescribed period of limi-tation.

The Tribunal has no jurisdiction to condone any delay in filing an electionpetition.

Harish Chandra Bajpai's case supra; followed.—J. DEVAIAH tfc NAGAPPAAND ORS. 26 E.L.E..236.

— Sec. 90(3).—If amendment to petition under order 6 rule 17—s.l5lG.P.G. only in respect of charge of corrupt practice already in petition—not raisingnew grounds or altering the character of the petition—if permissible—SEE ELEC-TION PETITION—GENERAL PRINCIPLES—VISHWANATH PRASADv. SALAMATULLAH AND ORS. 27 E.L.E. 145.

—S. 79 (b), meaning of'candidate'—s. 81(3), compliance with—Ss. 82(6) andS. 86 whether directory or mandatory—Allegations of corrupt practice within mean-ing ofss. 123 (4) and 123 (2) against 'candidate' who had withdrawn from election—Such candidate not made party to petition—Maintainability of petition — Amend-ment of petition with a view to removing such defect whether permissible underprovisions of Code of Civil Procedure, 0-6 R. 17, 0, 1 R. 10. HELD : As regardsthe powers of the Court to grant amendments to pleadings in an election peti-tion it has been held by the Supreme Court that though the Court will haveample powers to grant amendment':) of pleadings under the Civil ProcedureCode, no amendment could be allowed which will have the effect of curing orremedying the defects under section 81 and 82 of the Act; and the Court'spower in the matter of granting amendments was restricted because the pro-visions of the Civil Procedure Code have been made applicable to the trial ofelection petitions expressly subject to the provisions of the Eepresentation ofthe People Act, 1951. The petitioner could not therefore be allowed to amendthe petition either by way of imploading 'A' or by way of deleting the allega-tions against him. K. Kamaraja Nadar v. Kunju Thevar A.I.E. 1958 S.C. 687tnamati Mallappa Basappa v. Desai Basavaraj Ayyappa and Ors. A.I. E. 1958S.C. 698; Amin Lalv. Hunna Mai AXE. 1965 S.C. 1243; followed.— HIEU-BHAU M. GAVALI v. SHIVAEAM DADA HIKE AND ANE. 29 E.L.E.178.

—S. 86 (4),—Election Petition—Defects whether may be allowed to be cured byamendment under s. 86 (4). HELD: The petitioner's application to amend the peti-tion by lifting the particulars given in the annexures and incorporating them inthe petition must be rejected. Amendment if permitted would defeat the man-datory provisions of law in s. 81 (3) read with s. 86(1), and enable the petitioner,to remove the defect of presentation, which could not be allowed to be done.Harish Chandra Bajpai and Anr. v. Trilohi Singh and Anr. AIE 1957 SC; 444K. Kamarajd Nadar v. Kunju Thevar and Ors. AIE 1958 SC 687, Inamat

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Hallappa Basappa v. Desai Basavaraj Ayyappa and Ors. AIR 1958 SC 698,Ghaturbhuj Ghunnilal v. Election Tribunal Kanpur and Ors. AIR 1958 S.C.809, and Amin Lai v. Hunna Mai AIR 1965 S.C. 1243; referred to.—RAMSHANKAR v. JUGAL KISHORB AND ORS. 29 E.L.R. 233.

——Amendment of petition. —Amendment of petition to implead suchwithdrawn candidate or to strike out charges against him whether to be allowed—See ElectionPetitim—General Principles. —PUTTI VENKATA SUBBAIAHv. SMT. B.K. RADHABAI, 30 E.L.R. 98.

Petitioner if can withdraw or abandon part of his claim by amendment.HELD: A petitioner who made averment of corrupt practice cannot in law bepermitterd to withdraw or abandon a part of his claim by way of amendment.Further in the present case the amendment sought for was after the period oflimitation. Amin Lai v. Hunna Mai.. A.I.R. 1965, S.C. 1243; MallappaBasappa v. Basavaraj Ayyappa, A.I.R., 1958, S.C. 698 followed. The Northlouth Case (1911) 6 0 ' M and H." 103 at page 163; Kapil Deo v. SurajNarayan, A.I.R. 1959, Patna 250; referred to. —VISHNU CHARAN v.VIRCHANDBHANDAWAT AND ANR. 31 E.L.R. 92.

(4) DEPOSIT OF SECURITY.—s. 117.-—mode of making security deposit undersection 117—Deposit made in the Slate Bank of India withiu1, the challan fromthe Treasury, whether valid. HELD: The secu ity deposit by -.he petitioner/respon-dent was made incompliance with the provisions of s. 117 of the Act. Bhuva-nesh Bhushan Sharma v. Election Tribunal, Farrukhabad and another, AIR1958 All 587, Ghaddrika Prasad Tripathi v. Shiv Prasad Chanpura, AIR 1959S.C. 827 and Prabha Jain v. Gian Ghand, AIR 1959 S.C. 837; referred to.—TIKARAMv. ASRAR AHMED AND OTHERS, 23 E.L.R. 116.

[See ALSOELECTION PETITION-GENERAL PRINCIPLES]

Essence of provision in s. 117 regarding security deposit.HELD : Although the treasury challan for the security deposit did not containthe words "in favour of the Election Commission", it contained an entry to theeffect that the security was for the costs of the election pstitioa under s. 117.It was plain from this that the deposit was for the Election Commission. Itwas also clear that the amount was always available to and under the controlof the Election Commission. There was therefore substantial compliancewith s. 117.

Kamaraja Nadar v. Kunja Thevar, 14 E.L.R. 270; Chandri-ka Prasad v.Shiv Prasad, AIR. 1959 S.C. 827, relied on, Abdul Vahid v. B.V. Keskar, AIR1960; All. 113; distinguished. —KESHAO PRASAD v. A.D MANI ANDOTHERS., 23 E.L.R. 171.

——-Ss. 115 and 117. Compliance with the requirements ofS. 117 as to securitydeposit by a person seeding substitution under S. 115— Whether substantial com-pliance sufficient. Constitution of India, Articles 226, 227—when High Courtshould grant relief in writ proceedings against order election tribunal. The peti-tioner applied under S. 115 to the Tribunal to be substituted in an electionpetition in placs of the original petitioner who had died during the pendencyof the proceedings. The tribunal rejected the application on the view that thedeposit of security made by the petitioner was not in accordance with S. 117.Thereafter the High Court dismissed an appeal on the ground that no such

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appeal lay under S. 116-A, but left the petitioner at liberty to proceed underArt. 226 or 227 of the Constitution. By the present writ petition, the petitionertherefore challenged the order of the Election Tribunal dismissing his applica-tion for substitution under section 115. Apart from contesting the matter onthe merits, it was also contended on behalf of the respondents that the petitionerwas not entitled to seek relief in proceedings under Articles 226 and 227. HELD:(i) The High Court can interfere with the Orders of the Election Tribunal inthe exercise of its extraordinary jurisdiction under Articles 226 and 227, thoughit should do so within the strict limits laid down by the several decisions of theSupreme Court. Hari Vishnu Kamath v. Ahmed Ishaque, A.I.R. 1955, S.C. 233,referred to. (ii) The words used in S. 115 of the Act are not that the provisions ofS. 117 shall be complied with, but the words used are "upon compliance withthe conditions of S. 117 as to security". In other words, it is the conditionsof S. 117 as to security that have to be fulfilled by the applicant for substitutionand not the provisions of S. 117. So far as S. 115 is concerned the manner offurnishing the security is not made plenary by the law. There was no force inthe contention that the petitioner himself ought to have made the deposit andthat he could not entrust the matter to a stranger on account of the expression"has been made by him." in S. 117. That section should not be strictly con-strued; the Tribunal should see only whether there is substantial compliancewith its requirements and not entertain such technical objections. Similarly,the objection that on account of the amount of security deposit being paid intothe State Bank of India and not directly into the Reserve Bank of India or aTreasury, Section 117 has not been complied with, was also highly technical;the State Bank is the agent of the Reserve Bank wherever it has no branch ofits own and as the money had gone into the hands of the Government and wasunder the control of or available to the Election Commission for utilisation to-wards the costs of the election petition, the deposit was validly made. A furtherobjection that the treasury receipt was not in favour of the Election Commissioncould also not be sustained for even if the words "in favour of the ElectionCommission" were not there, the entry in the challan showed plainly enoughthat the deposit was in favour of the Election Commission. It is not essentialthat deposit towards security contemplated in S. 117 should be made at the timeof presentation of the application for substitution. S. 115 requires that thedeposit should be made only at the time the petitioner being entitled to be sub-stituted, is so substituted. Hari Vishnu Ka/maih v. Ahmed Ishaque, A.I.R. 1955S.C. 233; Kamaraja Nadarv. Kunju Thetiar andOrs, A.I.R. 1958 S.C. 687; Chan-drilca Pmsad Tripathi v. Shiv Prasad Champuria and Qrs, A.I.R. 1959 S.C827 ; Kishore Prasad v. A.D. Mani & Ors, 1961 M.P.L.J. 1021. Satyanarayan v.Mallilcarjun, A.I.R. 1960, S.C. 137, referred to—VITHALRAO RAJARAMHINGWE v. M.K. JOSHI, ELECTION TRIBUNAL, WARDHA & ORS. U,E.L.R. 237.

S. IT!-only one deposit when more than one petitioner~if compliance withSs. 82, 90. HELD : Though there may be more than one petitioner, so longas one deposit is made for the election petition, the election petitioners wouldcomply with the requirements of s. 117—NAMDEO CHIMNAJI TAPRE v.GOVINDDAS AND ORS., 25 E.L.R. 1.

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——-S. 117—Security for costs—-Joint petition by two persons—-Depositby one of the petitioners, if sufficient compliance—-whether Tribunal has jurisdi-ction to dismiss petition in cases of non-compliance. HELD: All that section 117requires is that the deposit of Rs. 2,000 be made as security for costs of the elec-tion petition. Neither the Election Commission nor the Tribunal is concernedwith the source from which that money comes. It is no part of the duty or func-tion of the Election Commission or the Tribunal to require whether the deposithas been made by one of the several petitioners or all of them, or in what pro-portion.

Marutrao Bhaurao and Ors. v. Gulabrao Dadasaheb and Ors. 5 E.L.R. 303,referred to.

Under the Act the power to dismiss an election petition for non-compliancewith s. 117 vests only in the Election Commission and not in the Election Tri-bunal—NET RAM JAT v. THE ELECTION COMMISSION & ORS. 25E.L.R. 89.

—Ss. 117 and 85-Election petition filed by two persons—Security deposit madeby only one of them—Petition whether maintainable—Whether should be dismissedby Election Commission under s. 85—-Jurisdiction of Tribunal to try such peti-tion not challenged—Whether writ under Art. 226 can besought against ElectionCommission after Tribunal has decided question—Laches, effect of. Respondents3 and 4 who were electors in the constituency jointly filed an election petitionchallenging the election of the petitioner in 1962 to the Punjab LegislativeAssembly. A preliminary contention was raised by the petitioner to the effectthat the election petition was liable to be dismissed because there was no com-pliance with the provisions of s. 117 of the Representation of the People Act,inasmuch as the security deposit required under that section had been madeonly by one of the two petitioners. The Tribunal dismissed the objection. Thepetitioner thereupon filed the present petition under Arts. 226 and 227 of theConstitution for quashing the orders of the Election Commission under s. 86 onthe ground that it should have dismissed the election petition under s. 85 fornon-compliance with s. 117. HELD : (i) A security deposit made by one of thejoint petitioners in an election petition is sufficient compliance with s. 117 andit is not necessary for each of the petitioners to make a separate deposit. Thereis nothing in the scheme of ss. 121 and 122 which made it necessary and in-cumbent for & security deposit to be made by both the respondents 3 and 4.

(ii) The present petitioner did not raise any objection before the Tribunalon the ground that the order made under s. 86 by the Election Commissionwas void and therefore the Tribunal was illegally constituted. Having acquies-ced in the jurisdiction of the Tribunal the petitioner was not entitled, in viewof the Supreme Courts' judgment in Pannalal Binjarj's case (A.I.R. 1957 S.C.397), to invoke the jurisdiction of the Court under Art. 226.

The failure to raise an objection in respect of a dfefect or lack of jurisdictionis always a material factor to be considered by the Court and ordinarily suchconduct would preclude a petitioner from claiming the writ prayed for unless

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a cogent explanation is furnished. In the present case, no explanation what-soever had been given in the petition as to why objection relating to the juris-diction of the Tribunal was not raised before it at any stage, (Hi) The presentpetition was also liable to be dismissed for laches as it was considerably be-lated. Kamaraja Nadar v. Kunju Thevar, 14 E.L.R. 270 S.C, Tripathi v.Shii) Prasad Clianpuria, 21 E.L.E. 172; Budhi Nath Jha v. Mani Lai Jadav,22 E.L.R. 86; Kaushalendra Prasad Narain Singh v. Nand Kishore PiasadSingh, 22 E.L.R. 484, Pannalal Binjraj and others v. Union of India, A.I.R.1957 S.C. 397: Jagatjit Cotton Textile Mills, Ltd., v. Industrial Tribunal,Patiala, 1959 P.L.R. 597: Deo Chand and others v. Vashist Narain and others,6 E.L.R. 138: O.A.O.K.Lahshmanan Ghettiar v. Corporation oj Madras, A.I.R.1927 Mad. 130 (F.B.); Gandhinagar Motor Transport Society v. State of Bombay,A.I.R. 1954, Bom, 202; Rex V. Williams: Philips, exparte, (1914) I.K.B.608 and Basheshar Nath v. Commissioner of Income"'tax, Delhi and Raj-asthan, A.I.R. 1959 S.C. 149; referred to—PARTAP SINGH KAIRON v.THE ELECTION COMMISSIONER AND ORS. 26 E.L.R. 60.

—Ss. 98,99 and 119 A.—Security for [appeal deposited in High Court and notwith Election Commission—Appeal—ivheiher maintainable. HELD : The securi-ty deposit wliich the appellant made was clearly one under Chapter XXXV ofthe Rules of Court. It was liable to disbursement under those Rules, and theElection Commission had no domain over it. The appellant could still with-draw the money on the ground that he had erroneously made a deposit inthe Court. The Election Commission could not make an order in respectof it under s. 121 of the Representation of the People Act which providesthat the costs of the appeal are to be paid out of the security deposit on anapplication made in writing in that behalf to the Commission by the . personin whose favour the costs have been awarded, In these circumstances theappellant had obviously failed to comply with the requirement of s. 119A.Kamala Pasi v. Tarapada MuJeerji, 14 Indian Cases 1006; Jijithoy N.Surty v. T.S. Chetiyar, A.I.R. 1922 P.C. 103; Sehat Ali Khan and An'r. v.Abdnl Qavi Khan & Ors; A.I.R. 1956 All. 273:. State of U.P. and.Anr. v.Mahendra Partap Pitamah & Ors A.I.R. 1956 All 585 : Johuram Bibi andOrs.v. Howrah Jute Mills Co. Ltd., A.I.R. 1948, Cal. 134; Nahes KantCkivdhury v. Ram Prasad Rai Ors. 54 Indian Cases, 630; —KUMARANANDv. BRIJ MOHAN LAL, 26 E.L.R. 100

s.8l— Whether to be read with s 29(3) of the Limitation Act and ss. 9 and10 of the general clauses Ac' in computing period of Limitation for filing electionpetition—SEE ELECTION PETI ION ^LIMITATION—VI SWA NATHPRASAD v. SALMATULLAH 27 E.L.R. 145.

Ss. 97,117 and 118—Recrimination filed by respondent to election petitionunder s. 97—Security deposit insufficient—Deficiency made up before date fixedfor argument on preliminary issue in regard to the sufficiency of security deposit—Tribunal holding against respondent and disallowing him to lead evidence insupport of recrimination petition—Respondent filing petition under Art. 227 ofthe Constitution before High Court—Scope of Art. 227—Interference by HighCourt "whether justified.

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In an election petition filed againt him, challenging his election in 1966to the Eajya Sabha, the writ petitioner filed a recrimination petition unders. 97 of the Representation of the People Act, 1951. The Tribunal held thesecurity deposited by him to be deficient and did not permit him to lead evi-dence in support of the recrimination petition, even though the deficiency in thesecurity deposit was made up by him before the hearing of arguments on thepreliminary issue. The present writ petition under Art. 227 of the Constitutionchallenged this order of the Tribunal. The second respondent (election peti-tioner) raised two preliminary objections namely: (i) that since an appeallay against the final order of the Election Tribunal, the High Court shouldrefuse to interfere with the decision of the Tribunal on a preliminary issue :(ii) that even if the writ petitioner's contention was accepted it was at best acase of erroneous decision by the Tribunal on a point of law and thus outsidethe ambit of Art. 227 which is intended only to keep subrodinate Tribunalswithin the bounds of their jurisdiction. HELD :

(i) The Court would not be justified in dismissing the petition underArt. 227 merely because the final order passed by the Tribunal in disposingof the election petition out of which the present proceedings had arisenwould be open to appeal. The decision of the Tribunal on the preliminaryissue as to sufficiency of security deposit was bound to affect the ultimatedecision in the election petition as the Tribunal's decision on this issuedebarred the present petitioner from leading evidence to prove thatthe election petitioner himself was guilty of corrupt practices and thus couldnot claim the seat even if he succeeded in proving that the present petitioner'selection was void. An erroneous decision on this preliminary issue re-lating to the effect of the non-deposit of the full security referred to in s.117 of the Act would necessitate the remand of the case by the appellatecourt, thus resulting not only, in considerable expense and inconvenienceto both the parties, but also in prolonging the proceedings and delaying theultimate decision of the election petition. In these circumstances, itcould not be said that immediate interference of this Court was not calledfor and was not necessary.

The existence of an alternative remedy is not an absolute bar to inter-ference by the High Court in exercise of its jurisdiction under Articles226 and 227 of the Constitution and where the order of the Tribunal goesto the root of the questions that the Tribunal is called upon to dealwith and a wrong decision on such questions is bound to create unneces-sary complications and prolong the proceedings especially in an electionmatter, the Court will not hestitate to deal with the matter and grant thenecessary relief.

(ii) Since the question before the Court pertained to the interpreta-tion of s. 97 of the Representation of the People Act on which there wasno reported decision of this Court or any other Court, the Court wouldbe justified in deciding the question despite the limitations of Art. 227.

(Hi) On a fair reading of the proviso to sub-section (1) of section 97,it is obvious that in requiring the person giving the notice of recriminationto furnish the security referred to in s. 117, the legislature intended toguard against frivolous allegations not only to save embarrassment to

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the opposite party, but also to prevent delay in the disposal of the electionpetition. If the full amount of security is not furnished, the Tribunal isnot competent to admit evidence in support of the recrimination, but theredid not appear to be any justification for its refusal to take such evidenceif before the date fixed for recording such evidence the full depositin accordance with the provisions of s. 117 had been made. Evenif at that stage the Court found that the deposit referred to in s. 117 wouldnot be sufficient to meet the costs of the opposite party it has amplepower under s. 118 of the Act to make an order for further deposit, and "in making such an order it can lay down the time within which the depositshould be made; and as laid down in s. 118 itself, it has the powerto dismiss the petition, which in the case of recrimination means the non-hearing of the recriminatory application.

Even when on the non-deposit of security in support of a recriminationthe Tribunal refuses to allow recording of evidence in its support, it doesnot imply that the Tribunal can reject the notice of recrimination orrefuse to consider the allegations made in the recriminatory petition. Theremay be cases in which the party filing the recrimination may be ableto substantiate the allegations made therein without leading evidence, fromthe material which is already available on the record.

Ram Roop and Others v. Bisioa Nath and Others (A.I.E. 1958, 456);Shri Qiani Kartar Singh v. The election Tribunal (1962 Doabia's ElectionCases 500); A.Sanjeei) Reddi v. G. C. Kondayya and another (A.I.R. 1960Andhra. Pradesh 421); Bhargatlan v. Abdul Majeed (A.I.R. 1961 Kerala183); P. Kunju Raman v. V.R. Krishna Iyer (A.I.R. 1971 Kerala 188); N.T.Veluswami Theiiar v. G. Raja Nainar and others (A.I.R. 1959 S.C.422);Shri Satyanarayan Laxminarayan Hegde and others v. MaWkarjanBhaVanappa Tirumale (A.I.R. 1960 S.C.137); Dalmia Jain AirwaysLtd. v. Sukumar MnMierjee (A.I.R. 1951 Cal 193); Inamati MallappaBasappa v. Basovaraj Ayyappa and others (A.I.R. 1958 S.C. 698); JaganNafh v. Jaswant Singh and others (A.I.R. 1954 S.C. 210); MurarhaRadhey Shyarn Ram Kumar v. Roop Singh Rathore and others (A.I.R.1964 S.C. 1545) ; referred to.

RAGHBIR SINGH v THE ELECTION TRIBUNAL AMBALA AND SHRTRAVINDER NATH, 28, E L.R. 236

S. 117—Deposit of security under s. 117 in high Court—Form throughwhich deposit to be made changed but corresponding change not madein High Court Rules—Deposit whether complies with s. 117 HELD— Thedeposit of the security for costs in the new form prescribed by the M.P.Treasury Code while the High Court Rules continued to have referenceonly to the old form was not a deposit in contravention of s. 117 of theRepresentation of the People Act — JAGESHWAR NATH v. RAVINDRANATH AND OTHERS., 29 E.L.R. 241

—•—8S. 117 and 86—S. 117 requiring election petition to be accompaniedby deposit of security in High Court—Rule 3 of Andhra Pradesh High CourtOriginal Side Rules requiring security to be deposited in Personal Account of

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Registrar in the State Bank at Hyderabad—• Petitioner depositing securityin Sub-Treasury at Guntur—Such deposit whether satisfies provisions of s. 117—•Section whether directory or mandatory—Petition whether liable to be dismiss-ed under s. 86—Subsequent transfer of deposit from Sub-Treasury to Per-sonal Account of Registrar in State Bank at Hyderabad whether has retros-pective effect for purpose of limitation. HELD : (i) In a case of clear non-compliance with the .requirement of s. 117 the election petition without furtherenquiry into the grounds of non-compliance, must necessarily be dismissed.That is the meaning and the true impact of s. 86.

The purpose of the security deposit being to secure the costs of therepsondent it follows that the deposit should be so made that thereafterneither the party depositing it, nor any other authority should have anycontrol or power over it, and the High Court alone should have exclusivepower from start to finish to deal with the said deposit in accordance withlaw. Section 117 also brings out in no uncertain terms this manifest inten-tion by directing that the deposit shall be made in the High Court itself.

On a consideration of the relevant provisions of the Andhra PradeshFinancial Code, Treasury Code and Account Code it was manifest that thepayment of the security deposit in the Guntur Sub-Treasury was in no waytantamount to payment in the High Court. The High Court could have nocontrol or power over that amount till it was brought to its account bytransfer of the same by the Accountant General to the State Bank ofHyderabad, which became possible only much* later and not on the date ofthe presentation of the election petition or within the period of limitation.

(ii) In view of the finding on the basis of the Andhra Pradesh FinancialCode, etc. that the deposit came within the power and control of the HighCourt only after its transfer to the State Bank at Hyderabad in the PersonalAccount of the Registrar, the petitioner's plea that the said transfer shouldbe given retrospective effect from the date when the deposit was made, couldnot be accepted.

The petition was accordingly liable to be dismissed under s. 86 of theRepresentation of the People Act, 1951 foe non-compliance with a. 117of the Act.

K. Kamararaj Nadar v. Kunju Thevar, AIR 1958 SC 687 ; U.M. Tritiediv. Manaklaland others; 15 B.L.R. 88-Haji Abdul Wahid v. B.V. Keskarand others, 16E.L.R. 393; Biswanath Upadhaya v. Haralal Das and Others16 BLR 405; Chandrika Prasad Tripathi v. Shiv Prasad Chanpuria andothers, AIR 1959 S.C.; 827; Om Prabha Jain v. Qian Chand, AIR 1959 S.C.637; Oh Subba Rao v. Member Election Tribunal, Hyderabad and others,AIR 1964 SC. 1027; Kumaranad v. Brij Mohan Lai; referred to — KOTHURIVENKATESWARLU v. BRAHMANAND REDDY, 29 E.L.R. 352.

—Section 97 (1), 117,118-$eewnfo/ required to be deposited on giving noticeof recrimination under proviso to s. 97 (1), to lead evidence—Whether treasuryreceipt evidencing full deposit to be produced at time of giving notice—effecto j"non-compliance—HELD: Allowing the appeal : the Tribunal has rightlyheld that the respondent wa8 required to produoe with the notice under the

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provisio to s. 97 (1) a Government Treasury Receipt showing a depositof Us. 2,000/—as security for costs of the recrimination and the High Courtwas in error in quashing this order.

The notice of recrimination under s. 97 is in substance a counter petitioncalling in question the claim that the other candidate has been dulyelected. Looking at the object and scheme of s. 97 it is manifest that theprovisions of ss. 117 and 118 be applied mu'a'is mutandis to a proceedingunder s. 97. The recriminator must produce a Government Treasury Receiptshowing-that a deposit of Rs. 2,000 has been made by him infavour of the Election Commissioner as cost of the recrimination. As thenotice of recrimination cannot be sent by post, it must be filed before theTribunal, and reading s. 117 with consequential adaptations for the pur-pose of proviso to. s. 97(1), it will appear that the Treasury Receiptshowing the deposit of the security must be produced before the Tribunalalong with the notice of recrimination. If the recriminator fails to give therequired security under s. 117 at the time of giving the notice of recrimina-tion, be loses the right to lead evidence under s. 97 and the notice of recri-mination staods virtually rejected. N. R. Shihshoh v. R. P. Dikshit, 1965(A.L.J) 41-42, disapproved; Kumranand v. Brij Mohan (1965) 1 S.C. R—116distinguished.-RAVINDRA NATH v. RAGHBIR SINGH AND ANOTHER29 B.L.R. 398. (8.C.).

$.83 (2), R. 16 (1) Security deposit receipt—failure to sign and verifythe receipt Annexure to petition—whether petition defective for non-compli-ance of mandatory provisions of law.—Failure to sign and verify as requiredunder Rule 12 of Election Petition Rules, 1967, (High Court, Calcutta) thereceipt showing the deposit of Rs. 2,000 as the scurity for costs, granted bythe High Court, which froms a j annexure to an election petition under Rule16(1) of Election Petition Rules, 1967 (High Court, Calcutta), cannot be aground for the High Court to dismiss the petition for non compliance with arale of the High Court read with section 83(2) of the Act, the defect beingone of procedure and not one of jurisdiction of the Couit. In other words theHigh Court has no power to* dismiss an election petition on the groundof non-compliance with any of the provisions of section 83 of the Act.

Jagannalh v. Jaswant Singh, A.I.R. 1954, S.C. 210 relied on —RAMAPR.ROY CHOWDHURY v. BAIDYANATH BANDOPADHYA ANDOTHERS, 31 E.L.R. 167.

——'8. 117—Election petition —Challan for Security Deposit—Paucityof Information in column (3) of the Chalan—Whether fatal to the maintainabilityof the petition under section 117—The payment of Security Deposit a dayearlier to the date of presentation of the election petition and the insertionof the name of the petitioner in column 2 of the Challan instead of indicatingthat the amount is deposited in favour of the "Registrar of the High Court"and in column 3 of the Challan insertion of the words "Security of Depositfor election petition" instead of giving full particulars of the remittances

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of authority (if any), are not fatal to the petition, inasmuch as the Challanterms part of the election petition where the details have been given and thepaucity of the description in column 3 of the Challan is riot an infraction ofthe new section 117 of the Act and Eules of the High Court.

_ Jagan NatJi v. Jaswant Singh and Others, A.I.E. 1954, S.O. 210- Om PrabhaJain v. Gim Chand and another, 21 (1960) E.L.R. 54, referred to —BAHARTTTISLAM v. KAMINI MOHAN SARMA AND OTHEES 31 B L.R S i

(5) LIMITATION-Jrt. 156, S. 116-A-WAeOer appeal undr s. 116-A isan appeal under the Code of Civil Procedure" within Art. 156^-LimitationAct, 1908-Whether s. 12 of Limitation Act appKess. 29(2) Limitation 4ct—scope of. . '

-Limitation Act 1908 ss. 12(2), 29 (2)-Art. lM-scope of Applicabilityto appeals under s. 116-A of Act 43 of 1951.—The first respondent filed anelection petition challenging the appellant's election to the Lok Sabha allegingthat various corrupt practices had been committed. The Election Tribunaldismissed the petition by its order dated January 5, 1963. Thereafter onFebruary 13, 1963, the first respondent preferred an appeal to the High Courtunder s. 116-A of the Representation of the People Act 43 of 1951 Theappellant contended before the High court that as the appeal was admittedlyfiled more than 30 days after the date of the Tribunal's order, it was time-barred under s. 116-A(3) and the respondent was not entitled to excludethe time taken by him m obtaining a copy of the order of the Tribunal TheHigh Court rejected this plea, found that the appellant had committed twocorrupt practices under s. 123(4), and set aside his election.

In the appeal to the Supreme Court, the only question for considerationwas whether, for the purposes of computing the period of 30 days prescribedunder s. 116-A(3), the provisions of s. 12 of the Limitation Act could be invokedHELD: S 12 of the Limitation Act, 1908 applies in respect of an appeaiunder s. 116-A of the Representation of the People Act, 1951 and thereforethe time taken for obtaining a copy of the order appealed from must beexcluded in computing the period of limitation.

(Per Sinha, C J Subba Rao and Ayyangar, JJ.) : The expression "appeal"under the Code of Civil Procedure in Art. 156 of the Limitation Act meansan appeal governed by the provisions of the Code of Civil Procedure Toattract Art. 156 of the Limitation Act, it is not necessary that the right toprefer the appeal should be conferred by the Code of Civil Procedure Itis sufficient if the procedure for the filing of the appeal and the power of theCourt for dealing with the appeal are governed by the Code. Though the^ ?L^Tl XS conferred b ^ 8- 116"A of the Representation of the PeopleAct, 1951, the appeal is still an appeal "under the Code Civil Procedure"within the meaning of Art, 156. The special law namely Act 43 of 1951 prescnbes a period of limitation different from the period prescribed therefor bythe First Schedule to the Limitation Act within the meaning of s 29(2) ofthat Act; and s. 12 of the Limitation Act is attracted so as to exclude the timetaken for obtaining a copy of the order appealed from.

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Ago, Mahomed Hamadani v. Cohen (1886) I.L.R. 13 Cal. 221; RamaswamPillai v. The Deputy Collector of Madura, (1919) I.L.E. 43 Mad. 51; Dropadiv. Him Lai (1912) I.L.E. 34 All. 496; Canara Bank Ltd., v. Warden InsuranceCo. Ltd., I.L.E. (1952) Bom. 1083; Beharial Chaurasiya v. Regional TransportAuthority, A.I.E. 1961 M.P. 75, 77; Kaushalya Rani v. Gopal Singh, 1964 (4)S.C.E. 982; State of V. Y.v. Snit. Kaushalya, 1964(4) S.C.E. 1002; relied on.

(Per Mudholkar and Eaghubar Dayal, JJ. , dissenting): There is no warrantfor holding that an appeal which was not given by the Code of Civil Procedurewould still be one under the Code merely because the procedural provisonsthereof would govern its course. Where the right of appeal is given by someother law, the appeal must be regarded as one under that law and not underthe Code. There was no valid reason for considering the words 'under theCode of Civil Procedure' as meaning 'governed in the matter of procedure bythe Code of Civil Procedure'.

(Per Majority : Subba Eao and Mudholkar, JJ., Contra) : Both partsof sub-section (2) of s. 29 of the Limitation Act have to be read as one wholeand the words following the conjunction 'and' "for the purpose'of determiningany period of limitation" etc. attract the conditions laid down by the openingwords of the sub-section.

Kandswami Pillai v. Kannappa Chetty, A.I.E. 1952 Mad. 186 ; Mst. AbidaKhatoon v. Chote Khan, A.I.E. 1956 All. 252; Sehat Ali Khan v. Abdul QaviKhan, I.L.E. (1956) 2 All. 252; Chandra Kumar Sen v. Mathuria Debiya, 1925I.L.E. 52 Cal. 1009; Nasaruddian Khan v. Emperor, (1926) I.L.R. 53 Cal.827; Bholanafh Balhhodra v. Accheram Puran, A.I.E. 1937 Nag. 91; BengalImmunity Co., Ltd.., v. State of Bihar, 1955(2) S.C.E. 603; referred to.—VIDYA CHARAN SHUKLA v. KHUB CHAND BAGHEL AND ORS. 25E.L.R. (S.C) 354.

-—— S. 12, Limitation Act—Tribunal allowing election petition with costs— ,Subsequently drawing up a decree—Appeal filed before High Court—Time takenin obtaining copy of decree whether allowable in computing limitation for filingappeal—It may be that a decree was not really necessary but the fact re-mained that a decree or what may preferably be called a formal order giving

e ffect to the requirements of ss. 98 and 99 of the Act bearing on the case wasactually prepared, containing the operative part of the Tribunal's order declaringthe appellant's election to be void, and fixing precisely the costs which werepayable by him. In these circumstances the appellant must be held entitledto exclude under s. 12 of the Limitation Act the time spent by him in obtaininga copy of that decree or formal order, as he actually directed his appeal againstit. The appeal could not therefore be dismissed as being beyond the time. ̂prescribed.

Dhanraj Beshhhara v. Vishwanth Yadav Tamashar & Ors; 15 E.L.R. 260;Budhi Nath Jha v. Manilal Jadav, 22 E.L.E. 86; K. Kamaraja Nadar v. KunjuThevar & Ors., 14 E.L.R. 270; and Biswanath Upadhaya v. Harala Das dtOrs. 16 E.L.R. 405, referred to—KUMARANAND v. BRIJ MOHAN LAL26 E.L.R. 100.

—— S. 81—Whether to be read with s. 29(3) of the Indian Limitation Actand ss. 9 and 10 of the General Clauses Act in computing period of limitation for

M/J(D)121EC—12

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filing election petition, (SEE ELECTION PETITION—GENERAL PRINCI-PLES).— VISHWANTH PRASAD v. SALAMATULLAH AND ORS27 E.L.R. 35.

Limitation, Act Section 5—If applicable to presentation of electionpetitions—S. 90 (3)—if amendment to petition under order 6, rules 17—8. 151C.P.Gonly in respect of charge of corrupt practice already in petition—notraising new grounds or altering the character of the petition—if permissible.S. 81 whether to be read with S. 29(3) of the Indian Limitation Act & Ss. 9and 10 of the general clauses Act in comuting period of limitation forfilling election petition—general principles.—VISHWANATH PRASAD v.SALAMATULLAH AND ORS., 27, E.L.R. 145. ELECTION PETITION-GENERAL PRINCIPLES.—CJ. JOHN v. See DEVASAY KUTTY ANDORS. 29 E.L.R. 134.

—•— Rule of Application for amendment of Recrimination statement byreturned candidate on new ground—Rule of limitation—Section 97(1) of the1951 Act.—(SEE RECRIMINATION— JASHBHAI CHUNIBHAI PATEL V.ANWERBEG A. MIRZA, 32 E.L.R. 1.

[ See ALSO ELECTION PETITION—GENERAL PRINCIPLES ]

(6) PARTIES TO THE PETITION.—SS. 82 and 90(3)—two respondents* notnecessary parties to a petition—Whether 'non-compliance' with s. 82—therefore,whether petition entails dismissal under s. 90(3)—Whether names of unnecessaryrespondents can be expunged on application under Order VI, rule 17, O.P.C.The appellant filed an application before the Election Tribunal prayingthat the names of respondents 2 and 3 be struck off as unnecessary partiesto the petition filed by him challenging the election of respondent 1. TheTribunal held, inter alia, that by the joinder of respondents 2 and 3 as partiesto the election petition, there was non-compliance with s. 82 of the Representa-tion of the People Act, 1951, and therefore the petition entailed dismissalunder s. 90(3). On appeal against this order. HELD: Section 82 onlyprescribes as to who will be necessary parties to the election application inaccordance with the relief sought. It does not say that none else shouldbe parties. Section 90(4) gives a clear indication that other candidates whoare not necessary parties under s. 82 can be impleaded as parties. Therefore,the inclusion of respondents 2 and 3 amounts to mere surplus age and the electionapplication cannot be dismissed under s. 90(3) on the ground of non-compliancewith the provisions of s. 82. The names of these two respondents could beexpunged on an application under Order VI, rule 17 C.P.C. Kamaraj Nadarv. Kunju Thevar A.I.R. 1958 S.C. 687; and A.I.R. 1958 Mad. 261; S.B. Adityanv. 8. Kandaswami A.I.R. 1958 S.C. 857; Chandrika Prasad v. Shiv Prasad,A.I.R. 1959 S.C. 827, Sardar Dayal Singh v. Sardar Surjit Singh 19 E.L.R.305; Mallappa Basappa v. Basavraj Ayyappa A.I.R. 1958 S.C. 698; S. M.Banerji v. Sri Krishan A.I.R. 1960 S.C. 368; Harish Chandra v. Triloh SinghA.I.R. 1957 S.C. 444; B.T. Bhosle v. M. S. Aney A.I.R. 1961 Bom. 29; referredto.—Jagannath v. Ram Chandra A.I.R. 1959 Orr. 26; Sudhansu v. NarendraA.I.R. 1958 Cal. 322; Durga Shankar v. Raghuraj Singh A.I.R. 1954 S.C. 520;distinguished.^SATRUGHNA SAHU v. BIJOYNANDA PATNAIK,23 E.L.R. 259,

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-Ss. 82, 90(3)—-Election petition to declare the election of the appellantvoid—-All the contesting candidates joined as respondents—If could be dismissedunder s. 90(3) for non-compliance with s. 82. In his petition challenging the

.election of the appellant on the ground of corrupt practice, the second res-pondent included as parties, besides the appellant who was the returnedcandidate, all the other contesting candidates. The appellant, instead offiling a written statement raised a preliminary objection that the petition didnot confirm to the mandatory requirement of s. 82 and was liable to be dismissedunder s. 90(3) of the Act in as much as the other contesting candidates werealso made parties when the prayer was only that the election of the appellantbe declared void. The Tribunal refused to entertain the objection since itwas made merely by an application without filing a written statement. Inthe appeal against this order, the High Court, deciding the preliminary objec-tion on merits. HELD : An election petition does not incur dismissal unders. 90(3) of the Act merely on the ground that the petitioner has joined asrespondents not only the returned candidate but also the other contestingcandidates even though he has not claimed the further declaration under s.101 of the Act. What is intended by s. 82 is only to lay down who are necessaryparties in the cases mentioned therein. It does not forbid all the contestingcandidates being joined as respondents even when the prayer is confinedto a declaration that the election of the returned candidate is void. Further,if by sub-section (4) of s. 90 every candidate has a right to be joined as a respon-.dent, it cannot be maintained that if the petitioner himself joins all othercontesting candidates the petition is liable to be dismissed on that groundalone. Doing something more than what is required under a mandatoryrequirement of the law is not non-compliance with the provision just as itsnon-observance is, S. M. Banerji v. Sri Krishan 1960 2 S.C.R. 289; SatrughnaSaha v. Bijaynan Patnaih (1962) Cutt. L.T. 232; Jagan Naih v. Jaswant Singh1954 8.C.K. 892; referred to. (The Court did not decide the question whetherthe tribunal should bo directed to decide the point raised before it as a prelimi-nary issue without compelling the returned candidate to file a complete writtenstatement. The court observed however that to say that a preliminary objec-tion relating to non-maintainability of an election petition must be decidedpromptly is not the same thing as to say, that preliminary objections canbe allowed to be Taised by mere application without filing a complete writtenstatement). Kamaraj Nadar v. Kunju Thevar 1959 S.C.R. 583; Veluswami Thevarv. Raja Nainar A.I.R. 1954. S.C. 422; Bhileaji Keshao Joshi v. Brijlal NandlalBiyani 10 E.L.R. 357; referred to.—VIDYA CHARAN SHUKLA i). ELECTION

TRIBUNAL, RAJNANDGAON AND FOUR OTHERS, 23 E.L.R. 323,-Ss. 82(6), 123—-Whether the expression "withdraw" in s. 123 means

withdrawal before date fixed under s. 37—if allegation of payment after suchdate amounts to charge of corrupt practice against candidate receiving payment—Whether he is necessary party—jwheiher non-compliance with s, 82(6) if suchdefect can be cured by application under s. 90(4)—(See CORRUPT PRACTICE—BRIBERY).—VAID PRAKASH v. POHUMAL, 24 E.L.R. 58.

S. 82(6)—•From 'any other candidate' in section 82(6)—Whetherincludes candidate in any other constituency against whom there are allegationsof corrupt practices.

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By an election petition, the appellant challenged the validity of the firstrespondent's election to the Lok Sabha alleging the commission of variouscorrupt practices by him and, with his consent, by M. who was a candidatefor election in another constituency. The Tribunal dismissed the petition onthe preliminary ground that M was a necessary party under s. 82(b) and hadnot been impleaded. HELD: allowing the appeal: M was not a necessaryparty to the petition. The correct interpretation of the expression "anyother candidate" in section 82(b) would be any other candidate from theparticular constituency the election of which is questioned and not 'any othercandidate' from any constituency.—NARDEV v. JOTI SAROOP ANDOTHERS, 24 E.L.R. 76.

Ss. Sl(2)(3)—Attestation by one of the petitioners in a joint election petitionwhether valid.

Appellants M and N who were electors in the constituency, challenged theelection of the respondent to the Rajasthan Legislative Assembly by an electionpetition. At the hearing fhe Respondent raised two preliminary objections thatthe said petition was presented before the Election Cominission only by N andtherefore the presentation not being in accordance with s. 81(2) (a), was invalid;and that there was a violation of s. 81(3) as the copy of the election petitionserved on the Respondent was attested only by N. The Tribunal upheld theobjections and dismissed the election petition. HELD: (i) Under the schemeof sub-section (2) of Section 81 of the Act, where several persons make ajoint petition, a presentation by one or more of them under clause (a) (i)would be a valid presentation on behalf of himself and others and the electionpetition could not be dismissed simply because all of them were not presentwhen he application was presented. Shamimuddin and others v. Amir Hussainand others, (4 Indian Cases 777); Madhura Krishnamurthy Sastri v. YeeraRamanamurthi (AIR 1957 Andhra Pradesh 654); referred to. The main pur-pose of the attestation of a petition is to ensure that the copy is a true copyof the orginal petition and no more. If one of the several petitioners atteststhe copies, it amounts to a substantial compliance with the provisions of thesub-section (3) of Section 81 of the Act. (iii) While the provisions of lawrelating to election petitions should be strictly construed, the tendency to behypertechnical annihilating the real substance of the law is also to be depre-cated if there is substantial compliance with the requirements of law. JagcmNath v. Jaswantsingh, 9 E.L.R. 231 (S.C.); Pratapsing v. Shri Krishna Guptaand others, A.I.R. 1956 S.C. 140; K. Kamaraja Nadar v. Kunju Thevar andothers, 14 E.L.R. 270; Ghandriha Prasad Tripatlii v. Shiv Prasad Ghanpuriaand others, A.I.R. 1959 S.C.827; followed—MOOLCHAND & NANDKISHORE ». MAHARAJ KUMAR SINGH, 24 E.L.R. 124.

Ss. 37, 82(b) Agent originally also candidate—Later withdrawing unders. 37 Whether necessary party under s.82(b). HELD : s. 82(b) does not requirethat the person al'eged to have committed a corrupt practice; must have beenacting as a candidate when committing such corrupt practice; all that isnecessary is that he should be a candidate at that particular election. Thewords "any othere candidate" in clause 82(b) referred to candidates otherthan contesting candidates. The intention of the legislature was that apartfrom those who had already been impleaded as respondents by virtue of

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s. 82(a), the petitioner must further implead such other candidate againstwhom an allegation of corruDt practice has been made even though such candi-date may have retired from the election. Kapiideo Singh v. Suraj NarayanSingh, A.I.R. 1959 Pat. 253; dissented from. Badri Narain Singh v. S. KandPrasad Singh, A.I.R. 1961 Pti. 41; S.B. Adityan v. S. Kandaswami, A.I.R.1958 S.C. 857; referred to— HARSWARUP AM) ANR. v. BRIJ BHUSHANSARAN AND ORS., 24 E.L.R. 214.

Surplus parties, if petition is liable to be dismissed for joining surplusparties. HELD: So long as the necessary party, the party who was directlyand vitally interested, was made a party the petition was validly constitutedand maintainable; it was not liable to be dismissed because surplus partieswere joined.—NAMDEO CHIMNAJI TAPRE v. GOVINDDAS AND ORS.,25 E.L.R. 1.

— S s . 82(a), 85-necessary parties no!, impleaded according to requirement ofs. 82(a)—Dismissal of election petition by Election Commission whether manda-tory under s. 85. The two writ petitioners and respondents 1 to 6 were candidatesfrom the State of Maharashtra at the election to the Council of States held inMarch, 1962. Respondents 1 to 6 were declared elected. Respondent No. 7who was a voter at the above election, and had cast his vote in favour of theelected candidates as a member of the Maharashtra Legislative Assembly, waslater found unqualified to fill a seat in that Assembly. Petitioner. No. 1 filed anelection petition in which he contended that if the vote of Respondent No. 7was excluded Petitioner No. 1 would have been elected. Petitioner No. 2 wasalso a candidate at the election but had not actually contested it, his partyhaving declared its support to Petitioner No. 1. In the election petition asfiled Petitioner No. 2 was not made a party, though later he made an appli-cation to be impleaded. Before his application had reached the ElectionCommission, the Chief Election Commissioner dismissed the election petitionin limine under s. 85 of the Representation of the People Act. on the groundthat there had been a contravention of s. 82(a) inasmuch as Petitioner No.2, a necessary party to the petition had not been impleaded. The petitionersthereupon filed the present writ petition under Arts. 226 and 227 of theConstitution, challenging the order of the Chief Election Commissioner. Itwas contended on their behalf that since under s. 90(4) of the Act the Tribunalhad power to allow a candidate to be joined as a respondent who has notalready been joined as such, it could never have been intended that theElection Commission was bound to dismiss a petition in Umine wheneverthere was non-compliance with s. 82(a). HELD: The petition could not beallowed in view of the decision of the Supreme Court in K. Kamaraja Nadar'scase that the provisions of s. 90(3) weie of a mandatory nature, and theElection Commission was bound to dismiss an election petition which did notcomply with the provisions of s. 82(a). If the provisions of s. 82 which pres-cribe who should be joined as respondents to the petition are not compliedwith the Election Commission is enjoined under s. 85 of the Act to dismiss thepetition. There was, therefore no error in the order of the Chief ElectionCommissioner in the present case which would justify interference under Art,226. K. Kamaraja Nadar v. Kunju Thevar 14 E.L.E. 270; relied on. JoginderSingh v. Rwrchan Singh, 3 E.L.R. 447; referred to. The infirmity in the petition

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which had to be presented within a specified period was not cured whensubsequently Petitioner No. 2 made an application to be joined as a party.Even if it was assumed that the Election Commission was not bound todismiss an election petition under s. 85 for non-compliance with the provisionsof s. 82, it could not be disputed that the Commission would still have powerthough discretionary to dismiss such a petition. A writ of mandamus cannotbe issued to the Election Commission when an order had been made by it inexercise of discretionary powers. Thus wLethei the provision in s. 85 is cons-trued as mandatory or not, the petitioners could not succeed.—BAPU ANDPETER AUGUSTUS ALVARES v. BHAURAO AND OTHERS 28 E.L.R.218.

Writ Petition challenging inclusion of voters' names in—Such votersnecessary parties to petition—if they are not impleaded. HELD : (i) There couldbe no manner of doubt that the individuals whose applications for inclusionof their names in the list of voters were accepted despite objections made bythe petitioners were necessary parties to the writ petition challenging the inclu-sion of their names. In consequence of the impunged orders they were entitledto vote at the election and if in the present petition those orders were to bequashed, then they would be deprived of that valuable right and this couldcertainly not be done without giving them a hearing. Udit Narain SinghMalpahariav.Addl. Member Board of Revenue Bihar and Anr., 1963 S.C. 786,relied on. Although Rule 7 in Part II of Chapter 4-F(b) of the Rules andOrders of the Punjab High Court provide that the Court may, in its discretion,at any time before a final order is made on the application, order the rule nisi tobe served on any party to be affected by any order which the Court would notcertainly exercise its discretion under the above rule whereas in the presentcase, the omission to implead the necessary parties was deliberate.—PRITAMSINGH AND ORS. v. SHIV SINGH P.C.S. & ORS. 29 E.L.R. 82.

Ss. 82(b) 86(1)—a -person who had withdrawn whether a necessaryparty to the petition—petition whether liable to be dismissed if he is not madeparty. HELD : Since R was a 'candidate' and allegations of corrupt practicehad been made against him, he was a necessary party to the petition. As hewas not impleaded there was non-compliance with s. 82(b) of the Act and thepetition was liable to be dismissed under s. 86(1) Amin Lai v. Burma MaiAIR 1965 Supreme Court 1243 : Gulabchand v. Govind Sahai, AIR 1964 Raj-asthan 155. Ashrai Ali Khan v. Tiki Ram, 20 E.L.R. 470; Vaid PraJcashv. Dr, Pohumal, 1963 Doabia's Election cases 252 ; Kajildan Singh v.Suraj Narayan Singh 17 E.L.R. 475; referred to.—BRIJMOHANLAL (SHARMA) i). FATEH SINGH & ORS. 29 E.L.R. 126.

Ss. 79(b) 82(b)and 86, Election Petition containing allegations of corruptpractice, against candidate who, had withdrawn from contest—such 'candidate'not impleaded—Petition whether liable to be dismissed under s. 86 for non-compliance with s. 82(b)—Subsequent impleadment at instance of petitioneror such candidate himself whether can be allowed Applicability of Or. I, R. 10and s. 161 of Civil Procedure.

The first respondent was elected to the Gujarat Legislative Assemblyin 1967 from a single member constituency. The petitioner filed an electionpetition that the election be set aside and that he himself be declared elected.

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The petition included allegations of corrupt practice against one S. who hadfiled his nomination papers but had later withdrawn from the election and wasthus a candidate within the meaning of s. 79(b) of the Representation ofthe People Act, 1951. It was urged on behalf of Respondent No. 1 thatthe petition was liable to be dismissed under s. 86 for non-compliance withs. 82(b) of the Act. The petitioner then applied to the Court to be allowedto implead S, relying upon the relevant provisions of the Code of Civil Pro-cedure. S. also applied to the Court to be impleaded under s. 86(4) of the Act.HELD : (*) The petition was liable to be dismissed under s. 86.

If the Act lenders any particular requirement mandatory as contem-plated under s. 82(b) of the Act, and if it is provided that non-compliancethereof renders the petition liable to be dismissed under s. 86 of the Act,the Court has no option and no discretion whatever to read something morethan that and exercise dispensing power to waive non-compliance thereof.Section 86 makes it obligatory on the Court to dismiss the election petition.It can do so on its own, at the early stage if at all the non-compliance isnoticed, or even at any time at a later stage when pointed out by any party,

(M) The petitioner's application seeking to implead S. could not beallowed, nor could he be allowed to remove the defect in the petition bydeleting those parts of it in which allegations of corrupt practice were madeagainst S.

The provisions of the Civil procedure Code come in only after the trialof the election petition begins. Besides they would be applied subject tothe statutory provisions in the statute itself, and that again 'as nearly asmay be' to the election petitions. The provisions of the Civil Procedure Codecontained in Order 1 appear to be in conflict with those contained in theAct itself and they cannot therefore override the provisions of the statute.

Non-Compliance with s. 82 of the Act renders the petition as a wholeliable to be dismissed. To delete those allegations would be to remedy thedefect which is fatal and make the petition valid which was invalid ab initio.

(Hi) Once the petition was dismissed under s. 86 there was no groundor j ustification for S to come before the Court for being impleaded as a party-respondent. He would not stand affected in any manner after the dismissal ofthe petition.

Section 86(4) applies only to those candidates as denned in s. 79 againstwhom no allegations of corrupt practice have been made, and who therefore donot fall under s. 82 of the Act. Section 86(4) does not apply to candidates whoare covered by s. 82(6) because when they are not joined the petition itselfbecomes invalid. It is only when the petition is valid and the case can proceedthat the right of a candidate like S to appear commences.—THAKUR MAN-SINGH KHATUJI v. DR. VASANTLAL VITRAJLAL PARIKH ANDOTHERS, 129 E.L.R. 249.

—• Ss. 79(6), 82(b) and 86—Candidate against whom allegations ofcorruptpractice made in election petition not joined as respondent—Effect—Petitionwhether, liable to be dismissed under s. 86 for non-compliance with s. 82(b)—•Defects whether can be cured—-Petitioner's application for impleading such

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candidate whether may be considered—Allegations against such candidatewhether may be allowed to be deleted—Applicability of Or I, r. 10 of Code ofCivil Procedure. HELD : (i) The Act is a self-contained co e relating toelections. Its provisions have to be strictly enforced, and the rights already accr-ued cannot be allowed to be affected by invoking the aid of provisions suchas Order 1 Rule 10 of the Civil Procedure Code. Such a right cannot be set atnaught unless the statute permits it. If therefore the Act renders any particularrequirement mandatory as contemplated under s. 82(6) of the Act, and if it isprovided that the non-compliance thereof renders the petition liable to bedismissed under s. 86 of the Act, the Court has no option and no discretionwhatever to read something more than that and exercise dispensing power towaive non-compliance thereof. Section 86 of the Act makes it obligatory on theCourt to dismiss the election petition. It can do so on its own at the initial stageif the non-compliance is noticed, or at any time at a later stage when pointed outby any party affected in the petition. It makes no difference whether the trialhas begun or not. As long as such defect remains the petition would not bevalid petition presented in accordance with the provisions of the Act and is liableto be dismissed in limine.

A candidate against whom allegations of corrupt practice have been madeand who has not been impleaded in the petition as filed cannot himself apply tothe Court for being impleaded under s. 86(4) because the petition being invalidand liable to be dismissed he is not affected by it in any manner.

(iiy The provisions of the Civil Procedure Code come in only after thetrial of the election petition begins. Besides they would be applied subjectto the provisions of the statute itself and that again as nearly as may beto the election petitions. The provisions of the Civil Procedure Code containedin Order 1 appear to be in conflict with those in the Act itself, and they cannottherefore override the provisions of the statute. All the petitions given by thepetitioners for impleading the candidates as party-respondents were thereforeliable to be dismissed. The delay in filing them could not be condoned as thedelay was due to lack of care and caution, and not in good faith within themeaning of s. 21(1) of the Limitation Act, 1953 made applicable under sub-rule(5) of Rule 10 of Order 1 of the Civil Procedure Code.

Amin Lai v. Hunna Mai A.I.R. 1955 S.C. 1243—N. P. Po-nnuswanviy. TheReturning Officer, Namakkal Constituency, Namaklcal and Others A.I.R. 1952S.C. 64, Har Swamp and Antoher v. Brij Bhushan S&ran and Others A.I.R. 1967S.C. 36, Chaturbhai Chunilal v. Election Tribunal Kanpur and Ors. A.I.R. 1958All. 809, K. Kamaraj Nadar v. Kunju Thevar and Ors. A.I.R. 1958 S.C. 687Inamati Mallappa Basappa v. Desai Basavaraj Ayyappa and Ors. A.I.R. 1958,S.C. 698, Gulaher Ahmed, v. The Election Tribunal Chhalarpur and Ors. A.I.R.958 M.P. 224, Ch. Subbarao Member Election Tribunal, Hyderabad and Ors.A.I.R. 1964 S.C. 1027, BaburaoTatvaji Bhonsle v. Madho Shirihari Aney A.I.R.1961 Bom. 29, and Kesharibhai v. Bai Lilavaii and Ors. 4 Guj. L.R. 59,referred to.—FULABHAI DAHYABHAI v. RAMANBHAX DHANABHAIPATEL, 29 E.L.R.268.

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-Ss. 79(b), 82(b), 86(1), 123(l)(A)(a) and 123(l)(B)(a)—Omissionto implead a candidate against whom allegations of corrupt practice made in thetlection petition—"candidate", meaning of—Summary dismissal of the electionpttitim—Or. I, R» 10 G.P.O4application of. HELD : S. 82 casts a duty on the peti-tioner to make certain persons specified in its clauses (a) and (b) party-respon-dents to the petition. In case any allegations of corrupt practices are made inthe petition against a candidate, be he a contesting candidate or not, he hasnecessarily to be made a party-respondent in either case. The words 'othercandidate' used in contra-distinction to the words 'contesting candidates'employed in clause (a) manifestly show the clear intention of the legislaturethat all the candidates who come within the definition of the candidate as ins. 79(b) and who on account of withdrawal of candidature under s. 37, are notincluded in the list of contesting candidates prepared under s. 38 are withinthe meaning of that term. Such candidates have necessarily to be made party-respondents, if there are allegations against them of any corrupt practice.In their absence the petition cannot be tried, but as enjoined by s. 86(1)has to be dismissed in limine. In order to attract s. 82(b), it is essential that there•hould be allegations of corrupt practice against the candidate in the electionpetition and in the present case such allegations were in fact made against Pin the election petition.—NARASIMHA RAO N.V.L. v. KOTHA RAGHU-RAMAYYA & ORS. 29 E.L.R. 432.

— Ss. 82(b) and 8Q(l)—Candidate withdrawing from election—Alle-gations made against him in capacity of agent of winning candidate—Allegedto have committed corrupt practices in such capacity—-Such candidate not im-pleaded—S. 82(b) whether complied with—Petition whether liable to be dismissedunder s. 86(1)—Petitioner whether can be allowed to withdraw such allegationsor implead such candidate after preliminary objection to petition based on non-compliance of s. 82(b) has been raised. HELD : If an election petition containsallegation of corrupt practice against a withdrawn candidate he is a necessaryparty even if the allegation be that he committed corrupt practice not on hisown behalf but as an agent on behalf of and for the benefit of the returnedcandidate. If the withdrawn candidate commits corrupt practice as an agentof the returned candidate he is certainly a necessary party. Therefore P. wasa necessary party and his aon-impleading as party amounted to non-complianceof section 82(b) of the Act and rendered the petition liable to be dismissedunder the mandatory provisions of s. 86(1) of the Act. The applications forimpleadment of P. and condonation of delay in impleading him could not beallowed. Amin Lai v. Huna Mai, AIR 1955 S.C 1243; K. Kamaraja NadarT. Kunju Thevar AIR 1958 S.C. 68; liar Swarup v. Brij Bhushan, 1967 S C836 applied.—R4MA0H AND RA REDDY P. v. NARASIMHA REDDY ANDANR. 30 E.L.R. 93.

—Ss. 82(b)"any other candidate", meaning—Non-joinder of candidate againstwhom corrupt practices alleged—Petitioner if can withdraw"or abandon part of hisclaim by amendment. HELD : It was incumbent upon the petitioner to join theagent as a respondent as allegations of corrupt practice were made against himand it was immaterial that such allegations were made by him after he l a d with-drawn his candidature. The words "any other candidate" in s. 82(b) includes

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even a candidate who had withdrawn. All that is necessary is that he should bea candidate at that particular election. Sheopal Singh v. Ram Pratap, A.I.E.1965, S.C. 677; Eat Swarup v. Brij Bhushan, A.I.R. 1967 S.C. 836, ; followed —VISHNU CHARAN v. VIRCHAND BHANDAWAT AND ANR. 31 E.L.R. 92.

-—Returning or Presiding Officer not made a party—whether petition isliable to be dismissed. HELD : It is not incumbent upon a petitioner to makeany person a party to his petition other than the persons named in section 82of the Act and a petition cannot be dismissed because the Returning Officeror a particular Presiding Officer has not been made a party.—RAMA PR5ROY CHOWDHURY 0. BAIDYANATH BANDOPADHYA AND OTHERS31 E.L.R, 167.

—• S. 82(b)—Particulars of corrupt practice not necessary to attract section.HELD : The provision contained in s. 82(b) is attracted whenever an allegationof any corrupt practice is made in the petition even if no particulars of thecorrupt practice are given. Harish Chandra v. Triloh Singh, A.I.R. 1957S.C. 444; Beal v. Smith, 1869 4 C.P. 145; referred to.—MOHAN RAJ v. SUREN-DRA KUMAR TAPARIA AND ORS. 31 E.L.R. 416.

(7) NAMING OF GUILTY PARTIES -Notice to 'other persons under section99 when to be issued—who may cross examine. HELD: Notices to the personswho aie sought to be named as guilty of any corrupt practices under s. 99 shouldissue only at the conclusion of the trial and if the Election Tribunal choosesto examine witnesses as Court witnesses, the trial should be deemed to con-clude only after those witnesses have been examined and cross-examined.It may not be strictly in accord with the intention of the legislature in enactings. 99 to issue such notice at a stage when some of the witnesses have yet to beexamined. But a notice which goes to a person for the purpose of showingcause before the conclusion of the trial cannot be held to prejudice the peti-tioner in an election petition.

Under Section 99, proviso (b), the right to cross-examine any witness whohas already been examined by the Tribunal and has given evidence agaipstthe person to whom show cause notice has gone is conferred on him alone;no such right is conferred on a petitioner in an election petition.—RAM PHAL„. BRAHAM PARKASH AND OTHERS, 23 E.L.R. 92.

—Ss. 99 and 116-A—Corrupt practice proved against persons not partyto petition—Procedure and expediency of talcing action against them—Agentsof candidates—statements by—extent of candidate's responsibility. (See—CorruptPractice—Publishing false statements).—KISHORE SINGH v. BHANWAR-LAL NAHTA AND ORS. 27 E.L.R. 243. .

(8) WITHDRAWAL OF PWIITION-Election petition—dismissal by Tribunalfor non-compliance with s-. 82—-Appeal to the High Court—Withdrawal applica-tion in the High Court pending judgement—Code of Civil Procedure 0. 23, R.I.if applicable—-Applicability of ss. 109 and 110 of the Representation of the PeopleAct, 1951. HELD (refusing leave for withdrawal of the appeal and referringthe application to the Tribunal) : The withdrawal of the appeal amounts towithdrawal of the election petition and if the withdrawal is to be permitted,the procedure prescribed under ss. 109 and 110 of the Act must be followed,

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The withdrawal application can be investigated into by the High Courtas also by the Tribunal. As the elaborate procedure prescribed by the Act hasto be followed and evidence taken, the Tribunal would be the most appropriateforum to consider the application. It cannot be said that 0. 23, R.\. of the Codeof Civil Procedure does not apply to proceedings before the Tribunals but onlyto those before the High Court. Otherwise no withdrawal application would befiled before the Tribunal and would be reserved to be filed at the appellate stagewhen under 0. 23, R.I. the petitioner would be entitledjto withdraw as a matter ofright. Mallappa Basappa v. Basavaraj Ayyappa A.I.E. 1958 S.C. 698; T. K.Gangi Reddi v. M.C. Anjanaya Reddi, 22 E.L.R. 261; Veluswami v. RajaNainar A.I.R. 1959 S.C. 422; Nachiappa v. Subramaniam A.I.R. 1960 S.C.307; Proms Ch. Poddar v. Kasi Vishwanadham- A.I.E. 1961 Cutt. 416;Shiv Dayal v. Teg Ram 6 E.L.E. 347; referred to.—SATRUGHNA SAHUv. BIJOYNANDA PATNAIK AND OTHERS, 23 E.L.R. 265.

—Appeal under .•>. 116-A—Withdrawal of Appeal—Whether principlesanalogous to ss. 109 and 110 apply an analogy of absolute right of withdrawalunder Order XXIII, Rule (1), C.P.C., applies—The appellant's election waschallenged by an election petition filed by the first respondent, but the petitionwas dismissed by the Tribunal on the preliminary ground that; it did not complywith the provisions of s. 82 of the Act.

The first Respondent thereafter went in appeal to the High Court of Orissaand a day before the judgment in the appeal was due to be delivered, he filedan application for withdrawal of his appeal. The High Court, applying theprinciples contained in sections 109 and 110 refused permission for withdrawalof the appeal but kept the application alive for disposal of the question of with-drawal of the election petition by the Tribunal. It also set aside the orderof the tribunal dismissing the election petition and the petition was remandedfor disposal according to law.

The appellant, who had. supported the application for withdrawal, appealedto the Supreme Court by special leave against the High Court's refusal ofpermission to withdraw the appeal. HELD: The High Court was wrong inimporting the principles of ss. 109 and 110 in deciding the question whetherit should grant permission for the withdrawal of the appeal. These sections dealwith the withdrawal of election petitions and do not apply to an appeal unders. 116-A. The power of the High Court under section 116-A(2) when hearingan appeal from an election petition is the same as its power when hearing anappeal from an original decree, and the procedure is also the same, for there isno express provision to the contrary in the matter of withdrawal of an appealin the Act. Therefore when an appellant under section 116-A makes an applica-tion for an unconditional withdrawal of the appeal, the power of the High Courtconsistently with its power in an appeal from an original decree, is to allow suchwithdrawal, and it cannot say that it will not permit the appeal to be with-drawn. Kalyan Singh v. Rahnu, I.L.R. (1901) 23, All. 133; Kanhaya Lai v.Pratap Chand, (1931) 29 A.L.J. 232; Dhondo Narayan Shiralhar v. AnnajiPandurang Kokatnur, I.L.R. (1939) Bom. 66 referred to.—BIJAYANANDAPATNAIK v. SATRUGHNA SAHU AND ORS. 24 E.L.R. 219. ., ,, , v

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—Sections 109, 110—Scope of—Election Petition, withdrawal of—Dis-cretion of Court when to be exercised—Code of Civil Procedure—applicability of.HELD: (i) The procedure applicable to election petitions in respect of with-drawal and abatement has been specially laid down in the Act itself and tothat extent the Act is a complete code and no reference can be made in thisrespect to the provisions of the Civil Procedure Code.

(ii) Although provision has been made for cases of abatement of peti-tions and also for cases of the petitioner withdrawing from the petition forsomebody to be substituted in his place, there is no provision in the Actwhere the petitioner just does not take any interest and allows the peti-tion to be dismissed in default of prosecution.

(iii) Section 109 clearly indicates that the Court has to exercise its judi-cial discretion in refusing or granting leave. This discretion is fettered tothe extent indicated in sub-sections (1) and (2) of section 110. Sub-sections(1) and (2) of section 110 only enumerate two cases in which the applica-tion for leave to withdraw must necessarily be dismissed. However, there•s nothing either in s. 110 or any other provision of the Act which fetters the•udicial discretion of the Court to disallow such an application if the circums-tances so warrant.

(iv) In the present case the petitioner had not taken reasonable interestin the prosecution of the petition. The application had obviously been madeto escape the result of the default of the petitioner and to get some one elsesubstituted who would get another opportunity to lead evidence which thepetitioner had lost by his default.

Bijayanand Patnaih v. Satrughan Sahu, A.I.E.. 1963 S.C. 1566; InamatiMallappa Basappa v. Desai Basvaraj Ayyapa & Ors. 14 E.L.R. 296; ShivDayal and Ors. v. Teg Ram 6 E.L.R. 346; Lyallpur and Jhang General Constitu-ency case, 1938; reported in Sen and Poddar's 'Indian Election cases' at p. 504;Darbhanga North-East case, Hammond's Reports of Indian Election Petitions,1920, Vol. 1, p. 93; referred to.

Jagan Naili v. Jaswant Singh, A.I.R. 1954 S.C. 210 distinguished.

Per Grover J:

(i) There is no distinct provision in the Act laying down any particularor special procedure which is to be followed when the petitioner chooses tocommit default either in appearance or in production of evidence or generallyin prosecuting the petition. The provisions of the Code of Civil Procedure wouldbe applicable under s. 87 of the Act. Any argument that the inherent powersof the court could not be exercised in such circumstances would be of no avail&s the High Court is a Court of Record and possess all the inherent powers of acourt while trying election petitions.

A significant anomally is that where a petitioner has made up his mindfor one reason or the other not to go on with the petition, he can choose toeither file an application for withdrawal of the petition in which event the pro-visions of sections 109 and'110 of the Act would become applicable or he may

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simply choose not to prosecute the petition with the result that the petitionwould have to be dismissed and the procedure which has been laid in sections109 and 110 will not have to be followed.

Dina Nath Kaul v. Election Tribunal, A.I.R. 1960 J & K 25; SawaliaBehari Lai v. Tribihr Deo Narain Singh, A.I.R. 1965 Pat. 378; SunderlalMannalal v. Nandramdas Dwarhdas, A.I.R. 1958 M.L. 250; Brijmohan Lai v.Election Tribunal, A.I.R. 1965 All 450; Vishwanaih Prasad v. Malhhan SinghSharma, A.I.R. 1964 AH 181; referred to.—JUGdL KISHORE v. Dr. BALDEVPARKASH, 30 E.L.R. 277.

—•—Ss. 109,110 and 111—Petitioner seeking dismissal of election petition onground he was not pressing it—if prayer can be allowed without complying withrequirements of ss. 109 to 111. IIELD: After an election petition challenging therespondent's election had been admitted and notice issued to him, the petitionerfiled an application praying the petition be dismissed as he was not pressingit. It was contended that the application did not amount to withdrawal of theelection petition and it was therefore not necessary to follow the procedureprescribed under sections 109,110 and 111.

The application foi dismissal of the petition in the present case was in effectan application for withdrawal under s. 109 and compliance with provisions ofsections 109 to 111 was therefore essential.—K. SANGAMESWARA REDDYv. A. RAMACHANDRA REDDY, 32 E.L.R. 66.

(9) GROUNDS FOB SETTING ASIDE ELECTION.—•

— 8 s . 83, 100, 101 (d), 111—Representation of the People Act Conduct ofElections and Election Petitions Rules, 1956, r. 138— Whether election can bechallenged by petition on ground of miscount—although no objection raised at timeof counting—whether necessary to give particulars of errors in counting -powerof tribunal to order production of ballot papers.—(1) An election petition on theground of mis- count of ballot papers can always be entertained under s. 100(l)(d)(iv). The provisions in the rules relating to recount cannot control ss. 83,100 and 101, or override them. Champa Devi v. Jamuna Prasad. 15 E.L.R.443; distinguished.

The particulars that are required under s. 83(l)(b) are of a corrupt praoticaand not of other grounds.

Harish Chandra v. Triloki Singh, AIR 1957 S.C. 444; referred to.In the present case, the first respondent gave all the "material facts"

as required under s. 83(l)(a) which were necessary for the purpose of showingthat he had a cause for challenging the appellant's election, the grounds onwhich it was sought to be set aside, and his right to present the petition. Thepetition prima facie made out a cause to suspect the original counting. It couldnot therefore be said that the enquiry held by the Tribunal was a roving in-quisition. Lahshumanayya v. Rajam Ayyar, AIR 1930 Madras 195: Seshaiahr. Koti Reddi, 3 E.L.R. 39; The Punjab North Case; Hammond's Election Case569: Stepney Division. Tower Hamlets Case,(1886) 4 N. & H. 34, at p. 50, 51, refer-red to.

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;•: On the evidence, there was no force in the allegation that the ballotpaper was tampered with. Rule 138 expressly provides that ballot papers canbe opened and their contents inspected under the order of a competent Court orTribunal. It does not require that the physical custody of the ballot papersshould always be with the Returning Officer.

Satish Chandra v. Saiish Kantha, AIR 1925, P.O. 73: referred to.—KBSHAO PRA.SAD v. A.D. M4NI AND OTHERS, 23 E.L.R. 171.

•$. 100(1)((7)—Andkra Pradesh and Madras (Alteration of boundariesAct) 1959—Act-coming into force after notification of election and receipt ofnomination—New area added to the constituency adding new voters who voted at theelection—whether result materially affected—validity of the election. ReturningOfficer, Omission or Commission by—when vitiates election. HELD : Beforean election can be set aside, it must be shown that the result of the electionhas been affected in any manner that can be demonstrated. In the present casethe identity of the "constituency" as defined under the relevant provisions oflaw had been throughout preserved; all that had happened was a localrevision of the area of one unit of the constituency which brought in twentysix more electors who were permitted to participate in the poll. I t cannot belegitimately conjectured that any of these electors or some of them wouldhave stood for the election as candidates had they been permitted to do soby fixing a fresh period for receipt of nominations after the coming into forceof the Act. The possible conduct of other persons cannot be speculated upon;nor was this a proceeding challenging the election by one of such persons.—RANGANATHA NAYAR A.G. v. K. KAMALA KANAN AND OTHERS23 E.L.R. 392.

—S. lOO(l){d)(iv)—Candidate receiving votes at election—Subsequently founddisqualified—Before election can be set aside it must be proved that all votes whichwent to such candidate would have gone to defeated candidate. HELD: In orderthat an election should, be set aside the terms of s. 100 (l)(d)(iv) must be properlycomplied with and for this purpose it is incumbent on the petitionerto produce sufficient evidence to show that all the votes wasted would have beenacquired by the defeated candidates. In the present case there was no evidenceto show that all the votes that went to the third respondent would have goneto the first respondent.

Durga Shankar Mehta v. Raghuraj Singh and others, A.I.R. 1954 S. 520,S.N.Banerji v. Sri Krishan Agarwala A.I.R. 1960 S.C. 368; Vashisht NarainSharma o. Dev Chandra and others A.I.R. 1955 S.C. 513; and Hari VishnuKamathv. Ahmad Ishaque and others, A.I.R. 1955 S. C. 233, relied or,.SALIGRAM v. GOVTNDRAO AND 3 ORS. 27 B.L.R. 123.

Ss. 62 & 100 (l)(d) (iii)—Person below 21 years registered as voter andvoting at election.—-Vote whether void. HELD : S. 62 (1) of the Act of 1951 confersthe right of vote on every person whose name is for the time being entered on

1S5

the electoral roll of any constituency, and sub-ss. (2) to (5) are clearly in the natureof exceptions to the right conferred by sub-s. (1). It is significant that there isnothing in s. 62 to justify the view that the vote of a person whose name was onthe electoral roll of the constituency shall be liable to challenge if at the hearingof the election petition it could be shown that he had not attained the age of21 years on the qualifying date. S. 62 is on the face of it comprehensive in itsscope. If the vote of a person whose name is entered on the electoral rolls butwho was less than 21 years of age on the qualifying date was also to be heldvoid there is no reason why a provision similar to sub-ss. (2) (3) or (4) of s.62 could not have been added to that section as an exception to the right to votegiven by sub-s. (1).

The scheme of the Representation of the People Act, 1950 is that if aperson fulfils the conditions of registration as given in s. 19 and is not disquali-fied for registration under s. 16 and is also not shut out from registration by theprovisions of s. 17 and s. 18, he has a right to have his name on the electoralrolls of the constituency. There are ample provisions for making a challenge tothat entry. But the final date for making the amendment, transposition, ordeletion of entries in the electoral roll is the last day for making nominations foran election in that constituency. So far therefore as the two Acts of 1951 and1950 are concerned the position appears to be that after the electoral rolls havebeen finalised the vote of a person whose name is on the electoral roll cannotbe challenged as being void on the ground that he was under 21 years of ageon the qualifying date. Otherwise the elaborate provisions of the 1950 Actfor registration of names on the electoral rolls, for their revision and for cor-rection of certain entries in them 'would be rendered futile.—ROOP LALMEHTA v. DHAN SINGH, 29 E.L.R. 113.

(10) BURDEN OF PROOF

S. 123—Corrupt Practices-^-Standard of proof—Dharmahanta, whethera religious symbol. HELD : (i) The trial in an election petition in relation tocorrupt practices is quasi-criminal in nature and the standard of proofrequired to establish them is the same as in criminal cases, so that they have tobe established beyond reasonable doubt. On the facts the pamphlets whichwere shown to be issued by the first respondent or his supporters were harm-less in nature. Neither through the pamphlets nor otherwise was it proved thatthe first respondent carried on communal propaganda against the thirdrespondent or attacked his personal charater or conduct.—Harish ChandraBajpaiv. Trilohi Singh 12 E.L.R. 461: Narasimha Reddyv. Bhoomaji 17 E.L.R.207; Inayatullah Khan v. Diwanchand. Mahajan & Ors 15 E.L.R. 219 (M.P.): V.B.Raju v. V. Ram Chandra Rao 21 E.L.A. I.A.P.; S. Kandaswami v. S.B. Adityan21 E.L.R. 435, (Mad); Braj Bhushan v.Raja Anand Shah, I.L.R. 1960-2 All. 146.—SHANKAR RAJA & ANR. v. M. RAMREDDY & ORS. 26 E.L.R. 252.

——-Accomplices, E-Didence of—Corrupt Practice—Standard of Proofrequired.—See CORRUPT PRACTICE—GENERAL PRINCIPLES—SHRIRAJ DEB v. J3HRI GANGADHAR MOHAPATRA AND OTHERS23 E.L.R. 283.

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'Disqualification on account of age, whether a corrupt practice—Standardof proof—See DISQUALIFICATION OF CANDIDATE- AGE.- MANOHARNAIK v. BINODE BEHAEI BARIHA 23 E.L.R. 379.

Code of Civil Procedure, 1908, 0-41, R. 27—Election Petition—additional evidence taken by High Court at appeal stage—effect of —Whether per-missible.—(See UNDER HIGH COURTS).—VENKATAR AMI AH K. v.SEETHARAMA REDDY & ORS., 24 E.L.R. 42.

-Handwriting expert's view—-Evidence—value of. HELD : Comparisonof handwriting, unlike the case of comparison of finger prints, can at bestprovide a tentative method of judging the authorship of the signature. The safecourse is to test such a comparison with the surrounding circumstances andthe probabilities.—CHIRANJEEVELU NAIDU,C.v. E.S. THYAGARAJAN25 E.L.R. 201.

Burden of Proof—when shifts—See corrupt Practice (4) Publishing FalseStatements. - BHANWAR LAL v. HARIPRASAD, 25 E.L.R. 365.

—•—Evidence—Election Petition—Standard of proof necessary where petitioncontains allegations which might constitute criminal offence. On appeal,the H ^ h Court. HELD: Where what might constitute aeriminal offence has to be proved as relevant in a civil proceeding,may well be upon a preponderence of probability; proof beyondreasonable doubt need not be insisted on. Further, there iscertainly a shifting of the onus to the opposite party, where the facts arestrong enough to justify the inference of a clear prima facie case. Again i t istrue that particularly in an election case, where the purity of the electoralprocess is the prime consideration, the respondent, namely the successfulcandidate is not without his obligations. Where a grave averment like theimpersonation of a dead or an absent voter is alleged, mere suspicion or con-jecture or hazy evidence will not do. In dealing with an appeal under s. 116of the Representation of People Act, findings of fact recorded by the tribunalon an appreciation of oral evidence are entitled to great respect. A merepossible contrary view would not justify the court in coming to an oppositeconclusion. Election is essentially a part of the democratic process and courtsare also custodians of the purity of that process. Such considerations willhave no relevance where it is not a corrupt practice per se which vitiates theelection but the invalidity of certain votes; it mint then be established thatthe result has been materially affected; otherwise the courts arepowerless to interfere. Muthiat Chetti v. Sa. Ganesan, XXI E.L.R. 215; V.B.Baju v. Rtmchandra Rao and Ors. XXI E. L.R. 1; Sudhansu Sehhar Ghose v.Satyendra Nath Basu, IV E.L.R. 73 at 88; Abdul Roug v. MaJchtar Alt I I E . I .R. 340 at 346; Homal v. Neuberger Products Ltd. 1956 (3) All, E.R. 970; Lek.r'.Mathewrs (1927) 29 Lloydi Rep. 141; Cooper v. Slide, 1858 6 H.L. case 746Bater v. Bater (1950) 2 All E.R. 458; Narayan v. Gopal A.I. R. 1960 S.C. 100;Parsanaih v. Mohni Dai A. I. R. 1959 S.C. 1204; Nirmal Kumor v. Sant Lai

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A.I.R. 1937, Patna 562 M.M.B. CatMolicos v. I. Paulo Avira A.I.R. 1959 S.C.31; Jamuna Prasad Singh v. Shri Ram Nivasetc. XVII E.L.R.145 (S.C), Wattv. Thomas, 1947 A.C. 184 at 486; Benmaz v. Austin Motor Co. Ltd. 1955 (1)All E.R. 326; Sarju Pershad v. Jawileswari A.I.R. 1951 S.C. 120; Radha PrasadSingh v. Rajadhar Singh A.I.R. 196—S.C. 114; Prem Singh v. Dev Singh A.I.R.1948 P.C. 20; Veeraswami v. Tallun Narayana A.I.R. 1949 P.C. 32 JamunaPrasad v. Shri Ram Nivasa and Ors; A.I.R. 1959 M.P. 226; Jagannaih v. Jas-want Singh and Ors.IX, E.L.R. 231 Sadhu Singh v. Shamsher A.I.R. 1965Punjab 48; referred to—G. VAGEESAM PILLAI v. M.R. KRISHNAMUR-THI PADAYACHI & ORS.. 27 E.L.R. 47.

Indian Evidence Act ss. 35, 63, 65 and 81—Secondary evidence asto leaflets distributed, when admissible—Presumption as to genuineness of news-papers. (See Election Petition—General Principles) VISHWANATH PRASADv. SALAMATULLAHAND ORS. 27 E.L.R. 145.

Standard of proof—Desirability of examining witnesses of same inci-dent on same day. —(See—Corrupt Practice—Publishing false statement).—KISHORE SINGH v. BHANWARLAL NAHTA AND ORS. 27 E.L.R. 243.

—Burden of proving for purpose ofs. 100 (1) (d) (iv) that result of election mat-erially affected by non-compliance with the provision of Act, 1951—HELD : Theelection of a returned candidate cannot be declared void under s. 100 (1) (d)(iv) of the Representation of the People Act unless the petitioners affirmativelyestablish that the result of the election in so far as the returned candidate wasconcerned had been materially affected by any non-compliance with tlie pre-visions of the Constitution or the Act or any of the rules or orders made there-under. The requirement may be onerous but it has to be discharged, and in theinstant case there was no good or adequate evidence to hold that it had beensufficiently discharged.—HARIRAMSINGH v. KAMTA PRASAD SHARMA,28 E.L.R. 44.

Ss. 80, 87, 100(i) (b) l(d) (ii), 123—Corrupt practice —Burden of proof;HELD :

On the evidence, the Petitioner had not discharged his burden of provin^the corrupt practices alleged.

Sheopat Singh V. Ram Partap, A.I.R. 1965 S.C. 677; Gangi Reddy v< Anja-neya Reddi, 22 E.L.R. 261; referred to. As in criminal cases, so also in electionpro6eedings the case of the petitioner must stand or fall on its own legs andcan derive little sustenance from the weakness in the defence set up by therespondent. If reasonable doubt exists as to the case of the petitioner, thebenefit of that reasonable doubt must go to the returned candidate.

Badri Narain v. Kamdeo, A.I.R. 1961 Patna: 41; referred to.

The proceedings for setting aside the election of a returned candidatebeing highly penal in nature, the appreciation of evidence has to follow theprinciples laid down criminal trials,

M/J(D)121EC—13

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Harish Chandra v. Tirlohi Singh, A.I.R. 1957 S.C. 444; Jagdev Singh v.Pratap Singh, A.I.R. 1965 S.C. 183;'referred to.

The principles stated in illustration (b) under section 114 of the EvidenceAct, that an accomplice is unworthy of credit, unless corroborated in materialparticulars, will apply for appreciating the evidence both of the bribe-giver aswell as the bribe-taker in an election petition. This is a rule of prudence whichhas found universal acceptance and has to be adopted except where the cir-cumstances make it safe to dispense with it.

Mohan Singh v. Banwari Lai A.I.R. 1964 S.C. 1366; Subha Rao v. K.B-Reddy, A.I.R. 1967, A.P. 155; Rameshwar Kalyan Singh v. State of RajasthanA.I.R. 1952 S.C. 54; referred to—NATARAJAN T. «. D. VIJAYARAJ ANDOTHERS, 30 E.L.R. 322.

—'Election trials—Standard of Proof : HELD: The standard of proof re-quired for establishing corrupt practice under election law is the same as thatrequired to establish a criminal offence.

Mohan Singh v. Bhanwarlal, A.I.R. 1964, S.C. 1366: Jagdev Singh v. PratapSingh A.I.R. 1965, S.C. 185 : Harish Chandra v. TriloU Singh, A.I.R. 1957S.C. 444 (456); referred to.—K. GOVINDA BHAT v. D. VITTALDASSHETTY, 30 E.L.R. 382.

—•—Proof of —allegations of threatened violence—-Failure of plea of alibiby defence—whether presumption in favour of petitioner : HELD : In regard toallegations of various instances of corrupt practices, the petitioner has to provethem by cogent and reliable evidence beyond any reasonable doubt, and notby mere preponderance of probability.

Jagdev Singh v. Pratap Singh A.I.R. 1965, S.C. 183; Sheopat Singh r.Ram Pratap, A.I.R. 1965, S.C. 677; referred to.—KHADER SHERIFF S. v.ABDUL GAFOOR SAHIB AND OTHERS. 30 E.L.R, 401.

—>—SS. 100 and 123—Corrupt practice—Evidence of the respondent andthat ofhiswitnessess— -Whether, petitioners entitled to rely on part of that evidenceby way of assurance in their favour—Partisan witnesses —Tests—Credibilityof evidence—Evidence beyond and in excess of pleadings—-Admissibility of —Code of Civil Procedure, 1908—Witnesses without summons—Evidence—Whetheradmissible. Petitioner No. 1, a defeated candidate, challenged the election ofthe first respondent to the Maharashtra State Assembly on the grounds ofcorrupt practices. Petitioner No. 2 was an elector from the constituency.The main grounds alleged in the petition were that the returned candidatehad incurred expenditure in excess of the authorised limit of Rs. 8000, bribery,exhortion of voters on grounds of race, caste or community; publishing anddistributing pamphlets appealing in the name of religion of Budha, issuingstatements and making false and defamatory allegations believing them to befalse; providing free transport for voters and procuring assistance of Govern-ment servants. HELD : On the facts, all the allegations in the petition were notproved as the evidence produced was not sufficient, reliable or corroborated

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and lacked necessary decumentary support; it had not been proved that therespondent had committed any of the corrupt practices under section 123 ofthe Act.

Mohansingh v. Bhanwarlal, A.I.R. 1964 S.C. 1366; Jagdev v. Pratap SinghA.I.R. 1965 S.C. 183; Jag jit Singh v. Kartar Singh, A.I.R. 1966, S.C. 773; Ku-mara Nand v. Brijimohanlal Sharma, A.I.R. 1967, S.C. 808; Quinn v. Leathern,1901 A.C. 495; Dalip Singh v. State of Punjab, A.I.R. 1953, S.C. 364, Masaltiv. State of Uttar Pradesh, A.I.R. 1965, S.C. 202; Siddih Mohamed Shah v. Mst.Saran, A.I.R. 1930, P.C. 57; Nagubhai v. Shama Rao, A.I.R. 1956, S.C.598;Murugesan Pillai v. Ganga Sambandha Pandara Sannadhi, A.I.R. 1917, P.C.6; Hiralal v. Badkulal, A.I.R. 1933, S.C. 225; referred to.

The test to be applied in scrutinising the evidence with regard to allegedcorrupt practices in an election matter under section 123 of the Act are the sameas in a criminal trial.

. . • , , - ' ' • ' - • •

If there were statements in the evidence of the respondent and hia witnesseswhich supported the evidence of the petitioners, the petitioners would be en-titled to rely on the part of the evidence of the respondent, but that would benot by way of preponderance of probabilities, but by way of assurance to theevidence adduced by the petitioners.

The evidence of a witness will certainly not be discarded merely becausehe is related and unless it were to be shown that it springs from sources whichare likely to be tainted. Unless it is shown that he had reasons to falsely impli-cate the accused it would not be permissible to discard his testimony if it isotherwise found to be probable and reliable.

The normal and usual test of determining the credibility of evidence willhave to be applied while considering the evidence of witnesses who are charac-terised as partisans.

Evidence with reference to several matters which are beyond and in excessof the pleadings will have to be treated as inadmissible and cannot be made thefoundation for decision on those matters.

Under the provisions of Order 16 of the Code of Civil Procedure the evi-dence of witnesses who had appeared in Court without summons will have tobe considered on its own merits.—JAGANNATH AND ANOTHER «. NAR-AYAN AND ANOTHER, 31 E.L.R. 223.

• • -S. 123 (b)—Burden of proof—Petitioner's failure to prove the charge ofcorrupt practice on the plea that the facts were within the knowledge of the respon-dent—-Whether the burden shifts to respondent-Corrupt practice alleged under Sub-section (6) of Section 123—Whether proof necessary that excess expenditure incurredwith the consent of the respondent or his agent—Meaning of expressions "autho-rised" and "consent" in section 123 (6)—'Held : The petitioner could not plead thatit was not possible for him to prove and discharge his burden of proof on theground that the facts were with the paity organisation of the first respondentand that the facts were withiu hie special knowledge and therefore the burden

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had shifted on to the first respondent. Such reasoning cannot lie in the mouthof a person trying to establish a charge of corrupt practice. Difficulty of proofis no ground to be considered in a proceeding of a quasi-criminal nature. Thepetitioner must prove or he fails. Jagdev Singh v. Pratap Singh, A.I.E. 1965S.C. 183, referred to. Under sub-section 6 of section 123 of the Act, even if thecorrupt practice is established the election of the first respondent cannot bedeclared void under section 100(1) (b), unless it is proved that he incurredexpenditure beyond the prescribed limit himself or through his election agent,or by any other persons with his or his agent's consent. The most reasonabledifferentiation that can be thought of between the two expressions"authorised"and 'consent' in section 123 (b) is that "authorisation" implies the right toauthorise expenditure on his behalf with the result of pecuniary liability. Whilewith regard to the expression "consent" there does not arise by necessary im-plication any such pecuniary liability. He merely agrees when he consentsthat nothing may be done and raises no objection to its being done. Bymerely so consenting, no pecuniary liability by any necessary implicationfollows. G.Vasantha Pai, v. Srinivasan, XXII B.L.E. 221 ;Narasimhan v. M.G.Natesan Chettiar XX E.L.R. I. Muihia Chettiar v. Saw, Ganesan, XXI E.L.E.215; Sheopatsingh v. Jorsang, XVIII E.L.R. 100 referred to.—NARSINABHAIKARSANBHAI MAKWANA v. JESINGBHAI GOVINDBHAI PARMAR& ANR, 32 E.L.R. 152.

—(u) MISCELLANEOUS MATTERS—Incorrect listof polling stations supp-lied to candidates by Returning Officer—whether result of election materially affected.Held : The question as to whether the result of an election has been materially, affected or not is not a matter on which any conjecture is permissible. That in-gredient, without the proof of which no court or Election Tribunal can set asidean election, has to be established by clear and sufficient evidence. No one andparticularly a candidate standing for election to the House of the People couldever be heard to contend that he was misled by an incorrect list of pollingstations, when the Delimitation of Parliamentary and Assembly constituenciesOrder, 1956 which had statutory force, had itself determined the extent of theconstituency authoritatively many months before the election started. VaishtNarain Sharma v. Dev Chandra <& Ors. A.I.R. 1954 S.C. 513 ; Ran VishnuKamath v. Ahmed Ishaque & Ors. A.I.R. 1955 S.C. 233; referred to.—SANGAPPA v. 8HIVAMURTHISWAMY. 23 E.L.R. 51.

—Costs in election petition—whether appeal court should interfere.—Held : Thequestion of awarding costs is, generally speaking a matter left to the discretionof the court and unless such discretion has been exercised arbitrarily orcontrary to well-recognised principles, it is not open to the appellate court tointerfere with it— RAM PHAL v. BRAHAM PRAKASH AND OTHERS, 23E.L.R. 9'2.

—vSs 90, 98, 99, 114, 115, 116-4 and 117'—Petitioner dying after filingthe elefion petition—Another Person's application for substitution dismissedfor non 'Compliance with S. 11/'-^-Whether appeal lay from dismissal order under S,W4

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After an election petition had been filed before the Tribunal, the petitionerdied and the Tribunal declared the petition to have abated and ordered thenotice of abatement to be published in the Official Gazette under S. 114 of theAct. The appellant thereafter applied to be substituted in place of the originalpetitioner. This application was contested on the ground that as the TreasuryChallan showing the deposit by the appellant of an amount of Rs. 2,000 wasnot a receipt within the meaning of S. 117, the application was liable to be dis-missed for non-compliance with the requirements of S. 117, and thereforeS. 115. This contention was upheld by the Tribunal and the applicationdismissed.

In the appeal to the High Court it was contended by the respondents thatno appeal lay to the High Court under S. 116-A from the dismissal order of theTribunal.

Held : The order impugned in the Appeal did not attract the provisions ofS. 99 or even S. 98 (a) and was not, therefore, appealable under S. 116-A.

If the application for substitution had been allowed and the appellantsubstituted as the petitioner under S. 115, it could be said that the abatedproceedings would have revived and could be continued by the substitutedpetitioner. But that event had not taken place in the present case and therewas, therefore, no question of an election petition having been before theTribunal much less of an election petition being dismissed by the Tribunalfrom which an appeal under S. 116-A could lie.

(However, the Court permitted the appellant, if he so wished, to amendthe memorandum of appeal and convert the proceedings into writ proceedingsunder Article 227 of the Constitution or revision proceedings under S. 115of the Code of Civil Procedure.)

Harish Chandra v. Trilolci Singh, 12 E.L.R. 461 ; Chandriha Prasad v.Shiv Prasad, 21 E.L.R. 172 ; referred to—VITHALRAO RAJARAM HINGWEv. M. K. JOSHI, ELECTION TRIBUNAL, WARDHA & ORS., 24 E.L.R. 83.

—-—-Ss. 80,5,7, 81(3), 90(3)—Copies of election petition containing only peti-tioner's signature but no attestation that they were true copies—Whether subs-tantial compliance with s. 81(3).—The appellant, a voter in the Constituencychallenged the 3rd respondent's election to the Andhra Pradesh LegislativeAssembly in 1962 on various grounds including the commission of corruptpractices. Although the petition was accompanied by the required number ofcopies each of which was a true copy and bore a signature of the petitionerthere was no attestation on the copies to the effect that they were true copies.After the Tribunal had rejected the 3rd respondent's various preliminary,objections, he filed a writ petition in the High Court to quash the Tribunal's,order. It was contended by him that the copies were not true copies withinthe meaning of s. 81(3) and the election petition was therefore liable to be dis-missed under s. 90(3). The High Court allowed the writ petition. HELD:There was substantial compliance with the requirements of s. 81(3) in the peti-tion that was filed by the appellant and the High Court was in error in directing

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dismissal of the petition. In the present case there was no compelling necessityto hold that the signature on the copies were merely intended to be a copy ofthose on the original to spell out a non compliance with s. 81(3), since a signa-ture in original was not needed on the copy and a writing copying out the nameof the signatory would suffice.

HELD also : When s. 81(3) requires an election petition to be accompaniedby the requisite number of copies, it becomes a requirement for the presenta-tion of the election peitition to the commission and therefore a condition prece-dent for the proper presentation of an election petition. If there is a total orcomplete non-compliance with the provisions of s. 81(3), the election petitionmight not be "an election petition presented in accordance with the provisionsof the part" within s. 80 of the Act.

Notseworthy v. Overseers Buckland etc., L.R. 9 C.P. 233 and Spice v. Bacon,L.R. 2 Ex. D. 463; distinguished.

Murarha v. Roop Singh (ISM) 3 S.C.R. 573 and Kamaraj Nadar v.KunjnThevar, (1959) S.G.R. 583; referred to—OH. SUBHARAO v. MEMBER, ELEC-TION TRIBUNAL, HYDERABAD & Ors. 26 E.L.R. (S.C.) 1.

Section 120 an amended by Act 40 of 1961—award of costs where a petitionis dismissed under Section 98 (a)—In view of the proviso added to sec. 120 bythe Representation of the People (Amendment) Act, 40 of 1961 where a petitionis dismissed under clause (a) of Section 98 the returned candidate is entitled tothe costs incurred by him in contesting the petition before the election Tribunal.However, the High Court is free to make an appropriate order as to costs incurr-ed in the appeal.

Ram Sewalc Yadav v. Hussain Kamil Kidwai (1964) 6 S.C.R. 238 JobarSingh v. Genda Lai (1964) 6 S.C.R. 54 ; Giani Kartar Singh v. Jagjit Singh(first Appeal from Order No. 3E of 1964); N. Pethu Reddiar v. V. A. MuthiahAIR 1963 Mad. 390; Adamala Mohan Reddy v. Angu Narayana Reddy A.I.R.1964 AP 190; referred to.—MADHU SINGH v. RAM SARAN CHANDMITTAL AND OTHERS 27 E.L.R. 11.

S. 120—Costs on dismissal of election petition—It is obligatory on theTribunal under s. 120 of the Representation of the People Act to make an orderas to costs in favour of the returned candidate if the petition against himis dismissed .The respondent in the present case was therefore entitled to costsand it was not correct on the part of the Tribunal not to award them.—KHONGHPHAI A.S. v. STANLY D.D. NICHOLS ROY & ANR. 27E.L.R. 196.

s. 90—Elected candidate resigning seat during pendency of petition-Tribunal whether can proceed with trial of petition—Election Commission whethermust be impleaded—Code of Civil Procedure, s. 151. HELD : (i) In proceedingwith the petition the Tribunal would not be encroaching upon the field of theLegislature.

Ponnusami«. Returning Officer, NamaJchal, A.I.R. 1952, S.C. 64; relied on.

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(M) There is no section in the Representation of the People Act whichsays that on the resignation of a member of a constituency, an election petitionagainst the member would automatically come to an end. The proceedings inan election petition are for the benefit of the whole constituency and thereforemust be kept going. Charges of corrupt practice against a member can resultin disqualification from a future election and he cannot be allowed to escapethe consequences by withdrawing from the scene. Again the Tribunal has aduty arising from ss. 82 and 99.of the Act to give findings in respect of allega-tions of corrupt practice against candidates other than the returned candidate.Further the petitioner had prayed that he be declared elected to the Assemblyin case his allegations were proved he could not be deprived of this right merelybecause the respondent had resigned. In the result the prayer for with—holdingthe trial of the petition had to be rejected. In this view of the matter it wasalso not necessary to implead the Election Commission as a party to the petition.

Basappa v. Ayyappa A.I.R. 1958 S.C. 953. Jagan Nath v. Jaswant SinghA.I.R. 1954 S.C. 210, Bihhaji Keshav v. Briflal Nandlal . A.I.R. 1955S.C. 610, Dr. John v. Vasant Pai II E.L.R. 278: Harish Chandra v. TrilohiSingh, A.I.R. 1957 S.& 444, Sucheta Kriplani v. S.S. Dulat A.I.R.1955 S.C. 758, Hafiz Ibrahim v. Election Tribunal, Luchnow A.I.R. 1957 All393: Veluswami v. Raja Nainar, A.I.R. 1959 S.C. 422, Hodge v. The Queen 9A.C. 117; Narayan Yeshwant v. Rajaram A.I.R. 1961 Bom. 21, RajhrishnaBose v. Binod Kanugo A.I.R. 1954 S.C. 202. referred to.—SANJEEVAIAHD. v. P. RAJARATHNA RAO, 27 E.L.R. 226.

—ss. 36(5) and 100(1) (d) (i)—Scrutiny of nomination papers interruptedfor two hours—S. 36(5) whether contravened—Election when materially affected.—HELD : Even on the assumption that there was an interruption of proceedingsbefore the Returning Officer between 12.15 P. M. to 2 P. M. it was difficut to seehow there had been any contravention of section 36 (5) of the Act. The words'shall not allow any adjournment of the proceedings' quite clearly mean thatno adjournment would be allowed at the request of the parties. If for the pur-pose of deciding a point of law on an objection which is of a complicated naturethe Returning Officer takes a cou pie of hours, that cannot constitute an adjourn-ment of the nature provided for by sub-sections (5) of section 36. The accept-ance of the nomination papers of respondent No. 2 was not rendered void by thesaid postponement. Dahu Sao v. Ranglal Ghaudhary and others (22 E.L.R. 299)Parmeshwar Kumar v. Lahtan Chaudhary (14 E.L.R. 444); applied.—Theessential requirements of s. 100(1) (d) (i) could not be said to have been satisfied,even if it be assumed that the nomination papers of respondent No. 2 had beenimproperly accepted. The petitioner had totally failed to establish that all ormajority of the votes which were polled by respondent No. 2 would have beencast in his favour if the nomination paper of the said respondent had not beenaccepted. The election of a candidate does not depend entirely and completelyupon the community to which he belongs or the party which has put him up.Vashisht Narain Sharma v. Dev Chand (10 ELR 30) Inayatullah Khan v. DiwanGhand Mahajan (15 E.L.R. 219), Raghunath Misra v. Kishore Chandra DeoBhanj (17 E.L.R. 321) applied—KAPUR SINGHS. t. S. DEVINDER SINGHGARCHA AND ANR. 29 E.L.R. 255.

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—•—Awarding of costs when election petition is dismissed—High Court if hasdiscretion—HELD—The High Court has still got the discretion is regard to costseven though the election petition has been dismissed under s. 98 (a). A provisois a subsidiary and dependent part of the statute it may apply to the whole of thesection. There is no rule that the first or enacting part is to be construed withoutreference to the proviso.

Commissioner of Commercial Taxes v. R. S. Thaver 20, S.T.C. 453 referred;—K. T. KOSALEAM v. DR. SANTHOSHAM 32 E.L.E. 69.

ELECTION TRIBUNAL

1. CONSTITUTION

Whether becomes functus officio if it dismisses election petition on a pre-liminary point—Wether can try petition on remand by High Court.—HELD—•There is nothing in the Representation of the People Act to suggest that theParliament intended that a fresh Election Tribunal should be constituted when-ever an election petition is remanded for a fresh decision. On the other handthe express provisions of sections 86 and 89 indicate that Election Tribunalscould not be constituted in circumstances other than those therein mentioned;Expressio Unius Est. Exclusio Alterius. Further an Election Tribunal isconstituted under the provisions of section 86 for the purpose of trying anddeciding an election petition, and the Election Tribunal so constituted remainsin office, subject to s. 89 of the Act, so long as the election petition is not dulyand finally disposed of. So, an election petition which has been erroneouslydismissed on a preliminary point, cannot be regarded as duly disposed of andthe Election Tribunal should be regarded as continuing to hold office for decidingit afresh upon remand.

Hari Vishnu Kamaih V. Syed Ahmed Ishaque 10 E.L.R. 216 ; explained

Ramsivaroop and others V. G. D. Sahgal and others 21, E.L.R. 42 ; followed—AMINCHAND v. PRATAP SINGH AND ORS. 27 E.L.R. 135.

(2) POWERS OF— Whether the tribunal can itself undertake recount and declareanother candidate elected—or whether Returning officer to do so.—HELD : If anelection petition is maintainable on the ground of miscount and the Tribunalhas the power to find out whether there has been a mistake on the part of theReturning Officer in counting, the Tribunal has also the power to do the recount-ing itself and declare the results of the election. Wherein an election petitionfounded on the ground of miscount the applicant prays that he be declaredduly elected on fresh recount, the adjudication whether the petitioner has orhas not been duly elected must be of the Tribunal and not of the Returning3flicer. Renfrew Country Case (1874) 2 O.M. & H. 213; referred to.—KESHAOPRASAD i). A.D. MANI AND OTHERS, 23 E.L.R. 171.

——s. 88—-Place of trial of election ptetion—Tribunal's discretion—Largenumber of witnesses to be examined—Prohibitive expense of carrying them to placeof trial—Tribunal should consider convenience of parties.

Natural Justice—Application of petitioner to hoU trial in his own district—Application must not be rejected without hearing applicant.

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HELD : The order passed on 13-2-1964 was arbitrary and against naturaljustice. Furthermore it did not give any reasons. The order caused pre-judice to the appellant, and had the result that he was prevented from producingmany of his witnesses to prove his case on the various issues framed by the Tri-bunal.

A notice to the appellant before rejecting his application was also necessaryin view of s. 90 of the Act, which makes the Code of Civil Procedure applicableto election petitions.

I t is true that under s. 88 of the Act the Tribunal has discretion to holdthe trial at any place in the State it likes. However, the discretion 'given tothe Tribunal is not to suit the personal convenience of the Tribunal, but hasto be exercised after considering the convenience of the parties. As it is ajudicial discretion, it must be exercised in a proper manner after hearing theparties and giving them reasonable opportunity. Since a Tribunal has no powerto issue a commission for the examination of witnesses residing within the Stateit is all the more necessary to afford a reasonable opportunity to the parties toprove their case by holding the trial at a convenient place.

If, the Appellate Court finds that as a result of some interlocutory orderthe hearing has been unfair to one party, the appellate Court has ample powerundei s. 151 of the Code of Civil Procedure to set aside the decree or orderand to remand the case for further hearing.—SHRI HARI RAJ SINGH v.SHAH NAWAZ KHAN & ANOTHER, 28 B.L.R. 35.

-Art. 326—Whether Election Tribunal is competent to go into questionof age of voter whose name is on the electoral roll—and to exclude vote of minorsfrom count or whether contents of electoral roll are final—Whether right underArt. 216 is to be registered as voter or to vote—(See DISQUALIFICATION OFCANDIDATES—(I) AGE.—KUNHIRAMAN P. v. V. R. KRISHNA IYER,23 E.L.R. 208.

If tribunal should go into controversial questions of fact—when not in thepetition nor covered by issues framed.—(SEE NOMINATION OF CANDIDATES)—NAND KISHORE PRATAP SINGH v. KAUSHALENDRA PD. NARAINSINGH, 23 E.L.R. 244.

Power of Election Tribunal to direct inspection of ballot papers.—Conductof Elections Rules, 1962; whether apply also to Election Petitions or only toconduct of elections—Power of election Tribunal to direct inspection of ballotpapers—'whether r. 92 applies when ballot papers not in custody of ReturningOfficer but of Tribunal—and whether incumbent on Tribunal to itself scrutiniseballot papers in view of allegations where inspection refused. (SEE BALLOTPAPERS)—KIDWAI HUSAIN KAMIL v. YADAV RAM SEWAK ANDORS., 24 E.L.R. 51.

Refusal to change place of trial to suit convenience of petitioner—prejudice whether caused. Held : In the circumstances of the case refusal ofadjournment by the Tribunal was not justified.

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Substantial adverse effect was caused to the petitioner's case by reasonof the fact that the venue was changed from Nagpur to Bhandara.

The application made by the appellant to the Election Commission unders. 89 of the Act requesting a change of venue was rejected without a hearing.The order passed by the Commission was arbitrary. An application madeunder s. 89 requires to be heard.

Section 88 of the Act gives specific liberty to the Tribunal to sit at anyplace in the State. The Tribunal was not justified in refusing to sit at Nagpurmerely because its member was posted as District and Sessions Judge atBhandara.—ARDHANDU BHUSHAN v. SMT. SUSHILA BAI AND ORS.26 E.L.E. 34.

Ss. 88, 89, 90, 110.—Refusal of adjournment of hearing by Tribunal—Petitioner not producing evidence—Situation whether analogous to withdrawalof petition—-s. 110 of Act whether attracted—•Applicability of Code of Civil Pro-cedure—Tribunal whether can dismiss petition in default.

It was contended by the appellant that the Tribunal had no power todismiss the petition for non-prosecution; non-production of evidence by theappellant was analogous to withdrawal of the petition and the Tribunalshould therefore have followed the procedure under s. 110 of the Representa-tion of the People Act;

HELD:(i) The plea that the Tribunal should have followed the procedure under

s. 110 could not be accepted. There is no parity between the two cases, onein which an application for withdrawal is made and the other in which specificgrounds are given why the petitioner is not in a position to prosecute the peti-tion. The procedure provided in s. 110 is on the basis that every voter and can-didate in the constituency is interested in the result of the election. An appli-cation for withdrawal is a clear indication that the petitioner does not wish toprosecute the petition. However on record there are allegations which, ifproved, would disentitle the elected candidate to continue as the elected candi-date for the constituency. In such circumstances any other person who couldhave made the petition is allowed to continue the petition. The same howevercannot be said about a case in which the petitioner states that he is unable toprosecute his case because of certain factors which he places before the Court.Another reason for the procedure provided for in s. 110 is found in sub-s. (2)of the section which lays down that withdrawal of a petition shall not beallowed if it is motivated by a bargain or some consideration. In the presentcase, on the facts, no such opinion could be formed by the Tribunal. Further,under s. 90(1) of the Representation of the People Act, the Code of Civil Pro-cedure is applicable to the trial of election petitions. There being no specialprovision in the Act in respect of the situation as in the present case the Tribu-nal had authority under the Civil Procedure Code to dismiss the petition.

(ii) The Tribunal should have allowed the appellant's last application foradjournment for two moahli<5 in OCJL^C to satisfy its conscience that the mostthat could be done for the petitioner was done by it. There was no rule o

f

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law that prevented, this. The appellant was prevented for really no fault ofhis from prosecuting his petition. Since refusal of adjournment was wrong, theTribunal was also not justified in dismissing the election petition for non-prosecution. '

(iii) Section 96(6) does not lay down an absolute period of six months, butonly mentions that the petition shall be tried as expeditiously as possible. Inthe present case the delay was due to several extraordinary circumstances.So long as the appellant was at liberty he had taken action with diligence,and there was no indication of any mala fideo on his behalf. ARDHANDUBHUSHAN v. SMT. SUSHILA BAI & OTHERS, 26 E.L.R. 34.

-Ss. 117 <& 85—Election petition filed by two persons {security depositp fi y p y pmade by only one of them petition whether maintainable—whether should bedismissed by Election Commission under S. 85—Jurisdiction of Tribunal totry such petition not challenged. (See Election Petition—Deposit of security).—PARTAP SINGH KAIRON S. v. THE ELECTION COMMISSIONER ANDORS. 26 E.L.R. 60.

S. 89—Request by party that tribunal sit at some other place—if Sectionattracted. (See—High Court—).—SMT. DR. SUSHILA BALRAJ v.ARDHENDU BHUSHAN & ORS. 26 E.L.R. (S.C.) 146.

——-Finding recorded by registration officer that a person is citizen of India;his name included in electoral roll—-order whether conclusive—-Election Tribunalwhether can consider if such person suffers from disqualification arising from lackof citizenship. (See—Electoral Roll).—NARAYAN BIKRAM SHAH v. KEDARPANDEY, 26 E.L.R. 200.

(3) CONTEMPT OP THE TRIBUNAL—An application that adecision by it should be reviewed—Whether contempt—Held : A party makingan application to a couit or tribunal, praying that a certain decision by itshould be reviewed or alleging that some questions had remained undecideddoes not constitute contempt of the Court or Tribunal. PANDIT DWARKAPRASAD MISHRA v. KAMAL NARAIN SHARMA & ORS. 26 E.L.R. 269.

—Ss. 90{l) and (3) Dismissal of petition by Tribunal for non-prosecution—Tribunal's power to dismiss for default—Applicability of 0-9 of the Code ofCivil Procedure. HELD: If the petitioner does not take steps to prosecute apetition fixed for hearing, it is the inherent jurisdiction of the Court to dis-miss the election petition. I t is impossible to lay down that even if the peti-tioner chooses not to prosecute a petition or lead evidence, the Tribunalmust go on with the case. Section 90(1) of the Act is sufficiently wide tomake 0 • 9 of the Code of civil Procedure applicable to all election disputesunder the Representation of the People Act. There is no provision in the Actwhich makes 0 • 9 of the Code inapplicable to election cases. Unless there is anyprovision in the Reprerentation of the People Act itself, as is provided for inss. 110 to 116 of the Act, the entire body of the Code of Civil Procedurewould be applicable to election cases. The order of the Tribunal musttherefore be upheld.

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Sunderlal Mannalal v. Nandramdas Dwarhadas and Ors A.I.It. 1958M.P. 260; followed—Inamati Mallappa Basappa v. Desai Basavaraj Ayyap-pa and Ors A.I.E. 1958 S.G. 698 explained. Dina Nath Raul v. Election Tribunal^Jammu and Kashmir and Anr. A.I.E. 1960 J and K 25; K. Kamaraja Nadarv. Kunju fhevar, 'A.I.R. 1968 S.C. 687; Bhuvanesh Bhushan Sharma v. ElectionTribunal Farrukhabad and anr. A.I.R. 1958 All. 587; referred to. SAWALIABEHARI LAL VERMA v. TRIBIKRAM DEO NARAIN SINGH AND ORS.27 E.L.R. 1.

ELECTORAL ROLL

—•—Whether contents of electoral roll are final.—whether Election TribunalCompetent to go into question of age of voter whose name is on the electoral roll—•(See Election Tribunal—Powers)—P. KUNHIRAMAN v. V.R. KRISHNAIYER, 23 E.L.R. 208

——Art. 326—Representation of the People Act 1951, s. 100—Electoral roll—•Allegation of inclusion of non-residents in the Constituency—-If" non-compliancewith the provisions of the Constitution". The petitioner challenged the electionof the respondent on. the ground, inter alia, that the inclusion in the electoralroll of persons who were not ordinarily residents of the constituency, materiallyaffected the result of the election and there was "non-compliance with theprovisions of the Constitution" within the meaning of s. 100 of the Representa-tion of the People Act. He contended that Art. 326 of the Constitution pres-cribed three qualifications for an elector, viz., (i) that he should be a citizen ofIndia, (ii) that he should not be below 21 years of age; and (iii) that he shouldnot be disqualified in ths manner prescribed in the Article. Therefore, it wasargued, that if a person had been entered as an elector in the electroral rollwho did not possess all the three qualifications he was wrongly registered as anelector; that this was non-compliance with the Article, and the question wasone which could be agitated in an election petition before the Tribunal. HELD :Though residence in a particular constituency is a qualification entitling aperson to be registered as an elector, the want of such residential qualificationin a person who is 21 years of age and is a citizen of India does not amount to adisqualification within the meaning of Article 326. The disqualifications men-tioned in the article appear to be in the nature of exceptions to the generalrule that every citizen of India of 21 years of age should have a vote. Further,the expression non-residence in Art, 326 cannot be construed to mean 'non-residence' in any particular locality. I t appears to mean non-residence inIndia. P. Kunhiraman v. F. R. Krishna Iyer, A.I.R. 1960 Kerala 190;distinguished. N. P. Ponnuswami v. The Returning Officer, A.I.R. 1952 S.C. 64;referred to.—FAUJASINGHv. ZAIL SINGH, 23E.L.R. 336.

——Ss. 5(a) and 100 (1) (a)—-whether the validity of an entry in the electoralroll can be questioned by Tribunal on ground thit candidate not ordinarily residentin constituency—candidate's name appearing in electoral rolls of two consti-tuencies—effect of—allegation candidate not resident in constituency thereforedid not belong to Scheduled Castes—'burden of proof— onus.

HELD : Section 5(a) of the Representation of the People Act, 1951 laysdown only two qualifications for the candidate: that he should be an elector for the

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constituency, i.e. his name must be entered in the electoral roll of that con-stituency; and he must be a member of the Scheduled Caste on the basis ofhis residence.

On the admitted fact that the appellant's name was borne on the electora 1roll he was obviously an elector for that Constituency and he could not beunseated on the view that he had not the requisite qualification of "ordinaryresidence" to have his name validly entered in the electoral roll. The Tribunalhad no jurisdiction to question the validity of the enrolment on the ground ofthe appellant not "ordinary residing" within the appropriate jurisdiction.

On the the facts onus which lay upon the first respondent to prove thatappellant was not "resident" or "ordinarily resident" in the onstituencyat the time had not been discharged.—AD WAITA MONDAL V. NAKULCHANDRA SAHIS AND ORS. 24 E.L.R. 284.

R. 26 (3)—Electoral Registration Officer, powers of—Correction of entryin Electoral Roll—Entry regarding house number—Whether mandatory. Regis-tration of Electors Rules, 1960, Rule 26 (3)—-if mandatory.—-The appellant fileda petition challenging the respondent's election on the ground that the latterwas not a registered voter on the Electoral rolls of the Constituency though hepurported to claim serial No. 357 in the electoral roll as the one relating to him;and that the correction of the entry by the Electoral Registration Officer wasillegal, irregular and without jurisdiction. The Tribunal found that the entryin the electoral roll, after correction, related to the respondent and upheld hiselection. In appeal it was contended (i) the respondent was not included inthe electoral roll and therefore he should have applied for inclusion under sec-tion 23(1) and not for correction under section 22(a); (n) the order of the Electo-ral Registration Officer directing the correction to be made was illegal and vitiat-ed by non-compliance with the mandatory provision as to notice laid down insub-r. (3) of Rule 26 of the Registration of Electors Rules, 1960; and (Hi) theorder of the electoral Registration Officer was not incorporated in the electoralroll before the date fixed for the scrutiny of nominations and that thereforethe Returning Officer had no jurisdiction to accept the respondent's nomina-tion. HELD : —The entry against serial No. 357 related to the respondent. TheElectoral Registration Officer therefore had jurisdiction to direct the correc-tion and the case was not a matter of inclusion but one of correction.

Under s. 22 (a) of the Act of 1950, the Electoral Registration Officer isempowered to order correction of any entry if he is satisfied that it relatesto the appellant and is erroneous or defective in any particular. Any errorwhich the Electoral Registration Officer can amend under the section neednot necessarily be a mere clerical or printing error.

The entries required to be made in the Electoral Roll as per Rules 6 and8 are for the purpose of establishing the identity of an elector. It cannotbe said that the entry with regard to the door number is one of the mandatoryrequirements. It is only directory and part of the description of the elector.It does not go to the root of the matter so long as there is enough materialin the entries to identify the voter beyond doubt.

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(ii) Section 22(a) itself reserves power to the Electoral RegistrationOfficer and for the exercise of this power there is no limitation of time pro-vided by the section. Therefore the correction of the entry within the periodof seven days prescribed by sub-sec. (3) of Rule 26 is not invalid. The appel-lant had not shown that any prejudice had been caused to him.

Pratap Singh v. Shri Krishna Gupta, A.T.R. 1956, S.C. 140 ; referred to.

(iii) The acceptance of the nomination paper of the respondent by the Re-turning Officer was valid. If an Electoral Registration Officer exercises his powerunder sub-sec. (3) of s. 23 of the Act of 1950, and directs a person's name to beincluded in the roll, he becomes immediately entitled to exercise the right offranchise and he is not deprived of such a right merely because the officestaff of the Electoral Registration Officer did not pass or stitch the correctionto the electoral roll.

Ram Swarwp Prasad v. Jagat Kishore, 17 E.L.R. 110 ;Ram Krishan Singh v. Tribeni Singh, 17 E.L.R. 81 ; followed.

Chandra Sehhar Prasad v. Jai Prahash Singh, 17 E.L.R. 126 ; referred to.—APPA RAO P. N. 1). KUMBURU SURYANARAYANA NAIDU, 25 E.L.R.'*220.

s. 100 (i) {a)—Registration of Electors Rules, 1960, rr. 20 and 23—Finding recorded by registration officer that a person is citizen of India ; hisname included in electoral roll-order whether conclusive—Election Tribunalwhether can consider if such person suffers from disqualification arising from lackof citizenship. N was elected to the Bihar Legislative Assembly from the Ram-nagar constituency. His election was challenged by another candidate K, on theground that N being a citizen of Nepal and not of India was disqualifiedfrom being a candidate. K also prayed that he be declared elected in placeof N. The Tribunal held that N was a citizen of Nepal and not qualified tobe a candiate ; it therefore set aside his election. However it refused to declarethat K was elected. Both N and K appealed to the High Court. A preliminarycontention was raised by N that his name being recorded in the electoral rollas an elector after due enquiry, the Tribunal was precluded from again goinginto the question of his qualification as a citizen. HELD : (i) The opinion to begiven by the Tribunal under s. 100 (1) (a) of the Representation of the PeopleAct, 43 of 1951 cannot be hampered even by an express finding given under rules20 and 23 of the Registration of Electors Rules. 1960. The finality contemplatedunder rule 23 sub-rule (4) of the Rules has reference to the proceeding under theRules. It cannot possibly debar the Tribunal from considering the questionwhether a returned candiate was disqualified to be chosen to fill a seat underthe Constitution or under Act 43 of 1951 on the date of his election. It wastherefore open to the Tribunal in the present case to investigate the question asto whether N was a citizen of India or not on the date of the election.

{ii) Merely because N had a share in some property in Nepal and was dis-tantly related to the king of Nepal so as to have a remote chance of successionto the throne of Nepal, it could not be held that he could not have chosen tomake India his home, and have an Indian domicile.

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The domicile of a person is the place in which his habitation is fixed withoutany present intention of removing therefrom. The law assigns to every persona domicile of origin which continues till a new domicile is acquired.

Central Bank of India Ltd., v. Ram Narain, A.I.K. 1955 S.C. 36; relied on.

In re Craignish, Craignish v. Hewitt, (1892) 3 Chancery Division 180,Ramasay v. Liverpool Royal Infirmary (1930) Appeal Cases 588; referred to.

From the facts and events of the life of N as brought Out in the evidenceit was clear that long before the end of 1949 which is the material date underArticle 5 of the Constitution, N had formed the intention of residing in Indiaindefinitely and had thus acquired Indian domicile. There was no doubt thatthe requisite animus manendi had been proved, and N had not the slightestintention of living anywhere except India by that time.

The opinion of the Tribunal that the facts and circumstances relating tothe period subsequent to the date on which the Indian Constitution came intoforce are irrelevant for the consideration of the question of 'domicile' was erro-neous.

In re Grove Vaucher v. The Solicitor to the Treasury (1889) 40 ChanceryDivision 216; referred to.

*»' (in) On the facts it was proved that N was ordinarily resident in the terri-tory of India for not less than five years immediately preceding the time whenArt 5 of the Constitution came into force. Since his domicile was also India theconditions of Art. 5 (o) of the Constitution were satisfied. The conclusionwas that N was an Indian citizen at the relevant time and was qualified to beelected.

(it)) The Tribunal's power under s. 98(c) to declare a petitioner electedis exercisable only if the requirements of s. 101 are fulfilled.

Keshav Lahshman Borhar v. Dr. Deorao Lahshman Anande, A.I.R. 1960,S. 0.131; relied on.—NARAYAN BIKRAM SHAH v. KEDAR PANDEY,26 E.L.R. 200.

——Ss. 2 (e), 5 and 123 (1)—Residence of candidate in dispute—Entry ofname in electoral roll whether conclusive proof of being elector in constituency.HELD : An entry in the electoral roll is conclusive evidence of the fact thatthe person concerned is an elector from that consitutency, so far as the elector'sresidence is concerned. Since the name of the first respondent was entered inthe electoral roll of the constituency from which he was elected he was anelector in relation to that constituency under cl. (e) of s. 2 of the Representationof the People Act, and was qualified for election under s. 5 of the Act. Thefact that the entry was improperly made did not make any difference.

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Durga Shanhar v. Raghuraj Singh A.I.R. 1954 S.C. 520; Brijendra Laiv. Jwala Prasad A.I.R. 1960 S.C. 1049; Mohimuddin v. The election Tribunalfor Town Area 1959 A.L.J. 169; Ramaswamy v. Krishmmurthy A.I.R. 1963S.C. 458; Mubarak Mazdoorv. Lai Bahadur XX E.L.R. 176 ; referred to —RANDHIR SINGH v. RAJ NARAIN AND ORS. 27 E.L.R. 79.

Ss. 23 and 36—Prospective candidate applying to electoral officer to hai)ename entered in electoral roll of constituency—-Electoral Officer entering namethough not satisfied as to genuineness of residence qualification—Entry whethersatisfies requirement of law—Whether conclusive evidence of facts mentioned there-in. HELD: It could not be said on the facts of the case that the ElectoralOfficer made the entry without jurisdiction, (i) If the order directing inclusionof the name is by a person authorised, although his action may not be in strictcompliance with the rules, yet it cannot be said to be non-est.

B. M. Ramaswamy v. B. M. Krishnamurihy, A.I.R. 1963 SO 458; reliedon. In the present case there was no doubt that the electoral officer had the autho-rity to enter the name and he exercised that power. Simply because he saidin his order that he was not fully convinced of the genuineness of the case itcould not be said that the entry made in pursuance of that order was completelynon-existing and the candidate was, therefore, not qualified.

(ii) Under s. 36 of the Representation of the People Act, at the time of'thescrutiny of nomination papers, the officer scrutinising the papers is boundunder sub-section (3) to take a certified copy of the electoral roll as conclusiveproof of the fact that the person is an elector. This also indicates the policyof the election law that the roll once having become final must be treated ascorrect, and conclusive evidence of the facts mentioned therein.

(Hi) The Court had also to take into account the fact that the appellantraised no objection at the time when the name was entered though he waspresent, and did not file an appeal against the order though the law providedfor it.—BRIJ MOHAN DASS AGARWAL v. Z.A. AHMAD, 27 E.L.R. 237.

—"Part of the Electoral Roll" —Meaning of 36(4). Filing of copy of thePart if defect of substantial character under section 36 (4)—-See. Nomination ofCandidates—RANJIT SINGH v. PRITAM SINGH, 28 E.L.R. 169 (S.C).

——"Process of election" when it begins—Preparation of Electoral Rolls,whether a stage in "Process of election"—Jurisdiction of High Court Section 30of Act, 1950—Whether protected under Article 329 (b)—Rules 22, 26—Interpretation of.—(See High Court—Powers of.)—H. H. MAHARANASURENDRASINHJI JORAWAR SINGH JI JHALA V. SHRI U.M. BHAT,CHIEF ELECTORAL OFFIER, GUJARAT AND ORS. 29 E.L.R. I.

s. 21 (3) read with Art. 324 of the Constitution of India, 1950—Power:of Election Commission to order revision of electoral rolls of a constituency—Areawmgly included in constituency by Chief Electoral Officer—Election Commission

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directing Chief Electoral Officer to exclude that area from that constituency and toinclude it in another constituency, and to make changes in electoral roll accordingly.Whether such revision can be carried out by Electoral Registration Officer by follow-ing procedure in ss. 14,15,17,18 and 19 of the Act, of 1950 and, in rules 11 to 24of the Registration of Electors Rules I960-Requirements of natural justice in passingorder under s. 21 (3)—Vires of s. 21 (3).—HELD : (i) The powers conferred onthe Election Commission by s. 21 and s. 13-A(2) of the Act are only in aidof the power of superintendence, direction and control conferred upon theElection Commission under Art. 324 of the Constitution. S. 21(3) read withArt. 324 confers ample jurisdiction on the Election Commission to direct aspecial revision of the electoral roll for any constituency or part of a con-stituency, not necessarily confined to the procedure far the revision andcorrection contained in the other provisions of the Act or under the rules madethereunder. This is a special power which the Election Commission canexercise under the inherent powers, conferred on it by Art. 324 of theConstitution.

Ramlahshman v. Election Commission, 7 E.L.R. 364; referred to.

(ii) The words "in such manner as it may think fit" in s. 21(3) give powerto direct not only the person who has to make the special revision, but also themanner in which it should be done. In exercise of this power the ElectionCommissioner can therefore direct the Chief Electoral Officer to delete certainparts of the electoral roll and to republish them bringing it in conformity withthe order of the Delimitation Commission.

(Hi) The argument based on natural justice could not be upheld becausethe Chief Election Commissioner did hear the objections of the petitioner;and in so far as the individual electors are concerned their right to vote hadnot been taken away; they had only been transferred to the electoral roll of aconstituency to which they belonged under the orders of the Delimitation Com-mission.

ChinnaMala Reddy v. Revenue Divisional Officer, 8 E.L.R. 361; referred to.

{iv) There was no evidence to establish that any objection was taken a tthe time of the public hearing by the Election Commission that MutyalampaduColony was not part of Vij aywada West Constituency but of Vijayawada East.As such it could not be urged that the names of the voters were deleted fromthat constituency and included in another contrary to the specific inclusion ofthe area of the colony in Vijyawada East. Therefore the further question thats. 21(3) is ultra vires Art. 14 had also no validity.

(v) The order of the Chief Election Commissioner must be taken to havebeen made by the Election Commission beoause he is the sole member of it.Even in cases where there is a specific provision in the Constitution like Art.166(1) which enjoins that all executive action of the Government of a Stateshall be taken in the name of the Governor, it has been held that this is notM/J(D)121EC-14

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mandatory but only directory. Much more so is the case where no such provi-sion as Art. 166 exists in respect of orders to be made by the Election Com-mission.

Dattatrya Moreshwar Pangwrkar V. The State of Bombay and others, 1952S.C.R. 612; referred to.

(In view of the above findings it was considered unnecessary to decidewhether Art. 329(2) was a bar to the petition or whether the contentions raisedin the present petition could form the subject matter of an election petitionunder s. 100 of the Eepresenation of the People Act, 1951).—K.E. RAO «.ELECTION COMMISSIONER & OTHERS, 29 E.L.R, 68.

Registration of Voters—Time limit—See Electoral Roll NALINI-KANT DEVASHANKAR VYAS AND ANOTHER v.V.S. THAMBE ANDORS. 29 E.L.R. 76.

23 (3), as amended by s. 10 of Act 47 of 1966~No registration of voters tobe made after tast date by which nomination papersto be filed—time limit whethercontravenes Art. 326 of the Constitution—s. 10 of Act 47 of 1966 whether violativeof Art. 14.—The petitioners were residents of Colaba area in Bombay. On 13thFebruary, 1967, they applied to the respondent (Chief Electoral Officer) tohave their names included in the voters' list for the general election to be heldon 21st February, 1967, to the Maharashtra Legislative Assembly and theUnion Parliament; the respondents refused to register their names on the groundthat under s. 23 (3) of the Representation of the People Act, 1950 as amendedby s. 10 of Act 47 of 1966, no such registration could be made after the lastdate by which nomination papers had to be filed—namely, 20th January, 1967.The petitioner filed a petition under Art. 226 of the Constitution challenging thevalidity of s. 10 of Act 47 of 1966, on the ground that the time limit laid do wntherein was violative of their right to vote guaranteed in Art. 326 of the Con-stitution. Section 10 was also said to be violative of Art. 14 of the Constitutioninasmuch as it discriminated between all persons entitled to be registered asroters on a basis which was arbitrary and unreasonable. HELD : Far fromdepriving the petitioners of their right to get themselves registered as voters,the said provision, viz. s. 23 (3) of the Representation of the People Act, 1950,as amended by s. 10 of Act 47 of 1966, regulates the manner in which a citizenshould get his said right recognised. Such regulation does not create any in-consistency between s. 23 (3) of the Act and Art. 326 of the Constitution.There is nothing arbitrary or unreasonable about the manner in which the rightconferred by Art. 326 is regulated by s. 23 (3), and such regulation is necessaryfor the proper holding of elections which is the object of the legislation. It wasnot the petitioner's case that other citizens similarly situated had been enrolledas voters.—NALINIKANT DEVASHANKAR VYAS AND ANOTHER v.V.S. THAMBE AND ORS. 29 E.L.R. 76.

Registration of voters whether included in the word "election" in Art.329 (B) of the Constitution of India. HELD : The word 'election' occurring inArt. 329(6) must be widely construed as was done by the Supreme Court inPonnuswami's case and in H.V. Kamath's case. So construed the word election

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includes the registration of others by the Electoral Registration Officer. Theorders passed by the latter therefore cannot be questioned, as provided in Art,329 (b), except by an election petition. The present petition under Arts. 226and 227 was therefore liable to be dismissed on this ground as well.

N. P. Ponnuswami v. The Returning Officer, Namakkal Constituency,Namatekal, Salem District and others, A.I.R. 1952 S.C. 64 and Hari VishnuKamaih v. Ahmed Ishaque and others, A.I.R. 1955 S.C. 233 ; followed.

Narain Singh Malpdharia v. Additional Member Board of Revenue, Biharand another, AIR 1963 S.G. 786; Durga Shanhar Mehta v. Raghuraj Singhand others, AIR 1954 S.C. 520 at page 523; Sangram Singh v. Election TribunalKotah and another, AIR 1955 S.C. 425 ; Polahi Kotesam and others v. S. M.Patnaih and others, 8 E.L.R. 159; Shanhar Nanasaheb Karpe v. ReturningOfficer, Kolaba, 1 E.L.R. 13; Suhar Gope v. The State of Bihar, 1 E.L.R. 68;Chenchurama Naiduv. Chief Electoral Officer, Andhraand another, AIR 1955Andhra 180; Ramdayal Ayodhyaprasad Gupta, V. K. R. Patail and others, 18 E.L.R. 378; State of V.P. v. Mohammad Noor, AIR 1958 S.C. 86 and Messrs PuranChand Gopal Chand v. The State of Punjab and others ; A.I.R. 1963 Punjab 28;In re: John Mathai 3 E.L.R. I referred to. Civil Writ Case No. 216 of 1967.—PRITAM SINGH AND ORS. v. S. SHIV SINGH P.C.S. & ORS. 29 E.L.R. 82.

——-Candidate not producing with nomination paper copy of electoral rollof constituency in which he was recorded as voter—Requirement whether directoryor mandatory—-Nomination whether liable to be rejected for non-production ofelectoral roll even when the electoral roll was with the Returning Officer.—(SeeNomination of Candidate—KHYALI RAM v. SHRIHARLAL SINGH,29 E.L.R. 108.

-Person below 21 years of age registered as voter and voting in election—vote whether wid—(See Election Petition) Grounds for setting aside election.)——ROOP LAL MEHTA v. DHAN SINGH, 29 E.L.R. 113.

—•—s. 17—Section whether directory or mandatory—Candidate's name regis-tered in two Constituencies—Effect.—-(See—Nomination of candidate (s).—C.V.C.T.V. VENKATACHALAM CHETTIAR v. S. MEIYAPPAN AND OTHERS29 E.L.R. 336.

-Residents of certain locality not included in electoral roll of constituency^effect of—right to vote conditions of—HELD : The non-inclusion of the electorsof 96 houses in the revised electoral rolls was brought to the knowledge of theElectoral Registration Officer only on the last day of the filing of nominationpapers for the election when under s. 23(3) of the Representation of the PeopleAct, 1950, no amendment by inclusion of further names in the electoral rollcould be made. If persons in the area whose names were not included inthe draft electoral roll were supporters of the petitioner—as he had allegedin the election petition—his not having taken any steps to see their namesincluded in the electoral roU only spelt indifference on his part and on the partof his party. Admittedly no application for inclusion of their name8 hasbeen made by the individuals concerned.

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The provision for adult suffrage in Art. 326 of the Constitution only meansthat if a person fulfils the conditions and qualifications set by law made byparliament, he could claim his name to be registered as a voter in the electoralroll of the constituency. There is no right to vote granted by Art. 326 withoutcomplying with the law made under Art. 327. The Representation of thePeople Acts of 1950 and 1951 are such laws.

Delimitation of constituencies and Registration of electors may be stepspreliminary to an election but no part of the election itself. It follows thatdefects in an electoral roll can^only be enquired into under the Act of 1950 by theauthorities constituted under it, and not by the election Court constituted underthe Act of 1951.

Equity and expediency were also against the contention of the petitioner.Normally no electoral roll can be ever strictly complete. If the omission of thename of any elector in the electoral roll of any constituency is a ground foravoiding the election held on its basis, no election'will be safe in this vastcountry. Bhawani Prasad Tiwari v. Jagdish Narayan Awasthi, 16 B.L.R. 143 ;Atiabari Tea Co. Ltd., v. The State of Assam, A.I.R. 1961 S.C. 232; N. P.Ponnuswami v. The Returning Officer, Namahhal, Namakkal Constituency,Namahhal, 1952, S.C.R 218; Hari Vishnu Kamath v. Ahmed Ishaque, A.I.R.1955 S.C. 233; Kunhiraman v. Krishnu, Iyer, A.I.R. 1962 K.L. T. 275; B.M.Ramaswamy v. B. M. Krishna moorty, A.I.R. 1963 S.C. 458; referred to.—T.P. SEETHARAMAN v. K. SEKARAN NAIR AND ORS. 30, E.L.R. 242.

Non-resident" inclusion of-—whether violation of provisions of 1950Act, if outside purview of s. 100 (1) (d) (iv) of Act of 1951 and Art. 326 of theConstitution.—-(See Election Petition—-General Principles).—KANAILALBHATTACHARJEEv.NIKHILDASAND ORS. 30 E.L.R. 354.

GOVERNOR

Distinction between Governor & Chancellor—Paid Vice-Chancellor ( /University—whether office of Profit—{BEE DISQUALIFICATION OFCANDIDATE—OFFICE OF PROFIT)—PT. JOTI PRASAD UPADHYAYAv. SRI KALKA PRASAD BHATNAGAR AND OTHERS, 23 E.L.R. 195.

Finality of, decision by Governor—Undischarged Insolvent—Article191 (1) & 292(2)—(SEE DISQUALIFICATION OF CANDIDATES-UN-DISCHARGED INSOLVENT) SIVASANKARA MEHTA R. v. THEELECTION COMMISSIONER OF INDIA AND ORS. 29 | E . L. R 104.

HIGH COURTS

SS. 101,116A ai%d 123 (1) (2) (3) (4) (5) (6) and (7)—condition precedentfor declaring another candidate elected Or. 41 r. 22 C. P. C. applies in appealsunder s. 116A.—HELD : : (by the Division Bench): In an election appealbefore the High Court under s. 116-A. the respondent, irrespective of whetherhe has filed any cross-objection can avail himself of the provisions of Order 41.Rule 22, Code of Civil Procedure, and support the decree on any of the groundsdecided against him by the Election Tribunal. Vashist Narain Sharma v. DevChandra, AIR 1954 S.C. 513; Baru Ram v. Smt. Prasam A.I.R. 1959 S.C. 93

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Tazuddin Ahmed v. Dhaniram Talukdar, AIR 1959 Assam 128; Inayat-ullahKhan v. Diwan Chand Mahajan, AIR 1959 M. P. 58; Akshya Narayan Pra-karaj v. Maheshwr Bag, AIR 1959 Orissa 207; referred to.—SHANKARAGA-UDA v. SIRUR VEERABHADRAPPA. 23 E. L. R. 1

POWERS OF Printing and distribution of bulletin by agent withconsent of candidate containing false statement regarding withdrawal fromcontest of rival candidate—Finding of corrupt practice by tribunal reversed byHigh Gourt.—Scope of powers of'High Court under section 116A—whenHigh Gourt should interfere with finding of facts. The corrupt practice wasclearly committed with the consent of the respondent under s. 100(1) (b)of the Act and was alleged to have been so committed; the High Court'sconclusion was based on a misreading of the evidence on record. UnderSection 116A of the Representation of the People Act. 1951, the High Courtis entitled to consider the propriety or correctness of even the findings of factrecorded by the Election Tribunal However, it should be slow to interferewith such findings unless there are good reasons to do so. If there are goodreasons which induce the High Court to the conclusion that the findings offact recorded by the Tribunal must be reversed, there is no limitationprescribed by section 116A. In such a case the High Court is not precludedfrom reversing the conclusion of the Tribunal on facts.—SHRINIVAS TIWARIv. RUKMINI RAMAN PRATAP SINGH, 23 E. L. R. (S.C.) 131.

POWER OF SUPERINTENDENCE OVER ELECTION—•—TRIBUNALS.—Whetherprocedure under the Code of Civil Procedure Order I—Rule 10, applies—Whetherbar on Civil Courts in s. 170 ov?r-rides High Court's power of Superinten-dence.—HELD : The bar on Civil Courts as provided in Section 170 of theAct cannot operate to over-ride the constitutional jurisdiction of the High.Court under Art, 227 of the Constitution/The orders of the Tribunal are subjectto appeal to the High Court as provided under Section 116-A The High Court,therefore, has superintendence over Tribunals within its territorial jurisdictionwithin the meaning of Art. 227 of the Constitution;—Hari Vishnu Kamath v.Ahmed Ishaqe, AIR 1955 S.C. 233, 1955 S. C. R. 1104; Durga Sankar v.Thalcur Raghuraj 1955 S. C. R. 267, Relied on.—DWIJENDRA LAL SENGUPTA v. HARE KRISHANA KONAR & OTHERS 23 E. L. R. 270.

——Art. 226.—Representation of the People Act, 1951, S. 116A—ElectionPetition—Preliminary objectionfor non-joinder of parfy—Disposal of preli-minary objection by Tribunal on merits—Jurisdiction of the high Court l»interfere in writ proceedings—HELD : I t will be a proper exercise of discre-tion under Art. 226 to decline to interfere with the interlocutory order passedby the Tribunal. Where there is another remedy provided, the High Courtmay properly exercise its discretion in declining to interfere under Art. 226.The intention of the legislature in providing a right of appeal against the de-cision of the Tribunal to the High Court under s. 116 A is that the proceedingsbefore the Tribunal should go on with expedition and without interruptionand that any .error in its decision should be set right in an appeal under thatsection. The questions whether the allegation of a mere offer to render help

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in securing a job is any offer of "gratification" within the meaning of the Ex-plaanation to s. 23(1) (B) and a form of "employment for reward" and whethera person withdrawing his candidature under s. 37 of the Act is "any othercandidate'' for the purpose of s. 82(b) are all debatable ones and if the ElectionTribunal took one view in exercise of its jurisdiction, it cannot be said thatthere is an error of law apparent on the face of the record.—Veluswami v.Raja Nainaf. A. I. R 1959 S. C. 422; Satyanarayana v. Mallikarjun, A.I.E.1960 S. C. 137; followed; Kamaraj Nadar y. Kunju Thevar, A.I.R. 1958 S.C.687; explained. Boshle v. M. S. Amy, A.I.E 1961 Bom. 29; KapiUeo v.Suraj Narayan, A.I.R. 1959 Pat. 250; Dira Gazi Khan v. Khwaja GhulamMuftaza IECD, Vol. I. P. 107; Plymouth 2 P. R. & D. 238; Calcutta DiscountCo. v. I. T. Officer, A.I.R. 1961 S.C. 372; Shri Ambica Mills Co. v. S. B. Bhatt,A.I.R. 1961 S.C. 970; Badri Narayan v. Kamdeo Prasad, A.I.R. 1961 Pat. 41,referred to.—MOHAN SINGH v. BHANWARI LAL NAHTA & ORS.23 E.L.R. 330.

Additional evidence taken by High Court at appeal stage—effect of—Whether permissible—Code of Civil Procedure, 1908, 0-41, R 27-ElectionPetition—HELD : On the facts, the High Court allowed additional evidenceto be admitted as it required such evidence either to enable it to pronouncejudgment or for any other substantial cause within the meaning of R. 27(1)(b) of 0-41 of the Code.

The appellate court has the power to allow additional evidence not onlyif it requires such evidence "to enable it to pronounce judgment" but also for"any other substantial cause". There may well be cases where even thoughthe court finds that it is able to pronounce judgment on the state of the recordas it is, and so it cannot strictly say that it requires additional evidence toenable it to pronounce judgment, it still considers that in the interest of jus-tice something which remains obscure shoul be filled up so that it can pron-ounce its judgment in a more satisfactory manner. Such a case will be one forallowing additional evidence for any other substantial cause under R. 27(1)(b) of the Code.

When additional evidence was taken with the assent of both sides orwithout objection at the time it was taken it is not open to a party to complainof it later on.

Aryan Singh v. Kartar Singh, 1951 S.C.R. 258: Sreemanchunder v. Gopal-chunder, 1866, 11 M.I.A. 28; Manmohan Das v. Musammat Raindei, 1931,35 C.W.N. 925; Gopal Singh v.Jhakri Rai, 1885 R.I.L. 12 Cal. 37; Parsotimv. Lai Mohar 1931 L. R. 58,1.A. 254; Jagannath Prasad v. Hanuman Pershad,1909, L.R. 36 I.A. 221; referred to.— K. VBNKATARAMIAH v. A.3EETHARAMA REDDY & ORS. 24 E.L.R. 42.

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——Or. XLI. r. 22.—Whether applicable to proceedings of appeal unders. 116 A of Act 43 of 1951—if High Court can uphold order of Tribunal ongrounds decided by Tribunal in favour of appellant.—HELD : Allowing theappeal : The finding of the tribunal cannot be supported in regard to the spe-cific charges it had found against the appellant and its findings on the rest ofthe charges must be upheld.

It is open to the High Court to uphold the order of the lower court eveaon any of the grounds decided in favour of the appellant if the court is in-clined on an examination of the evidence to'reverse that finding and holdthe charge proved by the election petitioner.

Section 123(7) refers to a series of acts described as "obtaining" "pro-curing" "abetting" or "attempting to obtain or procure" assistance fromthe class of persons mentioned in that section by a candidate or his agent orby any other person with the consent of the candidate, or his election agent.All these acts imply some initiative taken by the candidate or his agent tosecure the assistance of the persons referred to.—C. CHIRANJEEVULUNAIDU v. E. S. THAYAGARAJAN, 25 E.L.R. 201.

S. 53(2)—Scope of.—Successful candidate's election set aside on ele-ction petition—Elector seeking declaration by Returning Officer of only othercandidate as elected—on refusal and Election Commission notifying bye-election—electors seeking declaration by writ petition under Art, 226—Whether High Courthas jurisdiction to entertain such petition in view of s. 80 of Act 43 of 1950.

Constitution of India, Article 329(b); Representation of the People Act, 1951s. 80.—"Election" meaning of.—Whether election proceedings can be called inquestion by writ petition, either before or after completion of election.—Theelection of G was challenged on the ground that he held offices of profit underthe government and as such was disqualified under the Constitution for beingelected as a member of the Lok Sabha. The Tribunal, the High Court and theSupreme Court held that G did hold offices of profit and was therefore disqua-lified. The electors thereafter applied to the Returning Officer saying that Sthe only other candidate, should forthwith be declared elected. The applicationwas rejected. The Election Commission then issued a notification announcinga bye-election. This petition under Article 226 was filed for the issue of a Writcommanding the respondent to recall and cancel the notification and also tomake a declaration under sub-section (2) of s. 53 of the Act that S was electeduncontested. It was contended that G did not exist in the eye of law as acandidate and since there was only one seat and only one candidate, s. 53(2)was attracted. The respondent raised a preliminary objection that the HighCourt had no jurisdiction to entertain the application since by s. 80 of the Actno election shall be called in question except by an election petition presentedin accordance with the provisions of Part VI of the Act.—HELD : Theword "Election" is used with reference to the entire process which consistsof several stages and embraces many steps some of which may have animportant bearing on the result of the process. The law of election does

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not contemplate that there should be two attacks on matters connected withelection proceedings, one while they are going on by invoking the extra-ordinary jurisdiction under Art, 226 and another after they have been com-pleted by means of an election petition. Such a position would be contrary

. to Part XV of the Constitution and the Eepresentation of the People Act.The Election Commission had issued a notification under s. 149 of the

Act and so long as that remained in force the election proceedings must con-tinue in terms thereof and in accordance with the provisions of the Act. Thepetitioners had not challenged that notification and there was no prayerfor the issue of a writ for setting aside or quashing the notification.

N.P.Ponuswamiv. Returning Offccer, Namalckaal A.I.R. 1952, S.C. 64;Durga Shankar Mehta v. Returning Officer, 1955 (1) S.C.E. 267; Shanker NonaSahab Karpe v. Returning Otficer, A.I.E. 1952, Bom. 277; Y. B. Chavan v.K. T. Mangal Murti, A.I.E. 1958, Bom. 397; referred tC

(ii) When s. 53(2) speaks about the 'number' of candidates it means thenumber of candidates who have contested the election. If originally there wasone seat and one candidate the provisions of s. 53(2) would havo applied.In fact, however, there was one seat and two candidates. What had happenedwas that subsequent to the completion of the election, an election petitionwas made against the successful candidate and the election had been declaredvoid. Therefore s. 149 of the Act applied in terms and the authorities mustproceed to hold a bye-election in accordance therewith.

Hobbes v. Morey (1904) I, K. B. 74; Keshav Lakhman Bokar v. DeoraoLakshman Anande, A.I.E. 1960 S.C. 131, referred to.—GUEUOHABANBANEEJEE v. E. 0. BUEDWAN H. P. CONSTITUENCY, 25 E.L.E. 312.

Power of High Court to examine evidence and findings of the Tribunal.—(See —Corrupt Practice—Appeal on the grounds of religion etc.)—HEMDHONMOHAN v. J. B. HAGJEB, 26 E.L.R. 90.

S 116 A—Refusal of adjournment by Tribunal—High Court's juris-diction to interfere—Representation of the People Act 1951—S.89— Request byParty that tribunal sit at some other place—if Section attracted, Ballot Papers—•Inspection—When can be allowed—The respondent filed an election petitionchallenging the validity of the appellant's election. He alleged that theappellant had been guilty of corrupt practices and that many irregularitieswere committed in the conduct of the election. When the election petitionwas making progress, the respondent was detained under the Defence of IndiaEules. Thereafter the respondent asked for several adjournments and theywere granted by the Tribunal in order to accommodate him and give him faci-lities for leading his evidence. The case was peremptorily posted to a parti-cular date on the distinct understanding that the respondent should lead hisevidence on that date. When the respondent moved another application foradjournment it was rejected by the Tribunal and the petition was dis-missed for non-prosecution. Meanwhile, the Election Commission had alsorejected the respondent's application for the transfer of his case from Bhandarato Nagpur where he was detained. In appeal, the High Court took the viewthat the Election Commission was in error in rejecting the respondent's applica-tion for transfer of his case, without hearing him and thereby contravened

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s. 89 of the Act, that the Tribunal should |iave allowed inspection of ballotpapers to the respondent and its failure to do so introduced an infirmityin the proceedings before the Tribunal; and that the Tribunal should havegranted adjournment, to the respondent and given him an adequate oppor-tunity to lead his evidence. The High Court therefore set aside the Orderof the Tribunal, In appeal to the Supreme Court. HELD : Though thepowers of a High Court in.hearing appeals against decisions of ElectionTribunals under section 116 A are wide and it would be open to the High Courtto interfere with the findings of fact recorded by the Tribunal and, in a propercase, to reverse even the discretionary decisions of the Tribunal, it is a wellsettled principle that where discretion has been vested in the Tribunalor the trial court and it does not appear that the discretion has been capriciouslyexercised, the court of Appeal would not interfere with that discretionary order.When the High Court is plainly in error in assuming that the Tribunal hadnot exercised its discretion in a proper, reasonable and judicial manner, thisCourt should reverse the order passed by the High Court in that behalf.

In considering the propriety of the order by the Tribunal rejecting therespondent's prayer for adjournment, the significant requirement of ex-peditious disposal prescribed by the statute cannot be ignored. On the factsof the instant case it was difficult to accept the conclusion of the High Courtthat the Tribunal, acted unfairly, unreasonably or capriciously in rejectingthe respondent's prayer for adjournment.

The conclusion of the High Court that the Election Commission has com-mitted an error of law or that it has not heard the respondent or its counselbefore it passed its final order on ,the application for transfer of the petition ianot warranted by the provisions of Section 89. That section cannot apply to thecase of a request made by a party that the tribunal appointed to try a petition,should hold its sitting at some place other than originally fixed ; that is not thesame as transferring the petition from one Tribunal to another.

SMT. DR. SITSHILA BALEAJ v. ARDHENDU BHUSHAN & ORS,26 E.L.R. (S.C.) 146.

Order of High Court under Article 226 whether final order. (See Consti-tution of India-Art. 133 (!) (c).) KAMAL NARAIN SHARMAv. DWARKiPRASAD MISHRA & ORS. 26 E.L.R. 382.

s. 119A—Provisions of —If mandatory—Appeal against decision ofElection Tribunal— Appellant failing to enclose Government Treasury Receiptsshowing deposit of security togther with Memorandum of Appeal—instead tenderingthe amount at Registrar's Office—Whether appeal must be dismissed for non-compliance with s. 119A. • •

The respondent had challenged the appellant's election to the Rajas-than Legislative Assembly in 1962 by an election petition on the groundthat the appellant had committed various corrupt practices in the courseof his election. The Election Tribunal allowed the petition and declared th«appellant's election void under s. 100 (l)(b) of the Act. The appellant thereafterappealed to the High Court and at the hearing of the appeal it was contendedby the respondent—inter alia, that the appellant, having failed to enclose witht he Memorandum of Appeal a Government Treasury Receipt showing that a

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deposit of Rs. 500 had been made by him in favour of the Election Commissionas security for cost of the appeal, did not comply with the provisions of s. 119Aof the Act and on that account the appeal filed by him was incompetent.Instead of enclosing the Government Treasury Receipt for Rs. 500 with theMemorandum of Appeal, the appellant, through his Advocate, had tenderedthe amount in the office of the Registrar of the High Court which was dulyaccepted and was credited in the name of the appellant as security deposit. TheHigh Court declined to accede to a request made by the appellant to rectifythe defect arising from the appellant's failure to comply with the provisions of s.119A and dismissed the appeal. HELD-: The High Court erred in not taking intoconsideration the conduct of the Registrar's Office in accepting the deposit anda defective presentation of the appeal which contributed to the irregularity ofprocedure adopted by the appellant. The High Court should have directedthat the amount which had been deposited in the Court be deposited in theGovernment Treasury in the name of the Election Commission as security forcosts of the appeal.

In the absence of any penalty prescribed by the legislature for failureto comply with the requirements of s. 119A, the jurisdiction of the High Courtto entertain the appeal is not affected or jeopardised. Although the appellantis not on that account entitled to ignore the statutory provision, when thereis, default in complying with the s. 119A, it is for the Court in each case to con-sider whether or not it will exercise its discretion to proceed with the appealafter rectifying the mistake committed.

Jagan Nalh v. Jaswant Singh, (1954) S.C.R. 892 ; referred to.—•—KUMARANAND v. BRIJ MOHAN LAL, 26 E.L.R. (S.C.) 435.

Powers of S. 116-A interference with Tribunal's findings of facts-(See Election petition General Principles)— VISHWANATH PRASAD v.SALAMATULLAH AND ORS. 27 E.L.R. 145.

—'— Powers of High Court in appial against Tribunal's order. HELD—•The jurisdiction of the High Court in dealing with an election appeal unders. 116A of the Representation of the People Act is very wide. It is open to theHigh Court to re-appreciate the evidence and consider the propriety, correct-ness or legality of the findings recorded by the Tribunal, Naturally, as a courtof appeal, the High Court would not interfere with the findings of fact recordedby the Tribunal which are based merely on appreciation of oral evidence. Butthat is not to say that the High Court cannot so interfere if it comes to theconclusion that the impugned finding is erroneous and deserves to be reversed.DR. JAGJIT SINGH v. GIANI KARTAR SINGH AND ORS, 28 E.L.R. (S.C.)81.

•—Whether High Court can interfere in the Tribunal's finding of Corruptpractice of bribery. High Court Division Bench—Difference of Opinion on factsand reference to third judge under cl. 28 of the Letters Patent.

Corrupt practice of bribery—Evidence of voting against Party's mandate—Whether justifies inference of bribery—

Election petition-—Whether a trial under common law—Amendment of —Instance of another class of corrupt practice not pleaded—Whether can be allowedby way of amplification HELD : per Bamratna Singh and Sinha, JJ. On facts

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and evidence the allegations of offer of bribes by the appellant to three Congressmembers had been established. An election appeal has to be treated as just acivil appeal. The first appellate court should be slow in setting aside the findingof fact arrived at by the trial court, which had the opportunity to see the wit-nesses. Where there is evidence in support of the findings of fact arrived at bythe Election Tribunal, the High Court cannot in an application for a writunder Article 226 of the Constitution consider whether that finding of fact isright or wrong and quash the order of the Tribunal merely because in its opinion,the finding is wrong.

Ramratna v. State of Rajasthan, A.I.R. 1962 S.C. 424 ; Bhupendra Narainv. E. K. Narain Lai A.I.R. 1965 Pat. 332; Jagan Nath v. Jaswant Singh, A.I.R.1954 S.C. 210; T . C. Basappa v. V. T. Nagappa 10 E.L.R. 14; referred to.

Per Sinha, J. When a law made by a competent Legislative authoritydeclares an order of a Tribunal to be appealable to the High Court, thenthe Court must entertain the same and dispose of it according to law ; and thereis no reason for excluding Clause 28 of the Letters Patent of the Patna HighCourt, if there be any difference of opinion on facts between two judges, whohave originally heard the appeal. Under S. 116(2) of the Representation of thePeople Act, 1951, the procedure to be followed in this Court should be as ifthe appeal were one from an original decree passed by a civil Court. UnderClause 28 of the Letters Patent, the points on which differences arise will ulti-mately be decided according to the opinion of the majority of the Judges, whohave heard the appeal, including those who first heard it.

South Asia Industries (P) Ltd. v. S. P. Samp Sinqh and others A.I.R. 1965S.C. 1442, referred to.

Per Mahapatra and Ramratna Singh , JJ—

HELD : The mere fact that a voter voted for a candidate belonging toanother political party, against the mandate, does not necessarily justify theinference that the voter did so after taking a bribe and the question whethera bribe was actually paid or not depends on the other evidence.

The trial of the election petition is not under common law and specialjurisdiction has been created for that purpose. An election Appeal has to betreated as a first Civil Appeal.

Bhupendra Narain v. E. Narain Lai, A.I.R. 1965 Pat. 332; Jagannalh v.Jaswant Singh, A.I.R. 1954 S.C. 210. referred to.

Per Mahapatra J. Under the latter part of Section 90 of the Act andClause 5, if a particular kind of corrupt practice has not at all been allegedin the election petition when presented, no particulars of that kind of corruptpractice can be allowed by way of amendment or amplification at a later stage.

M. A. Muthiah Ghettiar v. Saw Genesan A.I.R. 1958, Mad. 187, differedfrom.

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Sangappa v. Shivamurti Swamy, A.I.R. 1958 Mysore 120;

Harishchandra Bajpai v. Triloki Singh A.I.E. 1957 S.C. 444;

Amin Lai v. Hunna Mai, A.I.R. 1965 S.C. 1243; Jagdevsingh Sidhantiv. Pratap Singh Daulta, A.I.K. 1965 S.C. 183; referred to.

If it was found by the Tribual that any kind of corrupt practice hasbeen committed by the returned candidate on a particular number of voters,who have voted in the election as many votes as the number of such votersparticipating in the election can be deducted from the total number ofvotes secured by the returned candidate, under section 101 of the Act witha view to finding if the number of votes secured by the petitioner or any othercandidate was a majority of the valid votes. It is not necessary to know how aparticular voter exercised his franchise if he is found to have been a victim ofany kind of corrupt practice by the returned candidate, who will be deductedwith the vote for that voter whether he voted for him or not. This seemsto be the only way to reconcile by the rule of harmonious construction theprovisions under Section 101 of the Act and Rule 38A, Sub-Rule (3) of theConduct of Elections Rules.

1872, Law Reports Volume VII, Page 209, Section 25 ; T. Nagappa v. P. £>Basappa, A.I.R. 1955 S.C. 755; Rain Sewak Yadav v. Hussain Kasmil Kidwai,A.I.R. 1964 S.C. 1249 referred to. RAJBNDRA PRASAD JAIN v. SHEELBHADRA YAJEE ORS., 28 E.L.R. 126.

Articles 226, 227,329 (a) , 329{b) Scope of Registration of ElectorsRules, 1960, Rules 22, 26—Application under Rule 26 —High Court, Power ofIssue of writ—Articles 226—Representation of people Act, 1951, Part III—"Process of election" when it begins—Preparation of Electoral Rolls, whether a stagein "Process of election"— Jurisdiction of High Court—Section 30 of Act, 1950—Whether protected under Article 329(b)—Rules 22, 26—Interpretation of.

The petitioner, the erstwhile Ruler of the quondam State of Wadhwan,made an application to the Electoral Registration Officer for inclusion of hisname in the electoral roll of the Wadhwan Assembly Constituency. The ThirdRespondent, an elector of the Constituency preferred an objection against hisinclusion. The Electoral Registration Officer, after an enquiry, directed theinclusion of the petitioner's name in the electoral roll. The Third Respondent'sappeal to the Chief Electoral Officer was allowed on the ground that the appli-cation was not in the prescribed form under Rule 26 of the Registration ofElectors Rules, 1960, and that the petitioner was not ordinarily a resident inWadhwan. Aggrieved by this decision, the petitioner filed a petition in the HighCourt under Article 226 of the Constitution, challenging the order of the ChiefElectoral Officer. The third respondent raised inter alia a preliminary objectionthat the petition was not maintainable as the High Court had no jurisdictionto interfere with the order of the Chief Electoral Officer under Article 226 ofthe Constitution and also in view of the limitations imposed by the provisionsof the Article 329 (b) and Article 329(a) read with section 30 of the Representa-tion of the People Act, 1950. HELD : Under Article 226 of the Constitution,the High Court has the power to issue an appropriate writ to any personor authority within its territorial jurisdiction in terms absolute and unqualified

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and the Chief Electoral officer, functioning within the territorial jurisdictionof the High Court would fall within the;, scope of the power; any limitationon this power must be found in some provision of the Constitution itself.

The Representation of the People Act, 1950, deals with various anteriorstages such as allocation of seats, the delimitation of constituencies and thepreparation of electoral rolls while the various stages in the process of electionand matters arising out of or connected with these stages are dealt with inthe Representation of the People Act, 1951. The preparation of electoralrolls is, therefore, clearly not a stage in the process of election but is an anteriorstage; the process of election commences on the issue of the general Notificationunder the relevant section of part III of the Act of 1951 and ends with thedeclaration of the result of the election. An application under Article 226challenging the validity of any of the stages relating to the process of electionwould be barred by Article 329 (b).

N.P. Ponnuswami v. Returning Officers, Namakkal, A.I.R. 1952 S.C.64;2>. N.B. Kharev. Election Commission of India, A.I.R. 1957, S.C. 694Shankar v. Returning Officers, Kolaba, A.I.R. 1952 Bombay 277; HariVishnu v. Ahmad Ishaque, A.I.R. 1955 S.C. 283; referred to.

The exclusion of jurisdiction of the civil court provided in section 30of the Act of 1950, cannot operate to oust the power of the High Courtunder Articles 226 and 227 to issue a writ against the Chief Electoral Officerif the facts and circumstances of the case so warrant. The remedy underArticles 226 & 227 is a constitutional remedy and it cannot be taken awayby any enactment of the legislature. To the extent to which any legislativeenactment conflicts with this constitutional remedy, it must give way andthe constitutional remedy can be enforced notwithstanding. The "law"which enjoys immunity from challenge under Article 339 (a) is "law" relat-ing to the delimitation of constituencies or the allotment of seats to suchconstituencies and Section 30 of the Act of 1950 is not such "law".Section 30 is, therefore, not portected by Article 329 (a) and it cannot standin the way of the petitioner exercising his constitutional remedy underArticles 226 and 227.

Only a person who is a party to the proceedings under section 22 orsection 23 of the Act of 1950 can exercise a right of appeal conferred bysection 24. But apart from the applicant and the person in relation towhom action is sought to be taken there is no other person contemplatedby section 22 as a party to the proceeding.

Muncipat Corporation of Greater Bombay v. Panchan A.I.R. 1960S.C.1008 at 1016 paragraph 22; referred to—H.H.MAHARANA SURENDRASINGH JI JORAWARSINGHJI JHALA v. SHRI U.M. BHAT, CHIEFELECTORAL OFFICER, GUJARAT AND ORS, 29 E.L.R. 1.

Letters Patent, Bihar High Court—Article 28—Reference to a Bench—Whether includes Single Judge or only two or more judges.—HELD : Theword "Bench" both in thePatna High Court rules' and in Articles 28of the Letter Patent, includes a Single Judge. The reference in the presentcase to a single judge was therefore competent. RAJENDRA PRASAD JAINv. SHEEL BHADRA YAJEE & ORS 29 E.L.R. (S.C.) 96 .

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Validity of vote ivhether can be challenged in election petition beforeHigh Court—s. 30 of 1950 Act whether bars High Court, as a Civil court

from hearing such plea.(See Constitution of India, Articles, 326, 327—Adult—meaning of.)—ROOP LAL MEHTA v. DHAN SINGH, 29 E.L.R. 113.

Judge trying petition whether a Court for the Purpose of s. 86(1)(See Election Petition—General Principles.) —PUTTI VENKATASUBBAIAH v. SMT B.K. RADHABAI, 30 E.L.R. 100.

Costs—Awarding of costs when election petition is dismissed—HighCourt if has discretion. See—Election petition—Costs—31 ELR 69.—K.T.KOSALRAM i). DR. SANTHOSHAM, 32 E.L.R. 69.

Deputy Registrar—High court, Madhya Pradesh—Manual Powers of—Power of Deputy Registrar to fix date(See—Election Petition).—BABU LAL v.SHIV SHARMA AND ORS.,—32 E.L.R. 246.

Power of Review—High Court's decision in an election petitionunder Section 98 or 99 of the Act—Whether High Court has power to review itsdecision. HELD: Section 87 (1) of the Act provides the procedure that is tobe followed in the trial of election petitions and the power of review whichmust in terms be conferred has not been conferred on the High Court; thereforethe High Court had no power of reviewing its own decision given under Sec-tion 98 or 99 of the Act.

Narayan Yashwant Nene v. Rajaram Balkrishna, A.I.R. 1961 Bom. 21;Brij Mohan Lai v. Election Tribunal and others. 1966 Doabia's Election

Cases, 93.

K. Kamaraja Nadar v. Kunju Thevar, A.I.R. 1958 S.C. 687.Mohan Lai Chopra v. Rai Bahadur Rao Raja Seth Hiralal, A.I.R. 1962

S.C. 527.

Imamati Mallappa Basappa v. Desai Basavraj Ayyappa and Others,A.I.R. 1958 S.C. 698.

Harish Chandra Bajpai v. Trihhi Singh, A.I.R. 1957, S.C. 444.Vafati Gohul v. The State of Gujarat, 7 G.L.R. 1114.

U.J.S. Chopra v. State of Bombay, A.I.R. 1955 S.C. 633, referred to.

—BEOHARBHAI PARMABHAI HARJIVANDAS v. DEVJIBHAI SADA-BHAI PARMAR, 32 E.L.R. 133.

INTERPRETATION OF STATUTES

— Act 191 Bombay Ministers Salaries and Allowances Act, 1956 (48 of 1956),s. 13 as adapted to Maharashtra State by the Maharashtra Adaptation of Laws(States and concurrent subjects) Order, 1960, effect of—s. 13, whether a law passedby the Legislature of Maharashtra State within the meaning of s. 88 of the BombayReorganisation Act. HELD : When Art. 191 of the Constitution speaks of a

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Legislature of a State, what is meant is the authority having the legislativefunction to perform or in whom power to legislate for the time being is deposited.The Constitution has by Art. 3 as amended in 1955 given express power toParliament to make provision for consequential amendment, if any, for adap-tations, if any, in respect of the laws in force in any part of a State which afterreorganisation.may form part of another territory. This power in terms autho-rises the Parliament to make a provision like s. 120 of the State Reorgani-sation Act or s. 88 of the Bombay Reorganisation Act which includes thepower of adaptation to be exercised by Government to facilitate the continuanceof the law in force in an appropriate manner.

It would be strange to hold that while in the Maharashtra State whenit was a part of the bigger bilingual Bombay State the office of the DeputyMinister was not an office of profit which would, disqualify a person, it suddenlybecame an office of profit and the person who held the office of Deputy Minis-ter ceased to enjoy protection by reason of the reorganisation of the Stateafter separation of certain areas which went to the State of Gujarat.

It must therefore be held that s. 13 of the Bombay Ministers Salariesand Allowances Act is an express provision of law made by the legislatureof the State which exempts the office of Deputy Minister for the State frombeing considered an office of profit.—SHRIRAM HARIBHAU MANKARv. MADHUSUDAN ATMARAM VAIRALE. 29 E.L.R. 171.

NOMINATION OF CANDIDATES[See—ALSO-DISQUALIFICATION OP CANDIDATES]

ss. 33(1), (4), 36(2)—Proposed entering name of the state instead ofconstituency—Rejection of nomination papers by Returning Officer—Whetherproper—Defect of substantial nature—Meaning of. HELD : The appellant'snomination paper was improperly rejected as the defects in it were not of asubstantial "character. Generally speaking if the nomination paper does notdisclose at all the name of the constituency for which the nomination has beenmade, the defect would be of a substantial character, for there would then beno way of knowing the constituency for which a candidate is being nominated.But on the facts of the present case, i.e., that there was a mistake in the nomi-nation form as printed in Hindi; that the name of the constituency was givenin the heading; and that this was a bye-election to only one constituency,the mistake of the proposer in putting the word "Bihar" instead of 'Dhanbad"could not be said to be of a substantial character which would justify the re-jection of the nomination paper. The purpose of requiring the electoral rollnumbers in Columns 2 and 5 is to enable the Returning Officer to check readilythat the proposer and the candidate are voters on the electoral roll. On theevidence it was clear the Returning Officer found no difficulty in identifyingthese two in the electoral roll. Karnail Singh ii. Election Tribunal, Hissar andOthers, (1954) 10 E.L.R. 189 referred to. The result of the provisions in Sec-tions 34 and 36 of the Act is that the proposer and the candidate are expectedto file the nomination papers complete in all respects in accordance with theprescribed form; but even if there is some defect in the nomination paper iaregard to either the names or the electoral roll numbers, it is the duty of theReturning Officer to satisfy himself about them at the time of the presentation

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of the nomination paper and if necessary to allow them to be corrected in orderto bring them into conformity with the corresponding entries in the electoralroll. Thereafter, on scrutiny the" Returning Officer has the power to reject thenomination paper on the ground of failure to comply with any of the provisionsof S. 33 subject however to this that no nomination paper shall be rejected onthe ground of any defect which is not of a substantial character.—RANGILALCHOUDHURY t. DAHU SAO AND OTHERS, 23 E.L.R. (S.C.) 153.

Publication of list of candidates in Gazette only one day before election—effect of. Held : —The object of s. 38 and Rule 11 is to give information to theelectors about contesting candidates and to the candidates themselves. Althoughit is desirable that the list of candidates should be published in the Gazettesome days before the election, there is no fixed time within which it must beso published; it could not therefore he said that there was any non:compliancewith the provisions of the Act of 1951 or any Rules made thereunder.—KESHAO PRASAD v. A.D. MAN! AND OTHERS, 23 E.L.R. 171.

Ss. 16, 17, 62(1) andr. 11.'—Limitation on powers of Returning Officerto enquire into status of an elector whose name is entered in the electoral roll—It was not open to the appellant in these oroceedings to question the validityof acceptance of the first respondent's nomination paper. There was no alle-gation that he suffered from any disqualification under s. 16 of the Act of1950. Unless the nomination paper could be rejected under s. 36(2), the Re-turning Officer had no alternative but to accept it in view of Sec. 62(1) of theAct of 1951 which prescribes that every person who is for the time being enteredin the electoral roll of any constituency, shall be entitled to vote in that con-stituency. If the Returning Officer could not reject the nomination paperunder s. 36 (2) on the grounds put forward by the appellant, the Tribunal alsohad no power to hold an inquiry under section 100(l)(d) into those objections.Velusami v. Raja Nainar, AIR 1959 S.C. 422, referred to, Obiter : Section17 of the Act of 1950 cannot be read as controlling the meaning of s. 62 ofthe Act of 1951 so as to give the latter provision the sense that if a personis registered in the electoral roll for more than one constituency, he shall notbe entitled to vote in any constitutency.— KESHAO PRASAD v. A.D. MANI

AND OTHERS, 23 E.L.R. 171.

Improper acceptance of nomination paper—allegation of—Genuineness ofsignature—Handwriting experts' evidence diametrically opposite—Weight tobe attached—Election petition—•// Tribunal should go into controversial questionsof fact—When not in the petition nor covered by issues framed. The respondentfiled an election petition challenging the election of the appellant to theBihar Legislative Assembly on the ground that the appellant's nominationpaper was improperly accepted. At the time of the hearing of the petition beforethe Tribunal it was contended in support of this allegation that the nominationpapers did not bear the genuine signatures of the Appellant and that they werenot presented to the Returning Officer by the appellant himself. Tha Tribunalaccepted these contentions and declared the election void. On appeal—HELD :The judgment and order of the Election Tribunal declaring the election ofthe appellant void mast be set aside, (i) The evidence on record did not prove

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that the nomination papers did not bear the signatures of the appellant. Whenthe evidence of two handwriting experts is diametrically opposite, it would notbe safe to express a conclusive opinion upoa the genuineness of the appellant'ssignatures on the evidence of either of the handwriting experts, (ii) The pointthat the appellant was not present in Patna when the nomination papers werealleged to have been filed was not specifically raised by the respondent in theelection petition nor did the issues framed in the case cover an investigationinto this controversial question of fact. Besides, on the merits also the findingof the Tribunal in this regard could not be sustained.—NAND KISHOREPRATAP SINGH v. KAUSHALENDRA PD. NARAIN SINGH, 23 E.L.R.244.

Ss. 2 (1) (i), 33(1)(4)(6), 123 (7); Conduct of Elections Rules, 1961,R. 2(2)—Validity of nomination paper—Affixation of thumb impression of aproposer, not attested—Proposer able to write—Whether amounts to "signed".Four nomination papers proposing the name of one J, containing allegedthumb marks of proposers, were rejected by the Returning Officer on the groundthat they were presented to him by the candidate in the absence of the saidproposers, and that he could not satisfy himself as regards the identity of theproposers under Rule 2(2) of the Conduct of Elections Rule 1961. The appe-llant, an elector, filed an Election Petition claiming that the respondent's elec-tion to the Gujarat Legislative Assembly was liable to be set aside on the ground,(i) that the nomination of J was improperly rejected and (ii) that the respon-dent or his election agent had committed various corrupt practices. The Elec-tion Tribunal dismissed the Petition.

In the appeal to the High Court it was contended on behalf of the appellantthat the expression "signed" in Section 33 of the Representation of PeopleAct, 1951, covered, affixation of the thumb-impression of a proposer on thenomination paper, especially of one who was able to write as in the case of oneof the proposers of J; HELD : Dismissing the appeal :

(1) The defect in the nomination papers of J was of a substantial charac-ter and they were rightly rejected,

In S. 33 the expression "signed" can only mean signed by writing one'sname in one's own handwriting except in the case of persons who are un-able to write their names, in whose case the provisions ofs. 2 (1) (i) readwith Rule 2(2) of the Conduct of Elections Rules, 1961, have to be compliedwith. These provisions require the placing of the mark in the presence ofcertain specified persons and the attesting of such mark by such specified per-sons on their being satisfied as to the identity of the person placing the mark.The thumb marks of the proposers- of J not having been attested, the Nomi-nation papers were not signed within the meaning of Section 33,

MJ (D) 121EQ—J5,

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Section 2(1) (i) and Rule (2) (2) do not apply to persons who are able towrite. In their case authentication in the manner prescribed woiild not cons-titute signature.—LALJIBHAI JODHABHAT BAR v. VINODCHANDRAJETHALAL PATEL, 24 E.L.R. 145. - ••

——-Nomination paper—Name of candidate—Name of constituency.

Non-mention of Constituency in nomination paper where candidate and pro-poser enrolled—Whether defect of a substantial character. The object of the pro-visions contained in Ss. 33 to 36 of the Act is to enable the Returning Officerto check readily that the proposer and the candidate fulfil the prescribed require-ments ; as also to make sufficient particulars available to the candidates toidentify the candidate and ascertain whether he is qualified to contest. Wherethe nomination paper fulfils these objects, it cannot be said to suffer from adefect of a substantial character. However, if the name of the constituency,where the candidate is enrolled as an elector, was not given in the nominationpaper, nor is there anything in it from which the name of that constituency couldhave been inferred and there is also noting to show that the entry relating tothe name of the candidate in electoral roll was pointed out to the ReturningOfficer either at the time of the presentation or at the time of the scrutiny,the nomination paper suffered from a defect of a substantial character and wasrightly rejected. Rattan Anmol Singh v. Gh. Atma Ram, 10 E.L.R. 41 ; KarnailSingh v. Election Tribunal Hissar, 10 E.L.R. 189 ; Brijendralal v. JawalaPrasad 22 E.L.R. 366 S.C. ; Ranglal v. Dahu Sao A.I.R. 1962, S.C. 1248,Ramayan Shuhla v. Rajendra Prasad Singh, 16 E.L.R.1 491, Dahu Sao v.Ranglal 22 E.L.R. 299 ; Rup Lai v. Jugraj Singh 15 E.L.R. 484 (Punjab);Netram v. Lakshnan Prasad 15 E.L.R. 266 (M.P.) Ajaib Singh v. Karnail Singh,6 E.L.R. 368, referred to.—SUNDER LAL CHECHANI v. SAMPAT LAL24 E.L.R. 340.

- Ss. 82 (b), 79 (b) 12H (1) (B)—'any other candidate1—meaning of HELD :

Per Mehar Singh, J : The expression "any other candidate" in cl. (b)of s. 82 refers to the class of candidates who, after being validly nominatedhave withdrawn within the prescribed period. A person who has been dulynominated as a candidate is a 'candidate' within the definition of s. 79 (b)and he remains a candidate even though after having been duly nominated,he withdraws. The words of the definition are clear and s-. 82 does not warrantany other interpretation. Therefore, J and Z were 'candidates' as that wordis used in s. 82 (b).

S.B. Adityan v. S. Kandcuwami, A.I.R. 1958 S.C. 857 ; relied on.

Chaturbhuj Chunilal v. Election Tribunal, Kanpur, 15 E.L.R. 301;Baburao Tatyaji Bhonsle v. Madho SrihantAney, A.I.R. 1961 Bom. 29; BadriNarain Singh v. Kamdeo Prasad Singh, A.I.R. 1961, Patna 41; and KapildeoSingh v. Suraj Narain Singh, A.I.R. Pat. 250; referred to. Dua J., expresseddoubts about the correctness of the view adopted by Mehar Singh, J., as to themeaning and scope of the term 'bribery' as used in reference to the withdrawalof a candidate's candidature—MO0L CHAN.D JAIN v, RULIA RAM #ANR., 24' E.L.R. 358, ,

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—•—• Ss. 33, 36 (4)—Variation in surname between nomination paper andVoter's list—Whether nomination paper "improperly rejected" for such defect.HELD: The proviso to sub-section (4) of section 33 enjoins upon the returningofficer a duty to permit any clerical or technical error in the nomination papersto be corrected in order to bring them into conformity with the corresponding-entries in the electoral rolls and, wherever necessary, to direct that any cle-rical or printing error in the said entries should be over-looked, irrespective ofwhether the candidates or proposers or any other person asked for the correc-tion or not.

Even assuming the discrepancy as to the difference in the surname in thenomination paper as compared with the voter's list was a defect, it was nota defect of a substantial character within the meaning of sub-section (4) ofSection 36, and the returning officer was therefore in error in rejecting thenomination paper when once there was no doubt as to the identity of thecandidate and his proposer.

Rangilal v. Dahusao, A.I.R. 1962, S.C. 1248, Dev Kanta v. KusharamNath, A.'l.E. 1961, S.C. 1125, Karmil Singh v Election Tribunal His&ar10 E.L.K. 189, S.C. relied on.—NAMDEO CHIMNAJI TAPRE v. GOVIND-DAS AND ORS. 25 E.L.R, 1.

•$. 117—Reluming Officer's duty to ensure correction. S. 117—Everyground of qualification or disqualification was open for consideration in decidingwhether the nomination paper was improperly rejected within the meaningof Section 100(l)(c) and the consideration whether it was improperly rejectedor not was not limited to the one ground which was- urged before the returningofficer.

N.F. Veluwani v. Raja Nainar, A.I.R. 1959, S.C. 422; 8.M. Banerjiv. Sri Krishna, A.I.R. 1960 S.C. 368; relied on.

Durga Shanker v. Raghuraj Singh, A.I.R. 1953, S.C. 520, referred to.NAMDEO CHIMNAJI TAPRE v. GOVINDDAS AND ORS, 25 E.L.R. 1.

—•—S. 36(78) Improper rejection of nomination papers—omissionof name in the list of contesting candidates—Rectification of list—//improper rejection.—HELD: The fact that tho appellant actually contested theelection and polled the votes conclusively shows that his nomination paperswere not rejected. An order rejecting nomination papers has to be rn writingand tho Returning Officer is bound to give a brief statement of the reasonstherefor. Admittedly no such order was recorded and it is not the appella-nt 's case the circumstances warranted the recording of an order. Besides, atthe back of the first appellant's nomination paper there was a clear orderaccepting the same.—MOHINDER SINGH & ANR. v. GURMIT SINGH,25 E.L.R. 27.

—Dying of validly nominated candidate before the date of withdrawal ifbecomes "contesting Candida'e—"poll if must be countermanded. HELD: PerDhavm 7.—The entire scheme of Part V of the act which deals with "theCop.-duci of Elections" contemplates living persons as candidates.

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The list of wmtesbing candidates cannot be prepared under s. 38 untilafter the expiry of the period fixed for the withdrawal of candidature. I tmeans that no question of a candidate becoming a contesting candidate arisesbefore the expiry of this period and the words "who have not withdrawntheir candidature within the said period" signify that the definition is notapplicable till the period fixed for the withdrawal is over. That is why thelist of contesting candidates is prepared after the expiry of this period. Itfollows from the very definition of contesting candidate in s. 38 and thelanguage of s. 52 that no candidate can acquire the status of a contestingcandidate before the expiry of the period prescribed for withdrawal of candi-dature and chat s. 52 comes into effect only if a contesting candidate diesafter the expiry of tho period. These two corollaries are complimentary.

Per Asihana J. -The words "contesting candidate" have been deliberatelyintroduced, by amending Act XXVII of 1956, in the schema of elections for aspecific purpose. The list of contesting candidates is the most important listunder the scheme of the Act. If the fact of the death which is always trans-cendental could be taken notice of by the Returning Officer in drawing up alist of validly nominated candidates, there is no reason why it could not betaken notice of by the Returning Officer when drawing up a list of contestingcandidates under s. 38 of the Act.—MADANGOPAL v. NEK RAM SHARMA25 E.L.R. 61,,

•—S. 35—Age.—Indian Evidence Act,, s. 35—Admissibility of entries inschool registers as evidencing age.—HELD: Whether an entry in the AdmissionRegister of a school will be admissible under s. 35 of the Indian EvidenceAct depends on the circumstances in which such registers are maintained.When application forms for admission to a school, the school register, andforms for transfer certificates and High School Certificates, are prescribedby statutory rules, the entries in these registers are admissible under s. 35.On the basis of copies of such entries produced by the first respondent andother relevant considerations his age was proved to be not below 25 yearson the relevant date, and he was therefore, eligible for election.

Brij Mohan v. Priya Brat A.I.R. 1965 S.C. 282; Gopalan v. Kannan A.I.R.1959 Kerala 18; referred to.—RANDHIR SINGH v. RAJ NARAIN ANDORS. 27 E.L.R. 79.

—When does a Person become 'candidate' (SEE—CORRUPT PRACTICE-PUBLISHING FALSE STATEMENT).—KISHORE SINGH v. BHANWARLAL NANTA AND ORS., 27 E.L.R. 243.

By virtue of s. 79(6) of the Act, a person is deemed to have beena candidate as from the time when, with the election in prospect, he beginsto hold himself out as a prospective candidate, and not merely from thedate his nomination paper is filed.

Nomination papers—whether nomination papers must be received incourt-room of Collector—HELD Nomination papers can be validly received at anyplace within the Collectorate, and it is not correct to say that they must neces-sarily be received in the Court room of the Collector or the Deputy Collectorto be valid.—HARIRAMSING v. KAMTA PRASAD SHARMA, 28 E.L.R.44.

• 8. 30 & 31—proper publication of notice under s. 30 and public notice unders, -31 HELD : The public notice of the election required to be given under

s. 31 of the Act has to be given "'on the issue of a notification under s. 30"i.e., after the latter has been published in the official Gazette. In the presentcase the notice under s. 31 was no doubt prepared on October 30, 1963,but it was directed to be published on 1-11-1963 by 10 A.M. The notificationtinder s. 30 was also published in the official Gazette on 1-11-1963 which musthave been on the dawn of 1-11-1963. Consequently the notice under s. 31could not be said to be invalid for the reason that it was published beforethe notice under s. 30.—HAEIEAMSINGH v. KAMTA PEASAD SHAEMA,28 E.L.E. 44.

Ss. 33(1), 33(5), 36(2), 81(2) (a) (ii) and 90(3)—Presentation of nomina-tion papers—Objections thereto—Enquiry by Returning Officer—Vakalal infavour of advocate not expressly authorising him to present election petition beforeElection Commission—Presentation by him whether proper—'Non-compliancewith s. 81(2) (a) (ii) whether must result in dismissal of petition by Tribunalunder s. 90(3).—The appellant was elected to the U.P. Legislative Assemblyfrom a constituency in Eae Bareli District at a bye-election held in 1963.An election petition challenging la, it* election was filed by the supporters ofone M who had filed nomination papers for the election which had been rejectedby the Eeturning Officer. The Tribunal held that the rejection was wrongand set aside the election of the appellant. In allowing an appeal after areference by the division bench to a third learned Judge, against the orderof the Tribunal,

HELD:(i) The Tribunal had rightly held that the signatures of the proposer

on the nomination papers filed by M were made by the proposers themselves.(ii) On the evidence it must also be held that the two nomination papers

nominating M as a candidate were presented to the Eeturning Officer bythe proposers themselves.

(TO) Under s. 36(2) of the Eepresentation of the People Act it is theduty of the Eeturning Officer to decide all objections which may be madeto any nomination and he may either on such objection or on his own motionafter such summary inquiry, if any, as he thinks necessary, reject any nomina-tion on the ground enumerated therein. But in such an inquiry the onusalways lies on the objector to prove his allegation even when there is no rebuttalof the allegations. The mere filing of an affidavit based on hearsay does notconstitute evidence and a nomination paper must not be rejected merelyon the basis of such an affidavit.

(iv) There is no provision in the Act which requires expressly or impliedlythat the proposer must know the candidate he is proposing. Very oftenelections are fought -on party lines and it is not necessary that a candidateof the party in which the proposer is interested, should be known to the pro-poser personally.

(v) There was no basis for the suggestion that M signed the nominationpapers when they were blank and thus there was a non-compliance with s.33(1). The section does not lay down any sequence in which the nominationform in Form 2A has to be filled. No rule or form can go beyond the require-ments of the section.

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{vi) There was no specific plea taken by the appellant in his writtenstatement that the nomination papers of M were invalid because no copyof the electoral roll had been filed with them in compliance with s. 33(5).The plea could not be allowed to be raised at the stage of the appeal or atany stage after the evidence had been recorded.

(TO) {Per Prasad J.) The election petition was not presented to the ElectionCommission by a duly authorised person as required by s. 81(2)(a)(w), in asmuch as the vakalatnama did not expressly authorise the advocate who pre-sented it to make such presentation. On this view of the matter the appealmust be allowed.

{Per Sharma J.) Reading the vakalatnama as a whole it gave authorityto the petitioners' advocate to present the election petition before the ElectionCommission.

On the difference being referred to a third Judge,

HELD : {Per Nigam J. on a reference) Regard being had to the factthat an election was to be allowed to be challenged only by an election petitioncomplying with the requirements of the statute and that the question of thejurisdiction of the Election Commission and of the Tribunal to set aside theverdict of the popular vote, was involved, it must be held that the provisionsof s. 8\{2){a){ii) must be strictly complied with. The authority to presentthe petition must be clearly expressed. In this matter technicalities couldnot be disregarded. The petition in the present case was therefore not properlypresented.

Harmon v. Park (VII, Queen's Bench Division, (1881) 369); Nazir Ahmedv. Empror (A.I.R. 1936 P.C. 253 (2)); Tribeni Ram v. Sa'yadeo Singh andothers (A.I.R. 1966 Allahabad 20); Shri Baru Bam v. Smi. Prasanni and olhers(A.I.R. 1959 S.C., 93); Gh. Subbarao v. Member, Election Tribunal, Hyderabadand others (A.I.R. 1964 S. C. 1027); Murarka Radhey Shy am Ram Kumarv. Roop Singh Rathore and others (A.I.R. 1964 S.C. 1545); Dr. Anup Singhv. Shri Abdul Ghani and others (A.I.R. 1965 S.C. 815); V.V. Giri v. D. SuriDora and others (A.I.R. 1959 S.C. 1318); Raza Buland Sugar Co., Ltd., Ratnpurv. The Municipal Board, Rampur (A.I.R. 1965 S.C. 895); Lewis v. RamsdaU(55 L.T.R. 179); Pratap Singh v. Shri Krishna Gupta (A.I.R. 1956 S.C. 140at page 141); Rattan Anmol Singh v. Atma Ram (1955-1 S.C.R. 481); referredto. WASI NAQVI v. BAIJNATII SINGH 28 E.L.R. 185.

S. 33(5)—copy of electoral roll if necessary to be filed with each nomina-tion paper—electoral roll of assembly constituency if can be filed for election toParliament—"Part of the Electoral roll"—meaning of—Filing of copy of thepart if defect of substantial character under s. 36(4).—HELD:

(i) Where a number of nomination papers have been filed and a copyhas been filed with one of them, that is enough. There is nothing in sec-tion 33(5) which prevents a returning officer from looking at the copy filedwith one nomination paper, even after that nomination paper has been rejectedor with a nomination paper which is pending before him for scrutiny, when

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he comes to deal with other nomination papers, because, the purpose of filingthe copy is- to ensure, that; the returning officer is able to check whether thecandidate concerned is qualified or not.

(*'«•)• The • electoral roll of a parliamentary constituency is no other thanthe electoral roll of the assembly constituencies comprised within that parlia-mentary constituency.: Therefore, if a candidate files a copy of the electoralroll of an assembly constituency, that copy is sufficient to show that he is anelector in the parliamentary constituency in which that assembly constituencyis included. • •

(in) The High Court was not right in its view that the production ofan incomplete copy was not a defect of a substantial character which wouldmake the nomination paper liable to be rejected. When section 33(5) refersto a copy of the relevant parts of the electoral roll it means a part as definedin rule 5 of the Registration of Electors Rules, 1960. The copy producedby W not being complete was not sufficient to enable the returning officerto decide whether he was qualified to stand or not. Qualification for standingfor election is a matter of substantial character and under s. 33(5) it is thecopy produced by the candidate which should show whether he is qualifiedor not.

The fact that the returning officer rejected the •nomination papers onsome other ground is of no consequence. If there was in truth a defect ofa substantial character in the matter of compliance with s. 33 of the Act, thenomination paper was liable to be rejected, and if it was so rejected, rejectionwould be proper whatever may have been the reason given by the returningofficer.—RANJIT SINGH v. PRITAM SINGH, 28 E.L.R. 169 (S.C.)

——S. 36 (5) (43 of 1951) Improper rejection of nomination paper on accountof age—Entry in the Electoral roll prepared for the previous election conclusive—HELD:—The nomination paper of R was rightly rejected and that of N rightlyaccepted.

: On the evidence adduced the appellant had not been able to prove thatR had coraploted the age of 30 years ou the dat.i of illiug his nomination paper.The electoral roll of the Assembly for the year 1959, though a piece of evid-ence which could be considered in determining the ago, did not conclusivelyprove the correctness of the age of the person concerned. The finality attachedto the entry made in the electoral roll after its due publication is only for thepurpose of proving the membership, of the person concerned.

Brijendra Lai, Gupta v. Jawala Prasai, A.l.R. 1960 S.C. 1049; BaidyaNaih Thakur v. Sashidanand Pandey, 1963, B.L.R. 21D; referred to.

Th.oi5c.hool Register showing the age of R not having been proved by aperson knowing the handwriting of the writer of that entry, could not bet k ^ n i n t evidence.

' i" ! : : 'OH the evidence on record, N had cs.ised to hold the office of AssistantGovernment Ploadcu before the date of filing of his nomination papers. (The

ctiurt therefore did not go into the question whether an Assistant GovernmentPleader held an office of profit.)—KRISHNA PRASAD CHOUDHARY v.NITESHWAR PRASAD & OTHERS 28 E.L.R, 209.

—-—Time limit for Registration of voters.— s. 23(3), as amended by repre-sentation of the people (Amendment) Act, 1966—No registration of voters afterlast date for filing nomination papers of candidates—20-1-67 fixed as last datefor filing nominaton papers for 1967 general elections—Electoral RegistrationOfficer issuing notification fixing 12-1-67 as last date for receiving applicationsfrom voters for inclusion of names in voters list,—Whether voters denied sufficientopportunity—Whether s. 21(3) and s. 23(3) conflicting.

Under the provisions of s. 23(3) of the Representation of the People Act1950, as amended in 1966, no application for registration as an elector couldbe made after the last date for filing of nomination pape: s. The Electoral Re-gistration Officer of Musheerabad constituency in Andhia Pradesh issued anotification that applications for the purpose should be made by 12-1 67 sothat after seven days of receipt of the applications action could be taken thelast date for filing nomination papers being 20-1-67. The petitioner who wasa candidate at the election filed a petition under Art. 226 of the Constitutioncontending that the names of many voters who had applied on 12th January,1967 for the inclusion of their names in the electoral roll had not been soincluded. He urged that there was a conflict between s. 21(3) and s. 23(3) ofthe Act.

HELD: The contention that there was a conflict between ss. 21(3) and23(3) was without substance. While s. 21(3) is with respect to the power ofgeneral superintendence, direction and control vested in the Election Commis-sion, s. 23(3) is limited to ss. 22 and 23 of the Act whish respectively relateto correction of entries in electoral rolL; and the inclusion of names in therolls. The power under s. 21(3) must be so exercised a8 not to effect anychange in the electoral roll after the last date laid down in s. 23(3).

The electora1 rolls of the constituency had been published as far back asMay, 1966. There was plenty of opportunity to get names included in the elec-toral roll. The petitioner who was a candidate for election could not be heardto complain on behalf of the applicants who themselves had made no complainton the non-inclusion of their names. In so far as the advantage or disadvantageof not having those persons on the electoral roll is concerned it was equallyapplicable to all candidates. In any case, there was no material to show that theChief Electoral Officer had not included the names of the applicants for good andsufficient reasons.- RAMA RAO T.S. v. CHIEF ELECTORAL OFFICERANDHRA PRADESH AND ORS. 29 E.L.R. 60.

——s. 33 (5) read with s. 36(2)(b)—Candidate not producing with nominal-ion paper copy of electoral roll of constituency in which he was recorded as voter-Requirement whether directory or mandatory : HELD : S. 35 (5) of the Act,is mandatory and the rejection of G's nomination paper for non-compliancewith this requirement under s. 36(2) (b) was proper. The election petitionmust therefore be dismissed. _:• ..•;. . ' • : • . . . . • ' . • ; :.•. <4

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Chand Singh v. ShanJwrlal 20 E.L.R. 63; Barn Ram v. Smt. Prassani, 16E.L.E. 450, A.I.R. 1959 S.C. 93, followed. Jtanjit Singh v. Prilmn SinghA.I.R. 1966 S.C. 1626 explained. — SHRIKHYALI RAM v. SHRIHARLAL SINGH, 29 E.L.R. 108.

—Allegations of Corrupt practices against a person who had filed nominationpapers for election but had withdrawn, —such a person whether 'candidate'.

HELD : (i) In the application clear allegations of corrupt practice withinthe meaning of s. 123 of the Act had been made against R. (ii) R was a"'candidate' writhin the meaning of 279(b) of the Act. Under the definitionin that section a person is deemed to have been a candidate fromthe time when, with the election in prospect, he began to hold himself out as aprospective candidate. A person who has been duly nominated continues tobe a candidate for the purpose of s. 82(1) even after the withdrawal of his candi-dature. The contention that R had committed the corrupt practice as an agentof the returned candidate and not in his capacity as candidate could not beaccepted. All that s. 82(b) requires is that allegations should have been madeagainst any other candidate. It does not require that such other candidate,should be alleged to have committed corrupt practice in his capacity as a candi-date. Further it is not necessary for the purpose of s. 82(b) that the electionpetition must say that the other-candidate was guilty of corrupt practice. Itis sufficient if allegations are made.—BRIJMOHAN LAL (SHARMA) v.FATEH SINGH & ORS. 29 E.L.R. 126.

ss. 33(4) and 36(4)—Clerical mistakes in nomination paper—ReturningOfficer not to reject nomination paper on such ground—Relevant part of electoralroll in which name of proposer and candidate occurred, wrongly mentioned innomination papers—Rejection of nomination papers on .such grounds improper—The fact that candidate whose nomination paper was so rejected or that he was acovering candidate for another held irrelevant. HELD : (i) Election law does notrecognise the notion of a covering or substitute candidate. It may be that afterfiling his nomination paper a candidate may withdraw from the contest, butso long as his nomination paper has not been rejected or he has himself notwithdrawn it, he remains a candidate and if his nomination5 paper isimproperly rejected whatever be his object and whatever be his motiveshe has a right to pall in question the election of the returned candidate, nomatter who prompts* or instigates him and from where he gets the meansto do so. (ii) The fact that the petitioner was not present at the scrutinywas of no consequence. The power of the Returning Officer is to reject anomination paper, only if it suffers from a defect of a substantial character.The . question whether the defect is of a substantial character or notdoes: not depend upon whether the petitioner or his representativeis, present before the Returning Officer at the time of the scrutiny.(iii) Under s. 33(4) of the Act, a nomination paper cannot bo rejected merelyon the ground of a technical or clerical error. The Returning Officer has togive an opportunity to the candidate to correct such mistakes. Sub-section (4)of s. 36 of the Act provides that the Returning Officer shall not reject any no-mination paper on the ground '6f defect which is not of a substantial character.

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In the present case the defects wore obviously of a clerical character. From the. first nomination paper in which the part of the electoral roll in which the can-

didate's name was correctly recorded the identity of the candidate was estab-lished. The mere fact that in the second nomination paper the part was men-tioned as 2 instead of 12 could, not create any doubt as to the identity of thecandidate in the mind of the Returning Officer who had the first nominationpaper before him. The fact that the Returning Officer gave to the petitioner anopportunity at the time of scrutiny to correct the defects, showed that he didnot consider the defects to be of a substantial character. The opportunity tomake corrections is however to be given under s. 33 (4) at the time of filing thenomination papers a.nd not at the time of scrutiny. The defects in thenomination papers not being of a substantial character, the rejection of thosepapers on the ground that the petitioner had not appeared to remove thedefects despite notice having been given was illegal. The necessary conseque-nce of the finding was that the election of the respondent had to bedeclared void under s. 100(1) (c) of the Representation of the people Act,1951. Karnail Singh v. Election Tribunal Hissar and others (10 E.L.R/189); DahuSao v. Rangilal Chaudhary and others (AIR I960 Patna 371); Rosamma Pun-nose v. B. Balahrishnan Nair and other (11- BLR 210); Rattan Anmol Singh andanother v. Gh. Alma Ram and others (AIR 1951 SO 510); Balm Ram v. Smt.Prasanni (AIR 1959 Supreme Court 93); Brijendralal Gupta v. Jwalaprasadand others (AIR 1960 Supreme Court 1049); Sunder Lai Ghechani v. Sampat Lai(AIR 1963 Rajasthan 226); Netram v. Lahhman Prasad and another (AIR 1960Madhya Pradesh 368); Balji v. MurarJca Radheysham Ramkumar (AIR 1965Rajasthan 23); referred to. -MADAN LAL v. HIRA SINGH PAL AND ORS.29 E.L.R. 139.

-s. 79(b)—Notice to the respondents—s. 82(b)—meaning of 'mmlidate'—In view of the definition of the word "candidate' as given in s. 79 (b) of the Actthe word 'any other candidate' in s 82 (b) must include a candidate who hadwithdrawn his candidature under s. 37 of the Act. The provisions of s. 82(b) aremandatory and not directory. Therefore the non-joinder of 'A' who was anecessary party under s. 82 (b) must prove . fatal to the petition.Molian Singh v. Bhanwarlal and Ors. AIR 1964 SC. 1366; Ear Swamp andAnr. v. Brij Bhushan Saran and Am. AIR 1967 S.C. 836; Baburao Taiyaji. Bho-male v. Madhav Shrihwri A<u;q 63 Bombay Law Reporter 20. Applied—HIRU-BHAU M. GAVAL1 v. SHIVARAM DAD A HIRE AND ANR. 29 E.L.R.178.

—Making ami subscribing of oath—prescribed in the third schedule.Point of lime when requirement must be fulfilled. The first respondentchallenged the election of the appellant to the Bihar Legislative Council onthe ground that the appellant was disqualified under Article 173 of theConstitution to fill, a seat in the legislature as he did not make and subscribean oath as required under Article 173(a), and his nomination paper wastherefore improperly accepted by the Returning Officer, which materiallyaffected the election. The Tribunal allowed the petition and set aside the

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appellant's election. HELD : Allowing the appeal:—The form of the oatliprescribed in the Third Schedule to the Constitution indicates that the oathis intended to be made and subscribed when a person has been nominated as acandidate to fill a seat in the Legislature. One can be said to be so nominatedonly when, after scrutiny of the nomination papers, the Returning Officerfinds him to be validly nominated, as provided under section 36 (8) of the Re-presentation of the People Act, 1951. From the other forms of oath prescribedin the Third Schedule it is to be found that appointment to an office or electionto a seat in the Legislature is to be completed before such taking of oath."Appointed" and "elected" in the forms of oaths prescribed for the appointmentof judges or Ministers and members of Legislatures respectively, read with thecorresponding articles in the Constitution leave no doubt that both the ex-pressions mean completed procedure of appointment or election. The word"nominated" in the form of oath under article 173 will be taken in the same sensethat is, everything connected with the nomination has been over which will bethe stage when the scrutiny is done and the list of validly no initiated candidatesfor a particular election is prepared and affixed to the notice board for informa-tion of all concerned as provided under section 36(8) of the Representation ofthe People Act, 1951. A person whose nomination paper has successfullypassed through the scrutiny and is included in the list notified by the ReturningOfficer under sub-section (8) of section 36, can only be said to have been validlynominated. The prescribed form of oath under article 173 will conform to thatstage, which will spread from that date to the date when the list of contestingcandidates is published under section 38, because during that period a personcan say that he has been validly nominated for the election and that will be inkeeping with the text of the oath. The making of an oath is not a qualifica-tion, but that act is enjoined upon a candidate to be done at the appropriatestage and time before he is chosen to fill a seat. If, according to the prescribedform of oath that stage cannot come at or before the time of filing the nomina-tion paper, that matter cannot obviously be taken into consideration at the timeof scrutiny of the nomination papers. Clause (a) of sub-section (2) of section 36has cautiously used the expression "under any of the following provisions thatmay be applicable". Even after the 16th amendment, as reflected in Article173, the portion therein in regard to the making of oath, will not be taken asapplicable at the stage of scrutiny. In that sense, there is no incompatibilitybetween the oath being taken after scrutiny and the operation of the provisionunder clause (a) of sub-section (2) of Section 36. Ramapat Chatterjee v.Sachinandan Nandi (A.I.R. 1920 Cal. 244); Dharwmaraj Mahadeo v. AdditionalCommissioner Ahold (A..IJ&. 1957 Bom. Deputy 154); T.A. Janukamara Nainerv. Periaswamy Goundan (A.I.R. 1949 Mad. 376); Marahanda Safin v. LaiSadananda Singh (A.I.R. 1952 Orissa 279); Ganesh Choudhury v. MatigalPxasad Singh (1963 B.L.J.R. 906); referred to.-SHIV SHANKAR KANODIAv . v K A H L b E 0 NARAIN SINGH, 28 E.L.R. 250. M

Art. 84(«)—Candidate at election taking oath in the name of God and alsosubscribing to solemn affirmation-Article whether contravened-Nomination whetherrendered invalid. HELD: The Constitution has certainly prescribed by Article 84that a person in order to be qualified for being chosen to fill a seat in Parliamentmust make an oath or affirmation in the prescribed form but that does not mean

that if a person takes an oath as also makes an-affirmation, the result is reducedto zero, and that he can. neither be said to have taken an oath nor made anaffirmation. There is no such requirement that an, affirnlation can be made onlyif it is first declared that a person is an atheist or does not have religious faith.It is entirely left to the choice of a particular individual eithe'r to take an Oathor to make a solemn affirmation irrespective of any declaration or assentation1

of a religious belief. Therefore if an oath is followed by an affirmation it cannotbe said that belief in God i,̂ cancelled by disbelief or religious faithis wiped outby doing an act which would be done by a person ;who does not have such faith.It is a matter of common knowledge and occurrence that persons who have re-ligious faith and belief in God will prefer to make a solemn affirmation insteadof taking an oath. It can even happen that a person may by a genuine mistaketake an oath and also make a solemn affirmation by way of abundant caution.It was the duty of the Assistant Returning Officer to have called attentionof respondent No. 2 to the question of either swearing in the name of Godor making a solemn affirmation, and scoring out one or the other which wasnever done. As required by paragraph. 7 of the Handbook for Returning Officerswhich has been issued by the Election Commission, the Assistant ReturningOfficer should have ensured that the words '"Solemnly affirm" were crossedout and he failed in his duty in the matter. Even if the Handbook does not haveany statutory validity it only lays down what ought to be done as a matter ofroutine by the authorised office which is in consonance with normal practiceand commonsonse. In the circumstances no ground had been made out forrejecting the nomination paper of respondent No. 2.-̂ ~S. KAPUR SINGH v. S.DEVINDER SINGH GARCIA A P ANR. 29 E.L.R. 255.

SS. 36 (5) and 100(1) (d)(i) —Scrutiny of'nomination papers interruptedfor two hours-S. 36(5) wh&her contravened—Election when materially affected-See : ELECTION PETITION-MISCELLANEOUS MATTERS KAPUR-SINGH v. DEVINDEU SINGH GARCHA AND ANR. 29 E.L.R. 255.

_;—;jlfi_ $4—Oath ad-ministered to candidate by returning officer, Ajmer—Whether Article 84 of constitution of India complied with—HELD: Thecontention of (he petitioner that under the relevent notificat'on.issued bythe Election Commission for the purpose of Art. 84 (a) of the Constitutiona candidate could take or subscribe an oath before the Returning Officer orAssistant Returning Officer but these officers could not administer the oathto him, could not be accepted. The intention behind the notificationsin question was to authofis'3 the Returning Officer as well as the AssistantReturning Officer of the Constituency to administer an oath, to a candidatefor election to the House of the People. There was no non-compliance withArt, 84 (a) of the Constitution. RAM LAL V. VISHVESWARNATH,29 E.L.R. 307.

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—s. 17—Section whether directory or mandatory—Candidate's name registeredin two constituencies—-Effect—Whether such candidate disqualified from election—Scrutiny of nomination paper under s. 36 of Representation of the People Act1951—Returning Officer refusing adjournment of Scrutiny to enable evidence ofdouble registration to be produced—Effect of such refusal—Whether invalidatesacceptance of nomination of candidate whise name is alleged to be registered intwo constituencies—Such candidate stating before Returning Officer that he wasnot sure whether his name was entered in MO places -Effect—Acceptance of nomina-tion paper whether liable to be set aside because of such statement on the ground thatit is false and fraudulent'—HELD: (i) Section 17 of the Representation of thePeople Act, 1950, lays down only a directory provision and not a mandatoryprovision, and in the present case the fact that, the name of respondentno. I was entered in the electoral rolls of two/constituencies did not renderthe acceptance of his nomination or his ele^ion invalid.

•• > i \ \ *..-> (! i -: . , v

The way in which the Registration of Electors Rules. 1960, is framedfor the preparation of electoral rolls and the way in which the informationis supplied by occupants of dwelling houses for the purpose of preparation ofsuch electoral rolls shows that double entries as in the present ca.se mayinadvertanty creep into the electoral rolls. If double-legistration was to beviewed as a disqualification of a mandatory nature, Parliament would haveincorporated the provision in s. 17 (as well as in s. 18) as a limb of s. 16.But it has deliberately not done so. This can be taken in conjunction withthe provision in s. 62 (0) and (4) of the Act of 1951 for drawing the infer-ence that double registration whether under s. 17 or s. 18 is not per se illegaland does not deprive the person so regisered of his rights as a voter to casthis vote or as an elector to stand for election as a candidate. The onlylimitation that is imposed upon him as a consequence of such doubleregistration is an obligati©n tc vote, -only once on the strength of suchregistration. ••"

Howard v. Bodington (1877) 2 P.D. 203, 211, Liverpool Bank v. Turnar(1181) 30 L.J. Ch. 379, 380, Dwarha Prasad v- Kamalnarain, AIR 1964 M.P.273 at p. 278 and 279, Collector Monghyr v. Keshava Prashad, AIR 1962 S.C.1694 Ramnarain v. Ramchandra AIR 1958 Bombay 325, (Bombay) Writ peti-tion No. 2371 of 1965, Shri Keihava Prasad v. Shri A. D. Mani I.L.R.1961 M.P. 974, Brijendralal v. Jwalaprdsad AIR 1960 S.C. 1049 referred to.

(li) On the above finding the failure of the Returning Officer to grant tothe petitioner an adjournment for the purposes of producing a eoDy of theroll in which the second entry of the name of respondent No. I was to befound did not invalidate the acceptance of the nomination of the respondent.

(iii) If it is found that at some incidental enquiry the returning candi-date has given a piece of false testimony, there may be room to penalisehim in independent proceedings. But there is no authority to show thatsuch false testimony, evert if given,, can be linked up either with the accep-tance of the nomination paper or the election, for treating it as a defect inthe nomination paper or a disqualification to:stand for election. That apartjn the present case what the first respondent is said to have stated

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the Returning Officer could be reconciled with his inability to have a clearrecollection nearly one year, later, of the particulars of the statement he hadgiven in Form 4 when the electoral roll for the Tiruvadanai constituencywas being prepared. Therefore no clinching conclusion could be .reachedthat he intentionally gave a false statement in that respect or that such falsestatement if made would invalidate the acceptance of his nomination papersfor his election.

Jagan Nath v. Jaswanf, Singh and Ors. 1954 S.C.R. 892; relied on. VENKA-TACHALAM CHETTIAR v. MAIYAPPAN & ORS. 29 E.L.R. 336

ss. 33 and 36- -Requirement of s. 33(1) that candidate should sign hisacceptance of nomination whether mandatory—Irregularity which it, is duty ofReturning Officer to get removed und'e'r s. 33 (4) after "preliminary scftifiny"—Rejection of nomination paper under s. 36(2) on the ground that the candidatehad not signed his acceptance of nominatin whether improper—Effect an elect-ion. The petitioner, the two respondents, and certain others filed nominationpapers for election to Parliament at the 1967 general election. Thii'.nomi-nation paper filed by respondent No. 2 did not bear his1 signature stewing hisacceptance of the nomination as required by s. 33 (1) of the Representation ofthe People Act, 1951. At the scrutiny held subsequently, the ReturningOfficer rejected the said nomination paper under s. 36(3). The first respondentwon the election and the petitioner challenged his election by petition inwhich he contended that the Returning Officer should have given respondentNo. 2 an opportunity to remove the irregularity in his nomination paper,and that by the improper rejection of the nomination paper, the result of theelection had been materially affected. -..|

HELD: (i) Section 33 uses the expression cthe candidate shall' ;withregard to the requirements therein, and the only exception which,seems tohave been made is that the presentation of the nomination paper may be doneeither by the candidate or by his proposer presumably at the option of thecandidate. There seems to be no scope for any other option. The want of signa-ture of the candidate on the nomination paper is not a mere irregularity but adefect arising out of non-compliance with the mandatory requirements of s. 33.

The contention that the signature was meant only for satisfying theReturning Officer that the candidate had assented to his nomination andtherefore such a signature was. not necessary when the candidate himselfpresents his nomination paper and thereby indicates that he has assentedto the nomination could not be accepted. The assent is not only for theReturning Officer but for the other candidates, as also for the electors in theConstituency who could have a right to challenge the election oh the basisthat the Returning Officer had failed to reject the nomination paper thoughit did not bear the signature of the candidate in token of his assent.

The mere fact that the candidate had signed the form of oath underArt. 84 could not amount to an admission that he had accepted the nomi-nation so as to dispense with the requirement in s. 33(1) that he must signjn token of assent to his nomination. « ,.;..

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(ii) Sub-section (4) of s. 33 and the proviso thereto obviously referto what may be called a preliminary scrutiny at the time when a nominationpaper is presented to the Returning Officer. A plain reading of the saidsub-section would show that at the time of this preliminary scrutiny theEeturning Officer has to be satisfied that the names and the electoral roll numberof the candidate and his proposer as entered in the nomination paper arethe same as those entered in the electoral rolls. There is nothing in this sub-section which requires him to scrutinise the remaining contents of the nomi-nation for satisfying himself that they have been properly filled. The task ofscrutinising the correctness of the other recitals in the nomination paperhas to be postponed till the time of the scrutiny under s. 36(2). The provisoto s. 33(4) also .shows that clerical, technical, or printing errors in regard tothe name of the candidate or his proposer, or in regard to any place mentionedin the electoral roll or the nomination paper, or in regard to the roll numbersof these persons only has to be looked into and an opportunity has to be givento the candidate and the proposer to correct any mistakes with regard to thenames, places or roll numbers as mentioned in the nomination papers, so as tobring them in conformity with those as given in the electoral rolls.

The contention that sub-aeotion (4) should be understood, despite itsclear words, as authorising and requiring the Returning Officer even toscrutinise the remaining recitals in the document, and to give an opportunityto the candidate and the proposer to make corrections therein, is not onlynot warranted by the wordings of sub-section (4), and the proviso thereto,but would stand ruled out by them.

British India General Insurance Company v. Ilbar Singh ATR 1959,S.C.I. 331 and Jvmma Masjid v. Kodimaniandra Daviah, AIR 1962, S.C.847; applied:

(iii) The contention that the absence of the candidate's signature on

the nomination paper was not a defect of a substantial character and couldbe condoned by the Returning Officer under s. 36(4) could not be accepted.The prescribed form requires the candidate to sign it for indicating his assentto the nomination and for giving a declaration with regard to his age, theparty sponsoring him and the symbol that he was adopting. The declarationabout age is material for determining the candidates' eligibility to contest;the declarations as to party and symbol are equally material. Further accor-ding to s. 36(2) a nomination paper is liable to be rejected if the signature ofthe candidate or the proposer thereon is not genuine. Unless such a signaturewas there the question whether it was genuine or forged would not arise. Thereis also the proviso to rule 4 of the Conduct of B lections Rules which providesthat the failure to complete or defect in completing the declaration as tosymbols in a nomination paper in Form 2A or 2B shall not be deemed to bea defect of a substantial character within the meaning of sub-section (4) ofs. 36. This proviso excepting this particular omission from the categoryof defects of a substantial character would lead to the conclusion that the failureto complete or defect in completing the rest of the form by the candidatewould necessarily have to be treated as a defect of a substantial character. Inthe circumstances the nomination paper of respondent No. 2 was rightlyrejected by the Returning Officer under s. 36(2),

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..,•; Rattan Anmol Singh v. Gh. AttmRam, AIR 1954, S.C. 510; andBnjendrdalJwalaprasad, AIR 1960. S.C. 1019, applied. . ' :

Bam Ram v. Smt. Prasanni, AIE 1959, S.C. 93; Pralap Singh v. Shr1

Krishna Gupta, AIR 1956 S.C. 140; Nnmdeo Chimnaji v. Govinddas Ralanlal,AIR 1964 Bom. 137;*Karnail Singh v. Election Tribunal Hissar, 10 E.L.R.189 and Quinn v. Laathem 1901 A.C. 495; referred to.

—RAMKEISHNA SURYABHAN GAVAI AND ANR. v. KRISHNARAOGULABRAO DESHMUKH AND ANR. 29 E.L.R. 377.

Section 79(b)—Candidate, Meaning of—The language of the definitionof ''candidate" in s. 79(b), has concerned itself not only with the meaning of acandidate 'but also the time from which a person will be deemed to be a candi-date'. While the first part of the definition gives the meaning of the term candi-date' the second part introduces a legal fiction by providing that a person may beregarded as a candidate as from the time when, with the election in prospecthe began to hold himself out as a prospective candidate. The second clausewill not be applicable unless the condition of the first clause is satisfied. To•eome within the meaning clause, he must be a person who was duly nominatedas a candidate or at least who claims to have been duly nominated thoughnot actually nominated, which may happen in cases where the nominationpaper was rejected but the person claims it was wrongly rejected. •••-.; ••.,]

S.B. Adilyan v. S. Kandaswamy; AIR. 1958 Mad. 171, S.B. Adityan v.S. Kandaswamy & Ors; 1958 S.C. 857 and Amin Lai v. Hunnamed; AIR. 1965S.C. 1243: referred to. -N.V.L. NARASIMHA RAO v. KOTHA RAGHTJ-RAMAYYA & ORS. 29, E.L.R. 432.

ss. 33(4) and (5)—36(4), 100(1) (d) (Hi)—Two candidates filing nomina-tion paper—slating their names appear at serial number and in part of particularconstituency—in fact their names in electoral roll of entirely different constituency—if defect is of substantial character. HELD : The mention of the wrong consti-tuency in the electoral roll in which the name of the candidate is mentioned is adefect of a substantial character; such wrong information makes the task of theReturning Officer extremely difficult, if not impossible, and the purpose forwhich this information is sought is altogether defeated. In the present case,the rejection of the nomination papers of Q and P was therefore not improper. ,

The provisions of sub-sec. (5) of s. 33 giving option to the candidate eitherto append the relevant electoral roll of the constituency in which his name ismentioned with the nomination paper if it is other than the constituency fromwhich he is standing as a candidate, or to produce the same at the time ofscrutiny, incidentally shows that the real checking is to be done on thedate of scrutiny because, without a copy of the relevant electoral roll withthe nomination paper, it is impossible for the Returning Officer, in such a case,to satisfy himself that the serial number and the name of the candidatementioned in the nomination paper are the same as that in the electoralroll. The idea underlying the insistance of this information being given-inthe nomination paper is to facilitate the work of the Returning Officer in

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satisfying himself about the qualifications of the proposer to be a proposerand of the candidate to stand as a candidate . If the defect is such that in spiteofittheEeturning Officer found no difficulty in checking that the proposeras well as the candidate were the electors on the electoral roll, the defectmust be ignored. On the other hand, if the defect is such that the ReturningOfficer may find it difficult to satisfy himself about the identity of the candidateand the proposer, within the short time that is available to him, the defect issubstantial and the nomination paper could be rejected on account of suchdefect.

Rosamma Punnose v. K. Balakrishna Nair: 14 E.L.R. 210; Dahu Saov. Rangilal: AIR 1960 Pat 371; Rosannma Purnnosa v. K. Balakrishna Nair:AIR 1962 S.C. 1248; Karnail Singh v. Election Tribunal: 14 E.L.R. 189;Madan Lai v. Him Singh: E.P. No. 3 of 1967 decided on 14th June, 1967 byHimachal Bench of the Delhi High Court; Netram v. Lahshman Prasad:15 E.L.R. 266, Bam Ram v. Smt. Prasanni: 16 E.L.R. 127 referred to.—KARTAR SINGH v. RANDHIR & ORS. 30 E.L.R. 37. •-

Si. 79(b), 82(b) and 86(1)—corrupt, practice alleged in election petitionagainst person who had filed nomination papers but had withdrawn—such personwhether a 'candidate' within meaning of s. 79(b}—Non-impleadment of suchcandidate in violation of s. 82(b) -Petition whether liable to be dismissed under s.86(1) —Judge trying petition whether a Court for the purpose of s. 86(1). (See—Election Petition—Gene-rJ Principles.)— PUTTI VENKATA SUBBAIAH v.SMT. B.K. RADHABAI, 30 E.L.R. 100.

Ss. 33, 36 and 100(l)(c) -Same elector proposing tivo candidates—Validityof nominations under ss. 33 and 36 as amended in 1966—Rejection of the nomi-nation papers of the two candidates on this ground—Election whether liable tobe set aside under s. 100(1) (c).

Election—Practice—Rejection of nomination papers by Returning Officer—Rejection whether can be supported on other grounds at the trial of electionpetition—Cas'e-Column showing caste wrongly filled in case of nomination paperof general constituency—Nomination paper whether liable to be rejected—Nomi-nation of candidate whether can be rejected on the ground that he was setup by a party merely to split voters of other parties. The petitioner,one of the losing candidates, at the election to the MadhyaPradesh Vidhan Sabha held in Febiuaiy, 1967, challenged therespondent's election. The sheet anchor of his case was that during thescrutiny of nomination on objection having been raised by the respondentthe nomination papeis of two other candidates N and S weie wronglyrejected by the Returning Officer. The ground of the rejection was that thenames of both the candidates had been proposed by the same elector whichin the view taken by the Returning Officer was illegal. The peti ionercontended that since the rejection of the nomination papers of N and S wasillegal, the election of the respondent was liable to be £et aside under s. 100(1) (c) of the Representation of the People Act, 1951. The respondent reliedon ss. 33 and 36 of the Act. At the time of trial of the election petition therespondent sought to support the rejection of the said nomination papers on

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other grounds also, namely: (i) That the nroposer had merely signed blankforms and they had been filed up afterwards, (ii) that the said nominationpapers had been filed at the behest of a party merely in order to split votesof other parties; (iii) that they mentioned the caste of the candidates whichwas forbidden in a general constituency.

HELD: Allowing the petition and setting aside the respondent's election:(i) There is no ban in ss. 33 and 36 as now worded to the same proposernominating more than one candidate foe the same vacancy. There wasnothing in the provisions as they stood before the amendment of 1956 whichwould lead to a different result. On that view the rejection of the nomina-tion papers of N and S by the Returning Officer was inrp'oper.

Under s. 100 (l)(c) of the Act the mere fact of improper rejection is aground for the setting aside of the election independently of whether or notit has had any material effect on the result. Accordingly in the instant casethe election must be declared void.

(ii) The proceedings in an election petition beirag original p-oceedings itis open to a party to put forward all g ounds in. support of or negation of theclaim subject only to such limitations as may be found in the Act.

Howevc, on the facts the contention of the respondent that thenomination papers in question were sigred by the proposer when, they wereblank and they were filled late" could not be accepted. Nor would it in lawinvalidate the nomination papers because it was the intention of the proposerthat was to be determined.

(iii) The fact that N and S might have been put up by sa party with aview to splitting the votes of the opponents could not in law invalidate thenomination papers.

(iv) The mention, of the caste of the candidates on the nomination papersalso could not serve to invalidate the nomination, papers. I t was a super-fluity only.

Tundilal vs. Returning Officer Lalbarra, 1965 Jabalpwr Law Journal 252;Veluswami Thevar vs. Raja Nainar, AIR 1959 SO 423; Surendera Nath v. S.Dalip Singh, AIR 1957 S.C. 242; Mahadeo vs. Babu Udai PaUap Singh AIR1956 S.C. 824; referred to. RAGHUVEERSINGH v. AMOLAKCHAND,30 E.L.R. 189.

—Age—Candidates if should be 25 years at the time of nomination or at the timeof polling. (See Disqualification of candidates—^). HIMATBHAI GOMAN-BHAI PATEL v. AMRUTLAL AMBALAL PATEL AND ANR. 30 E.L.R.293.

Ss. 80, 87,100 (i)(b), 1 (A) {ii), 123—Conduct of Elections Rules, 1961—Ruk 94A Affidavit—Rectification of—Whether court has discretion to permitrectification at a later stage condoning the delay. HELD: An affidavit which wasaffirmed before an advocate of the High Court and not before a Magistrate of

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the First Class or a Notary, or a Commissioner of Oaths, as required underitule 94-A of the Conduct of Elections Rules, 1961, could be rectified, since theswearing of the affidavit under that Rule, read with section 83(*) (c)of theAct, was only a requirement of a declaratory and not of a mandatory character.The Court would be exercising sound discretion in permitting a properly swornaffidavit to be filed even at a later stage after excusing the delay.

Bhasler Rao v. S. V. K. Rao, A.I.R. 1964 A. P. 77; Chengairaya Naidu v.Pattabhi Reddy A.I.R. 1964 A.P. 164; Murarka Radhey Shyam v. Roop SinghjA.I.R. 1964 S.C 1545; relied on. — T. NATARAJAN v. D. VIJAYARAJ ANDOTHERS, 30 E.L.R. 321.

Art. 173{a)—Qualifications to be chosen to fill seat in the State Legisla-te—Must exist at the time of scrutiny of nominations—Nomination—Rejectionof—Rejection of nomination on the ground no oath taken before commencement ofscrutiny. The purpose of the scrutiny was to determine whether the petitionerwho had been nominated as a candidate for the election, was qualified to bechosen to fill a seat in the Legislature, The Returning Officer could not haveaccepted the nomination of the petitioner when he found that the petitionerhad not takea the oath or affirmation; therefore at the stage when the ReturningOfficer took up the scrutiny of the petitioner's nomination he had no optionbut to reject it on the ground that until that stage the petitioner was notqualified to be chosen to fill a seat in the State Legislature. The Returning Officercould not have permitted "' !ie petitioner to rectify the defect which was undoub-tedly susbstantial unless he had postponed the scrutiny of the petitioner'snomination paper. But under sub-section (5) of section 36 of the Act the Re-turning Officer would not have been justified in adjourning the proceedingrelating to the petitioner's nomination paper for this purpose.The contention that the qualifications for membership of the State Legislaturemust exist on the date fixed for the scrutiny of the nominations and that it isnot necessary that all these qualifications should have existed at the time whenthe scrutiny of nominations was taken up cannot be accepted.

Shiv Shanker Kanodia v. Kapildeo Narain Singh, Election Appeal No. 4 of1965 decided August 17, 1986; distinguished . —PASHUPATI NATHSINGH v. HARIHAR PRASAD SINGH, 31 E.L.R. 155.

R. 33—Elector—Proof of—Filing freliminary copy not sufficient—Registration of Electoral Rules, 1950, Rule 33.—HELD : The petitioners,instead of filing an attested copy of the relevant portion of the electoral rollonlyfiled what purported to be a part of the elector roll which was preliminarilypublished. The matter of adducing proper proof that a person is an electorwhose name is in the final electoral roll is not a formality but is a question ofgreat substance. A preliminary copy of the roil cannot be treated as a copy of thefinal roll which was in force on the date of election. The copy though purportingto bear the fascimile signature of the registration officer is not an attested copywithin the meaning of Rule 33 of the Registration of Electors Rules, 1960.

Ranjit Singh v. Pritam Singh, A.I.R. 1966 S.C. 1626; referred to.—RAMPRASAD&ANR. v. ASHOK RAJITRAM MEHTA, 31 E.L.R. 195.

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S. 33 (4)—Proposer's thumb impression not attested—Requirements ofSub-section (4) of Section 33—whether substantial in character— Rejection ofnomination pape,r~whether valid HELD : If a proposer's thumb impression wasnot attested at all, there was a contravention of section 33(1) of the Act. Failureto comply with the provisions of sub-section (4) of Section 33 is substantialin character and the rejection of the nomination paper of the secondrespondent by the Eeturning Officer was according to law.

''• Rattan AnmolSingh v. Gh. AtmaRam, A.I.E. 1954. S.C. 510; relied on.—K. NAEASIMHA REDDY v. G. BHUPATHI AND ANE. 31 E.L.E. 211.

—— Oath of affirmation —submitting of—requirement "to make and sub-scribe an oath or affirmation—scope of -if attaching signed oath form withnomination paper sufficient.

The respondent's election to the Punjab Legislative Assemblywas challenged by the petitioner on the ground that the nomination papers oftwo other candidates H and G- were wrongly rejected. It was contended theEeturning Officer had wrongly ordered there was no proof that the two candi-dates took the prescribed oath before the scrutiny of their nomination papers.HELD: On tho evidence, no record of an oath or affirmation in the form pres-cribed existed in the case of either H or G. In one case only a form in a languagewhich the candidate could not understand had Just been attached without theoath or affirmation having been taken before the person authorised, and in thesecond case, even the form did not exist. There was no evidence that either ofthem offered to take the oath and the Eeturning Officer wrongly refused to ad-minister the same. The rejection of the nomination papers could not thereforebe held to be wrong.

(n) The oath, as required under Article 173(a) of the Constitution, has tobe taken prior to the date fixed for scrutiny and, in any case, before thescrutiny actually commences. —JUGALKISHOEE v. DR. BALDEV PEA-KASH, 31 E.L.E. 313.

Nomination—objection on the ground ofage--Not necessary to be raisedat the time of scrutiny. HELD: The second respondent was not disqualified tocontest the election as his age was not proved to be below 25 years on the dateof the scrutiny of the nomination papers. The date of birth shown in the recordof Higher Secondary School Certificate examination could not be held to be thereal date of birth, because, the initial presumption that the age entered therewas correct had been satisfactorily rebutted by evidence addressed on behalf ofthe respondent.

»i- Though no objection in respect of the ago or the nomination paper wast$.ken at the time of the scrutiny it cannot bo urged that the matter cannot begone into in the trial of the election petition.

,1; , Even if it were held that the nomination of the second respondent was im-properly accepted there was no evidence to show that the result of the electionwas materially affected.

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Vashist Narain Sharma v. Dev Chandra & Ors. A.I.R. 1954, SC. 513;Mahadeo v. Babu Udai Prala/p Singh, A.I.R. 1966, S.C. 824; referred to.—UDAI BHAN SHAH v. SHANKER SINGH & ORS. 31 E.L.R. 318.

Ss. 32, 36(2), 100(l)(a)—Constitution of India, Article 173—EvidenceAct, s. 79—Burden of proof—Age of candidate in School Certificate different fromBirth extract and Vaccination Certificate—Requirements of proof of age—Reliabi-lity of—HELD: On the facts, the Petitioner had failed to prove that the electionof the first respondent was void on the ground that he was below 25 years ofage on the relevant date and or because he was not eligible to stand as a candi-date to the Assembly from a reserved seat. _ Ti

The burden of proving that the respondent's age was below 25 yearson the date of nomination was on the petitioner. An extract from the birthregister is a public document and a certified copy of such an extract is admissiblein evidence. The court is bound to presume the genuineness of the certifiedcopy of a vaccination certificate under section 79 of the Evidence Act, and theomission of the initials of the officer who carried out the vaccination cannot havethe effect of excluding the entries entirely.

The date of birth as given in the School Certificate is not conclusive as prov-ing the age of a person. When there is conflict between the age as given in theSchool registers and the birth extract, if the birth extract is proved to relate tothe person concerned, it is safe to rely on the age as given in the birth ex-tract.

Brij Mohan v. Priya Brat, A.I.R. 1965 S.C. 282; Jiwandas Kashaviji v. FramjlNanabhai, 1870, Bombay High Court Law Reports, 45; Biseswar Mistra v.The King, A.I.R. 1949, Orissa, 22; Hsmania Kumar v. Alliantz Ins. Co., A.I.R.1938, Calcutta, 120; Manihrao v. Deorao, A.I.R. 1955, Nagpur 290; G. Michaelv. S. VenJcateswaran, A.I.R. 1952, MAD, 474; referred to.—K. PARAMALAI v.I. M. ALANGARAM AND R. KRISHNAMURTH AND ANR. 31 E.L.R.401.

S. 100(1) (c) Nomination paper prima facie valid—No objectionraised—Whether a case of improper acceptance under Section 100 (1) (c) whetherprinciple of estoppel applies—If the nomination paper prima facie does notdisclose any illegality or want of qualification of a candidate and noobjection is taken, then the Returning Officer has to accept that nominationand it is not a case of improper acceptance of nomination within the meaningof section 100(l)(c). It is then a case falling within section 100(l)(d)(ii) namelynon-compliance with the provisions of the Constitution. Obviously, if the firstrespondent was not a member of the Scheduled Caste, he was not qualified underthe provisions of the Constitution read with Constitution (Scheduled Caste)Order, 1950. When a person is not qualified to stand as a candidate, the Courthas got to set aside his election as law casts a duty on the Court to do so. Underthe circumstances whether an objection is taken or not makes no differenceand the principle of estoppel has no place in a case of this nature.

Durga Shankar v. Thakur Raghuraj Singh, E.L.R. 494; referred to.NARSINHBHAI KARSANBHAI MAKWANA v. JESINGBHAI GOVIND-BJLil PARMiR & ANR. 32 E.L.R. 152. , . f fft//,

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Plea of improper acceptance of nomination of respondent and caste votesin Ms favour be treated as invalid whether sustainable.—The petitioner cannotclaim that all the votes oast in favour of the first respondent should be treatedas invalid or thrown away votes on the ground that the nomination of the firstrespondent was improperly accepted and therefore the petitioner should bedeclared elected. Kashav Lakshmcm Borkar v. Dr. D.I. Ananda, XXIE.L.K. 466; referred to.—NARSINHBHAI KARSANBHAI MAKWANA v.JESINGHBHAI GOVINDHBHAI PARMAR & ANR. 32 B.L.R. 152.

[See also—Disqualification of Candidates]

OFFENCES

——S. 127-A. Proper declaration-what is pamphlet or Poster. HELD: Wherea declaration made under s. 127-Aof the Act does not make any reference tothe "pamphlet or poster" such a declaration does not comply with therequirement of the law.—D. MUNICHINNAPPA v. B. BASAVALINGAPPA& ORS. 25 E.L.R. 247.

S. 126(1) Infraction of section not sufficient—Proof that result of electionhas been affected materially affected necessary. HELD : Whether or not the ex-pression "within twenty-four hours before the date of commencement of thepoll" in s. 126(1) is to be equated to within twenty-four hours before the time ofcommencement of the poll, it has to be established that the result of the elec-tion has been materially affected by the infraction of the section. In the absence• of any definite evidence that the non-observance of the provisions of s. 126 hasresulted in the election being materially affected, the election has to be up-held—D. MURALIDHAR REDDY v. PAGA PULLA REDDY & ORS.26 E.L.R. 116.

POLLING STATION

—— Mi sdescription of Polling Centre created confusion among voters—proof-—Requirements of the Act. HELD : On the evidence : the description of apolling centre as "Hemdol Pitamber Hatbajali L.P. School" instead of "Hem-dol Pitamber L. P. School" and the addition of the word "Hatbajali" in theNotification had really not created confusion in the minds of the voters andthe election had not been materially affected; the Notification about theconcerned polling station did not violate the provisions of the Constitutionor Section 100(l)(d)(iv) of the Act. BAHARUL ISLAM v. KAMINIMOHAN SARMA AND OTHERS. 31 E.L.R.351.

RECRIMINATION

Recrimination filed by respondent—Security deposit insufficient—Deficiencymade up before argument in regard to the sufficiency of security deposit—Tribu-nal refusing respondent to lead evidence in support of recrimination—Interfer-ence by High Court whether justified—Scope of Art. 227— Sse Election Petition—Deposit of 83curity—RAGHBIR SINGH v. THE ELECTION TRIBUNAL,AMBALA AND SHRI RAVINDER NATH, 28 E.L.R. 236.

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—8s. 81,86 (4), 97,101,100{l)(b), (1) (d) (in), 117,118,123 (5)-Code of CivilProcedure, 1908, Order I Rules 9 and 10, Order 6, Rule 17—Recrimination state-ment—application for amendment of statement by returned candidate on new ground—Rule of limitation—HELD '• The strict bar of limitation under section 81read with section 86(1) of the Act only applies to election petitions and not torecriminatory statements. The only period of limitation which has been pres-cribed for the filing of a Recriminatory Statement is in the proviso to S. 97(1)of the Act. If a corrupt practice is alleged in the Recriminatory Statement it isrequired to be signed and verified like an Election Petition. In an indirect man-ner, it has been laid down under the provisions of section 86(4), Explanation,and S. 97(1), that the notice contemplated by Section 97(1) tegether with theRecriminatory statement must be filed within a period of 14 days from the datefixed for the respondents to appear before the High Court and answer the claimor claims in the petition. Under the rules • I anied by the High Court, the res-pondent has to file his appearance within 21 ays or such time as the Court mayallow. Harish Chandra v. Trilohi Singh A.I.R. 1957 S.C. 444, referred to. Anamendment to a recriminatory statement which seeks to set up a new groundcould only be filed within the limitation period prescribed for filing the noticeunder Section 97(1) of the Act and the Recriminatory Statement and_thereforethe respondent's application to amend his Recriminatory Statement was time-barred. Clause (iii) of Section. 100(l)(d) of the Act deals with four different situa-tins viz. improper reception, improper refusal, improper rejection and receptionof any vote which is void. Each of these four grounds is a separate ground byitself. The power to allow the amendment of a petition and, therefore, the powerto allow the amendment of a recriminatory statement, cannot be exercised

. so as to permit a new ground to be added. If the amendment sought is to be in-serted in the Recriminatory Statement, a new ground of challenge would beallowed to be raised and that is not permissible under the principles on whichthe amendment of pleading^ in election petitions and trial of such recriminatorystatement is to be allowed. Though the Recriminatory Statement is not to Bedismissed on the ground of non-compliance with the period of limitation laiddown in Section 97(1) of the Act as an election petition it is liable to be dismiss-ed.—JASBHAI CHUNIBHAI PATEL v. ANWERBEG A. MIRJA,32 EL.R. 1.

RES-JUDICATA

Civil Procedure Code, 1908, s. 11—Candidate C challenging election ofcandidate A—contending A and second candidate B disqualified as holding olficesof -profit as Ghalwals—Tribunal allowing petition but not declaring C elected—High Court dismissing A's appeal on ground he held office of profit and allowingC's appeal declaring him elected—Appealing to Supreme Court against decisionin C's appeal alone—Whether appeal barred by Res Judicata.—By an electionpetition the first respondent challenged the election of the appellant on theground that he was guilty of corrupt practices; it was also contended that bothhe and the second respondent, who secured the second largest number of votes,were disqualified from being elected as they held offices of profit as(jhatwals. The Tribunal found that the appellant was guilty of corruptpractices and set aside his election. It held, however, that as a Ghatwal he wasQot holding an office of profit under the State Government,

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The appellant thereafter filed Election Appeal No. 7 in the High Courtagainst the Tribunal's order. The first respondent filed Appeal No. 8 as theTribunal had not granted his prayer to declare him elected. Both appeals weredisposed of by one judgment of the High Court. It reversed the finding thatthe appellant had committed corrupt practices, but held that he and second res-pondent held offices of profit and hence were not eligible to stand for election.As the first respondent alone was left in the field, he was declared to have beenduly elected. Thus Election Appeal No. 7 was dismissed and Appeal No. 8 wasallowed. The appellant then filed an appeal in the Supreme Court by special leaveagainst the decision in Appeal No. 8 alone. A preliminary objection was raisedthat the appeal was incompetent as it was barred on the principle of res judi-cata by the decision in Appeal No. 7.HEED :—The High Court came to two de-cisions. It came to one decision in respect of the invalidity of the appellant'selection in Appeal No. 7. It came to another decision in Appeal No. 8 with res-pect to the justification of the first respondent's claim to be declared elected,a decision which followed upon the decision that the election of the appellantwas invalid for the reason that both he and the second respondent as Ghatwalswere not eligible for nomination as candidates. So long as the order in AppealNo. 7 confirming the order setting aside the election of the appellant stood, theappellant could not question the finding about his holding an office of profit inthe present appeal which was founded on the contention that that finding wasincorrect. The decision in Appeal No. 7, therefore, was a bar to the presentappeal on the principle of Res Judicata. Narhari and others v. Shankar andothers, 1950 S.O.R. 754; distinguished. BADRI NAEAYAN SINGH v.KAMDEOPRASAD SINGH AND ANOTHER, 23E.L.R. (S.C.) 203.

—Election petition alleging that the same contract continued to subsiston relevant dates in 1967 election-wlielher th-3 previous decision of the Tribunalon 1957 election operates as 'Res-Judicata against the Respondent in 1967election—conditions as to when a contract, ceases to subsist.

The petitioner, a defeated candidate, challenged the election of the res-pondent, from a Parliamentary Constituency alleging that the respondent'selection from a parliamentary constituency in the 1957 elections was heldvoid on account of the subsistence of the same contract with the Governmenton the relevant dates and as the same contract continued to subsist on the re-levant date during the 1967 election, order of the Court in regard to the 1957elections operated as Res Judicata, so far as the respondent's election in 1967was concerned. HELD : that as a result of the amendment of the Act in1966 under the provisions of section 9A and 7(b) of the Act, the findings rea-ched in the previous election petition in connection with the 1957 electionswould not operate as res-judicata in this ease relating to 1967 election, so faras the respondent was concerned.—SURYA PRASAD v. ATAMDAS32E.L.R. 116.

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RETURNING OFFICER AND PRESIDING OFFICER

—Sections 82, 85, 90, 99 and 170—Constitution of India Art. 227-Charges—of misconduct and impropriety etc., against Returning Officer in election petition—whether he is a necessary or proper parly to petition. HELD : In an appro-priate case where allegations of bad faith, misconduct and impropriety andnot mere illegality are made in the election petition against a ReturningOfficer, he is a "proper party" though he is not a "necessary"party. Although the Returning Officer is not . required to bemade a party under s. 82 and his non-joinder will not lead tothe dismissal of the petition under s. 85, he may nevertheless, in anappropriate case, be a "proper" party and may be added as a party in accor-dance with the procedure under the Code of Civil Procedure made applicableto the trial of election petition by s. 90.—Harish Bajpai v. Trilohi Singh,A.I.R. 1957 S.C. 444; Gidwani Choitram Partabrai v. Aganaithakurdas Chuh'ar-mal I.E.L.R. 194 Relied on.—Abdul Quadir Siddiqui v. Sayed Abdul HassanNatique, Hammond's Election Cases 1920—35 page 291; Returning OfficerAtamkur v. 6 C • Kondaiah, 22 E.L.R. 45; Jnayalulla v. Diwanchand, 15 E.L.R.219; Nrishinha Kumar Sinha v. Satyendra Chandra Ghosh Moulik, I I E.L.R.121; Tahur Ahmed v. Humayun Reze, Sen & Poddar's Indian Election Cases(1935—51) page 704; N.P. Ponnurwami v. Reluming O^cer, 1952 S.C.R. 218;Sarfuddin Ahmed v. Shamsul Huq, I.L.R. 1940(2) Calcutta 373; ChampalaGupta v. Mohanlal Mathur 41 C.W.N. 488; The Tanworth case 1 O'Malley andHard Caste 75 (1868); Hill and Walton v. Peel and Bulwar /1869) I O'M & H74; Young v. Figgins (1868) L.T. 499 Referred to.—The Surat MunicipalityCase, Doabia's Election Cases Vol. II page 340; Jagan Nath v. Jaswant SinghAIR 1954 S.C. 210; Nur Mohammad v. Khan Saheb S.M. Solaiman 49 C.W.N.10; Amjad Ali v. B.C. Barua, 13 EL.R. 285; S.B. Adityan v. S. Kandeswami14 E.L.R. 394 (S.C); Distinguished.—DWIJENDRA LAL SENGUPTAv. HARE KRISHNA KONAR & OTHERS 23 E.L.R. 270.

—Returning, officer, Omission or commission by-when vitiates election—HELD:An irregularity on the part of the Returning Officer will not render an electionvoid unless it can be shown that his act or omission affected the result. Thereforewhen the election was virtually and legally for the same constituency thoughwith a slightly enlarged area, it could not be set aside merely because the electorsin the fresh area were permitted to vote though they could not have stoodfor the election themselves, unless it was shown that these facts had materiallyaffected the result.—Ponnuswami v. Returning Officer, Namalckal (1952) 1M.L.J. 775; Vasisht Narain Sharma v. Dev Chandra 1954 2 M.L.J. 379 (S.C.)379; N.B.Kharev. Election Commission A.I.R. 1957 S.C. 694; referred to—AG. RANGANATHA NAYAR v. K. KAMALA KANNAN AND OTHERS'23 E.L.R. 392.

—•— S. 22 (2)—Power of Assistant Returning Officer to reject Votes. HELD—Under s. 22(2) of the Act every Assistant Returning Officer, subject to thecontrol of the Returning Officer is competent to perform all or any of thefunctions of the Returning Officer. Hence there was no substance in the argu-ment that the Assistant Returning Officer had no power to reject the votesH. NAGAPPA t>. G. VENKATEGOWDA, 26 E.L.R. 224,

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Consideration of — by Returning Officer—whether he may obtain opinion ofcandidates or his assistants in deciding—His decision whether judicial or adminis-trative. (See—Ballot Papers—Recounting of votes).—SMT. SUBHADRABAI v.BAPURAO ANANDARAO PATIL & ORS. 26 E.L.R. 367.

S. 100 {T)(d)(iii)—Soope of—Oonduct of Elections Rules, 1961, rr. 35and 36—Presiding Officer's power to disregard errors in electoral roll—Extent of.

The appellant and the respondent secured equal number of votes in anelection to the Maharashtra Legislative Assembly and after drawing lotsthe appellant was declared elected. The respondent thereafter challengedhis election by an election petition alleging, inter alia, that the Presiding Officerat one polling station had improperly prevented 19 voters from inserting theirballot papers into the ballot box; and that 18 of these had recorded votes infavour of the respondent. The Election Tribunal dismissed the petition, butthe High Court, in an appeal set aside the appellant' selection.

In the appeal to the Supreme Court, it was contended, inter alia, thatthe High Court had erred in declaring the election void under section 100(l)(r?)(Hi) when the complaint was based upon the breach of section 100(1 )(d)(iv);and furthermore that the power of the Presiding Officer to disregard errors inthe electoral roll is circumscribed by rale 35 (4) of the Conduct of ElectionsRules, 1961, and that under the rule he can overlook only clerical or printingerrors and the errors with respect to the 19 voters in the present case being in thesurnames and fathers, names they could not be said to be clerical or printingerrors. HELD : There was an improper refusal to receive the 18 votes cast infavour of the respondent and also improper rejection of 1 vote cast in favour ofthe appellant; the result of the election was therefore materially affected by theimproper refusal of these votes and the High Court had rightly declared theappellant's election void.

Section 100(L)(cZ) (Hi) covers not only the improper rejection of votes bythe Returning Officer at the time of counting but also the improper refusal ofthe votes by the Presiding Officer at the time of polling. In the present case,the Presiding Officer's conduct in not allowing the 19 voters to place theirballot papers into the ballot box amounted to improper refusal of votes withinthe meaning of Section l00{l)(d)(iii).

Hari Vishnu Kamath v. Syed Ahmed Ishaque and Ors., 1955 S.C.R. 1104referred to.

Under the specific provisions of Rule 35(4), the Presiding Officer mustdisregard merely clerical and printing errors and in the exercise of his generalpowers of enquiry under rules 35 and 36 he may disregard other errors if he issatisfied about the identity of the electors. The error in relation to the entry ofa voter's name in the electoral roll does not necessarily disqualify the electorfrom voting. I t is still open to him to satisfy the Presiding Officer at the pollingstation that he is really the elector to whom the entry relates,

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HELD ALSO ; In an enquiry under Section 100(l)(e?)(w) with regardto improper refusal of votes, the respondent to the election petition is entitledto dispute the identity of the voters without filing any recrimination underSection 97.

—SHEI SHANKAR BABAJI SAVANT v. SHRISAKHARAM VITHOBASALUNKHE AND ORS, 26 E.L.R. (S.C.) 464.

—•— Appointment of Returning Officer and Assistant Returning Officers withreference to offices held by them and not by name, whether legal: HELD: Nominationof the Collector of the district as the Returning Officer for the election, and of allDeputy Collectors as Assistant Returning Officers was in full consonance withthe provisions of the Act. It is common knowledge that if the appomtment ofGovernment servant to any particular office under any special Act is to ensurefor some time and has not to go to any particular person as a persona designatabut to a class of persons who are all considered equally qualified or competentto perform it, it is more convenient to make it with reference to an office, sothat so long as there is some person filling the office the appointment attachesto such person. A Deputy Collector who is appointed as an Additional Collec-tor under s. 17(2) of the Madhya Pradesh Land Revenue Code, 1959, does notthereby cease to be a Deputy Collector. He continues to discharge the duties ofa Deputy Collector except irr so far as any specific duties of the Collector areassigned to him. Therefore in the present case when the notification of theElection Commission issued under s. 22(1) of the Act named all Deputy Collectorsas Assistant Returning Officers, there was nothing wrong in the appointmentof the Additional Collector as Assistant Returning Officer.—HARIRAMSINGHv. KAMTA PRASAD SHARMA, 28 E.L.R. 44.

—•— Appointment of polling and reluming officers in UAaipur assemblyconstituencies by District Election Officer Udaipur—whether in contravention ofRepresentation of the People Act, 1951 ss. 25 and 26—Effect on election—Returnof election expenses icheiher validity submitted to Returning Officer, Ajmer. Held:The District Election Officer, Ajmsr, was the District Election Offiosr of theAjmer Parliamentary Constituency under Section 25 of the Act as the greaterpart of the Constituency lay within his jurisdiction. He was the properauthority before whom the return of the election expenses had to be filed bythe respondent under S. 78 of the Act. As the return was filed before him,no breach of S. 78 was committed. RAM LAL v. VISVESHWAR NATH,29 E.L.R. 306.

—•—Powers of —wrong seal put on ballot papers—if Returning Officer rightin acting under first proviso to r. 56 (2) (See—Ballot papers).—SHRI GANJIVEERAPPA v. SHRI H. SIDDAVEERAPPA, 29 E.L.R. 490.

—-—Powers of—Polling stations—-wrongly included in list due to printingmistakes—'if can be rectified by Returning Officer even after publication. HELD :Under instructions contained in the Hand Book for Returning Officers, GeneralElections, 19#7, the Returning Officer can correct any printing and clerical

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mistakes and the error which had crept in the printed list of polling stationsclearly appears to be a printing mistake and it was capable of being correctedby the Returning Officer even after the publication. The mistake was promptlyrectified after it was detected by due publication made in the KhojakhediVillage itself and the Notice Board exhibited at Khejia Polling Stations. Fromthe mere fact that some or most of the voters had assembled in the village andhad decided to vote for the Jan Sangh candidate it cannot be inferred that theywould have given their votes to the petitioner. The possibility could not beruled out that they might have voted for any other candidate.

Vctshist Narayan Shanna v. Deo Chandra and Others, AIR 1954 S.G. 513..referred to. —RAJAJU «. BRIJ KISHORE PATARIA & ORS., 29 E.L.R;445.

—•—• Returning Officer and Assistant Returning Officers—not below the rankof—Powers of —Officers below rank of Returning Officer have' no powor toscrutinise and reject ballot paper—such rejection invalid-But Election will not beset aside if on recounting of such ballot paper the result is not found to be materiallyaffected. HELD : The rejection of some of the ballot papers by officers, belowthe rank of Returning Officer or Assistant Returning Officer was illegal.However an examination of such ballot papers showed that their number was notsufficiently large to have materially affected the election.—P.R. FRANCISv. A.V. ARYAN AND ANR., 30 E.L.R. 136.

——• Counting-—small break in counting for bite and sup does not attract pre-cautions mentioned in r. 60 of rules—what may be relevant consideration for recountunder rule 63 (2) is not necessarily good ground for ordering recount in electionpetition. (See—Ballot papers).—P.R. FRANCIS v. A. V. ARYAN AND ANR.30 E.L.R. 136.

• Returns—irregularities in the filing of—if materially affects the election.(See Ballot papers—Inspection of).—K. T.KOSALRAMw. DR. SANTOSHAM32 E.L.R. 69.

Allegations against Returning Officer that he helped the Respondent "inall possible manner" and "in various manners"—-Whether allegations are vague—Whether sufficient grounds for an Order for inspection and recount of Votes. (See—•Ballot papers)—SHAMSHER CHAND <o. PARKASH CHAND ANDOTHERS, 32 E.L.R. 97.

SCHEDULED CASTES AND TRIBES

* ' —.—Para 3—"Profess"—-meaning of—Allegation of conversion to Buddhism—-Strict proof of legal requirements of conversion necessary—Declaration of suchconversion —effect of. The respondent challenged the election of the appellant onthe ground that on the date of filing his nomination paper and throughoutthe various processes of the election, the appellant had ceased to belong to theMahar caste and therefore had ceased to be a member of the Scheduled Casteas required by the Constitution (Scheduled Castes) Order, 1950, since hehad relinquished Hinduism and embraced Buddhism. Several instances werecited in support of the alleged conversion including a declaration said to havebeen made by the appellant that he had converted himself to Buddhism andthat he had ceased to be a Hindu and a Scheduled Caste popularly known as

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Harijan. The Tribunal set aside the election having found that the appellanthad undergone a conversion to Buddhism and therefore was disqualified fromstanding for election to the reserved constituency. The principal question fordecision in the appeal was whether the 'appellant had embraced Buddhism andrenounced Hinduism : HELD : The election of the appellant must be upheldand the election petition dismissed.

There was no pleading nor proof of any custom, practice, precedent ortenet from any ancient scriptures as to the legal requirements'of conversion toBuddhism, All that had been attempted to be proved was that certain eventstook place and that by virtue of those events the appellant got converted.

A mere declaration that one has ceased to belong to a particular religionand embraced another religion would not be sufficient to bring it within themeaning of the word "professes" in para 3 of the Constitution (ScheduledCastes) Order, 1950. In order to bring a case within the meaning of the word,it must be established that a person has publicly entered that religion. Thatwas not established upon the evidence in the present case.

C. Michael v. Venhateswaran, A.I.R. 1952 Mad. 474; N. W. Kanvade v.P. H. Sharnbharhar, A.I.E. 1958, Bom. 296; NagvMai v. 8. Shama Rao, A.I.R1956, S.C. 593; referred to. — DR. D.P. MBSHRAM v. PANJABRAO ANDORS., 24 E.L.R 6.

—•—Art. 341(1)—-exclusion of Purulia 'Sunris' from Constitution (ScheduledCastes) Order, 1950—Whether ultra vires. HELD The contention that,theexclusion of the Purulia "Sunris" from the Constitution (Scheduled Castes)Order, 1959, was in excess of the President's Power under art. 341(1) was un-tenable as the power to classify in relation to States obviously included suchpower in relation to parts of it, having regard, particularly, to the reference to'localities' in the Articles.

Qualifications raquirei for an elector under the Represantation of thePeople Act 1953, are not material in relation to section 100(l)a) of the Act of1951. That section only refers to disqualifications under the Constitution and'this Act'.

Ramdayal Ayodhyaprosad Gupta v. K. R. Pati and Ors, 1959, 20 E.L.R-13, at pp. 33 and 35: Durga SanJcar Mehta v. Raghuraj Singh & Ors. A.I.R-1954, S.C. 520; Brijendralal Gupta and other v. Jawalaprasad and othersA.I.R. 1960. S.C. 1049-22 E.L.R. 376; Jyoti Per shad and Ors. v. Administratorto the Union Territory of Delhi and Ors., A.I.R. 1961, S.C. 1602; KachireddiNagireddi v. SaUreddi China Narayanareddi and others, 31 C.W.N. 246 (P.C.);Parsotim Thakur v. Lai Molar Thahir, 35 C.W.N. 786 (P.O.), L.R. 581.A. 254,and Arjan Singh v. Kartar Singh and others, A.I.R. 1951, S.C. 193; Sir Md.,Ahbor Khan v. Mt. Matai & Ors., 52 C.W.N. 132 (P.O.); Chaturbhauj Singhmd others v. Govind Pra-ad Singh, 50 C.W.N. 2 (P.O.)—4; State of U. P.v. Manbodhan Lai Srivastava A.I.R. 1967, S.C. 912 at p. 915; referred to—ADWAITA MONDAL v. NAKUL CHANDRA SAHIS AND ORS. 24 E.L R.284.

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Bhovi, if voddar caste-—Constitution (Scheduled Castes Order, 1950sHELD: The appellant was a member of one of the Scheduled Castes men-tioned in the "Order" and therefore qualified to be a candidate. The conclu-sion of the Tribunal that Bhovi mentioned in the "Order" is a subcasteamong voddar was neither supported by the pleadings in the case nor by theevidence on record. The "Order" refers to a Scheduled Caste known as Bhovi.There is ample evidence to show that vodda community is known as Bhovi andthat ever since the "Order" was issued the voddar community has been treatedas a Scheduled Caste.—D. MUNICHINNAPPA. v. B. BASAVALINGAPPA& ORS. 25 E.L.R. 247.

Oraons—Conversion to Christianity—If person ceases to be member of thetribe: HELD: From the evidence of the parties it appeared that even if anon-Christian Oraon omitted to observe some of the festivals and observedcertain festivals ir> a manner different from others, he did not cease to be atribal; and that non-Chritian Oraons treat the converted Oraons as tribalscalling them 'Christian Oraons'. Further, for purposes of employment; nodistinction is made amongst the Scheduled Tribes on the ground of religion.Therefore on principles of law and on the authorities Christian Oraons areoraons in spite of their conversion and are entitled to the rights and privilegesof tribals. Ghaihurbhuj Vithaldas Jasani v. Moreshwar Parasram, 9 E .L.R.301 (S.C.); Abraham v. Abraham, 9 Moo. Ind. App. 199; Wilson Eeade v.C.S. booth, 14 E.L.R. 480; Jena Uraon v. John Uraon, S.A. No. 1573 of 1948dt. January 17, 1951 (Patna) ; relied on. Report of the Commissioner, forScheduled Castes and Scheduled Tribes 1961-62 (Eleventh Report) Para VI,Appendix XXX.1I; Report of Scheduled Areas and Scheduled Tribes Commis-sion 1960-62, Vol. 1, referred to.-KARTIK ORAON v. DAVID MUNZNl&ANR. 25 E.L.R. 291.

Constitution (Scheduled Castes) Order 1950—Caste "Bhovi" included inOrder not actually in existence—*/ evidence can be taken to show which castewas meant. The appellant challenged the first respondent's election from theBangalore South (Scheduled Caste) Constituency in February 1962 on theground, inter alia that he was not a member of any of the scheduled castesmentioned in the Constitution (Scheduled Castes) Order, 1950. The firstrespondent claimed that he belonged to the scheduled caste mentionedas Bhovi in the order, whereas the appellant contened that he was a Vaddarby caste and that this caste was not a scheduled caste specified in the Order.The Tribunal allowed the petition but the High Court, after examining thedecision on the view that although the Voddar as such was not included inthe order, in facts and circumstances at the time when the Order was passedin 1950, the Bhovi caste included in the order was the same as the Voddarcaste. In the appeal to the Supreme Court it was contended that the HighCourt was wrong in looking into the evidence that was produced before theTribunal and then coming to the conclusion that the caste Bhovi mentioned inthe Order was meant to refer to the caste Voddar; and furthermore, thatsuch evidence should not have been allowed by the Tribunal, as it had theeffect of modifying ^he Order which was exhaustive in itself. HELD: Whenit was not disputed that there was no caste specifically known as the Bhovin the Mysore State at the time the Order was passed, it must be acceptedthat there was some caste which the President intended to include in the

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Oder when the Order mentioned the caste Bhovi as Scheduled Caste; theonly course open to the Courts to find out which caste was meant by Bhoviwas to take evidence in that behalf. The evidence was therefore rightly re-corded for this purpose by the Tribunal ard acted upon by the High court.In the absence of any such exceptional circumstances, it is not generallyopen to any person to make any modification in the Order by producingevidence to show that his caste includes or is the same as any caste which ismentioned in the Order. This is because whenever one caste has anothername, this is specifically mentioned in brackets in the Order.—B. BASA-VALINGAPPA v. D. MUNlCHINNAPPA AND OTHERS. 26 E.L.R. (S.C.)446.

Constitution (Scheduled Castes) Order, 19^0—para 3.—person declaringhimself Buddhist —-Whether continuing to be a Hindu and member of ScheduledCaste.—"Profess" meaning of—Constitution of India, Art, 25(2)(b)—defini-tion of 'Hindu'—Scope of—The respondent was elected to the MaharashtraLegislative Assembly from a constituency reserved for candidates from thescheduled castes. The Appellant challenged this election on the around thatthe first respondent had embraced Budhism in March, 1957, and had ceasedto be a member of a scheduled caste within the meaning of the Constitution(Scheduled Caste) Order, 1950; he was therefore disentitled from being acandidate for the particular seat. The Tribunal allowed the petition on thisground, but the High Court reserved its decision and held that the effect ofthe alleged conversion of the first Respondent to Budhism had not beenestablished by evidence. HELD: If a public declaration is made by aperson that he had ceased to belong to his old religion and has accepted an-other religion, he will be taken as professing the other religion. In the faceof such a declaration, it is not necessary to enquire into whether his con-version to another religion was efficacious. The word "Profess" in thePresidential Order appears to have been used in the sense of an open declar-ation or practice by a person of the Hindu (or the Sikh) religion. Where,therefore, a person says that he has ceased to be a Hindu, he cannot deriveany benefit from the Order.

Although the definition of "Hindu" contained in the Explanation toArticle 25 is expanded to include a person professing the Buddhist religion,that definition is so expanded for the special purpose of Sub-Claus i (b) ofClause (2) of Article 25 and for no other.

Karwadi v. Shambharkar, A.I.R. 1958 Bom. 296; over-ruled.—PUNJABRAOo. D.P. MESHRAM AND OTHERS 26 E.L.R. (S.C.) 453.

Rehsia and Ramdasi whether exclude each other. Whether the appellantwho represented himself to be a Ramdasi or Ramdasia was in a fact Rehsiaby caste which was not declared a Scheduled Caste and as such was dis-qualified to be chosen to fall a seat in the State Assembly reserved for Schedu-led Castes? HELD: The evidence on the record disclosed a clear prepon-dejance in favour of the appellant being a Ramdasi. On this material it wasnot possible to hold that the expression Rehtia and Ramdasi necessarily ex-clud each other. The dictionaries and the publications like the "Punjab

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Castes" by Ibbeton. "Glossary of Tribes" and "Census of India (1891)" etc.did not seem to furnish sufficiently clear and cogent material for holding thatRehtia is a distinct and separate caste from Ramdasi in the sense that it is notpossible to conceive of a Randan being also called a Rehtia. The result ofthe researches apparently made by the various authors do not seem to justifythe submission that these expressions respectively carry precise, exact and dis-tinctive meanings excluding the possibility of some individuals ultimately usingany one of these epithets interchangeably. The publications to which referencewas made only served to fortify the view that the position has all along beensomewhat confused and certainly unprecise.

Basavalingappa v. I). Munichinappa AIR 1965 SC 1269; referred to.—•DIDAR SINGH CHEEDA v. SOHAN SINGH AND OTHERS, 27 B.L.R.110.

' ^"Gonds"—Whether a cas'e or Community.—(SEE CORRUPT PRACTICE—APPEAL ON THE GROUNDS OF RELIGION ETC.) AMICHAND v.PRATAPS1NGH AND ORS. 27 E.L.R. 135.

Constitution (Scheduled Tril e) Older, 1950—Khasi Tribes of the Autono-mous District of the United Khasi and Jaintia Hills—Custom—Matriarchalsociety Every Khasi ivhetler must have Jaid (clan) of mother—Son of Khasifather and non-Khasi and non-Khasi mo1 her, whether Khasi~S. 124(4)—Candidate making a false statement about his own Candidature--Whether guiltyof corrupt practice. HELD: Per Du'ta, «/.-• (i) The contention that everyKl asi jnusj U.ke 11 e Jbid of his or 1 er mother only was not proved, and itcould not be sdd tl a the first respondent was not a Khasi.

To prove a custom the evidence must be p.ecise and conclusive. It can-not be proved by slips made by somj antagonistic witnesses. A custom musthave the attributes not only of antiquity and certainity but also of uniformity.If exceptions to a custom are found, any theory based on it must be rejected.

The oral evidence produced by the appellant was inconclusive; hencerecourse to authoritative treaties on Khasi custom was justified. From theseit appeared that various groups like Syntengs, Wars, Bhois and Lynngamsbecame merged with original Khasis, but despite the merger retained some oftheir customs which were different from those of the original Khasis.

Therefore although it may be tiue that so far as the original Khasis areconcerned every Khasis must have a Jaid and he or she can take only theJaid of his or her motl.er, tl is does not appear to be so in the case of someother tribes like the Wars, Lynngsms and Bhois. When the witr esses de-posed about the Kl.asi custom of laving a Jaid ard taking of a Jaid from themother only it was not clear whether they meant the Khasis only orahothe other tribes like Wars, Bhois, Lanngams and Syntengs who arereckoned as Khasis but are deffcrent from them.

(ii) When the first respondent made a statement in the newspaper thatt) e High Court has declared him to be a Khasi, it was a statement about hisOWP candidature and not that of the appellant, Therefore even if false, thestatement did not amount to corrupt practice withm the mischief of s. 124(4)of the Representation of the People Act.

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Per MehroiJ'a, G. /.— For determining the question whether a person belongsto the Khasi community or not for purpose of special representation, it is notonly the purity of blood which will bo the criterion but all the surroundingcircumstances will have to be looked into.

From the evidence it was clear t 'a t the respondent repiesented the Khasi com-munity whenever there was any case for representation of such community. Hewas recognised as a Khasi amongst the Khasi community. In two earlier electioncases he had been held to be a Khasi by the Commissioner of Election Casesand by the Election Tribunal. The proceedings of the Khasi National Durbardated 25th and 26th March, 1925, showed t". at a person having a Khasi fathercould also acquire the citizenship of the KVasi state. All this evidence clearlyestablished that the respondent was recognised as a Khasi.

Wilson Reade v. G. S. Booth and on, A.I.R. 1958, Assam 128; referred to—A. S. KHONGPHAI v. STANLBT D.D. NICHOLS ROY & ANR.27 E.L.R. 196.

Constitution (Scheduled Caste) Order, 1950, Part 13, item 40—"Sunriexcluding Sahas"—'Scape of.—The respondent challenged the appellant'selection to the West Bengal Legislative Assembly from a constituencyreserved for Scheduled Castes on the ground that the appellant, whodescribed himself as a member of the Sunri Caste, did not fall withinitem 40, Part 13, of the Schedule to the 'Constitution (Scheduled Castes)Order, 1950, i.e. "Sunri excluding Sahas'' as he was a member of theSaha caste group. Although the Tribunal dismissed the petition, the HighCourt on appeal reversed the Tribunal's decision and set aside the appel-lants's election. HELD: The respondent had failed to prove the allegationthat the appellant belonged to a smaller caste group called Sahas withinthe Sunri caste. Both the courts below had come to this conclusion andthere was no reason for this court to take a different view of the evidence.

When item 40 of Part 13 of the Schedule to the Constitution (Sche-duled Castes) Order, 1950, declared "Sunri excluding Sahas" as a sche-duled caste, it indicates that men of Sunri caste, but not those withinthat caste who form the smaller caste group of Sahas, are members of ascheduled caste. It does not indicate that Sahas are a caste distinct fromthe Sunri caste, nor was it intended to exclude from Sunri those membersand that caste who bore the surname Saha.

ABHEY PADA SAHA V. SUDHIR KUMAR MANGAL, 28 E.L.R. 179.

Constitution (Scheduled Castes) Order, 1950 (as amended by Act 63o/"I95,6)—Persons belonging to Ramdasia caste whether Sikhs—Whether covered byitem 9 Part X of Order—Hindus on conversion Sikhism whether lose benefitof Order.—The petitioner challenged the election of the respondent to thePunjab Legislative Assembly at the General Election held in February1967. In support of the petition it was urged that under item 9 of Part X ofthe Constitution (Scheduled Castes) Order 1950, (as amended), the castes for thepurpose of the Order were "Chamar, JatiaChamar, Rehgar, Raigar, Ramdasi,or Ravidasi", but the respondent was a Sikh and as such could not belongto any of these castes. According to the petitioner the respondent wasa Ramdasia and a believer in the fourth Sikh Guru. HELD: The evidence didnot establish that the respondent was a Sikh. •

M/J(D)121BC-17

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Moreover under Act 63 of 1956, cl. 3 of the Scheduled Castes Order wasamended so that thereafter no distinction could be made for the purpose ofthe Order between Hindus and those who were converts from Hinduism toSikhism.

Eamdasias were not worshippers of the fourth Sikh Guru but of Guru RaviDas who was also known as Ram Das. The terms Ramdasia, Ramdasi,Ravidasia. Ramdasia are merely different names for the same caste.

The petitoner's contention that the respondent did not belong to anyoneof the Castes mentioned in item 9 Part X of the Scheduled . Castes Order,must therefore fail.

S. Gurmakh Singh v. Union of India and Ors., AIR 1952 Punjab 143;and B. Basavalingappa v. D. Munichinnappa, AIR 1965 S.C. 1269- referredto.— S.SURAIN SINGH v. DR. BHAGAT SINGH AND ORS. 29 E.L.R.160.

Constitution (Scheduled Tribes) Order 1950, Part VIII Para 2 Entry13—Naikda or Nayaka tribe—Whether includes Bedar Community.

Constitution of India Art, 342—Scheduled Tribes mentioned in notifi-cation under—Whether evidence may be led to show that a conmmunity notmentioned in Order is included in any of the communities mentioned in theOrder. —HELD: (i) From the various Reports, Authorties and GovernmentOrders it was established beyond doubt that 'Naikda' is a distinct primitive tribeinhabiting Gujarat and West Khandesh area of the erstwhile Bombay Stateand that Bedar is distinct and separate from'Naikda or Nayaka' tribe specifiedin the Scheduled Tribes Order.

It was not claimed by Respondent no. 1 that he was a member of the'Naikda' Tribe. His claim that he belonged to a community known as 'Nayaka'was not supported by documentary evidence or authoritative reports. Onthe basis of the admission in his pleadings and his evidence before the Courtthat his community is also known as 'Bedar' it must be held that Respondentno. 1 was a member of the Bedar caste. Respondents 2 and 3 had not contestedthe petitioner's case. Therefore none of the Respondents was a member ofthe Scheduled Tribe 'Naikda or Nayaka' specified in Entry 13 in Para 2 ofPart VIII of the Constitution (Scheduled Tribes) Order, 1950.

After the President has specified the Scheduled Tribes only Parliamentis competent to include in or exclude from the list of Scheduled tribesspecified in a notification issued under clause (l)of Article 342(1) of theConstitution. The Supreme Court has held in Basavalingappa's case andBhaiyalaVs case that in order to determine whether or not a particularcaste is a scheduled caste within the meaning of Article 341 one has to lookat the published notification issued by the President and it would not beopen to any person to lead evidence to establish that any particular castenot specified in the Order is a part of the caste specified in the Order. The

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same principles ought to govern the scope of the enquiry in relation to theOrder issued under Article 342 (1) by the President.—KATTIMANI CHAND-AIPPA JAMPANNA v. LAXMAN SIDDAPPA NAIK AND 2 ORS.29 E.L.R. 199.

—Constitution of India, Art. 342(2)—Effect of notification under—Tribementioned in notification as a Scheduled Tribe must be presumed to exist.

Constitution (Scheduled Tribes) Order, 2950, Part VII—A—Maharashtra—Garchiroli taluk of Chanda district—Entry 12—Gond tribe mentioned as includ-ing several others—Mana tribe mentioned as so included—Mana caste a sepa-rate caste also—Whether said caste may be treated as included in Gond tribe bydefinition though not so in fad.—HELD: It would be a legitimate mode ofconstruction of Entry 12 to hold that when a thing is said to be included inanother, both things have something in common though there may besome variation in detail. The word 'including' necessarily postulates theextension of the main idea. Here the main idea is the Gaul community and theother communities and tribes which are intended to bo included come underthe same genus though they may be different species. On this interpretation itmust be held that Respondent No. 1 had failed, to show that he belonged to thesub-tribe of Mana which is a part of or which is included in the Gond com-munity. On his own showing he belonged to a different community which wasnot a sub-caste of the Gond community. The community to which he belongedcould not therefore be said to be covered by the entry in serial No. 12in the group of Manas.

When i^ie Constitution (Scheduled Tribes) Order mentioned the Manatribe as a sub-tribe of the Gond tribe the existence of such a sub-tribe mustbe presumed.

BasavalingappaY.Munich'hbnappa, AIR 1965 S.C. 1269; relied on.—NARAYANSINGH SAMPATSINGH WEAKY v. DINA VITHOBA NARNA-VAREAND ANR. 29 E.L.R. 405.

—Mana Caste—Whether included in Gond Tribe.— Sec—Scheduled castes andTribes.—NARAYANSINGH SAMPATSINGH WEAKY v. DINA VITHOBANARNAVARE AND ANR. 29 E.L.R. 405.

——Ss.5 (a) & 100(l)(a) (Constitution Scheduled Castes) Order, 1950,Cls. 2 & 3—Professes a religion—test of— description of the witness in the head-ing of Court documents as Christian—effect of—.

The petitioner challenged the first respondent's election to the AndhraPradesh Legislative Assembly from the Cheriyal Constituency in WarrangalDistrict reserved for scheduled castes. He alleged that the first respondent,who was declared elected, and the second respondent, the other defeatedcandidate, were Christians or in any event professed the religion of Christianityand were therefore not members of Scheduled Caste within the meaning ofCl. 3 of the Constitution (Scheduled Castes) Order, 1950, and thus were not

qualified on the date of the election to be chosen as members from the Con-stituency. HELD .'( i ) There was no evidence whatever that the 1strespondent was converted to Christianity. There was no acceptable evidencethat he professed the religion of Christianity at the time of his election. On theother hand no open declaration was made by the 1st respondent at any timethat he had ceased to be a Hindu or that he had embraced Christianity; norwas there anything in the evidence to show that he had openly practised theChristian religion. Therefore, the claim of petitioner that the 1st respondentprofessed the Christian religion at the time of his election, was manifestlyill-founded. The description of the 1st respondent as a Christian inthe heading of legal documents in Court cases could not be given any weight.Such description cannot be regarded as amounting to admissions or aspoints in issue in the litigation, (ii) The second respondent was admittedlynot a member of a Scheduled Caste on the date when he filed hisnomination and yet his nomination paper was accepted; there was thusa breach of section 100(l)(d) (iv) of the Act. But that by itself did notinvalidate the election of a returned candidate because it must further be shownthat the result of the election, in so far as it concerns a returned candi-date had been materially affected. I t was neither pleaded nor proved that thatcondition has been satisfied. Therefore the acceptance of the nomination of2nd respondent, could have no impact on the electon of the 1st respondent.

N.W. Karwadi vs. P.H. Shambharkar AIK. 1958, Bombay 296. Maqbulamvs. Ahnsd Husain I.L.R. 26 Allahabad 108; Paajabrao. vs MeghramA,I.R. 1265 S.C. 1179, referred to.—GOKA RAMALINGAM v. BODDUABRAHAM & ANR. 30, E.L.R. 62.

• Art. 341 and Constitution {Scheduled ' Castes) Order. 1950— MalaAdi Andhra Community in Andhra Pradesh a Scheduled Caste under Order—Its member on conversion to Christianity whether ceases to be a memberof Scheduled Caste under Order—Reconversion to Hinduism through SuddhiSangam—Effect of—Professing a religion within meaning of Art. 341 (2),what amounts to.

Respondent No. 1 professing to be a Hindu belonging to the Adi Andhracaste was elected to the Andhra Pradesh Legislative Assembly from a con-stiuency reserved for Scheduled Caste candidates at the general election heldin February, 1967. The petitioner who was one of the losing candidates filedan election petition challenging the election of the respondent on the groundthat the latter was not a member of any Scheduled Caste under the Consti-tution (Scheduled Castes) Order, 1950, being a Christian born of Christianparents and was thus not entitled to be a candidate from the said reservedconstituency. According to the petitioner the reconversion of the respondentthrough the Suddhi Sangam was not efficacious, was not bona fide anddid not serve to majce 'him again a member of the Scheduled Caste towhich he originally claimed to belong. Respondent No. 1 denied that hisparents were Christians. According to him his father got his childrenconverted to Christianity with a view to bettering their prospects in life.But all along the family continued to live as Hindus and continued to be

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accepted as members of the Mala x\ndhra caste. When he grew up and becamean Advocate he decided to correct the anomaly as to his religion andgot himself recoverted to Hinduism through the Sudhi Sangam. HELD:—

(i) According to the authorities, unless a Hindu publicly enters into a diffe-rent religion, he cannot be said to be publicly professing that T'eli'iion. What issaid of a Hindu whether he be so by mere birth or by reconversion, applies withequal force to persons of other religions who claim to profess Hindu religion.Unless they enter publicly into that religion which will usually be by wayof a actual conversion, they cannot be said to profess the said religion. Inas-much as para 3 of the Order speaks of professing what is of essence is changeof faith and its declaration in a manner as may be known to those whom itmay interest. Conversion of course is one form, and effectual too of such publicdeclaration of change of faith. Professing religion being of primary impor-tance once the change, of faith is publicly declared the question whetherconversion was efficacious or not by reason of noncompliance with anyceremony or irregular performance thereof is a matter of little signifi-cance. Even in cases decided under Hindu law and Succession Act muchsignificance is not attached to the strict performance of ceremonies.

In the present case the evidence produced by the petitioner did notestablish that the first respondent did not become a convert to Hinduismor that his community did not accept Mm into its fold. On the other hand theevidexi.ce produced by the first respondent affirmatively established the factumof conversion and his faith in Hinduism. Not only was there effective declara-tion by publishing in the Gazette of change of faith but also there wasample evidence that the first respondent by his conduct showed thathe was a Hindu and his community received him as such. The contentionthat the conversion was a mere pretext to seize opportunity to contestand to gain political ends and the respondent was at heart a Christian and hadeven appealed to the electorate as such, was ill-founded. The conversionwas bonafide. It could not but be said therefore that the first respondentwas professing Hindu religion at the material time within themeaning of cl. (3) of the Constitution (Scheduled Castes) Order of 1950.

(ii) All Hindus, at any rate the majority of them, are born into somecaste or the other. The caste is not a religious body though its usages arebased upon religious feeling. In social matters the caste lays down the law.It is a self-governing body in certain matters with internal autonomy necessaryto its existence. Whether a certain person who belongs to a certain com-munity has by reason of change of faith or otherwise ceased to be a memberof that community must depend on the consciousness of the community andits attitude towards such a person. A person born in a caste will belong tothat caste unless he himself leaves that caste or community or by breachof any social rule the community outcaste him. It is open to the community toaccept him. again in the fold. Once he is an outcaste any amount of proof ofhis own conduct is of no avail for considering him as a member of thatcommunity unless the community by its word, act and conduct permits hisre-entry. It is only then that he is entitled to the rights and privileges whethersocial or olitioal as a member of the easte or community,

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The evidence in the present case showed that notwithstanding conver-sion to Christianity Mala and Madiga people do not ipso facto cease tobe members of their original caste but their caste people regard them still asone of them. When the evidence in this behalf was clear and unequivocalit must be held that the first respondent continued to be within Malacaste notwithstanding his formal conversion to Christianity.

(iii) The Suddhi Sangam though not a statutory body could legiti-mately help the first respondent to get himself reconverted to Hinduism.It is an association formed by some philanthropic persons actuated bythe idea of helping the intending converts to get them converted back toHinduism. The first respondent made an application to the Sangham, gavenotice to the church of his renunciation of Christian faith, made publica-tion of his reconversion to Hinduism and lived as a Hindu Mala. Heby reason of his reconversion became a member of a Schedule Caste within themeaning of the Presidential Order of 1950. He was a Mala all through, andby reason of the fact that he came to profess the Hindu religion at thematerial time was well within the meaning of clauses 2 and 3 of the Constitution(Scheduled Castes) Order.

0. Michale vs. S. Venekateswaran, AIR 1952 Madras 474; Narayan Waklu-Karwade vs. Punjabrao KuJcam Shambharka.r 60 BLR 746; Ratansi D.Morarji vs. Administrator General of Madras AIR 1928 Madras 1279; Guru-swami Nadarvs.Irulappa Konar (67 M.L. J. 389); B. Ramayya vs. MrsJosphineElizabeth, AIR 1937 Madras 172; Chunhu Manjhi vs. Bhabani Majhan AIR1946 Patna 218; Punjabrao vs. D.P. Meshram AIR 1965 S.C. 1179; CoopposamiChetty vs. Duraisami Chetti, I.L.R. 33 Madras 67; Chatturbhuy VithaldasJasani vs. Moreshwar Parashram, AIR 1954 S.C. 236; Goona DurgaprashadaRao vs. Goona Subdarshanswami, AIR 1940 Madras 513; Venkataramayya vs.Seshayya, AIR 1942 Madras 193; Bhiwa vs. Vittaram (1857) 4 Bombay S.D.A.lid,; Abdul Kadarvs. Bharam I.A.R. 20 Bombay 190; Kartik Oraonva.David Mukeni. AIR 1954 Patna 201: Shyamsunder vs. Shankar Deo VadalandafAIR 1960 Mysore 27; referred to—KOTHAPLLI NABASAYYAv. JAMMANAJOGI AND ANR. 30 E.L.R. 199.

Art 341(1) and Constitution {Scheduled Castes) Order 1950, Part VIIIof Schedule. Item 24—Adi Dravida Caste in Andhra included as a scheduledcaste—Person belonging to said caste converted to Christianity—Thereafter claimingreconversion to Hinduism—Whether reconversion makes him a member of his ori-ginal caste for the purpose of the Order—Proof of conversion to Christianity—Baptism whether required, by law to be recorded in baptismal register—Oral evidenceof baptism, whether barred under Evidence Act s. 91.

At the general election held in February, 1967, the respondent filed hisnomination papers for the Andhra Pradesh Legislative Assembly from a con-stituency reserved for Scheduled Caste candidates. He claimed to be anAdi Dravida, a caste mentioned in item 24 of Part VIII of the Schedule, to theConstitution (Scheduled Castes) Order, 1950, promulgated by the President ofIndia under Art. 341(1) of the Constitution. The petitioner also filed his nomi-nation papers as an Adi Dravida from the same constituency. The respondentwas elected. The petitioner challenged the election on the ground thatas the respondent had been converted to Christianity in the year 1949, he hadceased to be a Hindu and thereforejeeased to belong to the Adi Dravida cast

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so that Ms election from the reserved constituency was void. The respon"dent claimed that he was never converted to Christianity and did not believein its truth. In 1951 he married a Hindu lady with Hindu rites, and evenif he was taken to have been converted to Christianity earlier, this marriagewas proof that he had been reconverted to Hinduism in which he believed. Heclaimed to have continued to remain a member of the Adi Dravida casteprofessing the Hindu religion. The parties produced oral and documentaryevidence to establish their allegations. HELD: (i) The evidence producedby the petitioner clearly established that the respondent was converted toChristianity in 1949. The respondent had been unable to prove that he had beenreconverted to Hinduism thereafter.

(ii) There is no law in India as there is in England, which requires thatevery baptism performed must be recorded in a baptismal register. Therefores. 91 of the Evidence Act was not a bar to the production of evidence to showthat the respondent had been baptised.

(Hi) Although the marriage of the respondent was not in Christian form,it was not in the customary form either. This was indicative of the fact that therespondent was not particular to adhere to the customary Adi Dravida form ofmarriage.

(iv) Paragraphs 2 and 3 of the Constitution (Scheduled Castes) Order1950, must be read together. This follows from the'ruling of the Supreme Courtof India in Panjabrao v. D. P. Meshram AIR 1965 S. 0. 1179 : In view of thefinding in the present case that the respondent was converted to Christianityhe \yas not entitled to the benefit of paras 2 and 3 of the Scheduled Castes Order.

(v) The election of the respondent as an Adi Dravida candidate in the 1962general election and the lack of objection to the same from any members of thecaste did not conclusively prove that the respondent was recognised as a mem-ber of the caste. The petitioner's submission that he could not challenge the1962 election of the respondent as he was trying to gather evidence as to hiscoversion could not be discounted.

(vi) Even reversion to his old religion could not secure to the respondentthe benefits of the Scheduled Castes Order. The recognition by the communi-ty of the convert's reversion can only serve to regulate the succession andmarriage depending upon the custom and usage of the community. He can —aot by his choice, viz, by reconversion claim the benefits that are given toScheduled Caste Hindus who suffer social discrimination by virtue of their birth.If it was intended that the benefit should be secured to a convert fromHinduism who renounces the religion to which he is converted and revertsto his old religion, there would have been a specific provision to that effect inthe Scheduled Castes Order.

Jagannath vs. Jaswant Singh, AIR 1954 SC 210; M/s Raichand vs Unionof India AIR 1964 SC. 1269; Punjabrao vs. D. P. Meshram, AIR 1965 S. C.1179; G. Michael vs. S. Venhaleshwaran, AIR 1952 Madras 474; Vermani vs.Vermani. AIR 1943 Lahore 51;Nagubai vs. B. Shama Rao AIR 1956 S.C.593; Emperor vs. Maha Ram; I. L. R. 41 All. 398; Muthusami Mudaliar vs.Masilamani I. L. R. 33 Madras. 324 Durga Prasada Rao vs. Sudarshana Swamy,AIR 1940 Madras 513, referred to.—C. M. ARMUGAM vs. S. VICTORRAJAGOPAL, 30 E.L.R 222,

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Reserved seat under the Constitution (Scheduled Castes) Order, 1950—•candidate belonging to "Bindla" caste before conversion to Christianityin I960—candidate reconverted as Arya Samajist in 19(!G—whether cadidateloses his original caste as 'Bindla' Scheduled Caste—Whether eligible tostand as a candidate for a reserved seat. An election petition by an electorof the constituency alleged that the election of the First Respondent to theLegislative Assembly was void as he was not qualified to be chosen to fill theseat from the Nerella reserved constituency in that he was not a member ofany of the caste:? specified in part 1 of the Schedule to the Constitution(Scheduled Castes) Ojder, 1953; and that the nomination o" the Second Res-pondent has been improperly rejected by the Returning Officer. The- aver-ments in the petition were that the First Respondent who belonged to a.Scheduled Caste got himself converted to Christianity in May, 1960 and in*1966, he underwent a "Shuddhi" cerenr iv and become an Arya Santajist,by this ceremony he could not claim to have become a Hindu and at a'ay"rate this could not reconvert him to a Scheduled Ciste he was therefore in-eligible to file nomination for the Reserved constituency. HELD : After hisconversion to Christianity in 1960 the first respondent who belonged to the"Bindla" caste specified in the Constitution (Scheduled Castes) Order, 1950;continued to retain his caste, though he lost his religion on his conversion ashe never abjured his caste nor did his caste people ostracize or excommuni-cate him. After his reconversion as an Arya Samajist he regained his reli-gion and become a full-fledged 'Bindla' for all purpos3S—religious, social andpolitical and therefore he was fully qualified to stand Tor election fromthe reserved constituency.

Ckitt'wabhuj Vithiliw v. lMoraswar Parashrnm, AIR 1931, S.O. 235;relied on. -K. NARASIMftA REDOY v. G. BIUPATIII AND ANR..31 E.L.R. 211.

——>C:inUdate originally "Pallan" soheluhl caste —conversion of schedule!caste—Conversion to Christianity—reconversion to Hinduism prior to date ofnomination—Effect of—Whether disqualified to be a candidate from a reservedseat. HELD : The mere recitals in some olhi and sale deeds describing thefirst respondent's father as Chritstiau could not lead to the in ference that thefirst respondent was a Christain since some other similar documents descri-bed the caste of the first respondent's father as "Pallan" Harijan.

It is settled law that the word 'Hindu' in eludes not only Hindus bybirth, but also converts to Hinduism. :

A member of a Scheduled Caste who becomes a Ohristair> and thert getshimself reconverted to Hinduism, reverts to his original caite; in the presentcase the firt respondent would be entitled to revert to Pallan Communityon his convarsio] from Christianity. He was not therefor; disqualified frombeing a candidate from a Scheduled Caste Constituency.

Morarji v. Administrator General of Madras, 52, ILR Mad. 160; In Pro-ceedings, dated 8th November, 1966, 3 Madras High Court Reports APP VIIMuthuswami Mudaliar v. Masilamani I.L.R. 33 Mad. 342; Guruswami Nadarv_ Irulappa Konar 67 M.L.J. 389; Administrator General of Madras v.^nandachai I.L.R- 9 Mad. 466; Rarnayya v. Josephina Elizabeth 44 M.L.W-

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854; Durga Prasad Rao v. Sudaranasnami A.I.R. 1940 Mad. 513; referred to-K. PARAMALAI v. I. M. ALANGARAM AND E. KRISHNAMURTHY &ANOTHER, 31 BLR. 401.

——Consd'/iulion Scheduled Castes Order, 1950, Sections 2 and 3, Scopeof—Caste described in School certificate —whether conclusive evidence of caste ofcandidate. HELD : The evidence of the caste indicated ir a school certifi-cate cannot be looked at in isolation nor can it be deemed conclusive eviden-ce on the point and has to bs evaluated in the context of and in the light ofother evidence on the record. A person who is a memb:r of ScheduledCaste and who professes Hindu and Sikh religion is entitled to the privileges,meant for members of Scheduled Castes. A person professing any other reli-gion will not be entitled to be treated as a member of the Scheduled Casteas provided under sections 2 and 3 of the Constitution (Scheduled Castes)Order, 1950.

Punjabrao v. Dr. D. P. Meshram and other, A.I.R. 1965 SC U79; BHjMohan Singh v. Pnya Brat Narain Sinha and other A.I.R. 1965 SC 282,Vermani v. Vermani A.I.R. 1943, Lahore 51 Durga P'fasada Rao v. Sudar-snaswami, A.I.R. 1940 Mad. 513; Venkataramayya v. Seshayya A.I.R. 1942,Mad. 193; Dippala Sun Dora v. F. V. Giri, A.I. R. 1951, Andhxa Pradesh724; G. Michael v. S- Venkateswaran A.I.R. 1952 Mad. 474; referred to.—NARSINHBHAI KARSANBirAI MAKWANA v. JESINGBHAI GOVIND-BHAI PARMAR & ANR. 32 E.L.R. 152.

-Constitution {Scheduled Castes) Order 1950—Chamar and Mochi—ifsame castes. Challenging the first respondent's election, petitioner allegedthat respondent No. 8 wa.<? a Chamar by caste and as such, belonged to Schedu-led Castes within the meaning of paragraph 2 read with Part X of theSchedule to the Constitution (Scheduled Castes) Order, 1950, issued undorArticle 341 of the Constitution; that the respondent had filed a declarationunder s. 33 (2) of the Act stating his caste to be Chamar; that theReturning Officer at first accepted the nomination paper of the respon-dent when the scrutiny was held but subsequently on an objection raisedby the first respondent ordered! that the respondent No. 8 was not aChamar; the proceedings were adjourned and after admitting evidencethe nomination was rejected on the ground that respondent No. 8 be-longed to the ochi Caste. The Returning Officer was* of the view thatthe castes Chamar and Mochi did not mean the same thing because inwhat he called the Punjab List Mochi had been described as a backwardclass and Chamar as a Scheduled Caste. The petitioner maintained thatChamar and Mochi were not two separate castes and that the wordMochi was merely description of the profession of shoe-making;. Dismiss-ing the petition- HELD: Respondent No. 8 had not been proved to b e aChamar by caste.

The orders made by the Returning Officer appeared to indicate thathe had at first examined the nomination papers of Respondent No. 8 andwritten the word "accepted" but before he signed the Order, an objec-tion was raised that respondent No. 8 was a Mochi and did not belong tothe Schduled Caste. On the face of it the order showed that he neversigned or.announced the order "accepted". There was thus no questionof reyiewng an order which had been made and announced.

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Bhaiyalal v. Harikishan Singh, A I R . 1965 S.C 1557; Basavalingappav. Munichinnappa, A.I.R. 1965 S.C. 1269; reffered to—PARAS RAM vSHIV CHAND & ORS., 32 E.L.R- 221.

SUPREME COURT

—•—High Court misreadiig certain evidence or ignoring certain document—whether Supreme Court can interfere under Art. 136—-Under Art 136 of theConstitution of India, the Supreme Court is usually reluctant to interferewith conclusions of fact recorded by High Courts in their judgements. How-ever, there are some cases in which it becomes necessary for the SupremeCourt to reappreciate evidence and decide for itself whether the conclusions offact recorded by High Court are valid and reasonable. Such a thing happenswhen there is a misreading of evidence by the High Court or certain docu-ments are ignored by the High Court.—SHRINIVAS TIWARI vRUKMINI RAMAN PRATAP SINGH, 23 E.L.R. (S.C.) 131.

Appeal to—Whether period of 30 days prescribed by s. 116-A(3) forfiling appeal to be computed after excluding time required for obtaining copy of orderappealed, against. (See Election Petition—Limitation).—VIDYA OHARANSHUKLAV KHUB CHAND BAGHEL AND ORS. 25 E.L.R. 354. (S.C.)

Appeal under s. 116 A.—Whether Decree rf Tribunal necessary to file appeal.HELD : In an appeal under s. 116A all that is necessary to be filed is a copyof the judgement of the Tribunal and no more. There is no provision in theAct for passing a decree by the Election Tribunal. Section 90(1) would notmake those provisions of the Code of Civil Procedure which require the prepa-ration of a decree applicable to the trial of an election petition, for the Codehas to be applied to such trial as nearly as may be and subject to the provi-sion of the Act. Further, an appeal under s. 116A (1) is from an order andnot from a decree.—SHYAM SUNDER v. SATYA KETU, 28 E.L.R. 222.

Appeal under section 116A is an appeal under the Code of Civil Proce-dure within Art. 156, Limitation Act, 1908. (See Election Petition—Limita-tion).—VIDYA CHARAN SHUKLA v. KHUB CHAND BAGHEL ANDORS. 25 E.L.R. 354. (S.C.)

Approach of Supreme Court in dealing with appeals by special leave—Constitution of India, Art.136. HELD: When the matter comes to the SupremeCourt under Art. 136 against the appellate decision of the High Court,this court does not generally interfere with questions of fact except forcompelling reasons. The position becomes still more difficult for the appellantwhere the findings of fact of the Tribunal and the Court are concurrent. In thepresent case the Tribunal and the High Court had concurrently held thatrespondent No. 1 was not guilty of having incurred expenditure in excess ofthe permissible limit and of having paid a bribe to Respondent No. 3. Theappellant could not therefore be allowed to re-agitate these questions.— DRJAGJIT SINGH v. GIANI KARTAR SINGH AND ORS, 28 E.L.R.(S.C) 81.

SYMBOLS

Rr. 5,10(2)—Representation of the People Act, 1951, s. 169—Rules madeunder the Act—Whether the commission ha? power to give special direction tochange the symbol allotted to candidate—Whether other candidates to be heard

231

before such change—Onus on petitioner in election petition to show result ofelection materially affected. The appellant, who had declared himself to be theofficial candidate of the Jharkhand Party for election to the Bihar LegislativeAssembly, was not allotted the Party Symbol of a 'cock' by the ReturningOfficer as no official confirmation from the Party had reached him on February6, 1957, the date fixed for the allotment of symbols. Instead, he was allo-tted the symbol of an 'elephant'. Later, uoon a represention made to it, theElection Commission informed the Returning Officer by telegram that it haddecided .to ignore the defect and directed him to allot the party symbol tothe Appellant. Thereupon the Returning Officer concelled his previous orderon February 13, 1957 and allotted the symbol of a 'cock' to the appellant.After the appellant was declared, elected his election was challenged by therespondent mainly on the ground that he was illegally allotted the symbol of a'cock' and that the change in symbol in favour of the appellant had materi-ally affected the respondent's election. The Election Tribunal accepted thesecontentions holding that the allotment of the symbol of an elephant to theappellant on February 6, 1967 was final and the Election Commission has nojurisdiction to direct that it should be changed; Accordingly, the appellant'selection was set aside, On appeal to the High Court,

HELD : If ttie Ebcfeion Commission was satisfied that in spite of thefact that the Returning Officer had refused to allot the Party symbol to theappellant on February 6, 1957, the matter required re-consideration, it couldrot be held that the Election Commission had no power either to issuea special direction in that behalf to the Returning. Officer or to revise hisorder. The power of issuing special direction conferred on the Election Commis-sion by Rule 10 of the Representation of the People (Conduct of Elections andElection Petition) Rules, 1956 was not ultra vires of s. 169, of the Act. If,under s. 169, rules could be framed conferring the power to issue generaldirections, there was no reason to hold that the Election Commission couldnot be vested with the power to issue special directions also. The order ofthe Election Commission was in no way adverse to the respondent and itwas not necessary for the Commission to hear him. Even if it was assumedthat in revising an allotment of symbol made by the Returning Officer theElection Commission was acting in a quas-judicial capacity, it could not beconcluded that the Commission was bound to hunt for the other candidatesand consider their views. Similarly, it was not necessary for the ReturningOfficer to hear the other candidates before passing his final order on February13, 1957 as the other candidates had no interest in matter.—MANI LALYADAV v. BUDHINATH JHA KAIRAVA, 23 E.L.R. 159.

-Allotment of—to multi-State parties awl recognised political parties—whether Rule ultra vires s. 169—Wether ultra vires Art. 327 of the Constitution,

--—•Constitution of India Art. 14—Allotment of reserved symbols to certainparties and not to others—whether creates inequality within the meaning of An. 14.HELD: The power to allot resarved symbols to recognised Multi—State or Stateparties was neither ultra vires nor creative of inequality.

Apart from the general po.var conferred on the Central Government to makerule to cany out th« purpose of the Act uactar Sub-see.(1) of s. 169, sub-s. (2)

232

(c) confers a power on the Central Government, and the Central Government•after consulting the Election Commission could make Rule 5, inasmuch as cl.(c) of that sub-section empowers the making of rule dealing with the mannerin which votes are to be given both generally and in the case of illiteratevoters. Futher, Art. 327 confers a very wide power upon Parliament tomake laws in respsct of all matters relating to or in connection withelections to the various legislatures. It can not therefore be said that section169(2) (c) is ultra vires that power.

Prabhucharan v. Shiv Bull, (AIR, 1958 Madhya Phadesh, 289) and MoniLri v. Bhudhinalh, (AIR, 1962 P*tna, 18); referred to.

There is no disoriminition within the meaning of Art. 14 in allottingreserved symbols to recogrtissd political parties and free symbols to indepen-dent candidates, as all the candidates who are entitled to contest are allottedsymbols at the same time. They have similar advantages anddisadvantages.

Samyukta Socialist Party v. The Election Commission of India (CivilAppeal No. 1963/66 dat3d 30th September 1966, Supreme Court): referred to.GOPARAJU RAMAOHANDRA RAO ALIAS GORA v. THE ELECTIONCOMMISSIONER OF INDIA AND ORS. 29 E.L.R. 35.

Art 324.—Competence of Election Commission to pass such orders under—

(See-Election Commission).— SHffiOMANl AKALI DAL & ORS. v. THEELECTION COMMISSION OF INDIA & ORS. 2.3 EL. R. 53.

WORDS & PHRASES

"Addressed to the Speaker", KUNJUKRISHNA NADAR, M. v.THE SPEAKER, KERALA LEGISLATIVE ASSEMBLY & ORS.26 E. L. R. 25.

"Adult", Art. 326, ROOP LAL MEHTA v. DHAN SINGH, 29 E.L.R.113.

"Agent". KISHAN KUMAR v. KRISHAN GOPAL, 24 E.L.R.316.

-"Agent of candidate', KHANVILKER, D.K. v. D.N. Patil, 30 E.L.R. 1.—.— "Any mark on uniting by which the elector can be identified". DR.

ANUP SINGH v. ABDUL GHANPAND ANOTHER, "26 E.L.R. (S.C.)396.

. "Any other candidate", NARDEV v. JOT1 SAROOM AND OTHERS,24 E.L.R. 76; VISHNU CHARAN v. V1RCHAND BHANDAWAT ANDANR. 31 E.L.R. 92; MOOLCHAND JAIN v. RULIA RAM, 24 E.L.R. 358;

"Appeal under the code of Civil Piocedwe in Art. 156 of the Limita-tion Act". VIDYA CHABAN SHUKIA v. KHUECHAND BAGHEL ANDOTHERS, 25 E.L.R, (S.C.) 354.

233

"Authorised" and "Consent". NARSINHBHAI KARSHANBHAlMAKWANA v. JESINBHAI GOVINDBHAI PARMAR & ANR,, 32 E.L.R.152.

"Bhovi". Caste . B. BASAVALINGAPPA v. D. MUNICHlNNAPPAAND OTHERS 26 E.L.R. (S.C.) 446.

"Candidate". 'KISROICE SINGH v. BHANWARLAL KANTAAND OTHERS, 27 E.L.R. 243; HIRUBHAU M. GAVALI v. SHIVARAMDADA HIRE AND ANR. 29 ELR 178: NARASIMHA RAO, N.V.L. v. KOTHARAGHURAMAYYA & ORS, 29 E.L.R. 432; RAJAJU v. BRIJKISHORE PATARIA AND ORS, 29 E.L.R. 445.

"Casus Omissions". KODUR SUBHA EAMJAH v. ANNAMCHANCHU SUBHA REDDI, 25 E.L.R. 97.

"Civil Proceeding". KAMAL NARAIN SHARMA v. DWARKAPRASAD MISHRA AND OTHERS, 26 E.L.R. 382.

"Community". B. G. MARDA v. K. R. MARDA AND ANR,30 E.L.R. 158.

"Contesting Candidates". MADAN GOPAL v. NEK RAM SHARMA.25 E.L.R. 61.

"Dharmdkanta" SHANKAR RAJA & ANOTHER v. M. RAMREDDY,26 E.L.R. 252.

"Election", GURUCHARAN BANERJEE v. R. 0. BURDWANH. P. CONSTITUENCY, 25 E.L.R. 312; PRITAM SINGH v. SHIV SINGH,29 E.L.R. 82.

— "Extended constructive Agency". NATARAJAN v. VIJA RAJAND OTHERS, 30 E.L.R. 321.

'For any person on the ground of religion caste. Comm,unity or lan-guage", SANT PRASAD SINGH v. DASU SINHA, 25 E.L.R. 181.

"Gratification", MOOLCHAND v. RULIA RAM AND ANR,27 E.L.R. 358.

"Hindu", PUNJABRAO v. D. P. MESHRAM AND OTHERS,25 E.L.R. (S.C.) 453.

— - "Incurring", SADHU RAM AND OTHERS v. HIRA SINGH PAL,32 E.L.R. 28.

—-— "In relation to personal character of any candidate", SAHEBLAL v.PHOOLCHAND AND ANOTHER 31 E.L.R. 282; KHANVILKAR v. PATIL,30 E.L.R. 1.

"In relation to the Candidature". SALIGRAM v. VODlNDRAO& 3 OTHERS, 27 E.L.R. 123.

234

'-'In the course of trade or business ", C. V. K. EAO v. DANTU BHAS-KAEA EAO, 26 E.L.B, (S.C.) 310.

"Interest in contract with the Government". KONAPPA EUDEAPPANADGOWDA v. V1SHWANATHA EEDDY ; AND OTHERS, 31 E.L.E. 64.

' "Materially". KHANV1LKAE v. D. N. PATTL. 30 E.L.E. 1."Office of Profit". GUEUGOVTNDA BASU v. SHANKAEI PBA-

SAD GHOSAL ANB OTHERS, 25 E.L.E. (S.C.) 77.

"Panth". KULTAE SINGH, v. MUKHTIAE SINGH, 26 E.L.E.(S.C.) 300.

"Part of the Electoral Roll". EANJIT SINGH v. PEITAM SINGH28 E.L.E. (S.C.) 169.

"Process of election". H. H. MAHAEANA SUEENDEASINGHJIJOEAWAESINGHJI JHALA v. SHRIU. M. BHAT, CHIEF ELECTOEALOFFICES, GUJARAT AND OTHERS, 29 E.L.E. 1.

• "Profess". MESHEAM v. PUNJABEAO, 24 E.L.E. 6: PUNJABEAOv. D. P. MESHEAM AND OTHEES, 26 E.L.E. (S.C.) 453,

"Professing", a religion-Jri 341 (2) KOTHAPALLI NARASAYYA,v. JAMMANA JOGI AND .ANOTHER, 30 E.L.E. 199.

"Prover declaration". MUNICHINNAPPA v. BASVALINGAPPA,25 E.L.E. 247.

"Purchase" INDEE LAL v. LAL SINGH AND OTHEES, 23 E.L.E.(S.C.) 252.

"Signed". LALJTBHAI JODHABAI BAE v. VINODCHANDEAJETHALAL PATEL, 24 E.L.E. 145.

"Subject to the provisions of-this Act and any rules made/thereunder".AMIN LAL v. HUNNA MAL, 25 E.L.E. 116.

"Substantial Performance". KONAPPA EUDEAPPA NADGOW-DA v. V1SHWANATHA EEDDY AND OTHERS, 31 E.L.E. 64.

—— "The Result of election has been materially affected". KHAMANSINGH v. DAU DAYAL KHANNA, 23 E.L.E. 146.

"Withdraw". VAID PEAKASH v. POHUMAL, 24 E.L.E: 58.

INDEX TO STATUTES REFERRED TOAgra University Act, 1926 as amended by TIP. Act No. 27 of 1956.

Andhra Pradesh and Madras (Alteration of Boundaries Act) 1959.

A.G. Ranganathan Nayar vs. V. Kamala Kanan & others. 23 E.L.R.392.

Bombay Ministers Salaries and Allowances Act, 1956 (48 of 1956),S. 13 as adapted to Maharashtra State by the Maharashtra Adaptationof Laws (State and Concurrent subjects) Order, I960. S. 13.

Shriram Haribhan Mankar v. Madhusudan Atma Earn Vairala, 29E.L.E. 171.

CIVIL PROCEDURE CODE

Or. 1, r. 9.Putti Venkata Subbaiah v. Smt. B.K. Radhabai. 30 E.L.R. 100.Jashbhai Chunibhai Patel v. Anwer Beg A. Mirza, 32 E.L.R. 1.

Or. 1, r, 10.Hiru Bhan M. Garali v. Shivaram Dada Hire And Anr., 29 E.L.R. 178Thakur Man Singh Khatuji v. Dr. Varaj Lala Parikh & Ors., 29 E.L.R.249.Dwijonlra Lai Sen Gupta v. Hare Krishna Konar, 23 E.L.R. 270.Fulabhai Dahyabhai v. Ramanbhai Dhanabrai Patel, 29 E.L.R. 288.N.V.L. Narasimbha Rao v. Kotha Raghuramayya & Ors. 29 E.L.R.432.Putti Venkata Subhaiah v. Smt. B.K. Radhabai, 30 E.L.R. 100.Jeshbhai Chuni Bhai Patel v. Anwer Beg A. Mirza, 32 E.L.R. 1.

Or. 1, r. 13.Paid Venkata Subbaiah v. Smb. B.K. Radhabai—30 E.L.R. 100.

Or. IV

Satrughan Sahu v. Bijoynanda Patnaik," 23 E.L.R. 259.

Or. VI,-*. 2

Didar Singh Cheeda v. Sohan Singh & Ors., 27 E.L.R. 110.

Or. IV, r. 17

HirubhanM. Gavali v. Shivaram Dada Hire & Anr., 29 E.L.R. 178.

Jashbhai Chuni Bhai Patel v. Anwar Beg A. Mirza, 32 E.L.R. 1.

Or. VIII, r. 5.

Dr. Jagjit Singh v. Giani Kartar Singh & Ors. 28 E.L.R. 81.

235

236

CIVIL PROCEDURE CODE - contd.

Or. XIX

Sawalia Behari Lall Vej-ma v. Tribik Ham Deo Narain Sin^h & Ors27 E.L.R. 1. , °

Or. XVI.

Jagan Nath & Anr. v. Narayaa & Anr., 31, E.L R. 223.

S. 11 ' •

Bairi Narayaa Singh v, Kamdeo Prasad Singh., 23 E.L.R. 203.

Or. XIX, r. 3.

Kidwai Hussain Kamil v. Yade, Ram Sewak 25 E L.R. 35.

Or. XXIII, r. 1.Sa:rughana S-ihi v. Bijoyauanda Pa'naik & Ors. 23 E.L.R. 255.Bijoyananda Patnaik v. Sa'rughana Sahu, 24 E.L.R. 219.

Or. XLI, r. 22.

Shanka.agouda v. Sirur Veerabhadia, 23 E.L R. 1.Chiranjeevulu Naidu v. E.S. Thyagrajan, 25 E.L.R. 201.

Or. XLI r. 27.

K. Venkata-amiah v. A Sectharama Reddy & O,:s., 24 E.L.R. 42.

CRIMINAL PROCEDURE CODE.

8.13.Shriram Haribhan Mankar v. Madtusudan Atma Ram Vairala,

29 E.L.R. 171.

S. 151.D. Sanjeevaiak v. P. Rajarathna Rao, 27 E.L.R. 226.

S. 4O'l.

Sarafc Chandra Rabha & Ors. v. Khagandra Nath & Ors., 23 E.L.R. 125.

COMPANIES ACT, 1956.

8. 2 (18).Gurugovinda Basu v. Shaiikari Parsad Ghosal & Ors. 23 E.L.R. 356.

8. (617).Gurugovinda Basu v. Shankari Prasad Ghosal & Ors. 23 E.L.R. 356.

CONDUCT OP ELECTIONS AND ELECT.roN PETITION RULES, 1956.

r.5.

Mani Lai Yadev v. Budhinafh Jha 'Kairva', 23 E.L.R. 159.

r. 10 (2)Mani Lai Yadev v. Budhinath Jha 'Kairva' 23 E.L.R. 159.

237

CONDUCT OF ELECTIONS AND ELECTION PETITIONS RULES, 1956—eontd.

r.ll.Keshao Prasad v. A.D. Mani & Ors., 23 E.L.R. 171.

t. 27 (2).Tambeshwar Prasad v. K. C. Gupta & Others, 23 E.L.R. 140.

r. 116.

Keshao Prasad r. A. D. Mani & Others, 23 E.L.R. 171

r. 116 (1) (a).

K. Sadanandan v. Kozhi Purathu Madhava Menon & Ors., 23 E.L.R. 190"

r. 116 (1) (c).K. Sadanandan v. Kozhi Purathu Madhava Menon & Ors., 23 E.L.R. 190.

r. 116 (1) (d).

K. Sadanandan v. Kozhi Purathu Madhava Menon & Ors., 23 B-L.R. 190*

1.120.Keshao Prasad v. A. D. Mani & Ors., 23 E.L.R. 171

r. 122.

Keshao Prasad v. A. D. Mani & Ors., 23 E.L.R. 171.

r. 128.

Keshao Prasad v. A. D. Mani & Ors., 23 E.L.R. 171.

r. 138.

Keshao Prasad v. A. D. Mani & Ors. 23 E.L.R. 171

CONDUCT OF ELECTIONS RULES, 1961.

r.2(2).

Lalji Bhai Jodha Bhai Bar v. Vinod Chandra Jetha Lai Patel, 24 E.L.R-145.

K. Narasimha Reddy v. G. Bhupathi & Anr., 31 E.L.R. 211.

r. 5.Goparaju Ramchandra Rao alias Gora v. The Election Commission ofIndia & Ors., 29 E.L.R. 35.

r. 37A (2) (a).

Satya Ketu v. Shyam Sunder & Ors., 27 E.L.R. 58

r. 38 (a).

Rajendra Prasad Jain v. Sheel Bhadra Yajee & Ors., 28 E.L.It. 126.

r. 39.

Bireswar Ghose v. Satya Narain Mitra & Ors., 30 E.L.R. 81.r. 56 (2).

Ram Chandra Ram v. Raghunath Raj & Anr., 23 E.L.R. 293.M/JD121EC—18

238

CONDUCT OF ELECTIONS RULES, 1961—contd

r. 56 (2).

Mahadeo v. Babu Udai Partap Singh & Ora., 28 E.L.R. 72.

r. 56 (2) (h).Shri Gangi Veerappa «. Shri S. Siddaveerappa, 29 E.L.R. 490.

r 56 (3).

Ram Chandra Ram v. Raghunath Raj & Anr., 23 E.L.R. 293.r. 56 {4).

Ram Chandra Ram v. Raghunath Raj & Anor., 23 E:L.R. 293.r.57(l).

Jabar Singh v. Genda Lai, 25 E.L.R. 323.

r. 57 (3).Ram Chandra Ram v. Raghunath Raj & Am., 23 E.L.R. 293.

f.00.P.R. Francis i). A.V. Aryan & Anr., 30 E.L.R. 136.

*. 63.Pethu Rsddiar v. V.R. Muthiah & Anr., 24 E.L.R. 124.Chittoori Indrayya v. Mullapudi Hansichandra Prasad, 25 E.L.R. 192.Kartar Singh V. Randhir Singh & Ors., 30 E.L.R. 37.

r. 63 (2). '"'"P.R. Francis v. A.V. Aryan &> Anr., 30 E.L.R. 136.T.P. Seetharaman v. K. Sekharan Nair & Ors., 30 E.L.R. 242.

*. 71 (4).

Satya Ketu Q. Shyam Sunder & Ors., 2/ E.L.R. 58.

t 73 (2).Satya Ketu v. Shyam Sunder & Ors., 27 E.L.R. 58.Shyam Sunder v. Satya Ketu., 28 E.L R. 222.

r, 86.Bechabhai Parmabhai Harjivandas v. Deojibhai Sadabhai Parmar, 32E.L.R. 133.

r. 91.

AH Mohammad Tariq & Ors. v. Election Commission of India, 31 E.L.R •142.

r.93.Ram Chandra Ram v. Raghurath Raj & Anr., 23 E.L.R. 293.Kidwai Hussain Kamil v. Yadav Ram Sewak, 25 E-L.R. 35.Ram Sewak Yadav v. Hussain Kamil Kidwai, 26 E.L.R. 14.

239

CONDUCT OF ELECTIONS EULES, 1961—conoid.

Jainarain Lai Agarwal v. Nand Kumar Dani & Ors., 26 E.L.E. 136.

Begum Mafida Ahmed v. Rajendra Nanth Barua & Anr., 26 E.L.R. 172.Madhu Singh V Ram Saran Chand Mittal & Ofs., 27 E.L.R. 11.

r. 94 (a)

Dantu Shaskar Rao v. C.V.K. Rao, 24 E.L.R. 168.T, Natarajan v. D. Vijayraj & Ore, 30 E.L.R. 321.Gajadhar v. Chunni Lai Singh & Ors., 31 E.L.R. 1

r.97t

Shamsher Chand v. Prakash Chand & Anr., 32 E.L.R. 97,

CONDUCT OF ELECTIONS RULES, 1962.

r, 92,

Kidwai Hussain Kanlil «. Yadav Ram Sewakj 24 E.L.R. 51.

CONSTITUTION OF INDIA.

Art. 5(c).

Kedar Pandey v. Narain Bikram Shah, 27 E.L.R. 97.

Art. 14.

Goparaju Ram Chandra Rao alias Gora v.- The Election Commissionof India & Ors., 29 E.L.R. 35.

Nalinikant Dev Shankar Vyas & Anr. v. V.S. Thambe & Ors., 27E.L.R. 76.

Putti Vcnkata Subbaiah v. Srat. B.K. Radhabai, 30 E.L.R. 100.P.R. Francis v. A.V. Aryan & Aar., 30 E.L.R. 136.T.P. Seetharaman v. K. Sekharan Nair & Ors., 30 E.L.R. 242.H. Sridhara Pai & Anr., v. S.K. Amin & Anr., 31 E.L.R. 329.

Art. 19.

Mahendra Singh V. Hari Prasad & Ors., 26 E.L.R. 158.

Art. 58(2).

Gurugobinda Basu ». Sankari Prasad Ghosal & Ors., 23 E.L.R. 356.Art. 66(4).

Gurugobinda Basu v. Sankari Prasad Ghosal & Ors., 23 E.L.R. 356.

Art. 84

Ram Lai v. Vishveshwar Nath, 29 E.L.R. 306.Art. 84(a).

S. Kapur Singh v. S. Devinder Singh Gareha & Ant-., 29 E.L.R. 255.Art. 101(2).

Ali Mohd. Tariq & Ors., v. Election Commission of India & Ors., 31E.L.R. 142.

CONSTITUTION OF INDIA—contd.

Art. 102(1).Hasbi Fakirappa Muddappa v. Desai Basavarai Ayyappa & Ors

28 E.L.R. 101.Art. 102(l)(a).

Guru Gobinda Basu i). Sankari Prosad Ghosal & Ors., 23 E.L.R. 356.Ram Lai v. Vishveshwar Nath, 29 E.L.R. 306.Ram Prasad & Anr. v. Ahsok Rajit Ram Mehta, 31 E.L.R. 195.

Art. 136.Dr. Jagjit Singh v. Giani Kartar Singh & Ors., 28 E.L.R. 81.

Art. 173.Brij Mohan Singh v. Priyabrat Narain Singh, 26 E.L.R. 78.Hari Ram Singh i). Kamta Prasad Shar.na, 28 E.L.R. 44.Pashupati Nath Singh v. Harihar Prasad Singh, 31 E.L.R. 155.K. Paramalai v. I.M. Alangaram & R. Krishnamurthy, 31 E.L.R .

401.Art. 173(a).

Kedar Pandey v. Narain Bikram Shah, 27 E.L.R. 97.Shiva Shankar Kanodia v. Kapildeo Narain Singh & Ors., 28 E.L.R.

250.Jugal Kishore v. Dr. Baldev Prakash, 31 E.L.R. 313.

Art. 173$).Manohar Naik v. Binode Behari Bariana, 23 E.L.R. 379.Himatbhai Gomanbhai Patel v. Amrut Lai Amba Lai Patel & Anr.,

30 E.L.R. 293.Art. 190{3).

M. Kunju Krishnan Nadar v. The Speaker, Kerala Legislative Assembly,26 E.L.R. 25.

Art. 191.Shankaragouda v. Sirun Veerabhadrappa, 23 E.L.R. 1.Pt. Joti Prasad Upadhyaya v. Shri Kalka Prasad Bhatnagar, 23 E.L.R.

195.Mahendra Singh v. Hari Prasad & Anr., 26 E.L.R. 158.Hasbi Fakirappa Muddappa v. Desai Basavaraj Ayyappa & Ors., 28

E.E.R. 101.Upendra Lai v. Smt. Narainee Devi Jha, 30 E.L.R. 372.Umrao Singh v. Darbara Singh & Ors., 31 E.L.R. 99.

Art. 191 (C).R. Shiva Sankara Mehta v. The Election Commission of India & Ors.,

29 E.L.R. 104.

241

CONSTITUTION' OF INDIA—contd.

Art. 191 (l)(a).

Charugondla Eanga Rao ii, Komaramayya, 30 E.L.R. 52,Election Commission, India (Opinion) In re. Sh. D. Mahalingam>

28 E.L.E. 231.Shriram Haribhan Mankar v. Madhusudan Atmaram Vairale, 29 E.L.R -

171.Moti Singh v. Bhaiyya Lai, 29 E.L.R. 215.Shanti Bhai v. Mahadeo & Ors., 32 E.L.R. 232.

Art. 191 (1)(C).Election Commission, India (Opinion) In re. Sh. R. Sivasankara Mehta,

28 E.L.R. 233.Art. 191 (2)(e).

Election Commission, India (Opinion) In re. Dr. Ramcharan Rai27 E.L.R. 66.

Art. 191(2).Shriram Haribhau Mankar v. Madhusudan Atmaram Vairale, 29 E.L.R*

171.

Art. 192(2).

Election Commission, India (Opinion) In re. Dr. Ram Charan Rai, 27E.L.R. 66.

R. Sivasankara Mehta v. The Election Commission of India & Ors.'

29 E.L.R. 104.

Art. 226.

Mohan Singh v. Bhanwari Lai Nahta, 23 E.L.R. 330.K. Brahmanand Reddy v. The Member, Election Tribunal, Hyderabad,

24 E.L.R. 196.Vithal Rao Raja Ram Hingwe v. M.K. Joshi, Election Tribunal,

Wardha & Ors., 24 E.L.R. 237.Gurucharan Banerjee v. Returning Officer, Burdwan, House of the People

Constituency, 25 E.L.R. 312.Rajendra Prasad Jain v. Sheel Bhadra Yajee & Ors., 28 E.L.R. 126.H.H. Maharana Surenderasinhji Jorawarsinhji Jhala I v. Shri U.M-

Bhatt, Chief Electoral Officer, Gujarat & Ors., 29 E.L.R. 1.Pritam Singh v. Shiv Singh, 29 E.L.R. 82.

Art. 227.Vithal Rao Rajaram Hingwe v. M.K. Joshi, Election Tribunal, Wardha»

24 E.L.R. 237.Raghbir Singh v. The Election Tribunal, Ambala & Ravinder Nath;

28 E.L.R. 235.

242

CONSTITUTION OF INDIA- contd.H.H. Maharana Surenderasinhji Jorawarsinhji Jhala v. Shri U.M-

Bhatt, Chief Electoral Officer, Gujarat & Ors., 29 E.L.R. 1.Art. 299.

Laliteshwar Prasad Sahai v. Bateshw.ir Prasad & Ors., 27 E.L.R.265.

Abdul Rahiman v. Sadasiva Tripathy, 31 E.L.R. 380.Art. 299 (Gl. 1).

Konappa Rudrappa Nadgowda v. Vishwanath Reddy and The Asstt.Commissioner and Returning Officer for Yadagiri Assembly Consti-tuency, Yadagiri.

Art. 324.Shiromani Akali Dal & Ors., v. The Election Commission of India &

Ors., 29 E.L.R. 53.K.R. Rao v. The Chief Election Commissioner of India & Ors., 29

E.L.R. 63.Art. 324(4).

Goparaju Ramchandra Rao alias Gora v. The Election Commissionerof India & Ors., 29 E.L.R. 35.

Art. 326.P. Kunhiraman v. V.R. Krishna Iyer, 23 E.L.R. 208.Pauja Singh v. Zail Singh, 23 E.L.R. 336.Nalinikant Devshankar Vyas & Anr., v. V.S. Thambe & Ors., 29 E.L.R.

76.Roop Lai Mehta v. Dhan Singh, 29 E.L.R. 113.T.P. Seetharaman v. K. Sekharan Nair & Ors., 30 E.L.R. 292.Kanai Lai Bhattacharjee v. Nikhil Das & Ors., 30 E.L.R. 353.

Art. 327.Hasbi Fakirappa Muddappa v. Desai Basavaraj Ayyappa & Ors.,

28 E.L.R. 101.Goparaju Ramchandra Rao alias Gora v. The Election Commission

of India & Ors., 29 E.L.R. 35.T.P. Seetharaman v. K. Sekharan Nair & Ors., 30 E.L.R. 242.

Art. 329(a).H. H. Maharana Surendrasinhji Jorawarsinhji Jhala v. Chief Elec-

toral Officer, Gujarat and Ors., 29 E.L.R. 1.Art. 329(b).

Brij Mohan Das Agarwal v. Z.A. Ahmad & Ors., 24 E.L.R. 371.Gurucharan Banerjee i). Returning Officer, Burdwan H.P. Constituency,

25 E.L.R. 312.H.H. Maharana Surendrasinhji Jorawarsinhji Jhala v. Sh. I7.M.

Bhatt, Chief Electoral Offier, Gujarat, 29 E.L.R. 1.Pritam Singh & Ors. v. Shiv Singh & Ors., 29 E.L.R. 82.

243

CONSTITUTION OF INDIA—concld.

Art. 341(1).

Adwaita Mondal v. Nakul Chandra Sahis, 24 E.L.E. 284.CM. Armugam v. S. Victor Rajagopal, 30 E.L.R. 222.

Art. 341(2).Kotliapalli Narasayya v. Jammaua Jogi & Anr., 30 E.L.R. 199.

Art. 342.Kattimani Chandrappa Jampanna v. Laxman Siddappa Naik & 2 Ors.,

29 E.L.R. 199.Narayan Singh Sampat Singh Weaky v. Dina Vithoba Naranavare

& Anr., 29 E.L.R. 405.

Entry (72) of List I Sch. VII.Hasbi Fakirappa Muddappa v. Desai Basavaraj Ayyappa & Ors.,

28 E.L.R. 101.

CONSTITUTION (SCHEDULED CASTES) ORDER, 1950.

Para 3.Dr. D.P. Meshram v. Panjab Rao & Ors., 24 E.L.R. 6.Adwaita Mondal v. Nakul Chandra Sahis, 24 E.L.R. 284.

Para. 6. Append. XXXII.Kartik Oraon v. David Munzni & Anr., 25 E.L.R. 291.Didar Singh Cheeda v. Sohan Singh & Anr., 27 E.L.R. 110.

Part 13—item 40.Abhey Pada Saha v. Sudhir Kumar Mondal, 28 E.L.R. 179.

Part X—item 9. "" ''•'"'S. Surain Singh v. Dr. Bhagat Singh & Ors., 29 E.L.R. 160.

Part VIII—Para 2—Entry 13.Kattamani Chandappa Jampanna v. Laxman Siddappa Naik & 2 Ors.,29 E.L.R. 199.

Part VII—Entry 12.Narayan Singh Sampat Singh Weaky v. Dina Vithoba Narnavare

& Anr., 29 E.L.R. 405.

Part VII—Entry 12—Glauses 2 & 3.Goka Rama Lingam v. Boddu Abraham & Anr., 30 E.L.R. 62.Kothapali Narasayya v. Jammana Jogi, 30 E.L.R. 199.

Part VII—item 24.0. M. Armugam v. S. Victor Raja Gopal, 30 E.L.R. 222.

K. Narasimha Redly v. Q. Bhupathi & Anr., 31 E-L-R, 211,

244

CONSTITUTION (SCHEDULED CASTES) ORDER, 1950—contd.Narsinhbhai Karsanbhai Makwana v Jesinghbhai Govindbhai Parmai,

32 E.L.R. 6.

Paras Ram v. Shiv Chand & Ors., 32 E.L.R. 221.

DELIMITATION COMMISSION ACT, 1962.

Sec. 10(2)..Ram Lai v. Vishweshwar Nath, 29 E.L.R. 306.

EVIDENCE AOT, 1872.

S. 35.Brij Mohan Singh v. Priyabrat Narayan Singh & Ors., 26 E.L.R. 78.Randhir Singh v. Raj Narain & Ora., 27 E.L.R. 79.Vishwanath Prasad v. Salamatullah & Ora., 27 E.L.R. 145.

S. 63.Vishwanath Prasad v. Salamatullah & Ors., 27 E.L.R. 145.

S. 65.Vishwanath Prasad v. Salamatullah & Ors., 27 E.L.R. 145.

S. 81.Vishwanath Prasad v. Salamatullah & Ors., 27 E.L.R. 145.

8. 91.0. M. Armugam t). S. Victor Rajagopal, 30 E.L.R. 222.

S. 114.Hasbi Fakirappa Muddappa «. Desai Basavaraj Ayyappa & Ors.,

28 E.L.R. 101.GENERAL CLAUSES ACT, 1897.

8. 3{60).Pt. Joti Prasad Upadhyaya v. Kalka Parsad Bhatnagar & Ors,,

23 E.L.R. 195.

8.9.Vishwanath Prasad v. Salamatullah & Ors., 27 E.L.R. 145.

S. 10.Vishwanath Prasad v. Salamatullah & Ors., 27 E.L.R. 145.

HYDERABAD LEGISLATIVE ASSEMBLY (PREVENTION OP DISQUALIFICATION)ACT, 1955.

Shankaragouda v. Serur Veerabhadrappa, 23 E.L.R. 1.LETTERS PATENr (PATNA HIGH COURT).

Cl. 28. • - •Rajendra Prasad Jain v. Sheol Bhadra Yajee, 28 E.L.R. 126.Rajendra Prasad Jain v. Sheel Bhadra Yajee, 29 E.L.R. 96.

245

LIMITATION ACT.

8. 12.

Vidya Charan Shukla v. Khub Chand Bhagel, 25 E.L.R. 354.

S. 29(2).

Vidya Charan Shukla v. Khub Chand Bhagel, 25 E.L.R. 354.

8. 29(3).

Vishwanath Prasad v. Salamatullah & Ors., 27 E.L.R. 145.

MADHYA PRADESH HIGH COURT MANUAL.

r. 5 Ch. 2.

Babu Lai v. Shri Sharma & Ors., 32 E.L.R. 246.

MAHARASHTRA ZILA PARISHAD & PANCHAYAT SAMITI ACT, 1961 (ACT 5 OF 1962)"

S. 84.

Moti Singh v. Bhaiyya Lai, 29 E.L.R. 215.

MYSORE (ADAPTATION OF LAWS) ORDER, 1956.

Shankaragouda v. Sirur Veerabhadrappa, 23 E.L.R. 1,

PANJAB PANOHAYAT SAMITIES & ZILA PARISHAD ACT, 1961.

S. 103.

Umrao Singh v. Darbara Singh & Ors., 31 E.L.R. 99.

PANJAR PANCHAYAT SAMITIES & ZfLA PARISHAD, NON-OFMCIAL MEMBERS(PAYMENT OF ALLOWANCES) RULES, 1961 AND RULES, 1965.

«•• M) •

Umrao Singh 9. Darbara Singh & Ors., 31 E.L.R. 99.

f. 3(3).

Umrao Singh v. Darbara Singh & Ors., 31 E.L.R. 99.

PUNJAB GOVT. ORDINANCE NO. 10 OF 1967.

8. 2.Umrao Singh v. Darbara Singh & Ors., 31 E..L.R. 99.

TBB PARLIAMENT (PREVENTION OF DISQUALIFICATION) ACT, 1959.

S. 3(1)—read with Part I of the Schedule.

Hasbi Fakirappa'^Muddappa v. Desai Basavaraj Ayyappa & Ors.,28 E.L.R. 101."

S. 3(a).

Ram Prasad & Anr. v. Ashok Rajit Ram Mehta, 31 E.L.R. 195.

246

THE MYSORE LEGISLATURE (PREVENTION-OF DISQUALIFICATION) ACT, 1956.

S. 2.Hasbi Fakirappa Muddappa v. Desai Basavaraj Ayyappa & Ore.,

28 B.L.R. 101.

RAJASTHAN PANCHAYAT SAMITI & ZILA PABISHAD ACT, 1959.

S. 31(4).Mahenira Singh v. Hari Prasad & Ors., 26 E.L.R. 158.

S. 84(3).Mahenira Singh v. Hari Prasad & Anr., 26 E.L.R. 158.

S. 89(4).Mahendra Singh v. Hari Prasad & Anr., 26 E.L.R. 158.

RAJASTHAN SERVICE RULES.

r. 23A.

Mahendra Singh 1). Hari Prasad Singh & Anr., 26 E.L.R. 158.

REGISTRATION OF ELECTORS RULES, 1960.

r. 11.

Vishwanath Prasad v. Salamatullah & Ors., 27 E.L.R. 145.r. 20.

Narayan Bikram Shah v. Kedar Pandey, 26 E.L.R. 200.

r. 22.H.H. Maharana Surendrasinhji Jorawarsinhji Jhala v. Shri U.M.

Bhatt, Chief Electoral Officer, Gujarat, 29 E.L.R. 1.

r. 23.Narayan Bikram Shah v. Kedar Pandey, 26 E.L.R. 200.

r. 26.H.H. Maharana Surendrasinhji Jorawarsinhji Jhala i). Shri U.M.

Bhatt, Chief Electoral Officer, Gujarat, 29 E.L.R. 1.

r. 26(3).P.N. Apparao v. Kamburu Suryanarayana Naidu, 25 E.L.R. 220.

r. 33.Ram Prasad & Anr., v. Ashok Rajit Ram Mehta, 31 E.L.R. 195.

REPRESENTATION OF THE PEOPLE ACT, 1950.

S.Goparaju Ramchandra Rao alias Gora 1). The Election Commission of

India & Ors., 29 E.L.R. 35.

247

REPRESENTATION OP TUB PEOPLE ACT, 1950 —oonkl.

S. 16.

Keshao Prasad v. A.D. Mani & Ors., 23 E.L.R. 171.P. Kunhiraman v. V.R. Krishna Iyer, 23 E.L.R. 208.Roop Lai Mehta v. Dhan Singh, 29 E.L.R. 113.

S. 17.Keshao Prasad v. A.D. Mani & Ors., 23 E.L.R. 171.

S. 19.P. Kuniraraai v. V.R. Krishna Iyer, 23 E.L.R. 208.

8. 20.Keshao Prasad v. A.D. Mani & Ors., 23 E.L.R. 171.

8. 21.Keshao Prasad v. A.D. Mani & Ors., 23 E.L.R. 171.

S. 21(3).T.S. Rama Rao v. Chief Electoral Officer, Andhra Pradesh & Ors

29 E.L.R. 60.

K.R. Rao v. The Chief Election Commissioner & Ors., 29 E.L.R. 63.

5 . 22.

Keshao Prasad v. A.D. Mani & Ors., 23 E.L.R. 171.

L.N. Apparao v. Kumuru Saryanarayanan Naidu, 25 E.L.R. 220.

H. H. Maharana Surendrasinhji Jorawarsinhji Jhala 1). Shri U.M.Bhatt, Chief Electoral Officer, Gujarat, 29 E.L.R. 1.

S. 23.

Keshao Prasad i). A.D. Mani & Ors., 23 E.L.R. 171.

H.H. Maharana Surendrasinhji Jorawarsinhji Jhala v. Shri U.M. Bhatt,Chief Electoral Officer, Gujarat, 29 E.L.R. 1.

C.V.Ct.V. Venkatachalam Chettiar v. S. Meiyappan & Ors., 29 E.L.R336.

8. 23(3)*.

T.S. Rama Rao v. Chief Electoral Officer, A.P. & Ors., 29 E.L.R. 60.

Nalinikant Dev Shankar Vyas & Anr., v. V.S, Thambe & Ors,. 29 E.L.R. 76.

T.P. Seetharaman v. K. Sekharan Nair & Ors., 30 E.L.R. 242.

8. 24.

H.H. Maharana Surendrasinhji Jorawarsinhji Jhala i). Shri U.M. BhattChief Electoral Ofiicer, Gujarat, 29 E.L.R. 1.

*As amended by Representation of the People Act, 1366.

248

REPRESENTATION OF THE PEOPLE ACT, 1950—concld.8. 30.

H.H. Maharana Surendrasinhji Jorawarsinhji Jhala v. Shri U.M. Bhafct,Chief Electoral 0ffic3r, Gujarat, 29 E.L.R. 1.

Roop Lai Mehta v. Dhan Singh, 29 E.L.R. 113.

8. 70.

Ali Mohamad Tariq & Ors., v. Election Commission of Tndia & Ors.,31 E.L.R. 142.

RSPRESENTATION OF THE PEOPLE AcT, 1951.

8. 2(l)(i).Lalji Bhai Jodhabhai Bar 1). Vinod Chandra Jetha Lai Patel,

24 E.L.R. 145.

5. 2(e).Randhir Singh 1). Raj Narain & Ors., 27 E.L.R. 79.

S. 5.Randhir Singh v. Raj Narain & Ors., 27 E.L.R. 79.

8. 5{a).Adwaita Mondal v. Nakul Chandra Sahis, 24 E.L.R. 284.

8. 7.Badri Narayan Singh v. Kamdeo Prasad Singh & Ors., 23 E.L.R. 203.

S. 7(b).Sarat Chandra Rabha & Ors. v. Khagendranath & Ors.,

23 E.L.R. 125.Suriya Prasad v. Atam Das, 32 E.L.R. 116.

S. 7(d).Ram Padarath Mehta v. Mishri Sinha and Aur., 23 E.L.R. 110.Makunuri Dharma Rao v. Hanumanth Rao, 24 E.L.R. 1.Dantu Bhaskar Rao v. C.V.K. Rao, 24 E.L.R. 163.Chenupati Ram Kettayya v. Mynsni Lakshara-ina Swam.7 & Ois.,

24 E.L.R. 229.Braj Mohan Singh v. Narain Prasad Singh, 24 E.L.R. 298.Election Commission, India (Opinion) In re. Dr. Ram Charan Rai,

27 E.L.R. 66.Election Commission, Tndia (Opinion) In re. Sh. Brundaban Naik

27 E.L.R. 210.Laliteshwar Prasad Sahai v. Bateshwar Prasad & Ors., 27 E.L.R. 265-

Ahmed Mohiuddin v. G. Mala Reddy, 28 E.L.R, 1,

24«j

REPRESENTATION OF THE PEOPLE ACT, 1951—contd.S. 7(e).

Guru Gobinda Basu v. Sankari Prosad Ghosal & Ors., 23 B.L.R. 356.Hasbi Fakirappa Muddappa v. Desai Basavaraj Ayyappa, 28 E.L.R. 101.

S. 7(f).Sunder Lai Oiieckani v. Sampat Lai, 24 E.L.R. 340.

8. 8(e)

Gurugobinda Basu v. Sankari Prosad Ghosal & Ors., 23 E.L.R. 356.Hasbi Fakirappa Muddappa v. Desai Basavaraj Ayyappa & Ors.,

28 E.L.R. 101.

S. 8(f).Hasbi Fakirappa Muddappa v. Desai Basavaraj Ayyappa & Ors.,28 E.L.R! 101.

8. 9(a).H.R.A. Mudaliar ». Dev Raj Ors., 29 E.L.R. 291.Jagan Nath t>. Sohan Singh Basi & Anr., 29 E.L.R. 67.Konappa Rudrappa Nadgowda v. Vishwanath Reddy (2) The Asstt.

Commissioner & R.O. for Yadgiri Assembly Constituency, Yadgiri,31 E.L.R. 64.

H. Sridhara Pai & Anr. v. S.K. Amin & Anr., 31 E.L.R. 329.Abdul Rahiman v. Sadasiva Tripathy, 31 E.L.R. 380.Suriya Prasad «. Atam Das, 32 E.L.R. 116.Laxminarayan v. Bankat Lai, 32 E.L.R. 191.

S. 9(l)(a).Guru Gobinda Basu v. Sankari Prosad Ghosal & Ors., 23 E.L.R. 356.

8. 9(3).Sunder Lai Cheehani v. Sampat Lai, 24 E.L.R. 340.

S.10.H. Sridhara Pai Anr. v. S.K. Amin & Anr., 31 E.L.R. 329.

8. 19(1).J. Devaiah v. Nagappa & Ors., 26 E.L.R. 255.

S. 20.Goparaju Ramchandra Rao alias Gora v. The Election Commission of

India k Others, 29 E.L.R. 35.-8. 22.

K.S. Narayanan Namboodiri v. N.K. Seshan & Ors., 29 E.L.R.465.S. 23.

Brij Mohan Dass Agarwal v. Z.A. Ahmed, 27 E.L.R. 237.

REPRESENTATION OP THE PEOPLE ACT, 1951—contd.

S. 23(1).

Rajendra Prasad Jain v. Sheel Bhadra Yajee & Ors., 29 E.L.R. 96.

S. 25.

Ram Lai v. Vishveshwar Nath, 29 E.L.R. 306.S. 26.

Rani Lai i). Vishveshwar Nath, 29 E.L.R. 306.

8. 30.

Hari Ratri Singh v. Kanlta Prasad Sharnla, 28 E.L.R. 44.

S. 31.

Hari Rani Singh v. Eamta Prasad Sharma, 28 E.L.R. 44.

o. on.

K. Paramatai v. (1) I.M. Alangaram (2) R. Krishnamoorthy & Ant.,31 E.L.R. 401.

8.33.

Sundar Lai Chechani v. Sampat Lai, 24 E.L.R. 340.Namdeo Chimnaji Tapre v. Gk>v!nd Das & Ors., 25 E.L.R. 1.Raghuveer Singh v. Amolak Chand, 30 E.L.R. 189.

8. 33(1).

Rangilal Choudhury v. Dahu Sao, 23 E.L.R. 153.Sri Wasi Naqvi v. Sri Baijnath Singh & Ors., 28 E.L.R. 185.K. Narasimha Reddy v. G. Bhupathi & Anr., 31 E.L.R. 211.

LaljiBhai Jodhabhai Baxv. Vinodohandra Jitha Lai Patel,24 E.L.R. 145.

S. 33(4).

Rangilal Choudhury v. Dahu Sao, 23 E.L.R. 153.

Ram Krishna Suryabhan Gavai & Anr. v. Krishna Rao Gulab RaoDeshmukh & Anr., 29 E.L.R. 377.

Kartar Singh v. Randhir & Ors., 30 E.L.R. 37.

K. Narasimha Reddy v. G. Bhupathi & Anr., 31 E.L.R. 211.8. 33(5).

Ranjit Singh v. Pritam Singh & Ors., 28 E.L.R. 169.

Sri Wasi Naqvi v. Sri Baijnath Singh & Ors., 28 E.L.R. 185.

Shri Khyali Ram v. Shri Har Lai Singh, 29 E.L.R. 108.

Kartar Singh v. Randhir & Ors., 30 E.L.R. 37.S. 34.

Gajadhar v. Chunni Lai Singh & Ors., 31 E.L.R. 1.

251

REPRESENTATION OF THE PEOPLE ACT, 1951—contd.

S. 36.

Sunder Lai Chechani v. Sampat Lai, 24E.L.R. 340.Namdeo Chirnnaji Tapre v. GovindDas& Ore., 25 E.LJl. 1Brig. Mohan Dass Agarwal v. Z. A. Ahmed, 27 E.L.R. 237.C.V. Ct. V. Venkatachalam Chettiar v. S. Meiyappan & Ors.>

29 E.L.R. 336.Raghuveer Singh v. Amolak Chand, 30 E.L.R. 189.

S- 36(2).Kangilal Ghoudhury v. Dahu Sao, 23 EtLR 153.Sri Wasi Naqvi v. Sri Baijnath Singh & Ors., 28 ELR 185,Sh. Khyali Ram v. Sh. Harlal Singh, 29 ELR 108.Ram Krishan Suryabhan Gavai & Anr. v- Krishna Rao Gulab RaoDeshmukh & Anr., 29 ELR 377-K- Narasimha Reddy v- G. Bhupathi & Anr., 31 ELR 211'K. Paramalai v- (1) M. Alangaram (21) B- Krishnamurthy & Anr.,

31 ELR 401.S. 36(4).

Kartar Singh V. Randhir & Ors., 30 ELR 37.S- 36(5).

Krishna Prasad Choudhary v. Niteshwar Prasad & Ors., 28 ELR 209-S. Kapur Singh v. Devinder Singh Garcha, 29 ELR 255..

S. 36(7).P. Kunhiraman v. V, R. Krishnua Iyer, 23 ELR 208.

S. 26(8).Mohinder Singh & Anr- v Gurmit Singh, 25 ELR 27.

S. 37.Vaid Pnakash V. Pohumal, 24 ELR 58.

S. 38.Keshao Prasad V. A. D. Mani & Ors-, 23 ELR 171.

Madan Gopal v. Nek Ram Sharma, 25 ELR 61.S. 47.

H. Nagappa v. G. Venkatagowda, 26 ELR 225.K. S- Narayanan Namboodiri v. N- K. Seshan & Ors., 29 ELR 465.

S. 49T2).K. S. Narayanan Namboodiri v. N. K. Seshan & Ors., 29 ELR 465.

S. 52.Madan Gopal v. Nek Ram Sharma, 25 ELR 61.K. S- Narayanan Namboodiri v. N. K. Seshan & Ors., 29 ELR 465-

S. 53(2).Gurucharan Banerjee v- R- O Burdwari, H. P. Constituency, 25 ELR 312.

S- 56(3).K- S- Narayanan Namboodiri v N K. Seshan & Ors-, 29 ELR 465.

S. 62.Keshao Prasad v. A- D. Mani & Ors., 23 ELR 171-

252REPRESENTATION OF THE PEOPLE ACT 1951—contd.

P. Kunhiraman v- V. R. Krishna Iyer, 23 ELR 208.Roop Lai Mehta v. Dhan Singh, 29 ELR 113-

S- 62(3).C-V Ct. V. Venkatachalam Chettiar v- S. Meiyappan & Ors-, 29 ELR

336-S- 62 (4).

C V. Ct. V. Venkatachalam Chettiar v- S. Meiyappan & Ors-, 29 ELR336-

S. 63(5).K- S. Narayanan Namboodiri v. N. K. Seshan & Ors-, 29 ELR 465-

S. 64.K- S- Narayanan Namboodiri v. N. K. Seshan & Ors., 29 ELR 465-Sri Ganji Veerappa v. Sri H. Siddaveerappa, 29 ELR 490.Nathu Ram Mirdha v- Gordhan Soni, 30 ELR 116.-

S . 7 7 . • • . •

Gajadhar v. C'hluni Lai Singh & Ors-, 31 ELR 1'.Mohan Raj v- Surrendra Kumar Taparia & Anr., 31 ELR 416.Sadhu Ram & Ors, v. Hira Singh Pal, 32 ELR 28.Becharbhai Parambhai Harjivan Das v- Dajibhai Sadabhai Parmar,

32 ELR 133.Narsinabhai Karsanbhai Makwana v. Jesinghbhai Govindbhai Par-

mar & Anr., 32 ELR 152. .Vasi Reddy Jaganathan Naidu v. Vangapandu Narayan Appala Naidu

& Anr., '32 ELR 253-S. 77(1)

S- Khader Sheriff v- Abdul Gafoor Saheb & Ors., 30 ELR 401.S. 77(2)

S- Khader Sheriff v. Abdul Gafoor Saheb & Ors., 30 ELR 401.S. 78

Sangappa v. Shivamurthy Swamy, 23 ELR 51.Ram Lai v- Vishveshwar Nath, 29 ELR 306.

S. 79(b).Sangappa v. Shivamurthy Swamy, 23 ELR 51.Mool Chand Jain v. Rulia Ram & Anr., 24 ELR 358-Rao Abhe Singh v- Rao Nihal Singh, 25 ELR 113.Kishore Singh v. Bhanwar Lai Nahta & Ors-, 27 BLR 243.Brij Mohan Lai (Sharma) v. Fateh Singh & Ors. ,29 ELR 126.Hirubhau M. Gavali v. Shivaram Dada Hire & Anr-, 29 ELR 178.Thakur Man Singh Khatuji v- Raman Bhai Dhanabhai Patel,

29 ELR 268.N. V. L. Narasinha Rao v. Kotha Raghuramayya & Ors., 29 ELR 432-Putti Venkata Subbaiah v. Smt. B. K- Radhabhai, 30 ELR 100

S. 80.

Gurucharan Banerjee v. R- O. Burdwan, H. P- Constituency, 25 ELR 312.

253

REPRESENTATION OF THE PEOPLE ACT 1951—contd.Ch. Subha Rao v. Member, Election Tribunal, Hyderabad, 26 ELR 1.Rajendra Prasad Jain v. Sheel Bhadra Yajee & Ors., 28 ELR 126.T. Natrajan v. D. Vijaraj & Ors., 30 ELR 321-Ghasi Ram v. Dal Singh & Ors., 30 ELR 344.Vasi Reddy Jagnnathan Naidu v. Vangapandu Narayana AppalaNaidu & Anr., 321 ELR 253.

S, 80-A.

Suriya Prasad v. Atam Das, 32 ELR 116.Vasireddy Jagannathan Naidu v. Vangapandu Narayan Appalla Naidu& Anr., 32 ELR 253.

S. 81Acharya Rasik Chandra Devshankar v- Adani Ratubhai Mulshankar,24 ELR 262.

Vishwanath Prasad v- Salamatullah & Anr-, 27 ELR 145.C. J. John v. N. I. Devasay Kutty & Ors-, 29 ELR 135-Rajaju v. Brij Kishore Pataria & Ors.. 29 ELR 445.Ghasi Ram v- Dal Singh & Ors-, 30 ELR 344.H. Sridhara Pai and Anr-, v. S- K- Amin & Anr., 31 ELR 329.

S. 81(2)(a).Mool Chand & Nand Kishore v- Maharaj Kumar Singh, 24 ELR 124.Sri Wasi Naqvi v. Sh. Baijnathi Singh & Ors., 28 ELR T85.

S. 81(3).Mool Chand & Nand Kishore v- Maharaj Kumar Singh, 24 ELR1 124.K- Brahmananda Reddy v. The Member, Election Tribunal, Hydera-bad, 24 ELR 196.Acharya Rasik Chandra Dev Shankar v- Adani Ratubhai Mulshankar,24 ELR 262.Sant Prasad Singh v. Dan Sinha, 25 ELR 181.Ch. Subha Rao v. Member, Eelction Tribunal, Hyderabad, 26 ELR 1-Hirubhau M. Gavali v. Shivaran Dada Hire & Anr-, 29 ELR 178-Ram Shankar v- Jugal Kishore & Ors-, 29 ELR 233.Jageshhvar Nath v. Ravindra Nath & Ors., 29 ELR 241.Sfarimati Sahodrabhai Rai v. Ram Singh Aharwar &r,Ors., 31 ELR 266-Shamsher Chand v. Prakash Chand & Ors., 32 ELR 97.Laximinarayan v. Bankat Lai, 32 ELR 191.

S. 8Kb).Krishan Kumar v. Krishan Gopal, 24 ELR 316.

S. 82.Satrughana Sahu v. Bijoyananda Patnaik, 23 ELR 259.Satrughana Sahu v. Bijoyananda Patnaik, 23 ELR 265.Dwijendra Lai Sen Gupta v- Hare Krishana Konar & Ors-, 23 ELR 270.Vidya Charan Shukla v. Rajnandgaon & four others, 23 ELR 323-

?3-MJ(D)121EC—19

254

REPRESENTATION OF THE PEOPLE ACT 1951—contd.jNamdeo Chimnaji Tepre v. Govinddas & Ors., 25 ELR 1.

S. 82(a).Bapu & Peter Augustuus Alvares v. Bhaurao & Ors., 28 1LR 217.

S. 82 (b).Vaid Prakash v. Pohumal, 24 ELR 58.Nardev v. Joti Saroop, 24 ELR 76.Har Swarup & Anor. v. Brij Bhushan Saran & Ors-, 24 ELR 214-Mool Chand Jain v. Rulia Ram & Anr-, 24 ELR 358.Rao Abhe Singh v. Rao Nihal Singh, 25 ELR 113.Amin Lai v. Hunna Mai, 25 ELR 116.Brij Mohan Lai (Sl^irma) v. Fateh Singh, 29 ELR 126.Hirubhau M- Gayali v- Shivaram Dada Hire & Anr., 29 ELR 178.Thakur Man Singh Khatuji v. Dr. Vasant Lai Vasaj Lai Parikh &

Ors., 29 ELR 249.Fulabhai Dayabhai v- Ramanbhai. Dhanabhai Patel, 29 ELR 268-N.V.L. Narasimha Sao v. Kotha Raghuramayya & Ors., 29 ELR 432.P. Ramachandra Reddy v. Narasimha Reddy & Anr., 30 ELR 93-Putti Venkata Subbaiah v. Smt. B. K. Radhabai, 30 ELR 100.Vishnu Charan v- Virchand Bhandawat & Anr-, 31 ELR 92.Mohan Raj v. Surendra Kumar Taparia & Ors., 31 ELR 416.

S. 83(Proviso).Dantu Bhaskar Rao v. C.V.K. Rao, 24 ELR 168.Pratap Singh Daulta v- Jagdev Singh Sidhanti, 24 ELR 378-Kidwai Hussain Kamil v. Yadav Ram Sewak, 25 ELR 35.Jainarain Lai Agarwal v. Nand Kumar Dani & Ors., 26 ELR 136.Begum Mafida Ahmed v. Rajendra Nath 'Barwa & Anr., 26 ELR 172.J. Devaiah v. Nagappa & Ors., 26 ELR 235.Jageshwar Nath v. Ravindra Nath & O'rs., 29 ELR 241.B. G- Marda v- K- R- Marda & Anr, 30 ELR 158.

S- 83(1).K- Brahmananda Reddy v Member, Election Tribunal, Hyderabad,

24 ELR 196.Acharya Rasik Chandra Dev Shankar v. Adani Ratubhai Mulshankar,24 ELR 262.Brij Mohan Das Agarwal v. Z.A. Ahmed & Ors., 24 ELR 371.N.P. Chengalraya Naidu v. G. N. Pattabhi Reddi, 25 ELR 168.Pandit Dwarka Prasad Mishra v. Kamal Narain Sharma & Ors.,

26 ELR 269.Dr. Jagjit Singh v. Giani Kartar Singh & Ors-, 28 ELR 81-

S. 83(l>(a).H. Nagappa v. Venkategowda, 26 ELR 124.Shamsher Chand v. Prakash Chand & Ors., 32 ELR 97.

S. 83 (1Kb).Bapusaheb Bhimrao Salunkhe v 'Ganpat Rao Annasaheb Deshmukh,

30 ELR 258.

255

REPRESENTATION OF THE PEOPIJE ACT 1951—contd.

Narsinhbhai Karsanbhai Makwana v. Jesinghbhai Govindbhai Parmar& Anr., 32 ELR 152.

S. 83(1) (c).T. Natrajan v. Vijayraj & Ors., 30 ELR 321.

S. 83(2).

Rama Pr- Roy Chowdhury v. Baidyanath Bandopadhyay & Ors-,31 ELR 167.

S. 84.D- Sanjeevayya v Election Tribunal, Andhra Pradesh & Ors

29 ELR 26.S. 85. -

Dwijndra Lai Sen Gupta v. Hare Krishan Konar, 23 EL.R 270-K- Brahmanand Reddy v- Member, Election Tribunal, Hyderabad,

24 ELR 196-Brij Mohan Das Agarwal v. Z. A. Ahmad & Ors. 24 ELR 371.Bapu & Peter Augustus Alvares v. Bhaurao & Ors., 28 ELR 217.

S- 86.Amin Chtand v. Pratap Singh & Ors. 27 ELR 136.Hirubhau M. Gavali v. Shivram Hire & Anr., 29 ELR 178-

Fulabhai Dahyabhai v. Ramanbhai Dhanabhai Patel, 29 ELR 268-Kothuri Venkateshwarlu v. Brahmanand Reddy, 27 ELR 352.

S. 86(1).Brij Mohan Lai (Sharma) v- Fateh Singh, 29 ELR 126-Ram Shankar v. Jugal Kishore & Ors-, 29 ELR 233.Jageshwar Nath v. Ravindra Nath & Ors. 29 ELR 241.N.V.L. Narasimha Rao v- Kotha Raghuramayya & Ors., 29 ELR 432.P. Ramachandra Reddy v- Narasimha Reddy & Anr-, 30 ELR 93.Putti Venkata Subbaiah v. Smt. B. K. Radhabhai, 30 ELR 100-Mohan Raj v- Surendra Kumar Pataria & Anr.. 31 ELR 416-

S. 86(4).V- Keshavan v- I. K. Kumaran & Ors., 29 ELR 168.Thakur Man Singh Khatuji v- Dr. Vasant Lai Varajlal Parikh & Ors.,29 ELR 249.Jashbhai Chunibhai Patel v. Anwar Beg A. Mirza, 32 ELR I.

S. 87.T- Natrajan v- D. Vijayaraj & Ors., 30 ELR 321.

S. 88.Ardhandu Bhushan v. Smt. Sushilabai and Ors., 26 ELR 34.D. Sanjeeviah v. P. Rajarathna Rao, 27 ELR 226.Sh- Hari Raj Singh v. Sh. Shah Nawaz Khan & Anr-, 28 ELR 35.

S. 89.Ardhandu Bhushan v- Smt, Sushilabai & Ors., 26 ELR 34-

258

IIEPRESENTATION OF THE PEOPLE ACT 1951—contd.Smt. Dr. Sushila Balraj v. Ardhandu Bhushan & Ors., 26 ELR 146-Amin Chand v. Pratap Singh & Ors., 27 ELR 135.D. Sanjeeviah v. P. Rajarathna Rao, 27 ELR 226-

S. 90.Dwijendra Lai Sen Gupta v. Hare Krisbjan Konar, 23 ELR 270.Vithal Rao Raja Ram Hingwe v- M- K. Joshi, Election Tribunal,Wardha, 24 ELR 83-Brij Mohan Das Agarwal v- Z. A. Ahmed & Ors., 24 ELR 371.Nandeo Chimnaji Tapre v. Govinddas & Ors., 25 ELR 1.Ardhendu Bhushan v. Smt. Sushilabai & Ors-, 26 ELR 34.D. Sanjeevaiah v. Raja Rafhana Rao, 27 ELR 226.Sh- Hari Raj Singh v. Shah Nawaz Khan & Anr., 28 ELR 35.Bapu & Peter Augustus Alvares y Bhaurao & Ors., 28 ELR 217.

S. 90(1).Amin Lai v. Hunna Mai, 25 ELR 116.Shyam Sunder v. Satya Ketu, 28 ELR 223.Sawalia Behari Lall Verma v. Tribik Ram Deo Narain Singh,27 ELR 1. '

S. 90(2).Sunder Lai Chechani v. Sampat Lai, 24 ELR 340.

S. 90(3).Satrughana Sahu v. Bijoyananda Patnaik, 23 ELR 259.Vidya Charan Shukla v. Election Tribunal, Rajnandgaon & four Ors-,23 ELR 323.K. Brahmananda Reddy v. The Member, Election Tribunal, Hydera-bad, 24 ELR 190.Acharya Rasik Chandra Dev Shankar P Adani Retubhai Mulshan-kar, 24 ELR 262.Amin Lai v. Hunna Mai, 25 ELR 116.Vishwanath Prasad v- Salamatullah & Ors-, 27 ELR 145.Sawalia Behari Lall Verma v. Tribik Dam Dev Narain Singh, 27 ELR 1.

S. 90(4).Vaid Prakash v. Pohumal, 24 ELR 58-

S. 90(5).J. Devaiah v. Nagappa & Ors., 26 ELR 235.Rajendra Prasad Jain v. Sheel Bhadra Yajee, 28 ELR 126.

S. 92-Kidwai Hussam Kamil v. Yadav Ram Sewak & Ors., 25, ELR 35-Jainarain Lai Agarwal v. Nand Kumar Dani, 26 ELR 136.Begum Mafida Ahmed v- Rajendra Nath Barua & Anr., 26 ELR 172.Dr. Jagjit Singh V. Giani Kartar Singh & Ors-, 28 ELR 81-

a 94(a)Pandit Dwarka Prasad Misi>r« v. Kamal Narain Sharma & Ors.26 ELR 269.

257

REPRESENTATION OF THE PEOPLE ACT 1951—contd.S. 97.

Sri Raghbir Singh v- The Election Tribunal, Ambala & Shri Ravin-dra Nath, 28 BLR 235.Bireswar Ghose v. Natya Narain Mitra & Ors., 30 ELR 81.Jashbhai Chunibhai Patel v. Anwarbeg A. Mirza, 32 BLR 1.

S. 97(1).Ravindra Nath v. Raghbir Singh & Anr., 29 ELR 398-

S. 98.Vithal Rao Rajaram Hingwe v. M. K- Joshi, Election Tribunal, War-dha- & Ors., 24 ELR 58.Kumaranand v. Brij Mohan Lai, 26 ELR 100.D. Sanjeevayya v Election Tribunal, Andhra Pradesh & Ors.,29 ELR 28.Suriya Prasad v. Atam Das, 32 ELR 116-

S, 98(a).Madhu Singh v. Ram Saran Chand Mittal & Ors., 27 ELR 11.Ram Phal v. Braham Prakash & Ors-, 23 ELR 92.Vithal Rao Raja Ram Hingwe v- Election Tribunal, Wardha,24 ELR 58-Kumara Nand v. Brij Mohan Lai, 26 ELR 100.

S. 99(1) (a)(ii).Vithal Rao v. Guruji Shrihari Baliram Jivtode & Ors., 31 ELR 291-

S .100.Keshao Prasad v. A. D. Mani & Ors., 23 ELR 171.Fauja Singh v- Zail Singh, 23 ELR 336.Kidwai Hussain Kamil v. Yadav Ram Sewak, 25 ELR 35.Ram Sewak Yadav v. Hussain Kamil Kidwai, 26 ELR 14.S. Khlader Sheriff v. Abdul Gafoor Sahib & Ors., 30 ELR 401.

. Jagan Nath & Anr. v. Narayan & Anr.. 31 ELR 223. ';

Konappa Rudrappa Nadgowda v- Vishvanath Reddy, 31 ELR 64.H- Sridhara Pai & Anr. v. S. K. Amin & Anr-, 31 ELR 329.Baharul Islam v. Kamini Mohan Sharma & Anr., 31 ELR 351- "

S. 100(1)(a).Adwaita Mondal v. Nakul Chandra Sahis, 24 ELR 284.Narayan Bikram Shah v. Kedar Pandey, 26 ELR 200.K. S. Narayanan Namboodiri v. N- K. Seshan & Ors., 29 ELR 465..Charugondla Ranga Rao v. Komeram Ramayya, 30 ELR 52.Goka Ramalingam v- Boddu Abraham & Anr-, 30 ELR 62-Suriya Prasad v. Atam Das, 32 ELR 116-

S. 100(1)(b).Indr Lai v. Lai Singh & Ors., 23 ELR 41.Srinivas Tiwari v. Rukmani Raman Pratap Singh, 23 ELR 131.Krishan Kumar v. Krishan Gopal, 24 ELR 316-Pratap Singh Daulta v. Jagdev Singh Sidhanti, 24 ELR 378.

258

REPRESENTATION OF THE PEOPI<E ACT 1951—contd.D. K. Khanvilker v. D. N. Patil, 30 ELR 1.B- G- Marda v- A. R. Marda & Anr., 30 ELR 158.Bapusaheb Himrai Salunkhe v. Ganpat Rao Annasaheb Deshmukh,30 ELR 258.T. Natrajan v. Vijayrajj & Ors., 30 ELR 321.Jashbhai Chunibhai Patel v. Anwarbeg A- Mirza. 32 ELR 1-Bechabhai Paramabhai Harjivandas v- Devjibhai Sadabhai Parmar,32 ELR 133-Narsinbhai Karsanbhai Makwana v Jesinjibhai Govindbhai Parmar& Anr., 32 ELR 152,Vasireddy Jagannathan Naidu v. Vangapandu Narayana Appala Naidu& Anr., 32 ELR 253-

S. 100(1) (c).Raghuveer Singh v. Amolak Chand, 30 ELR 189.Narsinhbhai Karsanbhai Makwana v. Jesinghbhai Govindbhai Parmar& Anr., 32 ELR 152.

S- 100(1)(d).Sangappa v. Shivamurtby Swamy, 23 ELR 51.A. G. Ranganathan Nayyar v. K. Kamala Kanan & Ors., 23 ELR 392.Ramanbhai Ashabhai Patel v. Dabhi Ajit Kumar Fulsinji & Ors.,24 ELR 92-Jabar Singh v. Genda Lai, 25 ELR 323-D. K. Khanvilkar v. D. N. Patil, 30 ELR 1-Garugondha Ranga Rao v. Komaram Ramayya, 30 ELR 52.Bapusaheb Bhimrao Salunkhe v- Ganpat Rao Annasaheb Deshmukh,30 ELR 258-

S. 100(1) (d)(i).S- Kapur Singh v. S. Devinder Singh Garcha & Anr., 29 ELR 255.

8. 100(1) (d)(ii)-T. Natrajan v. D. Vijayrao & Ors., 30 ELR 321.Rama Pr. Roy Chowdhury v- Baidyanath Bandopadhyay & Ors-,31 ELR 167-Narsinhbhai Karsanbhai Makwana v. Jesinghbhai Govindbhai Parmar& Anr., 32 ELR 152-

S. 100(1) (d)(iii).Inder Lai v- Lai Singh & Ors., 23 ELR 41'.Ram Chandra Ram v. Raghunath Raj & Anr., 23 ELR 293.Koduri Krishana Rao v. Bapineedu, 25 ELR 159.Chittoori Indrayya v. Mullapudi Harishchandra Prasad, 25 ELR 192.Bhairon & Anr. v. Sisram & Ors-, 25 ELR 239.Begum Mafida Ahmed v- Rajendra Nath Barua & Anr-, 26 ELR 172.Roop Lai Mehta v. Dhan Singh, 29 ELR 113.Rajaju v. Brij Kishore Pataria & Ors., 29 ELR 445-K. S. Narayanan Namboodiri v. N. K. Seshan & Ors., 29 ELR 465-Sri Ganji Veerappa v. Sri H. Siddaveerappa, 29 ELR 490-Kartar Singh v. Randhir & Ors., 30 ELR 37.

259

REPRESENTATION OF THE PEOPLE ACT 1951—contd.Nathu Ram Mirdha v. Gordhan Soni, 30 ELR 116.Jashbhai Chunibhai Patel v. Answarbeg A. Mirza, 32 ELR 1.Shamsher Chand v- Prakash Chand & Anr., 32 ELR 97.Vasireddy Jagannathan Naidu v. Vargapandu Narayana Appalla Naidu32 ELR 253.

S- 100(1) (d)(iv).P. Kunhiraman v. V- R- Krishna Iyer, 23 ELR 208.Madhu Singh v- Ram Saran Chand Mittal & Ors., 27 ELR 11.Saligram v. Govindrao & 3 Ors., 27 ELR 123.Hari Ram Singh v. Kamta Frasajd Sharma, 28 ELR 44-Mahadeo v. Kamta Prasad Singh* & Ors., 28 ELR 72. "K. S. Narayanan Namboodiri v- N. K- Seshan & Ors., 29 ELR 465.Kanai Lai Bhjattacharjee v. Nikhil Das & Ors.,. 30 ELR 353.Bahrul Islam v. Kamini Mohan Sarma & Ors, 31 ELR 351-

S. 101.Shankaragouda v. Sirur Bhadrappa, 23 ELR 1.Keshao Prasad v. A. D- Mani & Ors., 23 ELR 171.Ram Sewak Yadav v. Hussain Kamil Kidwai, 26 ELR 14.Kattimani Chandappa Jampana v. Laxman Siddappa Naik & 2 Ors.,29 ELR 199.Ganji Veerappa v- Sri H. Sidda Veerappa, 29 ELR 490.Konappa Rudrappa Nadgowda v- Vishwanath Reddy, 31 ELR 64.Jashbhai Chunibhai Patel v- Anwar iB;eg A. Mirza, 32 ELR 1-Shamsher Chand v- Prakash Chand & Anr., 32 ELR 97-

S. 101(a).Ramchandra Ram v. Raghunath Raj & Anr., 23 ELR 293-Jabar Singh v- Gainda Lai, 25 ELR 323.

S, 101(c).Namdeo Chimnaji Tapre v- Govinddas & Otrs. 25 ELR 1.

S. 101(d).Shri Khamani Singh v. Dau Dayal Khanna, 23 ELR 146.Pethu Reddiav v. V. A- Muthiah & Anr-, 24 ELR 136.

S. 102.Ram Sewak Yadav v. Hussain Kamil Kidwai, 26 ELR 14Shamsher Chand v- Prakash Chand & Anr., 32 ELR 97.

S. 102(1) (a).Guru Govinda Basu v. Shankari Prosad Ghosal, 25 ELR 77.

S, 109-Bijoyananda Patnaik v. Satrughana Sahu, 24 ELR 219.Kodur Subha Ramiah v. Annam Chanchu Subha Reddi, 25 ELR 97.Jugal Kishore v. Dr. Baldev Prakash, 30 ELR 27fi-K. Sangameswara Reddy v. A. Ramacbandra Reddy, 32 ELR 66.

. 2«0

REPRESENTATION OF THE PEOPLE ACT 1951—contd.S. 110-

Bijoyananda Patnaik v. Satrughana Sahu, 24 ELR 219.Kodur Subha Ramiah v. Annam Chanchu Subha Reddi, 25 ELR 97.Ardhandu Bhushan v. Smt. Sushila Bai & Ors-, 26 ELR 34.Jugal Kishore v. Dr. Baldev Prakash, 30 ELR 276.K. Sangameswara Reddy v. A- Ramachandra Reddy, 32 ELR 66.

S. 111.K. Sangameswara Reddy v. A. Ramachandra Reddy, 32 ELR 66-

S. 114.Vithal Rao Raja Ram Hingwe v- M K. Joshi, Election Tribunal War-dha, 24 ELR 83. •

S. 115.Vithal Rao Raja Ram Hingwe v- M. K. Joshi, Election Tribunal, Wardha, 24 ELR 83 & 237.

*. 116.G- Vagheesam Pillai v. M. R. Krishnamurhi Padayachi & Ors-,27 ELR 47.Himatbhai Gomanbhai Patel v Amrut Lai Ambalal Patel & Anr-,30 ELR 293- ft, :,.vr- :.,v

S. 116A.Shankaragouda v. Sirur Voorabhadrappa, 23 ELR 1.Srinivas Tiwari v. Rukmani Raman Pratap Singh, 23 ELR 131.Mohan Singh v- Bhanwari Lai Natha & Ors., 23 ELR 330.Vithal Rao Raja Ram Hingwe v. M. K. Joshi, Election Tribunal, War-dha, 24 ELR 83.Bijoyananda Patnaik v. Satrughana Sahu, 24 ELR 219.Acharya Rasikchandra Devshankar v. Adani Ratubhai Mulshankar,24 ELR 262-Chiranjeevulu Naidu v. E. S. Thyagarajan, 25 ELR 201.Vidya Charan Shukla v. Khub Chand Bhagel, 25 ELR 354.Smt. Dr. Sushila Balraj v. Ardhandu Bhushan & Ors., 26 ELR 146.Vishwanth Prasad v. Salamatullah & Ors., 27 ELR 145.Kishore Singh v. Bhanwar Lai Nahta & Ors., 27 ELR 243.Dtr. Jagjit Singh v. Giani Kartar Singh & Ors., 28 ELR 81.Rajendra Prasad Jain v. Sheel Bhadra Yajee, 28 ELR 126-Shyam Sunder v. Satya Ketu, 28 ELR 222. . •

S. 117.aikaram v. Asrar Ahmed & Ors-, 23 ELR 116. :Keshfto Prasad v. A. D. Mani & Ors., 23 ELR 171.Vithal Rao Raja Ram Hingwe v. M- K. Joshi, Election Tribunal, War-dha, 24 ELR 83 & 237.Namdev Chimnaji Tapre v. Govinddas, 25 ELR 1.Net Ram Jat v. The Election Commission & Ors., 25 ELR 89.S Partap Singh Kairon v- The Election Commissioner & Ors.,26 ELR 60.

261:

REPRESENTATION OF THE PEOPLE ACT 1951—contd.Shri Raghbir Singh v. The Election Tribunal, Ambala, and Shri Ravin-dra Nath, 28 ELR 235.Jageshwar Nath v. Ravindra Nath & Ors., 29 E1LR 241.Kothuri Venkateswarlu v. Brahmanand Reddy, 29 ELR 352.Ravindra Nath v. Raghbir Singh & Ors., 29 ELR 398.Bahrul Islam v. Kamini Mohan Sarma & Ors., 31 ELR 351.Mohan Raj v. Surendra Kumar Taparia & Anr-, 31 ELR 416-

S. 118.Shri Raghbir Singh v. The Election Tribunal, Ambala & Shri RavinderNath, 28 ELR 235.Ravindra Nath v- Raghbir Singh & Anr.. 29 ELR 398.

S. 120.Ram Phal v. Braham Prakash,& Ors., 23 ELR 92.

A. S- Khongphai v- Stanley D. D. Nichols Roy & Ors-, 27 ELR 196.

S. 123.Tambeshwar Prasad v. Shri K. C. Gupta & Ors., 23 ELR 140.Bankebehari Das v. Chitranjan Naik, 23 ELR 343.Vaid Prakash v. Pohumal, 24 ELR 58.Krishan Kumar v. Krishan Gopal, 24 ELR 316.D. Munichinnappa v. B. Basavalingappa, 25 ELR 247.Shankar Raja & Anr., v. M- Ram Reddy & Ors., 26 ELR 252.Brij Mohan Lai (Sharma) v. Fateh Singh, 29 ELR 126.Jagan Nath v- Sohan Singh Basi & Anr-, 29 ELR 367.T. Natrajan v. D. Vijayiraj & Ors., 30 ELR 321.Ghasi Ram v. Dal Singh & Ors., 30 ELR 344.

' Upendra Lai v. Smt. Narainee Devi Jha, 30 ELR 372.S, Khader Sheriff v. Abdul Gafoor Sahib & Ors., ELR 401.Jagan Nath & Anr., v. Narayan & Anr-, 31 ELR 223.Udai Bhan v. Shankar Singh & Ors., 31 ELR 318.Laxminarayan v. Bankar Lai, 32 ELR 191.

S. 123(1).Shankaraguda v. Sirur Veerabhadrappa, 23 ELR 1.Sangappa v. Shivamurthy Swamy, 23 ELR 51.Tika Ram v. Asrar Ahmad & Ors., 23 EtLR 116.Khamani Singh v. Dau Dayal Khanna, 23 ELR 146.

• D. Muralidhar Reddy v. Paga Pulla Reddy, 26 ELR 116.Randhir Singh v. Raj Narain & Ors., 27 ELR 79.Hari Ram Singh v. Kamta Prasad Sharma, 28 ELR 44.N. V. L. Narasimharao v. Kotha Raghuramayya & Ors., 29 ELR 432.B- G- Marda v. K. R- Marda & Anr., 30 ELR 158.

Bapusaheb Bhim Rao Salunkhe v. Ganpat Rao Anna Saheb Deshmukh30 ELR 258.

262

REPRESENTATION OF THE PEOPLE ACT 1951-^-conid.

S. 123(1)(a)Gajadhar v. Chunni Lai Singh & Ors., 31 ELR 1.

Vasireddy Jagannathan Naidu v- Vangapandu Narayana Appala Naidu& Anr., 32 ELR 253.

S- 123(1)(b)-Mool Chand Jain v. Rulia Ram & Anr., 24 ELR 358-

S- 123(2)Shankaraguda v. Sirur Veerabhadrappa, 23 ELR 1.Sangappa v. Shivamurthy Swamy, 23 ELR 51.Ram Phal v. Braham Prakash, 23 ELR 92.Tika Ram v. Asrar Ahmed & Anr., 23 ELR 116-Shri Raj Raj Deb v- Shri Gangadhar Mohapatra & Ors-, 23 ELR 283.Har Sawarup & Anr., v- Brij Bhushan Saran & Ors.," 24 ELR 214.Shyam Lai v. Ram Lall & Anr-, 28 ELR 58-Hiru Bhau M. Gavali v. Shivram Dada Hira & Anr.. 29 ELR 178.B- G- Marda v. K. R- Marda & Anr., 30 ELR 158.K. Govinda Bhat v. D. Vittal Das Shetty, 30 ELR 382.Gajadhar v. Chunni Lai Singh & Ors., 31 ELR 1.

Ganpat Rao Kalidas Rtroala v Palabhai Narain Das Parmar,31 ELR 121.

Rama Pr- Roy 'Chowdhury v. Baidynanath Bandopadhyay & Others,31 ELR 167.

S. 123(3).

Shankaraguda v. Sirur Veerabhadrappa, 23 ELR 1.Sangappa v. Shivamurthy Swamy, 23 ELR 51.Tika Ram v. Asrar Ahmed & Ors., 23 ELR 116.Khamani Singh v. Dau Dayal Khanna, 23 ELR 146.Raman Bhai Ashabhai Patel y Dhabi Ajit Kumar Fulsinhji & Ors-,24 ELR 92.Pratap Singh Daulta v. Jagdev Singh Sidhanti, 24 ELR 378.-Kultar Singh v. Mukhtiar Singh, 24 ELR 419.Sant Prasad Singh v. Dasu Sinha, 25 ELR 181.Hemdhon Mohan v. J. B. Hagjer, 26 ELR 90.Dildar Singh Cheeda v. Sohan Singh & Ors., 27 ELR 110-Saligram v. Govind Rao & Ors-, 27 ELR 123-

Amin Chand v. Pratap Singh & Ors., 27 ELR 135.

Hasbi Fakirappa Muddappa v. Desai Basavaraj Ayyappa & Ors.,28 ELR 101

B- G. Marda v. K- R. Marda & Anr., 30 ELR 158.

Gajadhar v. Chunni Lai Singh & Ors., 31 ELR 1.

Bechabhai Parmabhai Harjivandas v Devjibhai Sadabhai Parmar,32 ELR 133-

263

REPRESENTATION OF THE PEOPLE ACT 1951—contd.S, 123(4).

Shankaraguda v. Sirur Veerabhadrappa, 23 ELR 1.Inder Lai v. Lai Singh & Ors., 23 ELR 41.Sangappa v. Shivamurthy Swamy, 23 ELR 51.Ram Phal v. Braham Prakash, 23 ELR 92.Srinivas Tiwari v. Rukmini Raman Pratap Singh, 23 ELR 131.Inder Lai v. Lai Singh, 23 ELR 252.Dattatraya Narayan Patil v Dattatraya Krishanji Khanvalkar,25 ELR 143-Bhanwar Lai v. Hari Prasad, 25 ELR 265.Kumaranand v. Brij Mohan Lai, 26 ELR 100.J. Devaiah v. Nagappa, 26 ELR 235.Saligram v. Gobind Rao & 3 Ors., 27 ELR 123.Vishwanath Prasad v. Salamatullah & Ors., 27 ELR 145.Kishore Singh v. Bhanwar Lai Nahta & Ors., 27 ELR 243.Shyam Lai v. Ram Lai & Anr., 28 ELR 58.Dr. Jagjit Singh v. Giani Kartar Singh & Ors., 28 ELR 81.Hirubhau M- Gavali v- Shivaram Dada Hire & Anr., 29 ELR 178-D. K. Khanvilker v. D. N. Patil, 30 ELR 1.Bapusaheb Bhimrao Salunkhe v- Ganpat Rao Annasaheb Deshmukh,30 ELR 258.Ganpat Rao Kalidas Rupala v. Palabhai Naran Das Parmar, 31 ELR 121.Saheb Lai v. Phool Chand & Anr-, 31 ELR 281-Vithal Rao v. Guruji Shrihari Bali Ram Jivtode & Ors., 31 ELR 291.

S. 123(5).Shankaraguda v. Sirur Veerabhadrappa, 23 ELR 1.Sangappa v. Shivamurthy Swamy, 23 ELR 51.Krishan Kumar v. Krishan Gopal, 24 ELR 316.Jashbhai Chunibhai Patel y. Anwarbeg Mirza, 32 ELR 1,Vasireddy Jagannathan Naidu v. Vangapandu Narayana Appala Naidu& Another, 32 ELR 253.

S. 123(6).Shankaraguda y. Sirur Veerabhadrappa, 23 ELR 1.Sangappa v. Shivamurthy Swamy, 23 ELR 51.K. Govinda Bhat v. D. Vittal Das Shetty, 30 ELR 382.Gajadhar v. Chunni Lai Singh & Ors., 31 ELR 1.Mohan Raj v. Surendra Kumar Taparia & Anr-, 31 ELR 416.Sadhu Ram & Ors. v. Hira Singh Pal, 32 ELR 28.Narsinhbhai Karsanbhai Makwana v- Jesinghbhai Gobindbhai Parmar& Anr-, 32 ELR 152.Vasireddy Jagannathan Naidu v. Vangapandu Narayana AppallaNaidu & Anr., 32 ELR 253-

S. 123(7).Sangappa v. Shivamurthy Swamy, 23 ELR 51.Ram Phal v. Braham Prakash, 23 ELR 92. ,r i - r.,rLaljibhai Jodhabhai Bar v Vinod Chandra Jetha Lai, 24 ELR 145-Chiranjeevulu Naidu v. E- S. Thyagarajan, 25 ELR 201-

S- 123 (7).Shankarguda v. Sirur Veerabhadrappa, 23 ELR 1.

S. 124.Shri Raj Raj Deb v. Shri Gangadhar Mahopara & Ors-, 23 ELR 283.

S. 124(4).A. S. Khongphai v- Stanley D-D, Nichols Roys & Ors., 23 ELR 196,.

264

REPRESENTATION OF THK PEOPLE ACT 1951—contd.S. 126(1).

D. Muralidhar Reddy v. Paga Pulla Reddy & Ors., 26 ELR 116.S. 127-A.

D. Munichinnappa v. B. Basavalingappa, 25 ELR 247.Vithal Rao v. Guruji Shrihari Baliram Jivtode & Ors., 31 ELR 291

S. 150.D. Sanjeevayya v. Election Tribunal, Andhra Pradesh & Ors 29 ELR

28.S. 169.

Mani Lai Yadav v. Budhinath Jha 'Kairva', 23 ELR 159.Goparaju Ram Chandra Rao Alias Gore v. The Election Commissionof India, 29 ELR 35- ,

S. 170.Dwijendra Lai Sen Gupta v. Hare Krishan Konar, 23 ELR 270.

S. 191.Nathu Ram Mirdha v. Govardhan Soni, 30 ELR 116.REPRESENTATION OF THE PEOPLE (AMENDMENT) ACT, 1956

S. 33(4)..Madan Lai v..Hira Singh Pal & Ors., 29 ELR 139.

S. 36(4).Madan Lai v. Hira Singh Pal & Ors., 29 ELR 139.

REPRESENTATION OF THE PEOPLE (AMENDMENT) ACT XLVII OF1966

S. 63-V- Kesavan v- I. K. Kumaran & Anr-, 29 ELR 168-

REPRESENTATION OF THE PEOPLE ACT (PREPARATION OF'••'-"'" ELECTORAL ROLLS) RULES, 1956

r. 25.Keshao Prasad v. A. D. Mani & Ors., 23 ELR 171.

r. 26Keshao Prasad v. A. D. Mani & Ors. 23 ELR 171.

THE REPRESENTATION OF THE PEOPLE ACT, 1951 (AS AMENDEDBY ACT 40 OF 1961)

S: 83(1). Proviso.Mahesh Prasad Sinha v. Manjay Lai & Ors., 25 ELR 130.

s.-mMadhu Singh v. Ram Saran Chand Mittal & Ors., 27 ELR 11.

SPECIFIC RELIEF ACTS, (21).

Mahendra Singh v. Hari Prasad & Anr., 26 ELR 158-STATE REORGANISATION ACT 1956.S. 120.

Shankaraguda v. Sirur Veerabhadrappa, 23 ELR 1.Si. 121.

Shankaraguda v. Sirur Veerabhandrappa, 23 ELR 1.U P STATE LEGISLATURE MEMBERS (PREVENTION OF DISQUALI-

FICATION) (SUPPLEMENTARY) ACT, 1956S. (2).

Pt- Joti Prasad Upadhyaya v. Kalka Prasad Bhatnagar & Ors., 23 ELR 195.

TABLE OF CASES OVERRULED,FOLLOWED, REFERRED TO ETC.

Abdul Kadar v- Bharam, IAR Bombay, 190-

—referred to. 30, ELR 199.Abdul Majeed v. Bhargavan, AIR 1963, Kerala 18.

—referred to 24 ELR 316; 378.—distinguished 25, ELR 35, 30, ELR 1.—relied on 30, ELR 258.

Abdul Quadir Siddiqui v. Sayed Abdul Hassan Natique; Hammond's Elec-tion Cases 1920—35, page 291.

—referred to 23 ELR 271.Abdul Rahiman Khan v. Radhakrishan Biswas Roy, 19 ELR 278.

—referred to 24, ELR 92 and 25 ELR 143.Abdul Rouf v. Makhtar Ali; 11 ELR 340 at 346.

—referred to 27 ELR 47. ' •

Abdul Sattar Mohammed Hussain Jumadar v. Badri Narain Bansi LaiPallod. 63, ELR 563.

—referred to 25, ELR 143.

Abdul Shakur v. Rikhab & another, AIR 1958 (SC) 52.—referred to 23, ELR 195: 29, ELR 306, 31, ELR 99.

Abdul Vahid v. B- V- Kesker, AIR 1960 All- 113.—distinguished 23, ELR 171.

Abraham v. Abraham, 9 Moo. Ind. App: 199.—relied on 25 ELR 291.

Achutha Menon v. Election Tribunal, Trichur, AIR 1961 Ker. 186: 1960KLT 1252.

—referred to 25, ELR 281; 30 ELR 136.Adamala Mohan Reddy v. Angu Narain Reddy, 1963 11 Andhra WR 101-

AIR 1964 AP 190. •—relied on 25 ELR 159.—referred to 27 ELR 11.

Adityan, S- B. v. S. Kandaswami, AIR 1958; SC 857: 14, ELR 394 (SC)—referred to 23, ELR 259; 24, ELR 214; 25, ELR 97 & 116; 29, ELR 432.—distinguished 23, ELR 271.—relied on 24, ELR 358.

Administrator General of Madras v. Anandachari, ILR 9, Mad. 466.—referred to 31, ELR 401. •

Aga Mahomed Hamadani v. Cohen (1886) ILR 13, Cal. 221.—relied on 25, ELR 354.

265

266

TABLE OF CASES OVERRULED FOLLOWED, REFERRED TO ETC.—contd.

Ahmadmya Sherumiyya v. Chhippa Ibrahim, Nooraji and others 17 ELR218-19; Bom. HC.

—referred to 23 ELR 51, 24 ELR 316, 32 ELR 253.Aikman v. Aikman, 3 Mac. Q. HLC 854.

—referred to 27 ELR 97.Ajaiab Singh v. Karnail Singh, 6 ELR 368.

—referred to 24 ELR 340.Akshya Narayan Praharaj v. Meheshwar Bag, AIR 1959, Orissa 207.

—referred to 23 ELR 1.

Albridge v. Hurst. 1876, I.C.P. 410.—referred to 25 ELR 97.

Ali Mohammed v. Islak Alikhan; ILR 54, All . 57.—referred to 25 ELR 168.

Ambica Mills Co., v. S- B. Bhatt, AIR 1961: SC 970.

—referred to 23 ELR 331.Ambika Singh v. State, AIR 1961: All . 38;

—referred to 31 ELR 266.Amin Lai v. Hunna Mai, AIR, 1964, Punjab 213; SC 1243.

—referred to 25 ELR 113: 28 ELR 126.29 ELR 241 & 268; 30 ELR 100; 29 ELR 127.

—followed 29 ELR 178, 432 & 31 ELR 92.—applied 30 ELR 93.—distinguished 31 ELR 416.

Amirchand Tota Ram v. Smt- Sucheta Kripaalani; 18, ELR 209 AIR 1061,Punjab, 383-—relied on 28 ELR 58.—referred to 25 ELR 143.

Amjad Ali v. B. C. Barua, 13, ELR 285.

—distinguished 2? ELR 271.—referred to 27 ELR 243.

Amjad AH v. Naznul Haque, AIR 1961. Assam 81

—referred to: 24 ELR 318.Andhra Pradesh State Road Transport Corporation v. I.O. Hyderabad, (1962)

II—AN. WR 393.—referred to 24 ELR 229.

Anichand v. Pratap Singh: 1963, MPLJ 533.—referred to 26 ELR 269.

Anjaneya Reddy v- Gangi Reddy; 21 ELR 247-—referred to 24 ELR 316; 25 ELR 247.

Annamalai Mudaliar v- Devaraja Urs. II, ELR 283 (Election Petition No- 21

of 1967).—relied on 31 ELR 329.

267

TABLE OF CASES OVERRULED FOLLOWED, REFERRED TO ETC.—contd.

Anup Sing (Dr.) v. Shri Abdul Ghani & others (AIR 1965 SC 815);

—referred to 28 ELR 185.

Arjan Singh v. Kartar Singh & Ors. AIR 1951, SC 193' SCR 258.

—referred to 24 ELR 42 & 284.Arunachalam, A.J. v. Election Tribunal, 9 ELR 471 at 477.

—referred to 28 ELR 1.Ashfaq Alikhan v. Dharshan Singh, 20 ELR 136.

—referred to 28 ELR 126; 24 ELR 380.Ashraf Alikhan v. Tika Ram, 20 ELR 470.

—referred to 29 ELR 127.Atiabari Tea Company v. The State of Assam, AIR 1961 S.C. 232.

—referred to 30 ELR 242.

Babu Ram v. Prasanni & Ors. 16 ELR 450; AIR 1959 S.C. 93 at p. 97.

—referred to 27 ELR 145 and 243.Babu Rao Tatyaji Bhonsle v. Madhao Sri Hari Aney AIR 1961 Bom. 29-

—referred to 24 ELR 358 , 25 ELR 116; 29 ELR 268.—followed 25 ELR 116.—applied 29 ELR 178.

Badri Narain v. Khamdeo Prasad; AIR 1961 Patna 41; (21 ELR 64);20 ELR 64-

—referred to 23 ELR 146; 331; 24 ELR 214, 316 & 358; 27 ELR 243,30 ELR 321.

Badri Vishal Pittie v. Narsing Rao (1959) (I) Andhra Weekly Reporter 31:16 ELR, 183.

—referred t0 27 ELR 66, 28 ELR 1.Baidya Nath Thakur v. Sachidanand Pandey, 1963, BLR 219.

—referred to 28 ELR 209-

Balakrishna Industrial Works v. Venkatachari, 1954, 2 MLJ 290.—referred to 25 ELR 168.

Baalji v. Morarka Radhaysham Ramkumar (AIR 1965), Rajasthan, 23.—referred to 29 ELR 139.

Ballas and Co., Ltd v. Arocos Ltd. 1932 AI CER 494.—referred to 24 ELR 168.

Balwantrai Tayal v. Bishan Saroop; 17 ELR 101.—referred to 30, ELR 101.

Balwant Singh v. Laxmi Narain, AIR 1960, S.C. 770.—relied on 24 ELR 168; 25 ELR 168.—referred to 23 ELR 131; 24 ELR 196, 316; 26 ELR 260.

Rananjaya Singh v- Baijnath Singh; AIR 1954, S-C. 749.—referred to 32 ELR 152.

268

TABLE OF CASES OVERRULED, FOLLOWED, REFERRED, TO ETC.—contd.

Banerjee B- K. v. L. J- Simonds; AIR 1947; Cal. 307.

—referred to 26 ELR 269.

Banerji, S- M. v- Sri Krishna, AIR 1960; S. C- 368; 1S60 2 SCR 289; 22 ELR 61.

—referred to 23 ELR 259; 324; 25 ELR 116.

27 ELR 145; 30 ELR 293, 31 ELR 329.

—followed 24 ELR 340.—relied on 25 ELR 27 and 29 ELR 377.

Banwari Lai Aggarwal y State of Bihar and Ors. AIR 1961 S.C. 849.—referred to 25 ELR 35; 26 ELR 269.

Barker v. Palmer, 1881 VIII, D.G.S.D. 9.

—referred to 24 ELR 168.Baru Ram v. Smt. Prasanni and ors AIR 1959.

—applied 29 ELR 233.—referred to 23 ELR 1; 26 ELR 90; 28 ELR 185 (S.C.) 29, ELR 377;

139; 241; 30 ELR 37 and 31 ELR 266.—relief on 25 ELR 181;

followed 29 ELR 108.Basappa v- Ayyappa, 1958 (SCI) 953 (AIR).

—referred to 25. ELR 97; 27 ELR 226; 29 ELR 465.Basappa, TC v. V.T. Nagappa, 10 ELR 14.

—referred to 28 ELR 126.Basani Basi v. General Manager, MPSR Tr. Corporation 1965 MP Law Jour-

nal short Note*No- 58-—referred to 32 ELR 246.

Basavaiah v. Bachiah; 17 ELR 293.

—relied on 25 ELR 192.—referred to 25 ELR 281; 26 ELR 172.

Basviah v. Baohaiah & Others (17 B.L.E. 293)

•—distinguished 25 E.L.R. 35Basavalingappa v. D. Munichinappa; AIR 1965 SC 1269.

—referred to 27 ELR 110; 29 ELR 160; 199; 403; 32 ELR 221-—relied on 29 ELR 403.

Basheshar Nath v. Commissioner of Income tax, Delhi & Rajasthan; AIR1959, SC 149.

—referred to 26 ELR 60.Bhaskara Rao v. CVK Rao; AIR 1964; A P . 1974-

—referred to 26 ELR 269. ,—relied on 30 ELR 321.

Bater v. Bater, 1950, 2, All. ER 458; referred to: 27 ELR 47.Beal v. Smith, 1869 4 C.P. 145;

—referred to 31 ELR 416.

269

TABLE OF CASES OVERRULED FOLLOWED, REFERRED TO ETC. —contd.

Beharilal Chaurasiya v. Regional Transport Authority, AIR 1961. M.P-

75 & 77:

—relied on 25 ELR 354.

—referred to 25 ELR, 281.Behra Ramgopal v. Dr- Ladli Prasad Tandon (All. High Court 1st appeal

No. 6 of 1961 decided on 26-3-G2).—referred to 27, ELR 79

Bengal Chemical & Pharmaeutical Works Ltd. v. Their employees, 1959SCJ 647.

—referred to 29 ELR 168.Bengal Coal Company Ltd. v. House Wedia & Co., ILR 2̂ Bombay 97.

—relied on 24, ELR 168.Bengal Immunity Co., Ltd., v. State of Bihar, 1955 (2) SCR 603.

—referred to 2P ELR 354.Benmaz v- Austin Motor Co., Ltd., 1955 (1) All. ER 326-

—referred to 27 )SLR 47.Bhagwan Singh v. Rameshwar Prasad Shastri, AIR 1959 SC 876

(21 ELR 126 SC).—referred to 24 ELR 298; 28 ELR 1-

Bhagwan Datta v. Ram Rattanji; AIR I960, SC 200.

—referred to 24 ELR 316 and 378; 30 ELR 1; 31 ELR 1.Bhagwan Datt Shastri v. Ram Rattan Gupta & Bhagawn Datt Shastri v.

Badri Narayan Singh; II ELR 448; .—referred to 32 ELR 1S1.

Bhawani Prasad Tiwari v. Jagdish Narain Awasthi, 16 ELR 143.—referred to 3C ELR 242.

Bhaiya Lai v. Hari Krishna Singh, AJ.R 1965, S- S. 1957.—referred to 29 ELR 199; 32 ELR 221.

Bhaskar Mukherjee & Anr v. Nilmoni Nath, AIR 1962, Cal- 285-—referred to 26 ELR 158.

Bharvavan v- Abdul Majeed (AIR 1961, Kerala 183)-—referred to 28 ELR 235.

Bhikaji Keshao Joshi v- Brijlal Nandlal Biyani, 10 ELR 357 (SC)-—referred to 23 ELR 324, 24 ELR 196, 25 ELR 130, 27 ELR 145 and 226.

Bhim Rao v- Ankush Rao, 22 ELR 385-—referred to 25 ELR 143.

Bhim Sen v. Gopali; 22 ELR 288 (SC).—referred to 25 ELR 35, 30 ELR 81, 32 ELR 17 & 97.—applied 26 ELR 172-—relied on 25 ELR 323.—distinguished 26 ELR 14.

73—M/J(D)121EC—20

270

LE OF CASKS OVERRULED, FOLLOWED, REFERRED TO ETC.---contd.

Bhiwa v. Wittaram, 1857, 4 Bombay, SDA 118, referred to; 30, ELR 199.

Bhosle, BT v. MS An-ey, 1961 Bom. 29.—referred to 23 ELR 259 and 331.

Bholanath Balbhadra Sahai v. Accheram Puran Kusmi, AIR 1937 Nag, 91.

—referred to 25, ELR 354.

Bhuttan v. Emperor AIR 1926 Oudh, 245.

—referred to 27 ELR 145.

Bhupendra Narain v. E Ka Narayan Lai, AIR 1865; Pat. 332.

—referred to 28 ELR 126.

Bhuvanesh Bhushan Sharma v. Election Tribunal, Fartukhabad andanother, AIR 1968; All. 587.

—referred to 23 ELR 116, 27 ELR 1.

Bijayanand Patnaik v. Satrughan Sahu, AIR 1963, S C 1566.—referred to 30 ELR 276.

Bikhraj Jaipuria v. Union of India (1962) SCR 830.—referred to 27 ELR 265, 28 ELR 1, 31 ELR 380.

Biresh Mishra v. Ramnath Sharma; AIR 1951; Assam 139.—referred to 32 ELR 28.

Biseswar Mitra v. The King, AIR 1949 Orissa 22-—referred to 31 ELR 401.

Biswanath Upadhya v- Haralal Das and others; 16 ELR 405.—referred to 26, ELR 100. 30 ELR 258; 30 ELR 1- 29 ELR 352.

Bolanath v Krishnachandra Gupta; 6 ELR 104.—relied on 24 ELR 168.

Bombay Cotton Manufacturing Company v. Motilal Shivlal (1915) ILR39 Bombay 396.

—referred to 27 ELR 145-

Borough of Evesham 3, OM & II 192 (880).—referred to 23 ELR 51.

Bowdley (1869) (1) OM & H 16.—referred to 26 ELR 116.

Bowman v. Lewis (25, Lawyers edition 989).—referred to 30 ELR 100.

Bresh Misra v. Ramnath Sharma, 17 ELR 243.—referred to 30 ELR 382.

Brij Bhushan v. Anand Brahma; AIR 1961- All 356 ILR 1960(2) All 146-22 ELR 225. ' " ' '

—referred to 22 ELR 225, 24 ELR 316 26 ELR 116, 252- 30 ELR 1 and258.

211

TABLE OF CASES OVERRULED FOLLOWED, REFERRED TO ETC.—contd,

Brij Mohan v. Priya Brat; AIR 1965 SC. 282.—referred to 27 ELR 79; 31 ELR 401 and 32 ELR 152. 30 ELR 293.

Brjj Ram Singh v. Sri Basant Singh; Judgement of Allahabad Hgh Courtdated the 16th October, 1967 in EP No 4 of 1967.

—referred to 29 ELR 445-

Brij Mohan Lai v- Election Tribunal and others; 1966, Doabia's ElectionCases, 93. AIR 1965, AIL 450.

—referred to 32 ELR 133;. 30 ELR 276.

Brijendra Lai v. Jawala Prasad, AIR 1960 (SC). 1049 (1960), 3 SCR 650;22 ELR 366 (SC)-

—referred to 23 ELR 209; 379; 24 ELR 284 and 340; 27 ELR 79; 28 ELR 209;29 ELR 336; 29 ELR 113 and 29 ELR 139 and 30 ELR 293 and 353.

Brij Sunder Sharma v- Shri Ram Dutt; AIR 1964; Raj. 99

—referred to 29 ELR 465. 32 ELR 97.

Brojo Gopal Dass and others v- Kalipada Banerjee and others; AIR 1960;Cal. 92.

—referred to 29 ELR 291. -; -

—relied on 31 ELR 329. :

British India General Insurance Company y Itbar Singh; AlR 1969;SC 331. 'x'-[ " '

—applied 29 ELR 377.

Brundaban Nayak v- Election Commission of India, AIR 1965 (SC) 1892.—followed 27 ELR 68- ' "

Bruca v. Odhams Press Ltd. 1936, I.K.B. 697 at 712; applied on 26 ELR 224.Budhnath Jha v. Mani Lai Yadav 22, ELR 86. ,

—referred.to 26 ELR 60 and 100-

C'alcutta Discount Co-, v. J T Officer, AIR 1961 SC 372.

—referred to 23 ELR 331.

Camden (Miarquies) v. LRC (1914) 1 K B 641.

—referred to 23 ELR 357.

Canara Bank Ltd., v- Warden Insurance Co., Ltd-, ILR- (1952) Bom. 1083.—relied on 25 ELR 354. ' ' • - : :

Case of Pitla Ganga Ram 1958 Andh. W R 116.—referred to 23 ELR 1. !

Cathnolicos v- T. Pauloavira, AIR, 1959 S C 31.

—referred to 27 ELR 47-

Central Bank of India Ltd., v. Ram Narain, AIR 1955. S C 36.

—relied on 26 ELR 200.

Chadalavada Subba Rao v. Kasu Brahamanda Reddy (1966) 2 AN WR 401.—referred to 32 ELR 253.

272

TABLE OF CASES OVERRULED FOLLOWED, REFERBFJD TO ETC. —contd.Ctoampa Devi v- Jamuna Prasad (15 ELR 443).

—distinguished 23 ELR 171.Champalal Gupta v. Mohanlal Mathur (41 CWN 488).

—referred to 23 ELR 271.Chand Singh v. Shankarlal (20 ELR 63).

—to be followed 29 ELR 108-

Chandra Kumar Sen v. Mathuria Debiya (1925)-(ILR 52 Cal. 1009).

—referred to 25 ELR 354.Chandra Mohan v. Union of India, AIR 1953, Assam 198;

—referred to 29 ELR 403.Chandra Sekhar Prasad V. Pai Prakash Singh, 17 ELR 126.

—referred to 25 ELR 220.Chandra Sekhar Singh v. Sarjoo Prasad Singh (AIR 1961 Patna 189

22 ELR 206.—referred to 24 ELR 316.—relied on 31 ELR 1.

Chandreshwar Narain v. Basu Prasad (Misc- Judicial case No 36 of 1954)decided on 12-4-55.

—referred to 24 ELR 316..

Chandrika Prasad Tripathi v. Shiv Prasad Chanpuria (21 ELR 172, AIR1959, S C 827).

—referred to 23 ELR 116; 24 ELR 83; 196 and 237. 29 ELR 241 and352.

—followed 24 ELR 124.—relied on 23 ELR 171, 259-

Channa Basappa Shivappa v. Gurapadaya Murugappa (AIR 1958) Mys. 184.—referred to 23 ELR 1.

Chatturbhuj Chunnilal v. Election Tribunal, Kanpur, 15 ELR 301; AIR1958, All. 809.

—referred to 24 ELR 358, 25 ELR 116; 29 ELR 268-—followed 25 ELR 116.

Chaturbhuj Singh & Ors. v. Govind Prasad Singh, 50, CWN 2 (PC)~4.—referred to 24 ELR 284.

Chathurbhujj Vital Das v. Moreshwar Parash Ram (AIR 1954): S.C- 236;SCR 817; I- ELR 301; AIR 1954- SC 236).

—case No- XII of Borough of Staley Bridge, (1869) IOS Malley andHardest Le. 97.

—relied on 24 ELR 168, 25 ELR 291.—referred to 29 ELR 367-—distinguished 27 ELR 265; 28 ELR 1; 29 ELR 291; 31 ELR 64;

329 & 380; 30 ELR 199; 32 ELR 116.—relied on 31 ELR 211; 29 ELR 96.

273

TABLE OF CASES OVERRULED, FOLLOWED, REFERRED TO ETC.—conld.

Chavan Y. B. v. K T. Mangal Murti, AIR 1958 Bom. 397.—referred to 25 ELR 312.

Chenchurama Naidu y Chief Electoral Officer, Andhra and another, AIR1955. Andhra 180.

—referred to 29 ELR 82.Chengalraya Naidu v. G N Pattabhi Reddi, AIR 1964 A P 164.

—referred to 29 ELR 241-—relied on 30 ELR 321-

Chenna Byre Gowda v. S R Ramaiah, 20 ELR 37. Mys. H C.—referred to 24 ELR 316.

Chattar Singh v. Kewal Singh, 15 ELR 162.—referred to 27 ELR 79-

Chinna Mulla Reddy v- Revenue Divisional Officer, 8 ELR 361.—referred to 29 ELR 63.

Chakati Parasuram Naidu v. Vyricherla Chandra Chudarrmi Dev-—(13 ELR 66),

—referred to 30 ELR 372.

Chopra UJS v. State of Bombay; AIR 1955; S.C 633,

—referred to 32 ELR 133-

Choudhary, K P v. State of M P AIR 1967 SC 203.—referred to 31 ELR 380.

Ch. Subbarao v. Member, Election Tribunal, Hyderabad and others (AIR1964 S C 1027).

—referred to 28, ELR 185; 29 ELR 268 and 352-

—followed 31' ELR 266-

Chunku Manjhi v. Bhabani Majhan, AIR 1946 Patna 2l8.

—referred to 30 ELR 199.

Cockermouth Division case; 5 (OM & H) 155 (901).

—referred to 23 ELR 41 and 51.

Collector of Monghyr v. Keshav Prasad (AIR 1962 S-C. 1954, 1703).—referred to 24 ELR 196; 25 ELR 35 and 181; 26 ELR 269 and 29 ELR 241

and 361-—relied on 25 ELR 168.

Collector of Masulipatnarn v. Kavaly Venkata Naraiyanapay I, MOO,Indian appeal 529 at 559.—referred to 28 ELR 1.

Commissioner of Hindu Religious endowments Madras v. Sri LakshmindraThirtha Swarniar of Sri Shirur Mutt AIR 1964 (SC 282).

—referred to 26 ELR 90.Commissioner of Commercial Taxes v- R S Thevar 20, STC 453-

.--referred to 32 ELR 69.

•274

TABLE OF CASKS OVERRULED, FOLLOWED,-REFERRED TO ETC. — contd.

Coope v. Ridoup, 1921 Ch. Dvn. 291-—relied on 24 ELR 168.

Cooper v. Slade; 1858, 6, H- L. Case, 746-—referred to 27 ELR 47.

Coopposamy Chetty v. Durai Sarny Chetty (ILR 33, Madras (67).Currimbhoy and Co., Ltd-, v. L A Greet, AIR 1940 Cal- 113.

—referred to 24 ELR 298.—inapplicable 31 ELR 380.

Dalip Singh v. State of Punjab, (AIR 1953, S C 364).—referred to 31 ELR 223-

Dalmia Jain Airways Ltd., v- Sukumar Mukherjee (AIR 1951, Calcutta 193).—referred to 28 ELR 235. ' .

Dantu Bhaskararao v. CVK Rao (Sp. App. No- 52 of 1962).—referred to 25 ELR 168-

Darbhanga North East Case, Hammond's reports of Indian Election peti^tions 1920, Vol I. Page 93.

—referred to 30 ELR 276-

Dattatraya v. Dattatraya (AIR 1964—Bombay, 244).—referred to 30 ELR I1.

Dattatrya Moreshwar Pangarkar v- the State of Bombay and others,1952, SCR 612.—referred to 29 ELR 63.

Daveshwar Verma v. Mr. Dev Raj Setti. The Indian Election Cases, 1935.1950. By H- S- Doabia—Vol- II.

—referred to 24 ELR 58-

Deb Narain Dutt v. Chunni Lai Ghouse, ILR 41, Calcutta 139.—referred to 28 ELR 1.

Delhi Law's Act 1912, AIR 1951 S C 332.—referred to 28 ELR 1.

Deochand and ors- v. Vashist Narain and ors- 6 ELR 138.—referred to 26 ELR 60.

Deo Rao Lakshman Anande v- Keshay Lakshman Borker, 13 ELR 334- AIR1948—314. ' . '

—relied on 23 ELR 356.

—referred to 29 ELR 306; 32 ELR 232-

Dao Sahu v. Rangilal, 22 ELR 299-—referred to 24 ELR 340 and 30 ELR 37-

Dao Sahu v- Rangilal Chaudhury and Ors, AIR I960, Patna 371.—referred to 29 ELR 139.—applied 29 ELR 255.

275

TABLE OF CASES OVERRULED, FOLLOWED, REFERRED TO ETC—contd.

Dera Gazi Khan v- Khteiwaja Ghulam Murtaza IECD, Vol 1. P 107-

—referred to 23 ELR 331.

Desai Basava Raj v. Dankop Hasansak, 4 ELR 380-

—referred to 23 ELR 1 and 32 ELR 133.

Devaiah v- Nagappa and others AIR 1965 Mysore 102.

—referred to 27 ELR 145.

Devakanta v. Kusharam Nath, AIR 1961, S C 1125.—relied on 25 ELR 1.

Dhanraj Deshlesra v. Viswanath Yadav Tabaksar and ors. 15 ELR 260.—referred to 15 ELR 260.—referred to 26 ELR 100.

Dharama Raj Mahadco v. Additional Deputy Commissioner, Akola (AIR1957. Bombay 154).—referred to 28 ELR 250.

Dhondo Narayan Shiralkar v, Annaji Pandurang Kokatur. ILR 1939—Bom. 66-

—referred to 24 ELR 219.

Dhrangadhxa Kemical Works Ltd., v. State of Sourashtra 1951, SCR 152.

—referred to 24 ELR 145.

Dilworth v. Commissioner of stamps—1899, A C 99-—referred to 29 ELR 403.

Dinabhandhu v. Jadumori, AIR 1954. S C 411.—referred to 24 ELR 196.

Dinanath v. Peer Mubarak AIR 1962. J & K 28.—referred to 24 ELR 316.

-applied 29 ELR 215-

Dinanath Kaul v. Election Tribunal, AIR I960 J & K 25.—referred to 27 ELR 1. 30 ELR 276-

Dippla Suri Dora v. V V Giri, AIR 1958; A P 724.—referred to 32 ELR 152.

Dropadi v. Hira Lai (1912) ILR 34. All. 496.—relied on 25 ELR 354.

Dunl.op Pneumatic Tyre Co, v. Selfridge & Co Ltd, 1915; AC 847.—referred to 28 ELR 1.

Durga Prasad Rao v. Sudaranaswami AIR 1940, Mad 513.—referred to 30 ELR 222, 31 ELR 401, 32 ELR 152.

Shankar Mehta v. Rashuraj Singh & Ors. AIR 1954—SC 520 (1955)ISC R 267; at p.523 (ELR 494).—referred to 23 ELR 209, 24- ELR 284, 25 ELR 1, 27 ELR 79; 29 ELR 82;

30 ELR 52, 293,- 353; 32 ELR 152.—distinguished 23 ELR 259, 31, ELR 329.—relied on 23 ELR 271; 27 ELR 123.

276

TABLE OP CASES OVERRULED, FOLLOWED, REFERRED TO ETC.—contd.

Durga Shankar Mahta v. Returning Officer, 1955 (1) SCR 267.—referred to 26 ELR 312.

Duruvasula Venkata Subbarao, AIR 1944, Madras 132.—referred to 26 ELR 158.

Dutt S. (Dr.) v. University of Delhi, AIR 1958, SC 1050.—referred to 26 ELR 158.

Dwaraka P'rasad v. Kamal Narain, AIR 1964. MP 273 at p. 278-279.—referred to 29 ELR 336.

East Division of the Brough of Nottingham (1911) 8 Motor & H 292, Kins-dom. (1911) 6 OM & H.

—referred to 26 ELR 116Eastern Division of Clare Case; 40 M & H 162

—referred to 32 ELR 69Edward v. Robert; 1891, IGBD 302

—referred to 24 ELR 168Emperor v. AA Alwe, 37 BLR 892

—referred to 25 ELR 143

Emperor v. Amiruddin Salebhoy Tyabjee, AIR 1923 Bom: 44—distinguished 29 ELR 96

Emperor v. Baharuddin, AIR 1938 Patna 49—referred to 27 ELR 145

Emperor v. Choube Dinkar Rao & Ors. AIR 1933, All 513—distinguished 29 ELR 96

Emperor v. Sibnath Baneri & Others, AIR 19'45 PC 156-—referred to 27 ELR 145

Emperor v. Maharam IL 41, All 393

—referred to 30 ELR 222

Emperor v.-Mohamed Usman, AIR 1933, Sind 325.—referred to 27 ELR 145

Ena Ghosh (SM1) v. State of West Bengal and Others, AIR 1962 Calcutta420

—distinguished 23 ELR 356

Ephrayim v. Turner Morrison and Company, AIR 1930, Bom- 511.—referred to 25 ELR 168

Everat v. Griffiths 1924 (1) KP 941—referred to 28 ELR 1.

Fena Uraon v. Fohan Uraon, SA No 1573 of 1948 dated January 17, 1971(Patna)

—relied on 25 ELR 291ngi Rpddv v Anianeya Eeddy & Others, CA No- of 1959 un-reported.2̂ ELR 261—referred to 23 ELR 51. 2'65; 25 ELR 143; 265; 27 ELR 145; 30 ELR

1 & 321.

277

TABLE OF CASES OVERRULED, FOLLOWED, REFEERED TO ETC. -contd,Ganda Singh v. Sampuran Singh (3 ELR 17)

—overruled 23 ELR 25.Ganpat Singh v. Brijmohan Lai, AIR 1959, Raj:114

—referred to 25 ELR 116

Gazula Dasaratha Rama Rao v- State of Andhra Predsh and Others, AIR1961; SC 564

—relied on 23 ELR 356

Gandhi Nagar Motor Transport Society v. State of Bombay, AIR 1954;Bom.-202.

—referred to 26 ELR 60Ganesh Ramchandra v. GIP Railway Co. (1900) 2, Bom. LR 790

—refe/red to 26 ELR 158

Ganesh Choudhury v. Manga! Prasad Singh (1963 B U R 1906)—referred to. 28 ELR 250

Giani Kartar Singh v. Jag jit Singh (1st appeal from Order No. 3E of 1964)—referred to 27 ELR 11

Giani Kartar Singh v. Thc Election Tribunal; (1962 Dobia's Election Cases500 Supra)

—referred to 28 ELR 235Ganesa Ayyar R, v. Lakshmi Co-operative Building Society, AIR 1937,

Madras 379;—referred to 29 ELR 215—relied on 31 ELR 329;—referred to 32 ELR 116. 29 ELR 291

Ganji Veerappa v. Sidda Veerappa, EP 5 of 1967 Mysore.

—referred to 32 ELR 17 and 52.

George v. District Munsif Kanjirappally, 1965 KLT 819

—referred to 29 ELR 465

Ghayar Ali Khan' v. Keshav Gupta, AIR 1959, AH 264; 16 ELR 154—referred to 23 ELR 1; 32 ELR 253; 24 ELR 378;—relied on 28 ELR 58

Ghulam Mohiuddin v. Election Tribunal for town ara-e Saket andanother, AIR 1959 All. 357

—followed 29 ELR 113—referred to 29 ELR 113: 30 ELRI 353 ~

Gianchand v. Ram Bansal; 2 ELR 136—relied on 24 ELR 168

Giri, V.V. v. D. Suri Dora and others (AIR 1959 SC 1318)—referred to 28 ELR 293.

Gauri Shankar v. Mavadhardas. AIR 1959, Madhya Pradesh, 39 1959 JLJ 10/—distinguished 30 ELR 293.

Gidronia, V.P. v. State of Madhya Pradesh, 1957; MPLJ 39.—applied 30 ELR 372

278

TABLE OF CASES OVERRULED, FOLLOWED, REFERRED TO ETC.- -contd.Gidwani Choitram Partabrai v. Aganaithakurdas Chuharmal I ELR 194.

—relied on 23 ELR 270

Goddem China Venkata Rao and Ors., v. K. Siatyanarayan Murty andanother, AIR 1943, Madras, 698

—referred to 23 ELR 293

Gokulnanda Praharaj v. Jogeshchandra; AIR 1959 Orissa 47; 18 ELR 76

—referred to 23 ELR 1

—distinguished 24 ELR 358

Gopal Singh v. Jhakri Rai, 1.885 IL 12 Cal. 37—referred to 24 ELR 42

Gopalan v. Kannan 1958, KLT 388. AIR 1959 KER, 12—referred to 23 ELR 208

Gokhale, H- R, v- Bharucha Noshir and others; Judgment of Bombay HighCourt dated: 1-9-1967 in EP No. 5 of 1967

—referred to 29; ELR 445

Goona Durga Prasad Rao v. Goona Sudarshanswaroy; AIR 1940 Madras513.

—referred to 30 ELR 199.Gopalan v. Kannan; AIR 1959; Ker. 18

—referred to 27 ELR 79

Gokulandanda Prahraj v. Jagdish Chandra Rout and another, ARO 1959Orissa 47;

—referred to 27 ELR 145

Govind Malaviya v. Murlimanohar 8 ELR 84—referred to 32 ELR 232

Grey v. Pearon (1857) 6 HLC 61 at p. 106—referred to 24 ELR 196

Great Yarmouth case 50, M&H-178-—referred to 30 ELR 321

Gurubaksh Singh v. Gurdial Singh and another; 32, CWN 119 (PC)

—referred to 23 ELR 356

Gulaher Ahmed v. The Election Tribunal, Chattarpur AIR 1958 M.P. 224.

—referred to 25 ELR 116; 29 ELR 268

Gulabchand v. Govind Sahai. AIR 1964 Rajasthan 155-—referred to 29' ELR 126

Guru Gobinda Basu v- Sankari Prasad Ghosal and others, AIR 1964SC 254.

—applied 29 ELR 215.—referred to 29 ELR 306; 31 ELR 99

Gurunath Reddy v. Seshaish, AIR 1966 Andhra Pradesh-331;—referred to 30 ELR 1

279

TABLE OP CASES OVERRULED, FOLLOWED, REFERRED TO ETC.—contd.

Gurmukh Singh S. v- Union of India and other (AIR 1952) Punjab 143-

—referred to 29 ELR 160-

Guruswami Nadar v. Irulappakonar (67, MLJ 389)—referred to 30 ELR 199. 31 ELR 401

Gurdaspur North (Sikh) constituency, Indian Election Cases vol. 1341(348)

—referred to 30 ELR 258Gurubantha Singh v. Pyararam; ARO 1960 Punjab 614

—referred to 30 ELR 293Habibbhai v- Pyarelal (AIR, 1964, MP 63).

—distinguished 27 ELR 135

Habib Mohammed & Others (Intervenes) (AIR 1952, SC 75);—referred tOi 30 ELR ICO '•

Hafiz Ibrahim y. Election Tribunal, Lucknow (AIR 1957 All. 393)—referred to 27 ELR 226

Haji Abdul Wahid v. B.V. Keskar and Others (16 ELR 393)—refered to 29 ELR 352.

Hakikathullah v. Nathusingh & others (6 ELR 10)—referred to 29 ELR 306; 31 ELR 99

Halsbury's Laws of England, 3rd Edn. Vol. 14 p. 288,

—referred to 23 ELR 283

Hammond's Election cases 569—referred to 23 ELR 171

Hansa Jeevraj Mehta v- Insubhai B. Amni & thers (IELR 171)-—referred to 29 ELR 3,06

Har Swarup v. Brij Bhushan, (AIR 1967 SC 836).—followed 31 ELR 92.—applied 29 ELR 178, 30 ELR 93—referred to 29 ELR 268 and 30 ELR 100

Harichand Mancharan v. Govind Luxman Ghokale (50, LA 25)

—referred t 0 24 ELR 298Harichandra v. Triloki Singh (AIR 1957 SC 444; SCR 370)-

—referred to 23 ELR 1, 51, 171 and 25924 ELR 58, 83, 168 and 31625 ELR 97 and 130; 26 ELR 116 & 252;27 ELR 145 & 226; 28 ELR 12629 ELR 178 & 445; 30 ELR 1, 258 & 38231 ELR 167 & 416

32 ELR 1, 133, 253 & 321

— followed 24 ELR 340; 26 ELR 236—relied on 23 ELR 271; 25 ELR 116 & 28 ELR 44

280

TABLE OF CASES OVERRULED/FOLLOWED, REFERRED TO ETC.--cotild.

Hari Prasad Dov v. Bhanuganga Tribhuban Dev (A.I.R.) 1964 Orissa 8—referred to 27 ELE 145

Harishankar Bagla v. State of Madhya Pradesh (AIR 1954 HO 465)—referred to 23 ELR 1 " a f ' ' '-•'

Harivislmu Kamath v. Abmed Ishaque k Others (A.I.R. 1955 g 0 28<tt1 S.C.B. 1104 ' " ;

—referred to 23 E.L.R. 51, 24 E.L.R. 196 & 237; 26 E.L.R. 269,29 E.L.R. 1 & 113

—relied on 23 E.L.R. 271; 27 E.L.R, 123 and 30 E.L.R. 242followed 29 E.L.R. 82—explained 25 E.L.R. 323, 27 E.L.R. 135

Ravanna Subbanna v. G-.S. Kaggeer (A.I.R. 1954 S.C. 653)—referred to 29 E.L.R. 306

Hemanta Kumar v. Alliantz Ins. Co., (A.I.R. 1938 Calcutta 120)—referred to 3] E.L.R. 401

Hexham (1894) 4 O.M. & H. 147

—referred to 26 E.L.R. 116

Hindi Eran Bank v. Mrs. Ishwar Singh (A.I.R. 1960 Punjab 111)

—referred to 23 E.L.R. 1

Hill v. East and West India Dock (1884) 9 App. Case 448 at p. 464

—referred to 24 E.L.R. 196

Hill and Walton v. Peel and Bulwar (1869) 1 O.M. & H. 75

—referred to 23 E.L.R. 271

Hiralal v. Badkulal (A.I.R. 1933, .S.C. 225)

—referred to 31 E.L.R. 223

His Majesty the King v. William Singer, 1941 Canada Law Reports, 111

—referred to 30 E.L.R. 353

Hissar North (General) Constituency Indian Election Cases vol. I 297 (304)

—referred to 30 E.L.R. 258

Hobbes v. Morey (1904) I, K.B. 74;

—referred to 25 E.L.R. 312

Hodge v. The Queen (9 A.C. 117)

—referred to 27 E.L.R. 226

Horpal v. Neuberger Products Ltd., (1957) I, Q.B.D. 252

—referred to 27 E.L.R. 243

Hornal v. Neuberger Products Ltd., 1956 (3) All. E.R. 970—referred to 27 E.L.R. 47 :

281

TABLE OF CASES OVERRULED, FOLLOWED. REFERRED TO ETC.—con'd.

Howard v. Bodington (1877) 2 P.D. 203, 211

--referred to 25 E.L.R. 130 and 29 E.L.R. 336

Hukarn Singh «. Banwari Lai Bipra, (A.I.R. 1965 All. 552)

—referred to 29 E.L.R. 465

Hukam Chand v. Mani SMbrat Das (A.I.R. 1934 Lahore 984)—referred to 32 E.L.R.. 246

Husain Kamil v. Ram Sewak (1964) (A.I.R. All. 86)

—referred to 26 E.L.R. 269

Ibrahim & others i). Enparor, A.I.R. 1935 Patna 95

—referred to 27 E.L.R. 145

Inayatullakhan v. Diwanchand Mahajan, A.I.R. 1959; M.P. 58; 15 E.L.R 219

—referred to 23 E.L.R. 1; 26 E.L.R. 252 ; 31 ELR 329

—applied 29 E.L.R. 255

Inayatulla v. Diwanchand, 15 E.L.R. 219

—referred to 27 E.L.R. 145; A.I.R. 1959, M.P. 58, 25 E.L.R. 281

and 30 E.L.R. 136

—disapproved 25 E.L.R. 323

Inder Lall Jugal Kishore v. Lall Singh Mukund Singh A.I.R. 1961

Raj 122

—referred to 24 E.L.R. 92

Inamati Mallappa Basappa v. Dasai Basavaraj Ayyappa and others A.I.R

1958; 698

—referred to 24 E.L.R. 316; 25 E.L.R. 116; 28 E.L.R. 235, 30 E.L.R. 276

and 293; 29 E.L.R. 268; 32 E.L.R. 133

—explained 27 E.L.R. 1

—followed. 29 E.L.R. 178

Inder Lai v. Lai Singh ; A.I.R. 1962, S.C. 1156 and 1159

—referred to 25 E.L.R. 143; 266, 27 E.L.R. 243

—relied on 27 E.L.R. 123

Inder Lai v. Inder Singh & Ors. A.W. 1962; S.C. 1156

' —referred to 26 E.L.R. 252

In the matter of Balls «. The Metropolitan Board of Works (1865-66) 1. Q.B.

cases 337

—distinguished 29 E.L.R. 96

282

TABLE OF CASES OVEEEULED, FOLLOWED, REFERRED TO ETC,—confd.

Islirgton Division case, 5 0, M & H 120

—referred to 31 E.L.E. 373.

Jabar Singh v. Genda Lai (1964 (6) S.C.R. 54; A.I.R. 1954 S..C. 1200)

—referred to 26 E.L.E. 147; 27 E.L.R. 11;; 29 E.L.R. 465; 30 E.L.R. 81 and

136 ; 31 E.L.R. 351; 32 E.L.R. 1

Jagannath v. Jaswant Singh & Others (A.I.R. 1954 S.O. 210; 1954 S.C.R. 892;

9 E.L.R. 231 (S.C.)

—referred to 23 E.L.R. 58, 371; 378; 25 E.L.R. 116; 130; 26 E.L.R. 269;

27 E.L.R. 47; 226; 243; 28 E.L.R. 126, 235; 29 E.L.R. 241 &

465; and 30 E.L.R. 100 & 222;

—iistinguished 23 E.L.R. 271 and 30 E.L.R. 276

—followed 24 E.L.R. 124

—relied on 24 E.L.R. 163, 197; 25 E.L.R. 163; 29 E.L.R. 336 and

31 E.L.R. 167 & 351

Jagaanath v. Ram Chandra (A.I.R. 1959 Orr. 26)

—distisguished 23 E.L.R. 259

—referred to 25 E.L.R. 116

Jagannath Prasad v. Hanutnan Pershad (1909 L.R. 35 LA. 221)

—referred to 24 E.L.R. 42

Jagat Dhish v. Jawahar Lai (A.I.R. 1961 S.C. 832 at p. 837

—referred to 24 E.L.R. 168 and 198; 25 E.L.R. 168 . . :

—distinguished 24 E.L.R. 371; 25 E.L.R. 130

Jagdev Singh Sidhanti v. Pratap Singh (A.I.R. 1965; 183)

—referred to 27 E.L.R. 243; 28 E.L.R. 58 & 126; 30 E.L.R. 1, 158, 258,

321 & 382; 31 E.L.R. 1, 121 , 167 & 223; 32 E.L.R. 1 & 52

—followed 27 E.L.R. 110

Jagat jit Cotton Textile Mills Ltd. v. Industrial Tribunal, Patiala, 1959,

P.L.R., 597

—referred to 26 E.L.R. 60

Jagdish Mitter v. Union of India A.I.R. 1964; S.C. 449)

—referred to 30 E.L.R. 372

283

TABLE ofc CASES OVERRULED, FOLLOWED, REEEBREED TO ETC.—con'd.

Jagjit Singh v. Kartar Singh (A.I.R. 1966, S.C. 770-773)

—referred to 29 E.L.R. 490; 30 E.L.R. 158, 242; 31 E.L.R. 1, 167, 223

aad 32 E.L.R. 17, 69 and 97

—relied on 30 E.L.R. 242

Jramuna Prasad v. Shri Ram Nivas (A.I.R. 1959, M.P. 226; 17 E.L.R. 145—referred to 24 E.L.R. 316; 27 E.L.R. 47

Jamuna Prasad Mukhariya & Others t). Lachhi Ram and others (A.T.R. 1954

S.C. 686)

--referred to 27 E.L.R. 145 and 243

Jamikamara Nainer T.A. v. Periasamy Gouadan, (A.I.R. 1949, Madras 376)—referred to 28 E.L.R. 250

Jathelal v. R.N. Kapur (A.I.R. 1956 (Bom.) 74

—relied on 24 E.L.R. 168

Jayalaxmi Devatnma, v. Janardhan Reddy (17 E.L.R. 302)

—referred to 26, E.L.R. 116; 31 E.L.R. 266 and 32 E.L.R. 253

Joginder Singh v. Harcharn Singh (3 E.L.R. 447)

—referred to 28 E.L.R. 217

Jijithoy, N. Surfcy v. T.S. Chettiyar (A.I.R. 1922, P.O. 103)

—referred to 26 E.L.R. 100

Jiwandas Kashaviji v. Pramji Nanabhai, (1870, Bombay High Court LawReporters, 45)

—referred to 31 E.L.R. 401

John (Dr.) v. Vasant Pai (2 E.L.R. 278)

—referred to 27 E.L.R. 226

Johuram Bibi & Others v, Howrah Jute Mills Co., Ltd., (A.I.R. 1948 Cal.

134)

—referred to 28 E.L.R. 100; 32 E.L.R. 253

Joseph Poster Willsoa v. SiroChristopher Furnes-s, 6, 0 & M & H reportof Election Cases, p. 1

referred to 32 E.L.R. 152 ~

Joshi v. State of Bombay (A.I.R. 1959) Bom. 363—referred to 23 E.L.R. 1

Jothi Prakash. Hitter v. Chief Justice Calcutta High Court (A.I.R. 1955,S.C. 961)

—referred to 29 E.L.R. 104

284

TABLE OF OASES, OVERRULED, FOLLOWED, REFERRED TO ETC.—contd.

Joti Prosad Upadhya V. Kalika Prosad Bhatnagar & Others (A.I.R. 1962

Allahabad 128)

—distinguished 23 E.L.R. 356

Jujhar Singh v. Bhairon Lall (7 E.L.R. 457)

—referred to 23 E.L.R. 209; 29 E.L.R. 113

Jumma Masjid v. Kodimaniandra Daviah (A.I.R. 1962 S.C. 847)—applied 29 E.L.R. 377

Jyoti Pershad and others v. Administrator of the Union Territory of Delhi

and others (A.I.R. 1961 S.C. 3602)

—referred to 24 E.L.R. 284

Kachireddi Nagireddi v. Sakireddi China Narayanareddi and Ors. 31, C.W.N246 (P.C.).

—referred to 24 E.L.R. 284.Kalyan Singh t>. Rahmu, I.L.R. 1901, 23 All. 133.

referred to 24 E.L.R. 219.

Kamakhya Narain v. I.T. Commissioner, A.I.R. 1943, P.O. 153.—referred to 24 E.L.R. 168.

Kamala Pasi v. Tarapada Mukarji, 14, Indian Cases, 1006—referred to 26 E. L.R. 100.

Kamraj Nadar v. Kunju Thevar, 14 E.L.R. 270; A.I.R. 1958 S.C. 687 andA.I.R. Mad. 261; 1959 S.C.R. 583.

—relied on 23 E.L.R. 171; 24, E.L.R. 196, 28, E.L.R. 217.—referred to 23 E.L.R. 259, 324; 24 E.L.R. 237; 262 ; 25 E.L.R. 116; 130,

26 E.L.R. 1; 60, 100; 27 E.L.R. 1, 29 E.L.R. 241, 268 ; 30 E.L.R. 93,31 E.L.R. 266, 32 E.L.R. 133.

—explained 23 E.L.R. 331.—followed 24 E.L. R. 124; 29 E.L.R. 178.

—distinguished 25 E.L.R. 181.—applied 29 E.L.R. 352.

Kanda and others tf. Washu, A.I.R. 1950 P.O. 68.—referred to 29 E.L.R. 445.

Kandasamy, S. v. S.B. Adityan, A.I.R. 1959 Mad. 288; A.I.R. 1960Madras 170.

—referred to 26 E.L.R. 116; 31 E.L.R. 167.Kandaswami Pillai v. Kannappa Chetty, A.I.R. 1952, Mad. 186.

—referred to 25, E.L.R. 354.

Kanhaiyalal Tiwari v. Shyam Sunder Narain Mushram, 10 E.L.R. 284.—referred to 26 E.L.R. 252.

Kanhaya Lai v. Pratap Chand (1931), 29 A.L.J. 232.—referred to 24 E.L.R. 219 and 29 E.L.R. 377.

285

TABLE OF CASES OVERRULED, FOLLOWED, REFERRED TO ETC.—Contd.

Kapildeo v. Suraj Narayan, 17 B.L.K. 475, A.I.R. 1959 Pat. 250.

—referred to 23 B.L.R. 331; 24 E.L.R. 316; 358; 29 B.L.R. 127, 31E.L.R. 92.

—dissented from 24 B.L.R. 214.

Karaidan Sarda v. Sailaja Kanta Mitra, A.I.R. 1940 Patna 683.—referred fo 31 E.L.R. 266.

KaramsM v. State of Bombay, (A.I.R. 1964; S.C. 1714).—referred to 28 E.L.R. 1.

Karan Singh v. Jamuna Singh, (A.I.R. 1959 All. 427).—referred to 23 E.L.R. 1 : 24 E.L.R. 378.—relied on 32 E.L.R. 133.

Kariamanigkam v. Ramakrishna Thevar, 13 E.L.R. 275.—referred to 28 E.L.R. 1.

Karnail Singh v. Eleation Tribunal, Hissar and ors. 1954, 10 E.L.R. 189

—referred to 23 B.L.R. 153; 24 E.L.R. 340; 29 E.L.R. 139, and 30 E.L.R. 1

—relied on 25 E.L.R. 1.

Kartar Singh Giani v. The Election Tribunal (1942 Doabia's ElectionCases 500);

-^referred to 38 E.L.R. 235.

Kartik Oraon v. David Mukeni (A.I.R. 1954; Patna 201)—referred to 30 E.L.R. 199.

Karulal & another v. Fida Hussain and another (A.I.R. 1960 Patna 556).—relied on 23 E.L.R. 159.

Karwade K.W. v. P.H. Shambharkar (A.I.R. 1958-Bom. 296).—referred to 24 E.L.R. 7, and 30 E.L.R. 62.

Kashav Lakshnnn Borkar v. Dr. D.I. Ananda, XXI B.L.R. 466;

—referred to 32 E.L.R. 154. v:" . -

Katoria Takandas Hemraj v. Pinto Fredarik Michael, 18 E.L.R. 403.--referred to 24 E.L.R. 380.

Kaushalendra Prasad Narain Singh v. Nand Kishore Prasad Singh22 E.L.R. 484.

—distinguished 25 E.L.R. 181.

—referred to 26 E.L.R. 60 and 29 E.L.R. 241.

Kaushalya Rani v. Gopal Singh, 1964 (A) S.C.R. 982,

—relied on 25 E.L.R. 354T

M/J (D) 121 EC—21

280

TABLE OF CASES OVERRULED, FOLLOWED, REFERRED TO ETC.

Kerala Education Bill 1967 (A.I.R. 1958 S.C. 956).

—referred to 30 E.L.R. 353.Kesari Bhai Jasingh Bhai v. Bai Lilavati and others. 4 Gujarat L.E. 59.

—referred to 29 E.L.R. 268.

Keshav Lakshman Borkar v. Deorao Lakslrman Anande, (A.I.R. 1960, S.C,131).

—referred to 23 E.L.R. 294, 25 E.L.R. 312; 29 E.L.R. 199.

—explained 25 E.L.R. 323.

—relied on 26 E.L.R. 200.

Kesheoprasad Hariharprasad v. A.D. Mani and Ors.I.L.R. 1961, M.P.L.J. 1021(M.P. 974).

—considered 26 E.L.R. 136.

—referred to 29 E.L.R. 336.

Khader Sheriff v. Munuswamy (A.I.R. 1955 S.C. 775).

—relied on 23 E.L.R. 51.

—referred to 27 E.L.R. 243.

Khare, N.B. (Dr.) v. Election Commission of India, A.I.R. 1957, S.C. 694,S.C.R. 648.

—referred to 23 E.L.R. 209; 393; 29 E.L.R. 1.—distinguished 24 E.L.R. 371.

Khagendra Nath i). Umesh Chandra, (A.I.R. 1958 Assam 183).—referred to 24 E.L.R. 316.

Khilumal Topan Das v. Arjun Das Tulsi Das, 22 E.L.R. 404.—relied on 24, E.L.R. 378.—referred to 30, E.L.R. 158.

Kishore Chandra Deo Bhunj v. Raghunath Misra & Ors. 19 E.L.R. 1. (S.C.I.)

—referred to 19 E.L.R. 1 (S.C. 1) 23, E.L.R. 92 and 29 E.L.R. 306.

Kishore Prasad v. A.D. Mani and others.(1961, M.P.L.J. 1021).

—referred to 24 E.L.R. 238.

Krishna Kumar v. Krishna Gopal, (A.I.R. 1964, Raj. 21) I.L.R. 196313 Raj 726.

—considered 26 E.L.R. 136.

—referred to 25 E.L.R. 265.

Krishnaji Bheem Rao V. Shankar Santaram More, 7 E.L.R. 100.

—referred to 27 E.L.R. 123, 30 E.L.R. 258.

287

TABLE OP CASES OVERRULED, FOLLOWED, REFERRED TO ETC.—Contd.

Kumara Nand v. Brij Mohan Lai Sharma, A.I.R. 1967, S.C. 808.—referred to 31 B.L.E. 121, 167; 223; 29 B.L.E. 352.—distinguished 29 E.L.R. 398.

Kultar Singh v. Mukhtiar Singh, A.I.R. 1965, S.C. 141;—referral to 31 E.L.R. 121.—followed 27 E.L.R. 110—distinguished 27 E.L.R. 135.

—relied on 28 E.L.R. 58.

Kunhiraman v. V. R. Krishna Iyer, A.I.R. 1961, Ker. 188, K.L.T. 126.

—referred to 30 E.L.R. 136.

Kunhiraman, P. v. V.R. Kishna Iyer, (A.I.R. 1960, Ker. 190, (A.I.R. 1971 Ker188).

—distinguished 23 E.L.R. 336.

—dissented from 29 E.L.R. 113.

—referred to 29 E.L.R. 113, 30 E.L.R. 242; 353; 28 E.L.R. 235.

Kushwant Rai v. Karan Singh, 11 E.L.R. 1.—relied on 24 E.L.R. 168.

Kumara Nand v. Brijmohan Lai Sharma, A.I.R. 1967 S.C. 808.—referred to 30 E.L.R. 1.

Ky-Bargo v. Tedders (T.I.) S.W. II and 660, 254; Ky. 341.—referred to 26 E.L.R. 116.

Kwaza Mohammed Khan v. Hussain Begum 1910; 32 Allahabad, 410.—referred to 28 E.L.R. 14.

Lachiram v. Jamuna Prasad, (9 E.L.R. 149).—referred to 31 E.L.R. 318.

Lachi Ram v. Jamuna Prasad Mukhariya (9 E.L.R. 149).—referred to 27 E.L.R. 135 & 145.

Lachhman Singh v. Har Prakash Kaur (19 E.L.R. 417).—referred to 30 E.L.R. 372.

Laheri Singh v. Attar Singh (3 E.L.R. 403 (tr.)).—referred to 25 E.L.R. 97.

Lakhi Narayan Das and others v. The Province of Bihar ( A I R 1950F.O. 59).

—referred to 30 E.L.R. 372,

288

TABLE OF CASES OVERRULED, FOLLOWED, REFERRED TO ETC.—COtltd.

Lakshmanan CMettiar, O.A.O.K. v. Corporation of Madras (A.I.E. 1927, Madras113 (F.B.).

—referred to 26 E.L.K. 60.

Lakshmanan Chiettiar, O.A.O.K. v. J.S. Kannapar & Others.

(A.I.R. 1927, Madras 93).

—referred to 30 E.L.E. 100.

Lakshmi Shankar Yadav v. Kunwar Sripal Singh (22 E.L.E. 47).

—disapproved 25 E.L.R. 323.

Lakshmanayya' v. Eajam Iyer (1930 Madras 195).—referred to 23 E.L.R. 171.

Lai Kunwar (Mt.) v. Chiranji Lai (37, A/W.I.).—referred to 23 E.L.R. 357.

Lai Singh i). Ballabh Das (A.I.R. 1967, Gujarat 62).

—referred to 30 E.L.R. 321 and 32 E.L.R. 1.

Lala Hem Chand v. Lala Peatey Lai and others (A.I.R. 1942 P.O. 64).

—referred to 29 E.L.R. 445.

Laliteshwar Prasad v. Bateshwar Prasad, (A.I.R. 1966 S.C. 580).—referred to 30 E.L.R. 136; 31 E.L.R. 64 & 380 and 32 E.L.R. 116.

Lapish v. Braith Waite (1925/1-K.BD. 474).

—referred to 24 E.LR. 168 & 229.

Leh v. Matthews (1929, Lloyds Rep. 141).

—referred to 27 E.L.R. 47.

Lewis v. Ramsdale (55 L.T.R.179);—referred to 28 E.L.R. 185:

Link Emperor v. Benoari Lai Sharma (72 LA. 57 at pp. 70 & 71);

—referred to 24 E.L.R. 196.

Liverpool Borough Bank v. Turner (1860) 30, L.J. Ch. 397.

—referred to 25 E.L.R. 130; 2;9 E.L.R.336.

Londonderry Case, (1869) 1 O.'M & H 274 (278).—referred to 32 E.L.R. 253.

Lyallpur and Jhanj General Constituency case 1938 reported in Sen & Podar's

Indian Election Cases at p. 504.

—referred to 30 E.L.R. 276.

Md. Akbar Khan v. Mt. Motai & Others (52, C.W.N. 132 (P.O.))

-referred to 24 E.L.R. 284,

289

TABLE 09 CASES OVERRULED, FOLLOWED, REFERRED TO ETC.—Contct.

Madan Lai v. Hira Singh. (E.P. No. 3 of 1967), decided on 14th June, 1967 byHimaclial Bench of Delhi High Court).

—referred to 30 E.L.R. 37.

Madan Lai v. Syed Zarjham Haider (13 E.L.R. 456).—referred to 27 E.L.R. 179.

Madhu Singh Mukhram v. Ram Charan Chand Mittle & Others (A.I.R. 196SPunjab 66).

—referred to 32 E.L.R. 97.

Meganathan, M.R. v. K.T. Kosalram (9 E.L.R. 242, (Election TribunalTanjore).

—deferredfrom 32 E.L.R. 133 and 153.

Maganlal Radhakrishnan Bagai v. Hari Vishnu Kamath (A.I.R. 1960M.P. 362).

—referred to 27 E.L.R. 123.

Mahadeo v. Babu Udai Pratap Singh (A.I.R. 1966, S.C. 824).

—referred to 31 E.L.R. 318, 329.

Maharaja of Parlakimidi v. Vijay Chandra Dass & others (4 E.L.R. 101).

—referred to 24 E.L.R. 168.

Maharaja Sirs Chandra Nandy v. Raklialananda Thdkur (A.I.R. 1941 P C16).

—referred to 24 E.L.R. 380.

Maharana Shri Bhagwat Singhji of Udiipur and otherrs •«. Keshu Lai. .(I.L.R.1963 (13) Raj. 370).

—referred to 26 E.L.R. 158.

Mahar Singh v. Umrao Singh (A.I.R. 1961, Punjab, 241).—relied on 32 E.L.R. 133.

Mahesh Prasad v. Manjaylal A.I.R. 1964 Patna 53.

. —referred to 26 E.L.R. 269.Majibar Rehman v. Abdul Barkat (4 E.L.R. 481).

—referred to 31 E.L.R. 281.Mallappa Basappa v. Basavraj Ayyappa (A.I.R. .1958, S.C. 698).

—referred to 23 E.L.R. 259; 265 ; 24 E.L.R. 168; 25 E.L.R. 97.—followed 31 E.L.R. 92.

Management of Itakhoolin Tea Estate v. Its workmen, (A.I.R. 1930 S.9. 1349)—referred to 28 E.L.R. 101.

Mangaldas v. State of Maharashtra (A.I.R. 1966 S.C. 128). .:..

—referred to 32 E.L.R. 191.

290

TABLE OF CASES OVERRULED, FOLLOWED, REFERRED TO ETC.—COntH.

Mangal Sain v. The State of Punjab (A.I.R. 1952 Punjab 58).—referred to 31 E.L.R. 99.

Mani Gopal Swami i>. Abdul Hamid Chaudhury (A.I.R. 1959-Assam 200).-referred to 23 E.L.R. 41.

Mani Lai v. Bhudhinath (A.I.R. 1962 Patna 18).

—referred to 29 E.L.R. 35.

Manmohan Das v. Musammat Ramdei 1931, 35, C.W.N. 925.—referred to 24 E.L.R. 42.

Maqbulam v. Ahmed Hussain J.L.R. 26, All. 108.

—referred to 30 E.L.R. 62.

Marakanda Sahu v. Lai Saiananda Singh (A.I.R. 1952 Orissa 279).

—referred to 28 E.L.R. 250.

Marine Coal Company v. Union of India (A. I.R. 1964 S.C. 152).—referred to 28 E.L.R. 1.

Marufcrao Bhaiirao & Others v. Gulab Rao Dada Sahib and others 5 E.L.R. 303.—referred to 25 E.L.R. 89.

Masalti v. State of Uttar Pradesh (A.I.R. 1965 S.C. 202).

—referred to 31 E.L.R. 167 and 223.

Maulana Abdul Shakoor v. Rikhab Chand and another (13 E.L.R. 149).

—rdied on, 23 E.L.R. 356.—distinguished 25 E.L.R. 77.

Maung Ahmin y. Maung Saung, (A.I.R. 1938, Rangoon 360).

—referred to 32 E.L.R. 246.

Meenakshi Mills Ltd. Madurai v. Commissioner of Income Tax, Madras (1956,S.C.R. 691—A.I.R. 1957 S.C. 49).

—referred to 23 E.L.R. 125.

Meg Raj Kothari v. Delimitation Commission. (A.I.R. 1967 S.C. 669)—referred to 29 E.L.R. 306.

Mehar Singh S. v. Umrao Singh and another (A.L.R. 1961 Punjab 244).referred to 25 E.L.R. 265 and 30 E.L.R. 344 and 382.

Mehta Govardan Das Girdhari Lai v. Chavada Akbar Dalumiyan and others(7 E.L.R. 374).

—referred to E.L.R. 92.

Methai Methew Manjuran v. K.C. Abraham (10 E.L.R. 376).

—referred to 30 E.L.R. 1.

TABLE OF CASES OVERRULED, FOLLOWED, REFERRED TO ETC.—C

Micheal C. v. Venkateswaran (A.I.R. 1952 Mad. 474).—referred to 24 E.L.R. 7; 30 E.L.R. 199 and 222; 31 E.L.R. 401;

32 E.L.R. 152.Misra Jawala Prasad v. Mahadev & Others (3 E.L.R. 473).

—referred to 24 E.L.R. 168.Mohan Reddy v. Narayan Reddy (1963 II An. W.R. 101).

—referred to 25 E.L.R. 193.Mohan Lai Chopra v. Raibahadur Rao Raja Sethi Heralal (A.I.R. 1962, S.C.

527).Mohd. Bahadur Khan v. Collector of Bareilly (I.I.A. 167).

—referred to 25 E.L.R. 97.Mohinudddin v. The Election Tribunal for Town area 1959 (A.L.J. 169).

—referred to 27 E.L.R. 79.

Moinuddin B. Haris v. B.P. Dirgi (3 E.L.R. 248).-referred to 24 E.L.R. 378.

Moorhouse v. Lord (10, H.L. Case 272).

—referredJo 27 E.L.R. 97.

Morality v. Regent's Garage and Engineering Co. Ltd., 1921; (1) Kings BenchDivision 423 at p. 446.

-^referred to 29 E.L.R. 215.

Montreal Street Rly Co., v. Normandian (1917 A.C. 170 (B).

—referred to 24 E.L.R. 196.

Moolchand Jain v. Rulia Ram (A.I.R. 1963 Punj. 516).—referred to 25 E.L.R. 113.

Mst. Abida Khatoon v. Chote Khan (A.I.R. 1956 All. 252).—referred to 25 E.L.R. 354"

M/'s. New India Sugar Mills Ltd., v. Commissioner of Sales Tax, Bihar (A.I.R.1963 S.C. 1207).

—referred to 32 E.L.R. 191.

Municipal Corporation of Greater Bombay v. Panchan A.I.R. 1965 S.C. 1008at 1016 Paragraph 22.

—referred to 29 E.L.R. 1.

Municipal Corporation of Rangoon v. M.A. Shapur (A.I.R. 1926 Rangoon25).

r—referred to 30 E.L.R. 100.

Munro v. Munro of 7 C.L. & Fin. 876.

—referred to 27 E.L.R. 97.

292

"TABLE OF CASES OVERRULED FOLLOWED, REFERRED TO ETC. ContA.

Mubarak Mazdoor v. Lai Bahadur (20 E.L.R. 176).

—referred to 27 E.L.R. 79 and 29 E.L.R. 113.

Murarka Radhey Shyam Ram Kumar v. Roop Singh Rathore and others(A.I.R. 1964 S.O. 1545) 3 S.C.R. 573.

—referred to 26 E.L.R. 1; 28 E.L.R. 185, 235 and 250; 29 E.L.R 241-31 E.L.R. 266 and 32 E.L.R. 191.

—relied, on 30 E.L.R. 321.

Mudaliar v. Masilamani (I.L.R. 33, Madras, 324).

—referred to 30 E.L.R. 222.

Muralidhar Reddy v. Paga Pu.Ua Reddy (1964) (2 A.N.W.R.242, A.I.R 1964A.P. 530).

—referred to 32 E.L.R. 253.

Murugesam Pillai v. D. Gnana Sambadha Pandara Sannadhi (44 I.A 98)-A.I.R. 1917 P.C. 6.

—referred to 23 E.L.R. 357; 31 E.L.R. 223.

Muthiah Chettiar M.A. v. Saw Ganesan (A.I.R. 1958, Madras 187).

-^referred to 25 E.L.R. 116: 27 E.L.R. 47; 32 E.L.R. 28 and 152.

Muthiah Chettiar v. Saw Ganesan (A.I.R. 1960 Mad. 85; 20 E.L.R. 215).

—referred to 23 E.L.R. 1; 32 E.L.R. 152 and 253.

—followed 26 E.L.R. 236;

—relied on 30 E.L.R. 401.

—differed from 28 E.L.R. 126.

Muthuswami Mudaliar v. Masilamani (I.L.R. 33, Madras 342).

—-referred to 31 E.L.R. 401.

Nachiappa v. Sutramaniam (A.I.R. 1960 S.C. 307).

—referred to 23 E.L.R. 265.

Nagappa, T. v. P.L. Basappa (A.I.R. 1955 S.C. 755).

referred to 28 E.L.R. 126.

Nagubai v. S. Shama Rao, (A.I.R. 1956 S.C. 593).

—referred to 23 E.L.R. 294; 24 E.L.R. 7, 30 E.L.R. 222 and 31 E.L.R. 223.

Nahes Kanth Chaudhary v. Oh. Rama Prasad Rai and others, (54, IndianCases, 630).

—referred to 26 E.L.R. 100.

TABLE OF CASES OVERRULED FOLLOWED, REFERRED TO ETC.— COHtd.

Nani Gopal Swamy v. Abdul Hamid (19 E.L.R. 175, 18 A.I.R. 1959 Assam200).

—referred to 24 E.L.R. 92— 316 arid 378; 26 E.L.R. 90; 27 E.L.R. 145.

Nambiar (Dr. K.C.) v. State of Madras (A.I.R. 1953, Mad. 351.—referred to election petition No. 5 of 1967.—referred to 30 E.L.R. 401.

Namdeo Chimnaji v. Govind Das Rattan Lai (A.I.R. 1964 Bom. 137)., —referred to 29 E.L.R. 337. ?

Nani Gopal Swami v. Hamid Choudhari (19 E.L.R. 175).—referred to 27 E.L.R. 243 and 30 E.L.R. 1.

Narain v. Gopal (A.I.R. 1960 S.C. 100).—referred to 27 E.L.R. 47.

Narain Singh D.I.P. v. Nageshwar Prasad (A.I.R. 1930 All. 1).—referred to 24 E.L.R. 168.

Narain Singh Malpaharia v. Additional Member, Board of Revenue Bihar andanother (A.I.R. 1963, SC. 786).

—referred to 29 E.L.R. 82.Narain Yesvvant v. Raja Ram (AI.R. 1961 Bom. 21).

—referred to 27 E.L.R. 226; 32 E.L.R. 133. T •<•-•,,

Narain Waktu v. Punjab Rao Kukam Shambharkar (A.I.R. 1958 Bom. 296;60, B.L.R. 746).

—referred to 30 E.L.R. 62 and 199.

Nacasimhan v. Natasj, Chettiar (A.I.R. 1959 Mad. 514).—referred to 23 E.L.R. 1.—relied on 30 E.L.R. 401.

Narasimhan «. M.G. Netesan Chettiar (XX E.L.R. P.I.; A.I.R. 1959 Mad.).—referred to 32 E.L.R. 152 and 253.

-Narasimhan, C.R. v. Election Tribunal, Madurai and others (16 E.L.R. 327).—applied on 26 E.L.R. 224.

Narayana Rao v. State of Andhra Pradesh (A.I.R. 1957 S.C. 737).—referred to 25 E.L.R. 35.

NarayanaSwamy Naidu, G. v. G. Krishnaumurthi and others (14 E.L.R. 21A.I.R. 1958, Madras 343).

—distinguished 23 E.L.R. 563.—referred to 29 E.L.R. 306.

Narasimha Reddy v. Bhoomaji (A.I.R. 1959 A.P. III).--referred to 23 E.L.R. 1 and 51; 26 E.L.R. 116 and 252.

294

TABLE OF CASES OVERBULED, lvOUXJWED, REFEREED TO

Narhari & Others v> Shankcr and others (1950 S.O.R. 754),

—distinguished 23 B.L.E. 203.Nasaruddin Khan v. Emperor, (1926) LL.B. 53, Cal. 827).

—referred to 25 E.L.R. 354.Natton v. Wilson (1889) 22 Q.B.D. 744;

—referred to 28 E.L.R. 1. .Naunihal Singh v. Kishor Lai Paliwal (A.I.R. 1961 M.P. 54).

—approved 27 E.L.R. 11.Nazir Ahmad v. Emperor (A.I.R. 1936, P,C. 253.(2));

—referred to 28 E.L.R. 185.Netram v. Lakshman Prasad (15 E.L.R. 266 M.P.).

—referred to 24 E.L.R. 340; 30 E.L.R. 37.Netram v. Lakshman Prasad & another, (A.I.R. 19S0 M.P. 388).

—referred to 29 E.L.R. 139.

New Maraine Coal Co., v. Union (A.I.R. 1954 S.C. 512).—referred to 27 E.L.R. 265.

Nirmal Kumar v. Santlal (A.I.R. 1937, Patna 562).

—referred to 27 E.L.R. 47.

North Louth Case 6 O.M. & H. 103 (1911).

—referred to 23 E.L.R. 51.

North Louth Case (1911) 6 O.M. and H* 103 at page 163.

—referred to 31 E.L.R. 92.

Norton v. Allan Aurthr Taylor (1906 A.C.) 378 at 380

—referred to 28 E. L. R. 1

Noseworthy v. Oversees Buckland etc. L. R. 9 C.P. 233

—distinguished 26 E.L.R. 1

Nrishinha Kumar Sinha v. Satyendra Chandra Ghosh Moulik, (jLfE.L.R. 121)

—referred to 23 E.L.R. 271

Nut- Mahammad v. Khan Saheb S.M. Solaiman 49 O.W.N. 10

—distinguished 23 E.L.R. 271

Nutton v. Wilson L.R. (1889) 22 Q.B. 744

—referred to 23 E.L.R. 357

Nyalchand Veerchand Ssthi v. Vithal Bhai Ranchorbhai Patil & Other

9 E.L.R. 451

—referred to 23 E.L.R. 92

295

TABLE OF CASES OVERRULED, FOLLOWED, REFERRED TO ETC.—COHtd.

Om Prabha Jain v. Gian Chand, A.I.R. 1969; S.C. 637; 21 (1960) E.L.R. 45—referred, to 29, E.L.R. 352.

31 E.L.R. 351.Padmabati Dasi v. Rasik Lai Dhar (I.L.R. 37; Cal. 259)

—referred to 25 E.L.R. 130Pt. K.O. Sharma v. Krishi Pandit Rishab Kumar and others (20 E.L.R. 401)

—referred to 24 E.L.R. 316; 26 E.L.R. 252Pannalal Binj Raj and others v. Union of India (A.I.R. 1937 S.C. 397)

—referred to 26 E.L.R. 60

Parasanath v. Mohanni Dessi (A.I.R. 1959 S.C 1204)—referred to 27 E.L.R. 47

Parathasarathi A.D. v. State of Andhta Pradesh (A.I.R. 1956 S.C. 520)—referred to 29 E.L.R. 134

Parmeshwar Kumar v. Lahtan Chaudhary (14 E.L.R. 444)—applied 29 E.L.R. 255

Parsotim v. Lai Mohan 1931 L.R. 58; I.A. 254

—referred to 24 E.L.R. 42

Parsotim Thakur v. Lai Mohar Thakur (35 C.W.N. 786 (P.C.) L C 581 A254);

—referred to 24 E.L.R. 284

Parshottamlal v. Lalubhai (14 E.L.R. 402)

—referred to 27 E.L.R. 243

Partap Singh Kaiiou v. S. Kartar Singh (17 E.L.R. 236)—referred to 27 E.L.R. 243

Partap Singh Kairon, S. v. Shri Ram Prasad Mookerjee and another—referred to 28 E.L.R. 235

Patil, A.C. v. Vishwanath (A.I.R. 1954 Bom. 204)

—referred to 29 E.L.R. 403

Pembroke Brouch Case, 5 O.M. & H.—referred to 23 E.L.R. 209

People v. De. Ranna 2 N.Y.S. (2) 694—referred to 25 E.L.R. 130

Pethu Reddiar v. Muthiah 1963 (11 M.L.J.P. 1)

—referred to 25 E.L.R. 159; 281 and 27 E.L.R. 11

—relied on 25 E.L.R. 192

296

TABLE OF CASES OVERRULED, FOLLOWED, REFERRED TO ETC.—-CoHlt.

Plymouth 2 P.R. & D. 238

—referred to 23 E. L. R. 331

Polaki Kotesam and others v. S.M. Patnaik and others (8, E.L.R. 159)—referred to 29 E.L.R. 82'' , • - • ..'

Ponnuswamy N.P. v. Returning OfB.ce/r, Namakkal (A.I.R. 1952 I. S.C. 64—1952 C.S.R. 218; M.L.J. 775 1952 CJ. 100)

—referred to 23 E.L.R. 209; 271; 336; 393; 25 E.L.R. 97; 312; 29 E.L.R.112 and 268; 30 E.L.R. 242

—relied on 27 E.L.R. 226—followed 29 E.L.R. 82

Prabha Jain v. Gian Chand A.I.R. 1959 S.C. 837 .,

—referred to 23 E.L.R. 116

Prabhucharan v. Shiy Datt (A.I.R. 1958 Madhya Pradesh 289)—referred to 29 E.L.R. 35 : . .

Pran Nath Patnaik v. Banamali Patnaik (16 E.L.R. 357)—referred to 30 E.L.R. 258 , > . , . . . . , , '

Pratap Singh v. Srikrishna Gupta and others —A.I.R. 1956 S.C. 140—followed 24 E.L.R. 124

—referred to 25 E.L.R. 220, 28 E.L.R. 185 and 29 E.L.R. 377Prem Singh v. Deb Singh (A.I.R. 1948 P.O. 20)

—referred to 27 E.L.R. 37

Prithvi Singh v. Ajaib Singh (A.I.R. 1965 Punjab 463)—referred to 31 E.L.R. 167

Provas Ch. Poddar v. Kasi Vishwanadham (A.I.R. 1961 Cutt. 416)—rzferred to 23 E.L.R. 265

Province of Bombay v. Khushal Das S. Advani (A.I.R. 1950 S.C. 222)—referred to 23 E.L.R. 195

Pryce Exparte Rensburg, in re (1877) 4 Ch. D. 685

—referred to 24 E.L.R. 1Punjab North Case

—referred to 23 E.L.R. 171Punjabrao v. Meshram, (A.I.R. 1965 S.C. 1179 at p. 1183)

—referred to 27 E.L.R. 243; 30 E.L.R. 199 and 222; 32 E.L.R. 152Quereshi, N. H. and others v. State of Bihar and others (A.I.R. 1958 S.C. 731)^,

—referred to 27 E.L.R. 145.Quinn v. Leathern, 1901 A.C. 495;

r —referred to 29 E.L.R. 377 and 31 E.L.R. 223.R.v. Bishop of Oxford (1887) 4 Q D 245 at p. 261

—referred to 26 E.L.R. 269

297

TABLE OF OASES OVERRULED, FOLLOWED, REFERRED TO ETC.—COIltd.

Radha Prasad Singh v. Rajadhar Singh (A.I.E. 196 S.C. 115)—referred to 27 E.L.R. 47

Raghunath Misra v. Kishore Chandra Deo Bhanj (17 E.L.R. 321)—applied 29 E.L.R. 255

Rahenchunder Singh v. Shamcharan Bhutto and others (11, M.LA. 7)—referred to 29 E.L.R. 445

Raj Dev v. Sri Gangadhar Mohapatra & Ors. (A.I.R. 1954 (Orissa 1)' —referred to 27 E.L.R. 145

Raja Bahadur, K. C. Deo Bhanj v. Raghunath Misra and others (A.I R 1959S.C. 589)

—referred to 23 E.L.R. 356Raja Vijai Kumar Tripath v. Ram Saran Yadav (22 E.L.R." 289)'.

—referred to 24 E.L.R. 380Raj Kishna Bose v. Binod Kanungo (A.I.R. 1954 S.C. 202)

—referred to 27 E.L.R. 226 .Raj Narain Singh 'v. Chairman, Patna Administrative Committee ( A I R )

1954 (S.C.) 569—referred to 23 E.L.R. 1

Raja Nainar v. N. T. Velusami Thevar (A.I.R. 1958 Mad. 198)---referred to 24 E.L.R. 298

Raju V. P. v. Ramachandra Rao (21 E.L.R. 81 AP. High Court) !

—referred to 24 E.L.R. 316; 26 E.L.R. 116; 252; 27 E.L.R. 47, 145Ram Abihlakh Tiwari v. Election Tribunal, Gonda and Ors. (14 E.L.R. 375

—followed 26 E.L.R. 236Ramdayal Ayodhya Prosad Gupta v. K. R. Patil and others 1959 20 E L R

13 at pp. 33 and 35 and 18 E.L.R. 378—referred to 23 E.L.R. 209, 24 E.L.R. .284; 29 E.L.R. 82 and 113 and30 E.L.R. 33 and 372

Ram Dial v. Sant Lai*(20 E.L.R. 482).—referred to 32 E.L.R. 191

Ram Dial <o. Sant Lai; 19 E.L.R. 430—referred to 24 E.L.R. 379 ••

Gopal Gosh v. Dhirendranath Sen, I.L.R. 54, —Cal. 380—referred to 25 E.L.R. 168

Ram Kishan Singh v. Tribeni Singh (17 E.L.R. 81)—followed 25 E.L.R. 220

Ram Lakshman v. Election Commission (7 E.L.R. 364)—referred to 29 E.L.R. 63

Ram Lai v. Visheshwar Nath (Election Petition No. 20 of 1967 Rajasthan)-referred to 31 E.L.R. 99

298

TABLE OF CASES OVERRULED, FOLLOWED, REFERRED TO ETC.—COTltd.

Ram Padarath v. Mishri Sinha (A.I.R. 1961 S.C. 480)—relied on 24 E.L.R. 168

Rampat Chatterjee v. Sachinandan Nandi (A.I.R. 1920 Cal. 244)—referred to 28 E.L.R. 250

Ram Pal v. Brahma Prakasli (A.I.R. 1962 Pun. 129)—referred to 27 E.L.R. 243

Ram Narain v. Ramchandra (A.I.R. 1958 Bom. 325 (Bom.) writ petition No2371 of 1965)

—referred to 29 E.L.R. 336

Ram Sahai v. Gajja & Another (I.L.R. 1959) 9/Rajasthan 339)—referred to 26 E.L.R. 158

Ram Sewak'Yadav v. H. K. Kidwai (A.I.R. 1964; S.C. 1249; (6) S.C.R. 238—considered 26 E.L.R. 136 and 32 E.L.R. 97referred to 26, E.L.R. 147; 28 E.L.R. 126; 29 E.L.R. 490 and 446;30 E.L.R. 242; 32 E.L.R. 17, 52 and 69—applied 26 E.L.R. 172

—followed 28 E.L.R. 81Ram Shankar v. Juggal Kishore and 13 others (Election Petition No. 36 of 1967)

—referred to 29 E.L.R. 241Ram Swamp Prasad v. Jagat Kishore (17 E.L.R. 110)

—followed 25 E.L.R. 220Raoi Swaroop and others v. G.D. Sahgal and others —21 E.L.R. 42

—followed 27 E.L.R. 135Ram Ratna v. State of Rajasthan (A.I.R. 1962 S.C. 424)

referred to 28 E.L.R. 126

Ram Roop and others v. Bishwa Nath and others (A.I.R. 1958 456)—referred to 28 E.L.R. 235

Ramakrishna Dahnia v. Justice Tendolkar (A.I.R. 1958 S.C. 438)—referred to 30 E.L.R. 100

Ramalingam v. Kandukuri Raghavulu (1963) I. Andhra W.R. 442—referred to 25 E.L.R. 159 and 281

Ramanbhai v. Dabhi Ajit Kumar (A.I.R. 1965 S.C. 669)—relied on 32 E.L.R. 133

Ramanbhai Asha Bhair Patil v. Ajit Kumar (A.I.R. 1963 Guj. 315)

—referred to 26 E.L.R. 252

Ramappa v. Sangappa 36, (1958) Mys. Law Journal 733) A.I.R. 1958, S.C.937; 1959 S.C.R. 1167

—referred to 23 E.L.R. 125 E.L.R. 77; 29 E.L.R. 306 and 31 E.L.R. 99—relied on 23 E.L.R., 356

299

TABLE OF CASES OVERRULED, FOLLOWED, REFERRED TO ETC.— -COntd.

Ramaswami Pillai v. The Deputy Collector of Madras (1919) I.L.R. 43, Mad.51;

-relied on 25 E.L.R. 354

Ramasay v. Liverpool Royal Infirmary 1930 appeal case 588

— referred to 26 E.L.R. 220 '

Ram-iswamy v. Krishnamurtliy (A.I.R. 1963 S.G. 453

—referred to 27 B.li.R.79 and 30 E.L.R. 312

—relied on 27 E.L.R. 237

Ramaswamy B.M. v. B. M. Krishnamurthi and otliors (A.I.R. 1963, S.C. 457—referred to 29 E.L.R. 113

Ramayan ShuMa v. Rajendra Prasad Singh (1'6 E.L.R. 491)—referred to24 E.L.R. 340 ; l'

Ramayya v. Mrs. Joshphine Elizabeth (A.I.R. 1937; 172)—referred to 30 E.L.R. 199

Ramayya v. Josephina Elizabeth; 44 M.L.W. 854—referred to 31 E.L.R. 401

Rananyaya Singh v. Baijnath Singh (A.I.R. 1954, S.G. 749)—referred to 32 E.L.R. 28

Rangilal v. Dahusao (A.I.R. 1962, S.C. 1248)

—referred to 24 E.L.R. 340—relied on 25 E.L.R. 1

Ranjit Singh v. Pritam Singh (A.I.R. 1966 S.C. 1626)

—explained 29 E.L.R. 108

—referred to 31 E.L.R. 195.

Ranu Brijraj Kuer v. Raja A.K.N. Singh (A.I.R. 1960 S.C. 444)—referred to 25 E.L.R! 35

Ratansi D. Morarji v. Administrator General of Madras (A.I.R 1928 Madras1279)

—referred to 30 E.L.R. 199 ^

Rattan Anmol Singh v. Ch. Atma Ram, 10 E.L.R. 41, 1955-1, S.C. R. 481

—referred to 24 E.L.R. 340; 28 E.L.R. ; 185; 29 E.L.R. 139;

—applied 29 E.L.R. 377;

—relied on 31 E.L.R. 211

300

TABLE OF OASES OVERRULED, FOLLOWED, REFERRED TO ETC.—COUfd.

Eavanna Subanna v. G. S. Kaggerappa (A.I.R. 1954, S.C. 653)—referred to 23 E.L.R. 357.

Raza Buland Sugar Co. Ltd., Rampur v. The Municipal Board, Rampur (A.I.R.1965 S.C. 895)

—referred to 28 E.L.R. 185Renfrew County Case (1874 2 0. M. & H. 213).

—referred to 23 E.L.R. 171Returning Officer, Atmakur v. G. C. Kondoish, 22 E.L.R. 45.

—referred to 23 E.L.R. 271.Rex v. Williams Philips Ex. Parte (1914) I. K. B. 608

—referred to 26 E.L.R. 60Rochester (1) 1892, 5, 0. M. & H. 157

—referred to 26 E.L.R. 116Roop Chand Sohoni v. Rawait Mamingh 5 E.L.R. 327 (Tr.)

—referred to 25 E.L.R. 97.

Rooplal v. Jugraj Singh 15 E.L.R. 484 (Punjab)

—referred to 24 E.L.R. 340.Rooplal Mehta v. St. Dhan Singh and others. (E.P. No 15 of 1967; of the

Punjab and Harayana High Court)—referred to 30 E.L.R. 353.

Rosamma Punnose v. K. Balakrishnan Nair and another 14 E.L.R. 210

—referred to 29 E.L.R. 139; 30 E.L.R. 37

Rukmini Raman Pratap Singh v. Srinivas Tiwari, 12 E.L.R. 37

—referred to 27 E.L.R.79

Rustam Satin v. Dr. Sampooranand, 21 E.L.R. 221—referrd to 24 E.L.R. 92; 316 and 378

S. W. Factory v. Industrial Court (A.I.R. 1950; Bom. 206)

—referred to 26 E.L.R. 269

Sabbu v. Arunachalam (A.I.R. 130) Madras 382

—referred to 28 E.L.R. 1

Sadanandan v. Madhavo Menon (A.I.R. 1963 Ker. 68)—distinguished 27 E.L.R. 58

Sadhu Singh v. Shamsher (A.I.R. 1965, Punjab , 48)

—referred to 27 E.L.R. 47

Saksena, L.N. ». State of Madhya Pradesh (A.I,R. 1967 S.C. 1264)—referred to 32 E,L,R, 232

301

TABLE OP CASES OVERRULED, FOLLOWED, BEFEBBED TO ETC,—contd.

Samyukta Socialist Party v. The Election Commission of India (Civil) Appeal

No. 1933/66 dated 30th September, 1966, Supreme Court; 1967 -C.L.J.

Delhi- 7

—referred to 29 E.L.R. 35

—relied on 29 E.L.E. 35

Banganna Andanappa v. Shivamurthi Swamy Siddappalya Swamy (A.I.R.

1961 Mysore 106)

—referred to 24 E.L.E. 379

Sangram Singh v. Election Tribunal, Kotah and another, (A.I.R. 1955

S.O. 425)—referred to 29 E.L.R. 82

Baajeeva Reddi A, v. G. C. Kondaya, 1960 (I) An. W.R. 166} A.I.R. 1980;

A.P. 421

—referred to 24 E.L.R. 196 and 28 E.L.R. 235

Sankara Gouda v. Veera Bhadrappa (23 E.L.R. 1)

—referred to 23 E.L.R. 51

Sano Kashinath v. Patitto Subuto (A.I.R. 1942 Patna 384)

—distinguished 24 E.L.R. 1

Sara Veerasami alias Sara Veeraju v. Talluri Narayya and others (A.I.R. 1949;

P.O. 32)

-referred, to 27 E.L.R. 145

Saratchandra v. Khagendra Nath, (A.I.R. 1961, S.C. 334)

—referred to 24 E.L.R. 316 and 27 E.L.R. 243

Sarat Chandra v. Emperor, (A.I.R. 1934; Cal, 719)

—dissented from 30 E.L.R. 382

•Jardar Dayal Singh v. Sardar Surjit Singh (19 E.L.R. 305)—referred to 23 E.L.R. 259

Sardar Mai v. Smt. Gayatri Devi (A.I.R. 1964 Raj. 223)

-referred to 29 E.L.R., 233, 241 and 31 E.L.R. 266; 32 E.L.R. 191

Sardar Singh v. The Election Tribunal, Civil Misc. Writ No. 2733 of 1962—relied on 24 E.L.R. 371

Sarfuddin Ahmed v. Shamsul Huq (I.L.R. 1940 (2) Calcutta 373

—referred to 23 E.L.R. 271

Sarju Pershad v. Jawalaswari (A.I.R. 1951' S.O. 120) 1951 A.L.J.I.

—referred to 27 E.L.R. 47 and 145M/J(D)121EC—22

TABLE OF CASES OVERRULED, FOLLOWED, REFERRED TO ETC.—COntd.

Sarla Devi Pathak v. Birendra Singh, 20 E.L.R. 275; A.I.R. 1961; MJ\ 125—referred to 30 E.L.R. 379, 26 E.L.R. 252, 27 E.L.R. 123

Sarup Narain v. Raja Durga Narain Singh, (Doabia's Election Cases, Vol. I,383)

—referred to 26 E.L.R. 116

Sastri Madhuia Krishnamurtliy. v. Yeera Ramanaznurthi (A.I.R. 1957Andbra Pradesh, 654)

—referred to 24 ELR 124

Satish Chandra v. Satish Kantha (AIR 1925 PC 73)—referred to 23 ELR 171

Satish Kumar v. Election Tribunal, (AIR 1963,Raj. 157)—referred to 25 ELR 130

Satrughna Saha v. Bijayanan Patnaik (1962) Cutt. LT. 232—referred to 23 E.L.R. 324

Satya Parkash v. Bashir Ahmad Qureshi (A.I.R. 1963 M. P.316)—referred to 32 E.L.R. 191

Satyanarain Lakshmi Narain Hegde and others v. Malika Rajaun BhavanappeTirumale (A.I.R. 1960 S.C 137)—referred to 28 E.L.R. 235

Satya Narayana Murthi v. Income Tax Appellate Tribunal, Madras Br.(A.I.R. 1957; A.P. 123)

—referred to 23 E.L.R. 1Satyanarayana v. Mallikarjun A.I.R. 1960 S.C. 137

—followed 23 E.L.R. 331—referred to 24 E.L.R. 237

Satyanarayana v. Venkata Subbaiah, (A.I.R. 1957 A.L. 172, 181)—referred to 24 E.L.R. 196

Satyanathan, N. v. K. Subramanie.n (1955) 2 S.C.R. 83 S.C. 459—referred to 23 E.L.R. 110 and 24 E.L.R. 168

Savitri Devi v. Prabhawati Misra and others—followed 26 E.L.R. 236 \

Sawalia Behari Lai v. Tribik Deo Narain Singh (A.I.R. 19651.T. 378)—referred to 30 E.L.R. 276

Swarup Singh v. The Election Tribunal, Municipal Board Aligarh (A.I.R1960 All. 66)

—referred to 29 E.L.R. 465

303

TABLE OF CASES OVERRULED, FOLLOWED, REFERRED TO ETC.—Contd.

Sengappa v. Shiv Murthi Swarny ( A I R . 1961 Mys. 106)

—referred to 24 E.L.E. 92; 28 E.L.R. 126

—relied on 32 E.L.E. 133

Sehat AH Khan v. Abdul Qavi Khan, I.L.E. (1956) 2 All. 252— A.I.R. 1956 All. 273--referred to 25 E.L.R. 354; 26 E.L.R. 100

Seshaiah v. Koti Rcddi (3, E.L.R. 39)

—referred to 23 E.L.R. 171

Shah Sankal Chand Mofci Lai v. Shukla Damubhai Ohhagan Lai 12 E.L.R. 184

—referred to 23 E.L.R. 190

Sham Rao Vishnu Parulekar and another v. The District Magistrate, Thanaand others (A.I.R. 1957; S.O. 23)

—referred to 24 E.L.R. 58

Shambhunath Mahanti v. Gobind Prasad Singh, Dobia's Indian Election

Cases, Vol. 11,411

—referred to 26 B.L.R. 116

Shamimuddin and others v. Amir Hussain and others (4 Indian oases, 777)—referred to 24 E.L.R. 124

Shankar v. Returning Officer, Kolaba (A.I.R. 1952 Bombay 277)

—referred to 2§E.~L.R. 1

Shankaragouda v. Sirur Veerabhadrappa, (A.I.R. 1963 Mysore-81)

—referred to 24 E.L.R. 379, 25 E.L.R. 247

Shanker Nana Sahib Karpe v. Maruti Sitaram Sawant and ors. 1 (E.L.R. 302)—referred to 24 E.L.R. 168

Shaakav Mana Sahab Karpe v. Returning Oificer, A.I.R. 1952 Bom: 277;1 E.L.R. 13

—referred to 25 E.L.R. 312, 29 E.L.R. 82Shanti Swaroop Sharma v. Abdul Rehman, (A.I.R. 1965 M.P. 551)

—referred to 31 E.L.R. 281

Sharma, K.C. v. Krishi Pandit Rishabh Kumar, (A.I.R. 1960, M.P. 27)—referred to 31 E.L.R. 318

Sheopat Singh v. Harish Chandra (A.I.R. 1958, Rajasthan, 324 16 E.L.R. 435 j

A.I.R. 1960 S.C. 12.17)

—referred to 21 E.L.R. 316, 380 arid 27 E.L.R. 243

32 E.L.R. 152 ad 253

304

TABLE OP fASES OVERRULED, FOLLOWED, REFERRED TO ETC.—Contd.

Sheopat Singh v. Ram Pratap, A.I.R. 1965 S.C. 677

—referred to 27 E.L.E. 243; 30 E.L.R. 321, 382 ; 31 E.L.R. 121 and 167

—followed 31 E.L.R. 92

Skeopat Singh v. Marsihehandra (A.I.E. 1958 Rajasthan, 324);—referred to 32 E.L.R. 28

Sheopatsingh v. Jorsang (XVIII E.L.E, 100)

—referred to 32 E.L.R. 152 •

Shikshak, N.R. v. R.P. Dikskit, 1965 (A.L.J. 41, 42)

—disapproved 29 E.L.R. 398

Skiv Dayal v. Tag Ram (6 E.L.R. 347)—referred to 23 E.L.R. 265, 30 E.L.R. 276

Shiv Dutta v. Banarsidas Bhatnager (9 E.L.R. 324)

—referred to 24 E.L.R. 380

Shiv Ram v. Shiv Charan Singh (A.I.R. 1964; Raj. 127)

—referred to 30 E.L.R. 353

Shiv Ram Sawant v. Pratap Rao Deo Rao, (17 E.L.R. 37)—referred to 24 E.L.R. 92 ; 31 E.L.R. I.

Shiv Ram Karanth v. Venkatararnanna Gowda (3 E.L.R. 187)

—referred to 30 E.L.R. 372

Shiv Shankar Kanodia v. Kapildeo Narain Singh, Election appeal No. 4 of1965 decided on 17th August, 1966

—distinguished 31 E.L.R. 155 : .

Shrinivas v. Rukmini Raman Pratap Singh (1958, 14 E.L.R. 190)—referred to 29 E.L.R. 178, 31 E.L.R. 281

Shubnath Deogan v. Ram Narain Prasad (22 E.L.R. 1, A.I.R. 1960 S. 148)

—referred to 24 E.L.R. 92, 379

Shayamlal Takardas Aggarwal v. Pujab National Bank & Ors. (A,I.R. 1960Punjab, 370)

—referred to 30 E.L.R. 100)Shyam Sunder v.. Shankar DevVedalankar (A.I.R.) 1960 Mysore 27)

—referred to 30 E.L.R. 199Siddik Mahammad Shah v. Musamat Saran and others (A.I.R.) 1930 P.O. 57

—referred to 23 E.L.R. 294, 29 E.L.R. 445 and 31 E.L.R. 223

Singareni Collieries Co., Ltd. v. • Commissioner of Commercial Taxes Hydera-bad, A.I.R.1966 S.C. 563

—referred to 32 E.L.R. 191

305

TABLE OF CASES OVERRULED, FOLLOWED REFERRED TO ETC.—Cont(t.

Singh, N.B. v. Duryodhan Pradhan (A.I.R. 1959; Oris»a58)

—referred to 28 E.L.K. 1.Sitaram Ramcharan v. M.N. Nagrashana (A.I.E. 1960 S.C. 260)

—referred to 29 B.L.R. 134Sitaram Sharawan v. Bajya Prya (A.I.R. 1941, Nagpur 177)

—distinguished 24 E.L.R. 1.SohanLalv.AbinaskChander & Others (4 E.L.R. 55)

—referred to 23 E.L.R. 190South Asia Industries (P) Ltd. v. S.P. Saroap Singh and others, A.I.R. 1965

S.C. 1442)—referred, to 28 E.L.R. 126

Spice v. Bacon L.R. 2 Ex. D. 643—distinguished 26 E.L.R. 1

Sieemanachunder v. Gopal Chunder (1866; 11 M.I.A. 28)

—referred to 24 E.L.R. 42.

Sridhar Rao A.I.R. 1958 A.P. 60

-—referred to 23 E.L.R. 1.

Srinivasan v. Election Tritbuual, Madras (11, E.L.R. 278)—referred to 32 E.L.R. 69

Srinivasan K.S. v. Union of India (A.I.R. 1958, S.C. 419)

—referred to 25 E.L.It. 35.

Sri Ram and another v. Niranjan Singh and others (A.I.R. 1962 H.P. 52)—distinguished 23 E.L.R. 356.

State of Assam v. Padma Ram (A.I.R. 1963, S.C. 473)

—referred to 32 E.L.R. 232State of Bombay and another v. T.N. Balsara (A.I.R. 1951 S.C. 318)

—referred to 30 E.L.R. 100State of Bombay v. Purshottam Jog Naik (A.I.R. 1952 S.C. 317)

—referred to 25 E.L.R. 130State of Rajasthan v. Madan Swamp (A.LR. 1960 Raj 138)

—referred to 32 E.L.R. 232State of Rajasthan v. Mrs. Leela Jain (A.I.R. 1965 S.C. 1296)

—applied 29 E.L.R. 367State of Rajasthan v. Sripal Jain (A.I.R. 1963 S.C. 1323)

—referred to 32 E.L.R. 232

State of Travancore Cochin v. S.V.C. Factoy, A.LR. 1953 S.C. 333

—referred to 24 E.L.R. 1

306

TABLE OF CASES OVERRULED, FOLLOWED, BEFEREE.D TO ETC.—Contd,

State of Uttar Pradesh v. Babu Earn, A.I.R. 1961 (S.C. 751, 765)—referred to 24 E.L.R. 196 and 262

State of Uttar Prdeshv.Smt. Kuashalya, (1964(4) S.C.R. 1002)—relied on 25 E.L.E. 354.

State of Uttar Paradesh v. Laxrni Ice Factory (A.I.R. 1963 S.C. 399—referred to 24 E.L.R. 168

State of Uttar Pradesh v. Manbodhan Lai (A.I.R. 1957 S.C. 912, 917

—referred to ME.L.R. 196; 284 and 25 E.L.R. 130

State of Uttar Pradesh v. Mohammad Noor (A.I.R. 1958; S.C. 86)—referred to 29 E.L.R. 82

State of Uttar Pradesh & another v. Mahendra Pratap Pitamah & others.(AIR. 1956; All. 585)

—referred to 26 E.L.R. 100

State of Uttar Pradesh v. Tibit (A.I.B. 1958 S.C. 414 S. 0, R, 1275)—referred to 24 E.L.R. 168 x

—distinguished 24 E.L.R. 371

State of West Bengal v. Anwar Ali Sarkar and another (1952, S. 0. 55)—referred to 30 E.L.R. 100

State of West Bengal v. B.K. Mandel (A.I.R. 1963, S.C. 779)•-referred to 27 E.L.R. 265; 28 E.L.R, 1; 31 E.L.R. 380.

State of West Bengal v. Union of India, (A.I.R. 1963; S.C. 1241; A.I.R. 1954;S.C.P. 92.)—referred to 30 E.L.R. 353

State of West Bengal v. Subodh Gopal, Bose and Others AJ.R. 1955, S.C. 832—referred to 30 E.L.R. 353

Stepney Division: Towar Hamilets' Case (1886) 4 N & H 34 at p: 50-51—referred to 23 E.L.R. 171

Stepney case; (1892, 4 Q.M. & H 35, 50. 4. O.M.& H. 31—referred to 24 E.L.R. 136, 30 E.L.R. 136

Stevenson Jerdon and Harrison Ltd. v. Macdonald & E.V. ANS 1952,1.| |T.L.R. 101(110)

—referred to 24 E.L.R. 145

Stowe v. JoUyfee 43, L.J. CP. 269

—referred to 23 E.L.R. 209

TABLE OV CASES OVERRULED, FOLLOWED, BEFERBED TO ETC.—COntd.

Stowe Y. Jolliffee (1874) L.R. 9, C.P. 466m 22 W.E. 911, 30 L.T.--referred to 26 E.L.R. 172

Subba Rao v. Member, Election Tribunal, Hyderbad, (C.A. 971 of 1963)decided on 13-1-64, A.I.R. 1964 S.C. 1027

—referred to 26 E.L.R. 269, 32 E.L.R. 191

Subba Rao v. K.B. Reddy (A.I.R. 1967; A.P. 155

—referred to 30 E.L.R. 321

Subodh Rajan Ghosh v. Sindhri Fertilisers Chemicals Ltd. and another(A.I.R. 1957; Patna 10.)

—distinguished 23 E.L.R. 356

Sucheta Kriplani v. S.S. Dulat (A.I.R. 1955 S. C. 758)—referred to 27 E.L.R. 226

Sudhansu v. Narendra A.I.R. 1958 Cal. 322

—distinguished 23 E.L.R. 259Sudhansu Sekha Ghose v. Satiyendra Nath Basu, (4 E.L.R. 73 at p. 88)

—referred to 27 E.L.R. 47

Sudhir Kumar v. Abhoy Pada (A.I.R. 1966, S.C. 141);—referred to 29 E.L.R. 199

Sudhir Lachman Handre v. Shripat Amrit Dango (A.I.R. 1960, Bombay249) 17 E.L.R. 373,. 61, B.L.R. 500 •

—referred to 24 E.L.R. 378,25 E.L.R. 143,27 E\L.R. 243 and 30 E.L.R, 1.Sujani Ram v. Lai Shnamshah (1956 KL..T. 512)

—referred to 29 EjL.R. 406Sukar Gope v. The State of Bihar (1 E.L.R. 68)

—referred to 29 E.L.R. 82.Sultan Baksh and others v. Abdul Haniid (A.I.R. 1924. All. 134)

—referred to 24 E.L.R. 58Sunder Lai Chechani v. Sampat Lai (A. I. R. 1963); Rajasthan 226 ' *

—referred to 29 E.L.R. 139

Sunder Lai Manna Lai v. Nandrani Das Dwarka Das and others (A.I.R. 1958»M.P. 260)—followed 27 E.L.R. 1

—referred to 30 E.L.R. 27 6,32 E.L.R. 253.

teat Municipality Case, Doabia's Election Cases Vol. II—page 340.

—distinguished: 23 E.L-R. 271.

Surendra v. Dalip Singh, 1957, S.C. 442; 30 E.L.R. 189

—referred to 31 E.L.R. 329

TABLE OF CASES OVERRULED, FOLLOWED, REFERRED TO ETC.—Contd.

Surendra Nath Khosla and another v. S. Dalip Singh and others (A.I.It.1957, S.C. 242)

—referred to 31 E.L.E. 318, 329

Takur Ahmed v. Humayun Reze, Sen & Poddar's Indian Election Cases1935-51, Page 904.

—referred to 23 E.L.R. 271.

Tamlin v. Hannaford (1950) T.K.B. 18; 1949-11 All England Eeports 527—distinguished 23 E.L.E. 356.

-referred to 24 E.L.R. 271.Tauax v. Corrigan (66) Lawyers edition 54.

—referred to 30 E.L.R. 100.Taunton's case (Wigan 2 OM & H 192) 2 OM & H 66 at 74.

—referred to 23 E.L.R. 51, 32 E.L.E. 69.Tauddin Ahmed v. WahimiRam Talukdar, (A.I.R. 1959, Assam 128).

—referred to 23 E.L.R.l.The Tamworth case 1 O'Mallev and Hard castle 75 (1868)

—referred to 23 E.L.E. 271.Thomas v. Kelly, 13, A.C. 506

--referred to 25 E.L.R. 130.Tirath Singh v. Bachittar Singh (A.I.R. 1955 S.G. 830)

—referred to 24 E.L.R. 196.Tribeni Ram v. Satyadeo Singh and another (A.I.R. 1966 Allahabad 20.)

—referred to 28 E.L.R. 185

Tricum Das Dwarka Das v. Sir Vasant Rao A. Dadholkar and ors.Indian Election Cases 1864, 1953, Dhoabia's Election Cases, Vol. I.

—referred to 24 E.L.R. 58.Trivedi U.M. v. Manaklal & Ors., 15 E.L.R. 88.

—referred to 29 E.L.R. 352.Tundai Lai v. R.O. Lalbarra, 1965, Jaipur Law Journal 252.

—referred to 30 E.L.R. 189.

Tweddle v. Atkinson 1871,1. B & S. 393 30, L. J.Q. B. 265;—referred to 28 E.L.R. 1.

Udit Narain Singh Malpaharia v. Add!. Member, Board of Revenue, Bihaand another, 1963, S.C. 786

—relied on 29 E.L.R. 82Union of India v. H.C. Goel, (A.I.R. 1954; S.C. 364)

-distinguished 29 ~E.Jj.Ti. 96

V.J. & W Henderson Ltd. (1946) 62, T.L.R. 427 (429)24 E.L.R, 145

309

TAJBLE OF CASES OVERRULED, FOLLOWED, REFERRED TO ETC.—COntd.

Varmani v. Varmani, A-I.R. 1943; Lahore, 51.—referred to 32 E.L.R. 152

Vasanthapai v. Dr. V.K. John (XII E.L.R. 107)

—referred to 32 E.L.R. 152

Vasanthapai, G. V. Srinivasan (XXII) E.L.R. 221, A.I.R. 1962; 239

—referred to 32 E.L.R, 152, 253.

Vaflhiat Narain Sharma v. Dev Chandra; (A.I.R. 1954 B.C. 531; 1954(2) M.LJ.379; 10 E.L.R, 30

—referred to 23 E.L.R. 1; 51; 146; 159; 393;29 E.L.R. 306,445; 30 E.L.R. 1, 258, 31 E.L.R. 318, 329

—explained 25 E.L.R. 323

—retted on 27 E.L.R. 123

—applied 29 E.L.R. 255

—followed 29 E.L.R. 306

Vafat Gokul v. The State of Gujarat; 7 E.L.R. 1114—referred to 32 E.L.R. 133.

Veeraswami v. Thluri Narayya (A.I.R. 1949, P.O. 32)

--referred to 27 E.L.R. 47

Velusami Thevaf, N.T. v C Rajanaipar & Others. (AI.R. 1959; S.G. 422)

—referred to 28 E.L.R. 235

Veluswamy v. Raja Nainar (A.I.R. 1959 (80) 422; 429)

—referred to 23 E.L.R. 171; 265; 294; 324; 331;24 E.L.R. 196; 298; 27 E.L.R. 226

30 E.L.R. 189 and 31 E.L.R. 329

—vditd on 25 E.L.R. 1Venkata Ramaiah v. Narayana Gowda (37), Mys. L.J. 930 & 1959 Mjsore

L.J. 952

—referred to 23 E.L.R. 1 and 30 E.L.R. 382

enkata Ramaiah v. Seshayya, (A.I.R. 1913, Madras, 193.)—referred to 30 E.L.R. 199, 32 E.L.R. 152.

,renketesh Jeshwant Deshpande v. Emperor (A.I.R. 1938 Nagpur, 513)—distinguished 23 E.L.R. 125. • • '

/ e rmam, A.I.R. 1943 Lahore 51

—referred to 33 E.L.R. 222 • • •

v'idya Charan Shukla v. Khub Char.d Baghel (A.I.R. 1964, S.C. 1099)

—referred to 29 E.L.R. 134.

310

TABIE OP CASES OVERRULED, FOLLOWED, REFERRED TO ETC.—concld.

Viswanathuni v. Election Commission (A.I.R. 1955 Andhra 109);

—referred to 30 E.L.R. 353

Viswanath Prasad v. Makhan Singh Sharma, (A.I.R. 1964; All. 181—referred tom E.L.R. 276; 32 E.L.R. 246.

Vital Das Jasani v. Parasaram (9 E.L.R. 301)—referred to 27 E.L.R. 66

Warring-ton's Case (1869) 19 E.L.R. L.T.R. 813, 816,12 E.L.R. 461; 12 E.L.R. 1; 17 E.L.R. 101;19 E.L.R. 417; A.I.R. 1959 M.P. 58

—referred to 23 E.L.R. 383

Watt v. Thomas, 1947, A.C. 184 at 486, All. E.R. 582.

—referred to 27 E.L.R. 47,145

Wigan (1881) 4 O.M. & H. 13

—referred to 26 E.L.R. 116

Wilson Reade v. C.S. Booth, 14 E.L.R. 480 A.I.R. 1958; Assam 128

—relied on 25 E.L.R. 291, 27 E.L.R. 195

Windsor (1874) 2, O.M. & H(89) ' ' -

—referred to 26 E.L.R. 116

Winnons v. Attorney General (904) A.C. 287

—referred to 27 E.L.R. 97

Wood Ward v. Sarsons and Sadler 32, T.L.R. 36 (1875) L.R. 10C.P. 733 k 746

—referred to'23 E.L.R. 190) 24 E.L.R. 371

32 E.L.R. 69

Woolverhamton New Water Works Co. v. Hawksford, 6, C.B. (N.S.) 336

—referred to 25 E.L.R. 97

Worcesterborough Case (1880) 3 O.M. & H. 184

—referred to 23 E.L.R. 209

Yadav Laxmi Shanker v. Kunwar Sirpal Singh and others (22 E.L.R. 47)

—distinguished 24 E.L.R. 52.

Yadhav, Ram Sewak v. Hussain Kami! Kidwai (1964) 6, S.C.R. 238

—referred to 27 E.L.R. 11.

Yamuna Prasad v. Jagadish Prasad Khare, 13 E.L.R. 79

—referred to 31 E.L.R. 329

Young v. Figgins (1868) 19 L.T. 499

—referred to 23 E.L.R. 271

Zaver Bhai Amaidas v. State of Bombay (A.I.R. 1959 (S.C.) 752)

—referred to 23 E.L.R. 1.M/JCD)121EG—0000 - 19-75—GIPS