Digest Election Law Reports, Vol. XXXIII-XLII
402
GOVERNMENT OF INDIA A DIGEST OF THE Election Law Reports VOLS. XXXIII TO XLII 1966-1970
Transcript of Digest Election Law Reports, Vol. XXXIII-XLII
GOVERNMENT OF INDIA
A DIGEST
OF THE
Election Law Reports
VOLS. XXXIII TO XLII
1966-1970
^ U
CONTENTS
I. Table of Heading . i—ii
II. Table of Cases Digested • . . iii—xiii
III. Table of Cases Overruled, Followed, Referred to etc. . . xiv—xliv
IV. Digest 1—327
V. Index to Statutes referred to 328—355
TABLE O F H E A D I N G S
P A G B
Agency 1
Bal lo t pape r s . . . . . . . . . . . 1
Cons t i t u t i on 2 4
C o r r u p t Practice—.
1. Genera l Pr inciples 29
2. A p p e a l o n g r o u n d s of rel igion etc . . . . . . 5 0
3. Bribery 72
4 . Pub l i sh ing false s t a t emen t s 8 6
5. S t a n d a r d of p roof 1 0 3
6. H i r ing o r p rocur ing vehicles . 109
7. Incur r ing u n a u t h o r i s e d expenses . . . . . . . 114
8. P rocu r ing ass is tance of G o v e r n m e n t servants 124
9. U n d u e influence 1 3 0
10. Use of na t iona l o r rel igious symbol s • • 1 3 *
11 . Misce l laneous , 146
Disqualif icat ion of candidates—•
1. Qualifying da te 148
2. Age 154
3. Interest in con t rac t wi th G o v e r n m e n t 1 6 1
4. H o l d i n g office of profit l g 2
Elect ion Commiss ion 197
Elect ion Expenses , . . . . • • • • • 1^8
Election pe t i t ion—
1. Genera l Principles . . . . • • • • • 2 0 6
2. A m e n d m e n t of pe t i t ion . . . . • • • • 217
3 . Depos i t of security . . . . . . • • 2 2 3
P A G E
4 . L i m i t a t i o n . . . . . . . . . . . 2 2 4
5. P a r t i e s t o t h e p e t i t i o n . . . . . . . • 2 2 6
6. N a m i n g o f g u i l t y p a r t i e s 2 3 6
7. A b a t e m e n t o f p e t i t i o n . . . . . . . . . 2 3 6
8. G r o u n d s f o r s e t t i n g a s i d e e l e c t i o n . 2 3 8
9 . B u r d e n o f p r o o f 2 4 5
1 0 . S u p p l y o f c o p i e s . . . . . . . . . . 2 6 5
1 1 . M i s c e l l a n e o u s m a t t e r s 2 6 8
E l e c t i o n T r i b u n a l . 2 6 9
E l e c t o r a l R o l l 2 7 0
E s t o p p e l 2 7 6
H i g h C o u r t . 2 7 6
N o m i n a t i o n o f c a n d i d a t e s — •
• 1 . F i l i n g o f N o m i n a t i o n 2 7 7
2 . O a t h 2 8 8
3 . A g e [ S e e D i s q u a l i f i c a t i o n o f c a n d i d a t e - A g e ] . . . . . . 3 0 0P o l l . . . . . . . . . . . . 3 0 0
P o l l i n g A g e n t s 3 0 3
P r e s i d e n t . . . • „ • . . . . , , . . 3 0 3
P r e s i d i n g Off icer 3 0 7
R e c r i m i n a t i o n . . . / . . . . . . . 3 0 8
R e s j u d i c a t a .- . .• . . > - r . * ' . 3 1 0
R e t u r n i n g Off icer . . . . . . . . . . . . 3 1 1
S c h e d u l e d C a s t e s a n d T r i b e s . . . . . . . . . 3 1 2
S t a t e G o v e r n m e n t . . : . . • , . . , . . 3 2 0
S u p r e m e C o u r t . .• . . .* . , . . . . 3 2 1
S y m b o l s 3 2 3
W o r d s a n d p h r a s e s 3 2 5
TABLE OF CASES DIGESTED
ELR VOLS. XXXTII TO XLII
PACE
Abdul Gani Malik v. Ghulam Nabi Mircha & others . . . . 175,180,311(H.C. of J & K) 40 E.L.R. 424
Abdul Gani Malik v. Syed Ahmed Aga and another. . . . 2,129,242,280(H.C. of J & K ) 40,E.L.R. 148
Abdul Ghani Namtihali v . Gulam Mohammed Paray and another . . 178,209(S.C.) 42 E.L.R. 100
Abdul Hamid Ranggrez v. M. N. Koul & others 193,282,297(H.C. of J & K) 40 E.L.R. 130
Abdul Rahiman Khan v. Sadasiva Tripathi . . . . . . 1 6 9(S.C.) 39 E.L.R. 92
Abnash Chand v. Smt. Ora Prabha Jain and another ' . . . 73,125(Punjab & Haryana High Court) 33 E.L.R. 142
Adityan, S. B v. T. Martin 34 E.L.R. 339 32,42,55(H.C. of Madras)
Ali Mohamed Tariq v. Bakshi Ghulam Mohammad & others . . . 2 1 4(H.C. of J & K) 39 E.L.R. 287
Amarnath v. Sardar Lachman Singh & others 31,90,163,198(Punjab & Haryana High Court) 34 E.L.R. 103
Amarnath Verman and another v. Dev Raj Anand & others . . . 76,139(Punjab & Haryana High Court) 34 E.L.R. 359
Amar Nath Gupta & another v. Ram Gopal Shawlwala . . . . 141,249(H.C. of Delhi) 37 E.L.R.l
Atnbika Saran Singh v. Mahant Mahadev Nand Giri . . . . 72,130,250(S.C.) 41 E.L.R. 183.
Amolak Chand v- Raghuveer Singh . . . . . 282 285(S.C.) 36 E.L.R. 185
Amrit Lai Ambalal Patel v. Himatbhai Gomanbhai Patel . . 157 158(S.C.) 38 E.L.R. 32
Anant Ram Majhi v. Kolaka Nila Kantham . . . . . 108 254(S.C.) 39 E.L.R. 359
Anjani Ramji Hadmat v. Furgo Narayan Shriniwas & others . . . 164(Judicial Commissioner, Goa) 35 E.L.R. 21
Anokh Singh v. Surinder Singh & others . . . . 181(H.C. of Punjab & Haryana) 42 E.L.R. 485
Atam Das v. Suriya Prasad 175(S.C.) 41 E.L.R. 359 .
Bableshwar Haji Saheb Amin Saheb v. Darnani Surajratan Fatte Chand . 25(Before the Election Commission of India) 37 E.L.R. 41
(iii)
(iv)
PAGE
Babu Saheb Bhimrao Salutikhe v. Ganpatrao Annasaheb Deshmukh . . 97(S.C.) 39 E.L.R. 225
Babubhai Vallabhdas Gandhi v. Piloo Homi Modi 125,126,229(Gujarat H.C.) 36 E.L.R. 108
Baburao Patel & Others v. Dr. Zakir Hussain & others . . . . 304,306(S.C.) 33 E.L.R. 1
Baidyanath Panjiar v. Sitaram Mahto & Others . . . . . 274(S.C.) 42 E.L.R. 330
Baijnath Singh Vaidya v. Ravindra Pratap Singh 34,45,92,130,(Allahabad H.C.) 36 E.L.R. 327 140
Bapurao v. Sidramappa & Others 83,122,195,(H.C. of Mysore at Bangalore) 41 E.L.R. 83 204,210
Basant Ram v. Nalu Ram 91,199(Delhi High Court) Himachal Pradesh Bench, 35 E.L.R. 151
Smt. Beni Rai v. Prem Narain & Others 23,310(Allahabad H.C.) 42, E.L.R. 422
Bhagwan Dass Singha v. Shri Harchand Singh 160,275(H.C. of Punjab & Haryana) 42 E.L.R. 439
Bhaiya Ram Munda v. Anirudh Patar and Others . . . . . 320(High Court of Patna) 42 E.L.R. 362
Bhailabhai Narottamdas Patel v. Mangaldas Godhardass . . . 9 , 7 5Pola & another (Gujarat High Court) 34 E.L.R. 269
Bhamburkar Shriniwas Gopal v. Brahma Deo & others . . . . 3 0 7(S.C.) 33 E.L.R. 18
Bhanu Kumar Shastri v. Mohan Lai Sukhadia and others . . . . 33,95,134,(Rajasthan H.C.) 38 E.L.R. 119 202,
Birendra Chandra Dutta v. J.K. Chaudhury 2,47,64,96,(Judicial Commissioner of Tripura at Agartala) 38 E.L.R. 381 128,134 213
218,231,264266,273,273
Bishambar Dayal v. Raj Rajeswar & another 144,208 225(Allahabad H.C.) 39 E.L.R. 363 267
Brij Mohan v. Hardayal Devgun & another 12,288(Delhi H.C.) 36 E.L.R. 384
Chaganlal v. Narbada Prasad & others . . . . . . . 52,284(Madhya Pradesh High Court at Indore) 33 E.L.R. 286
Chandan Lai v. Ram Dass & another . . . . . . 176 193 288(S.C.) 41 E.L.R. 214
Chandra Pal Shailani v. Shri Nar Deo & others 313 325(Allahabad H.C.) 36 E.L.R. 31
Chenna Reddy, M. v. V. Ramachandra Rao & another . . . . 109,259,334(S.C.) 40 E.L.R. 390
Chidambara Bharathy R. v. P.R. Ramaraju Returning Officer & others 7,51,88(Madras H.C.) 33 E.L.R. 178
Chiranjiv Lai Harsola v. Mohan Lai Sethia 68 136 257(H.C. of Madhya Pradesh) 40 E.L..R. 373
(v)
PAGE
Choudhury, J.K. v. Birendra Chandra Dutta 24,147(S.C.) 42 E.L.R. 66
Chunilal Singh Ukkad Singh Raghuvanshi v. Gajadhar & others. . 256,257(S.C.) 40 E.L.R. 339
D.R. Gurushanthappa v. Abdul Khuddees Anwar & others . . • 35(Mysore High Court at Bangalore^ 33 E.L.R. 162
Dal Singh v. Narain Singh & another 210,264(High Court of Punjab & Haryana) 42 E.L.R. 192
Dal Chand Jain v. Narayan Shankar Trivedi & another . . . 100,123,145,(S.C.) 41 E.L.R. 163 235
Dasu Sinha v. Ram Lakhan Singh Yadav & others . . . . 110,127,202,(Patna H.C.) 38 E.L.R. 177 213,271
Devjibhai Sadabhai Parmar v. Becharbhai Parmabhai . . . 119(S.C.) 39 E.L.R. 457
Deviprasad v. Maluram Singhania and others . . . . . 55,114,125,246(Madhya Pradesh H.C.) 35 E.L.R. 59
Deviprasad v. Maluram Singhania and others . . 125( S . C . ) 4 1 E . L . R . 3 3 5
D i n a v . N a r a y a n S i n g h . . . . . . . . . 3 1 6(S .C . ) 38 E . L . R . 212
D i n e s h R a i D a n g i v . D a u l a t R a m 66 ,145( H . C . of R a j a s t h a n ) 39 E . L . R . 463
D u r g a P r a s a d v. Sr i J a y e n d r a S i n g h a n d O t h e r s . . . . 107 ,118 ,129 ,( A l l a h a b a d H . C . ) 39 E . L . R . 1 241
D u r g a S i n g h v . J a w a r H u s s a i n . . . . . . . 2 8 9( P a t n a H i g h C o u r t ) 34 E . L . R . 2 8 1
D u r y o d h a n v . S i t a R a m . . . . . . . . . 2 7 0( H . C . of A l l a h a b a d ) 40 E . L . R . 2 1 5
D u t t a , S .G . v . K r i s h n a B a j p a i 19 , 198( H . C . of A l l a h a b a d ) 42 E . L . R . 353
D w a r k a P r a s a d M i s h r a v. K a m a l N a r a y a n S h a r m a & " a n o t h e r . . 2 5 , 322( H . C . o f M a d h y a P r a d e s h ) 4 2 E . L . R . 53
G a y a K i s h o r e S a m a l v. R . N . R a o & o t h e r s . . . . 1 5 3(Patna H.C.) 42 E.L.R. 84
•Gajo v. Ram Chand and others . . . . . . 27276317(H.C. of Delhi, Himachal Bench, Simla) 39, E.L.R. 99
•Ghasi Ram v. Dal Singh and others . . . . . . . 78,130(S.C.) 36 E.L.R. 60
Ghasi Ram Majhi v. Omkar Singh . . 77,199,238(Orissa High Court) 35 E.L.R. 80
Ghulam Ahmsd Dar v. Mohd Sultan Tantaray and Mukhtah Malik . 174,295(H.C. of J & K) 40 E.L.R. 91
Ghulam Hassan v. GulamNabiWani and another . . . . 189(H.C. of J & K) 40 E.L.R. 1
•Ghulam Hassan Khan v. Shamim Ahmad Shamim and Others . . 67,109 215(H.C. of J & K) 40 E.L.R. 318
(vi)
Ghulam Moh'd Paray v. Shri Abdul Gani Namthali & another(H.C. of Jamrau & Kashmir) 39 E.L.R. 199
Ghulam Nabi Magrey v. Mian Bashir Ahmed 1(H.C. of J & K) 42 E.L.R. 263
Ghulam Quadir Mir v. Ghulam Mho'd Rajpuri & OthersMd. Shafi Simnani V. Ghulam Md. Rajpuri fors) in brackets
(H.C. of J & K) 39 E.L.R. 485
Ghulam Rasool Mantoo v. Syed Mir Qasm & another(H.C. of J & K) 40 E.L.R. 101
Girindra Nath Gogol v. Promode Chandra Gogoi & others(H.C. of Assam & Nagaland) 39 E.L.R. 319
Goka Ramalingam v. Boddu Abraham & another .(S.C.) 40 E.L.R. 291
Gopalaredly, D. v. S. Bhai Talpalikar and others(S.C.) 39 E.L.R. 305
Ghulam Qadir Masala v. Abdul Ghani Lone & Others(J & K High Court) 40 E.L.R. 53
Gulzar Ahmed v. Abdul Rashid . . .(J & K H.C.) 38 E.L.R. 342
Gurushantappa, D.R. v. Abdul Khuddus Anwar & Others .(S.C.) 41 E.L.R. 153
Gurushanthappa. v. Abdul Khuddees Anwar & Others, .33 E.L.R. 162 (H- C. of Mysore)
Guruji Shrihar Baliram Jiva ode v. Vithalrao & Others(S.C.) 40 E.L.R. 189 t
Habibullah v. Ghulam Rasool Kar and Others(H.C. of J & K ) 4 1 E.L.R. 1
Haji Saif-ud-Din v. Mohammed Ashraf Khan ..(H.C. of J & K) 40 E.L.R. 35
Hans Raj v. Pt. Hati Ram & Others . . . .(S.C.) 40 E.L.R. 125
Hansraj v. Hari Ram . . . . . . .(Delhi H.C., Himachal Pradesh Bench), 35 E.L.R. 172
Haokholal Thangjom v. Lalroukung and another(Judicial Commissioner's Court, Manipur) 37 E.L.R. 19
Harbhajan Singh v. Sagar Singh Sisodiya(Madhya Pradesh High Court) 34 E.L.R. 221
Harcharan-Singh, S. v. S..Mohinder Singh . . .(S.C.) 38 E.L.R. 1
Hardwari Lai v. Pratap Singh . .(H.C. of Punjab & Haryana) 41 E.L.R. 58
Hari Gopal Dube v. Smt. Vijaya Raje Scindia .(Madhya Pradesh High Court at Indore) 33 E.L.R. 119
Harish Chandra Deogam v. Bagun Sumbrui(Patna H.C.) 38 E.L.R. 305
Hari Vishnu Kamath v. Choudhary Nitiraj Singh(M.P. H.C. at Indore) 36 E.L.R. 356
PAGE
172,225
178,278
286
174,296
98,215,254
317,318
112,173
173,295,312
152,281
24,192
34,87,183
99
177,288
29,189,280
203
117
59, 110,241, 307
271,
157
1OO,121,13(
227
61, 64, ©6,127, 167, 276
46, 266
(vii)
PAGE
Hira Singh Pal v. Madan Lai 109,285,311(S.C.) 35 E.L.R. 123
H i m Ram v. Arjun Singh . 200,246(Dslhi High Court) Himachal Bench 35 E.L.R. 226
Huna Mai and another v. Balwant Rai Tayal . . . . . . 83, 259(H. C. of Punjab & Haryana) 40 E.L.R. 444
Inamdas S. S. V. Agadi Sanganna Anounappa . . . . . 53,139,163-34 E L R I 183,184,251
Ishvarappa Sidningappa Ghattarki v. Pampakavi Rayappa Belgali . . 150(HC. of Mysore) 39 E.L.R. 120 185,254
Jagdamba Prasad v. Sri Jagannath Prasad & Others 161,198(H.C. of Allahabad, Lucknow Bench) 42 E.L.R. 465
Jagannath an4 another v. Narayan Uttamrao Deshmukh & another . . 1 2 0(S.C.) 40 E.L.R. 16
Jagat Kishore Prasad Narain Singh v. Rajendra Kumar Poddar . . . I53, 235,(Patna High Court) 42 E.L.R. 231 245, 268
Jagpati Singh y. Ramanand Singh . . . . . . . . 80(S.C.) 38 E.L.R. 25
Jai Muni v. Gian Chand 22(H.C. of Punjab & Haryana) 42, E.L.R. 227
Jai Singh v. Ram Kishan and others 8 ,89 ,114(Punjab & Haryana High Court) 34 E.L.R. 73 125
Janak Sinha v.,Mahant Ram Kishan Das alias Mahanth Ram Kishore Dasand others . 33 106
(H.C. of Patna) 37 E.L.R. 151
Janardhan Yadhav Sakhare v. Mukund Vithoba . . . . ' 14(S.C.) 38 E.L.R. 8
Jia Lai v. Ghulam Mustafa 296(S.C.) 42 E.L.R. 122
Jitendra Bahadur Singh v. Krishna Behari & Others . . . 5(S.C.) 42 E.L.R. 319
Joshibhai Chunibhai Patel v. Anwar Beg A. Mirza . 16 112(S.C.) 39 E.L.R. 438
Kabul Singh v. Kundan Singh & Others . . . . 275(S.C.) 42 E.L.R. 325 ' '
Kacho Mohammed Ali Khan v. Kushak Bakula . . . 199 224(Jammu & Kashmir High Court) 34 E.L.R. 323 '
Kamal Narayan Sharma v. D.P. Mishra . . . 95 102124(H.C. of Madhya Pradesh) 41 E.L.R. 369 ' ' ' 2 1 1 , 2 3 6
Kamtaprasad Upadhya v. Sarjoo Prasad Tiwari & Others . . . 156 85238(Madhya Pradesh High Court at Indore) 35 E.L.R. 1 ' '
Kamala Prasad Upadhyaya v. Sarjoo Prasad Thiwari & Others . , 244(S.C.) 41 E.L.R. 44
Kamath, H.V.'v. Ctt. Nitiraj Singh . . . . K5 323(S.C.) 41 E.L.R. 343 . . . . »3,
Kanhiya Lai Balmiki v. Ram Charan . . 23 3f»(H.C. Allahabad) 42 E.L.R. 107
(viii)
Kanti Prasad Jay Shatikar Yagnik v. Purushottamdas Ranchoddas &Others . . .(S.C.) 41 E.L.R. 132
Karamji Rehmanji Chaipa v. A.T. Kundiwala & Others .(S.C.) 41 E.L.R. 127
Karimji Rehmanji Chipa v. Abdurahim Tajuji Kundiwala .(Gujarat H.C.) 36 E.L.R. 283
Karan Singh v. Nand Kumar Somani . .(H.C. of Rajasthan) 39 E.L.R. 384
Karasandas Ukabhai Parmar v. Somchand Manubhai Solanki and another(Gujarat H.C. at Ahmedabad) 33 E.L.R. 74
Karnail Singh v. Trilochan Singh and Others(S.C.) 40 E.L.R. 435
Kasheswar Kusheswarar Baruah v. Pretnadhar Bora . . .(Assam & Nagaland H.C.) 36 E.L.R. 245
Kashi Prasad v. Harigen Ram and another . . . .(Allahabad High Court) 35 E.L.R. 194
Kesarilal Kavi and another v. Narain Prakash & Others ,(Rajasthan H.C.) 37 E.L.R. 198
Keshavdev v. Khuman Singh & Others . . . . . .(H.C. of Madhya Pradesh) 40 E.L.R. 242
Kolaka Nilakantham v. Ananta Ram Majhi . . . . .(Orissa High Court) 34 E.L.R. 212
Konappa Rudrappa Nadgouda v. Viswanath Reddy & another . . ,(S.C.) 39 E.L.R. 182
Krishna Kant Mishra v. Banamali Babu . . . . . .(Orissa H.C.) 38 E.L.R. 451
Kundan Singh v. Kabul Singh & Others(H.C. of Punjab & Haryana) 42 E.L.R. 1
Lakhi Prasad Agarwal v. Nathmal Dokania . . . . . . 53 212 224(Patna H.C.) 33 E.L.R. 300 28i ' '
Lalroukung v. Haokholal Thangjom & Another 69 137 219(S.C.) 41 E.L.R. 35 259 ' '
Laxman Prasad Vaidya v. Gangadhar Yadaorao & Others . . . 1,9 32 212(Madhya Pradesh H.C.) 34 E.L.R. 292 224,228,252
Laxman Prasad Vaidya v. Sri Gangadhar Yadaorao Tamaskar & Others . 24,301(S.C.) 41 E.L.R. 15
Madan Shukla v. Krishna Pratap Singh 156 290(Patna High Court) 35 E.L.R. 102
Madhav Upendra Talaulicar v. Yashwant Sitaram Desai & Others . . 8,272(Judicial Commissioner's Court, Goa.) 33 E.L.R. 224
Magraj v. Radha Krishan Birla & Others 8,50,262(High Court of Rajasthan) 41 E.L.R. 296
Mahadeo v. Shantibhai & Others t , 190(S.C.) 40 E.L.R. 81
Mahant Mahadevanand Giri v. Ambika Sharan Singh & Others . . 15,26,37,64(Patna H.C.) 39 E.L.R. 23 81,119,135
208,214,231,236
PAGE
71, 261
. 123,300,302
58, 126, 201
208
87, 124, 253
38
12
280
207, 276
66,146,209
73, 272
170
36,38,128,
152
(ix)
PAGE
Maisuria Narendra Jhinabhai v. Thakorbhai Manibhai Desai(Gujarat H.C.) 33 E.L.R. 50
Mangal Singh v. Banwari Lai(Rajasthan H.C.) 36 E.L.R. 307
Manubhai Nandlal Araersey v. Popatlal Manilal Joshi & Others.(S.C.) 41 E.L.R. 26
Mardha, B.G. v. Kishanlal Ramchandra Mardha & Others(S.C.) 40, E.L.R. 416
Mauriya, B.P. v. Prakash Vir Shastri . . . .(Allahabad H.C.) 37 E.L.R 137
Maurya, B.P. v. Prakash Vir Shastri & Others . . .(S.C.) 42 E.L.R. 342
Mehta G.G. v. Manubhai Amarsey and another(Gujarat H.C.) 36 E.L.R. 1
Misra, S.N. v. Dr. Ram Manohar Lohia & Others .(High Court of Allahabad) 42 E.L.R. 198
Mohammad Abdulla Shayir v. Syed Abdulla & Others(H.C. of J & K) 40> E.L.R. 113
Mohammad Akbar v. K.H. Lassa Wani . . . . .( J&KH.O38 E.L.R. 221
Mohd Sadiq v. Mohd Hussain . . . . . .(H.C. of J & K) 41 E.L.R. 170 .
Mohd Shin Simnani v. Ghulam Mohd Rajpuri & Others(H.C. of J & K) 39 E.L.R. 485
Mohan v. Arjun Singh . . . . . . .(M. P. H. C.) 36 E.L.R. 267
Mohan Lai v. Zorawar Verma and Others . . .(Allahabad H.C.) 36 E.L.R. 155
Mohan Raj v. Surendra Kumar Taparia & Others(S.C.) 39 E.L.R. 423
Mohan Singh Oberoi v. Ahhaji-Ahmed(Patna H.C.) 38 E.L.R. 160
Nanak Chand Surana v. Smt. Kanta Khatoria . . . .(H.C. of Rajasthan) 39 E.L.R. 390
Narayan Shankar Trivedi v. Dal Chand Jain & another(M.P. H.C.) 37 E.L.R. 107
Narayanswami, V. v. S. Govindaswami Koundar & another(H.C. of Madras) 39 E.L.R. 87
Narbada Prasad v. Chaganlal and others . . . .(S.C.) 39 E.L.R. 277
Narendra Nath Sen v. Mani Sanyal & another .(Calcutta H.C.) 36 E.L.R. 69
Nathoo Ram v. Siya Ram and others .(Allahabad H.C.) 37 E.L.R. 210
Nathu Ram Indra Singh v. Trikamal Jamandas Patel & Others .(S.C.) 37 E.L.R. 267
162,277
249
136,219
145
143,266-
103
3,311
21
211,218
28,158,277310
288,286
45,105,117,215
148
38,233
62,146
81,188
80,93,143,.206
168
65,274,323
22,239,308,311
269
230
(x)
Nathu Ram Mirdha v. Gordhan Soni & another(S.C.) 38: E.L.R. 16
Nathu Ram Mirdha v. Gordhan Soni & another (R.O.) . .(H.C. of Rajasthan) 40 E.L.R. 62
Nemdhari Yadav v. Ram Bilas Paswan(H.C. of Patna) 42 E.L.R. 453
Nihal Singh v. Rao Birendra Singh & another . . . .(H.C. of Punjab & Haryana) 41 E.L.R. 199
Niranjan Lai Sharma v. Ramkumar Agarwal & Others . .(Madhya Pradesh H.C. at Jabalpur) 33; E.L.R. 244
Om Prabha Jain v. Abnash Chand & another(S.C.) 36 E.L.R. 101
Om Prakash v. Lai Chand & Others(H.C. of Punjab & Haryana) 40 E.L.R. 203
Om Prakash v. Lai Chand and another . . . . . .(S.C.) 42 E.L.R. 336
Onkar Singh v. Ghasiram Majhi(S.C.) 39 E.L.R. 477
Paokai Haokip v. Rishang & Others(S.C.) 39 E.L.R. 431
Parkash Singh v. Harcharan Singh & Others(Punjab & Haryana H.C.) 33 E.L.R. 21
Parasaram & another v. Shiv Chand & Others . . . . .(S.C.) 40 E.L.R. 296
Pashupati Nath Singh v. Harihar Prasad Singh(S.C.) 35 E.L.R. 220
Phanindra Nath Sur v. Purnendu Narain Singh & Others . . .(H.C. of Patna) 42 E.L.R. 429
Pohu Mai (Dr.) v. Bhagwandas ShashtriI., (Rajasthan H.C. at Jodhpur) 33 E.L.R. 264
Popatlal Joshi v. Manubhai N . Amersey & Others(Gujarat H.C.) 37 E.L.R. 223
Prabhatgiri Gulabgiri Gonsai v. Shivrajkumar Alabhai Khachar & Others(Gujarat H.C.) 36 E.L.R. 131
Priya Gupta v. Abrar Ahmad and others(H.C. of Patna ) 39 E.L.R. 248
Purshottamdas Ranchoddas Patel v. Kantiprasad Jayashankar YagnikOthers(Gujarat H.C.) 34 E.L.R. 160
Pt. Shri Krishna Selot v. Shri Ram Charan Pujari . . .(S.C.) 41 E.L.R. 50
Raj Pal Singh v. Om Prakash Garg and others . . .(H.C. of Allahabad) 41 E.L.R. 221
Raja Mohamhed Afzal Khan v. Moh'd Muzafar Khan & another .(H.C. of J & K) 39 E.L.R. 211
Rajagopal, S. v. C. M. Armugam and Others(S.C.) 38, E.L.R. 38
P A G E
14
. 17,252
160,276
. 261,307
. 51,104,162,183
79
82,109,136
. 103,264
82,108
241,256
6
. 3 0 7
292
. 27,265,303
104,206,217250
31,133
. 11,209,213
16,34,135241,267
&54,90,252
. 137,204,244260,301
. 84,137,210
. 294
315
(xi)
Rajaju v. Brijkishore Pateria & Others . . . .(S.C.) 41 E.L.R. 347
Rajendra Kumar v. Chandra Narain Singh(H.C. of Allahabad) 42 E.L.R. 385
Ramachandra Rao, v. M. Chenna Reddy & another(Andhra Pradesh H.C.) 37 E.L.R. 269.
Ram Bharose v. Jagannath Singh & Others(M.P. H.C.) 34 E.L.R. 135
Ram Dayal v. Brij Raj Singh & Others . . . .(M.P. H.C.) 38 E.L.R. 53
Ram Dayal v. Brijraj Singh & Others . . . .(S.C.) 42 E.L.R. 149
Ramdhani Mishra v. Jagdish Prasad & Others .(M.P. H.C.) 35 E.L.R. 241
Ram Kishan v. Jai Singh . . . . . .(S.C.) 37 E.L.R. 217
Ram Lakhan Shukla v. Athai Ram & Others .(Allahabad H.C.) 37 E.L.R. 91
Ram Milan Singh v. Hari Shankar Parsad Gupta & Others(Election Tribunal, Gorakhpur) 38 E.L.R. 95
Ram Nath v. Chhaju Ram & Others . . . .(S.C.) 41 E.L.R. 354
Ramphal Arya v. Yadunandan Prasad . . . .(Patna H.C.) 35; E.L.R. 94
Ram Piara v. Ram Lai & another(Punjab &Haryana H.C.)33 E.L.R. 94
Ratan Singh v. The Election Commission of India & Others(H.C. of Punjab & Haryana) 42 E.L.R. 49
Rishang v. Paokai Haokip and others . . . .(Judicial Commissioner, Manipur) 35 E.L.R. 110
Sahodrabai Rai v. Ram Singh Aharwar . . . .(S.C.) 36 E.L.R. 52
Sahodrabai Rai v. Ram Singh Aharwar and others .(H.C. of M.P.) 37 E.L.R. 176
Sahodrabai Rsi v. Ram Singh Ahawar, . . . .(S.C.) 42 E.L.R. 77
Sakti Kumar Sarkar v. The Election Commission(H.C. at Calcutta) 41 E.L.R. 206
Samant Nilkant Balkrishna v. George Femandes & Others(Bombay H.C.) 35 E.L.R. 259
Samant N. Baiakrishna etc. v. George Fernandez & Others(S.C.) 41 E.L.R. 260
Saraf, S.L. v. M.S. Qureshi & Others . . . .(J & K H.C.) 38 E.L.R. 353
Sardar Harbans Singh v. Peer-Shams-ud-Din & Others(H.C. of J & K)j42 E.L.R. 400
PAGE
. 24
23,158,
46,107,118,201
155,283,284
94,95,202,282
205,221,283
9,247
46,94
13,59
15,197,308,311
302
281
40,50
27,197
197,239,301
216
13,61
17,138
26,217
30,38,41,42,44,140,247,248,269
49,101,221,226,262
294,312,
72,299
(xii)
Sarla Prashar v. Shri Ram Dev 86(H.C. of Punjab & Haryana) 42 E.L.R. 412
Satyanarayana v. Saidayya & Others . . . . . . 225,230(A.P. H.C.) 36 E.L.R. 298
Satya Paul v. Shri Paramanand 86,264(H.C. of J & K) 42 E.L.R. 298
Seshadri, R.M. v. G. Vasantha Pai . . . . . . . . 113,256(S.C.) 40 E.L.R. 303
Shafquat Rai v. Phuman Singh & Others 245(Punjab & Haryana H.C.) 34 E.L.R. 187 .
Shah Jayantilal Ambalal v. Kasturilal Nagindas Doshi . . . 57,253(Gujarat H.C.) 36 E.L.R. 188
Shah Jayantilal Ambalal v. Kasturilal Nagindas Doshi & Others. . 205(S.C.) 42 E.L.R. 307
Shamsher Chand v. Parkash Chand & Others 17(S.C.) 40 E.L.R. 73
Shankarlal Maganlal Raval v. Gurmansinhji Virsinhji and another . 4,311(Gujarat H.C.) 36 E.L.R. 176
Sheikh Abdul Rahman v. Shri Jagat Ram Aryan . . . . 293(H.C. of J & K) 37 E.L.R. 349
Shantabai Talpalikar v. D. Gopalareddy & Others . . . . 105,109(Andhra Pradesh H.C.) 34 E.L.R. 195
Sheodan Singh v. Mohan Lai Gautam 63,96,203,238(Allahabad H.C.) 38 E.L.R. 242
Sheodhan Singh v. Mohan Lai Gautam 209,237(S.C.) 41 E.L.R. 146
Shivamurthi Swatny Siddappaya Swamy Inamdar v. Agadi, Sanganna ,143,169Andanapa 190,191,261
(Mysore H.C.) 34 E.L.R. 1
Shreekrishna Selot v. Ram Charan Pujari . . . . . 32,55(M.P. H.C.) 35 E.L.R. 30
Shri Anayatullah Khan v. Shri Abdul Rehman Dar & Others . . 299(H.C. of J & K) 42 E.L.R. 291 .
Shri Krishan v. Sat Narain & Other s . . . . 35(S.C.) 37 E.L.R. 13
Shri Syed Nizam-ud-Din v. Shri Hissam-ud-Din & Others . . . 236,298(H.C. of J & K) 42 E.L.R. 274
Shyam Lai v. Mansa Din & Others 127,13,253(Allahabad H.C.) 37 E.L.R. 67
Sitaram Mahato v. Baidyanath Panjiar & Others . . . . 243(Patna H.C.) 40 E.L.R. 354
Sidhsswar Sharma & Others v. Chandradeo Prasad Varma . . 154,228,(Patna H.C.) 33 E.L.R. 234
Smt. Sahordrabai Rai v. Ram Singh Aharwar & Others . . 1 17,138(S.C.) 42 E.L.R. 77
Somchand Manubhai Solanki v. Karsondas Ukabhai Parmar and another 108(S.C.) 39 E.L.R. 344
(xiii)
Sri Janak Sinha v.Mahant Ram Kishan Das and Others, . • 33,106(H. C. of Patna) 37 E. L. R. 151
Sri Krishna Vaid v. Sat Narain & Others 287(H.C. of Punjab & Haryana) 40 E.L.R. 76
Shri Krishan Vaidya V. Sat Narain & others (S.C.) 37 EL.R. 13 35Subhash Chandra v. Rambabu Maheshwari 92,142
(H.C. of Delhi) 37 E.L.R. 45Subsdar Singh v. Jagdish Narain Tripathi & Others . . . . 303
(H.C. of Allahabad) 40 E.L.R. 178
Surinder Nath Gautam v. Vidya Sugar Joshi . . . • . 110,116(Delhi H.C.) Himachal Pradesh, 35 E.L.R. 129
Swami Rameshwaranand v. Madho Ram & another . . . . 18(S.C.) 40 E.L.R. 281
Tej Singh v. Ram Chandra Vikal & Others 34,310(H.C. of Allahabad) 42 E.L.R. 312
Thirumalai Kumar, R. v. Kathiravan alias Shamshuddin . . . 138,146,222(H.C. of Madias) 42 E.L.R. 161 • 223,263
Tirlochan Singh v. Karnail Singh and another . . . . . 75,130,(Punjab & Haryana H.C.) 34 E.L.R. 234—AIR 1968 Punjab & 252Haryana 416
Umrao Singh v. Darbara Singh & Others . . . . . 186(S.C.) 39 E.L.R. 240
Umrao Sinnh v. Gopidas & Othsrs 58,148(MPH.C. ) 36 E.L.R. 261
Umr i.o Si.igh Dhabariya v. Ya>hw*nt Singh and Others . . . 19642 E.L.R. 126
Vasanta Pai, G. v. R.M. Seshadri & Others . . . . . 47,63,111,(Madras H.C.) 38 E.L.R. 267 277,321
Venkateswara Rao K. & another v. Bekkam Narasimha Reddi & Others 226,235(S.C.) 39 E.L.R. 445
Vidya Sagar Joshi v. Surinder Nath Gautam . . . . 121(S.C.) 40 E.L.R. 29
Vindya Bansi Devi v. Babulal Mandal & Others . . . . 166(Bihar H.C. at Patna) 36 E.L.R. 225
Virji Ram Sutaria v. Nathalal Premji Bhanvadia . . . . 291(Gujarat H.C.) 35 E.L.R. 181
Virji Ram Sutaria v. Nathalal Premji Bhanvadia & Others . . 298(S.C.) 40 E.L.R. 141
Vishwanath Reddy v. Konappa Rudrappa Nadgouda & another . 172(S.C.) 39 E.L.R. 192
TABLE Ott CASES OVERRULED, FOLLOWED, REFERRED TO ETC.
Abdul Hmid Chaudhury v. Vani Gopal Swarni and Others, 22, E.L.R. 358 (S.C)—ref. 38 E.L.R. 452—relied on 38 E.L.R. 456
Abdul Hayat Khan v. Maulvi Ahmad Chowdhury Doabia's Indian ElectionCasss Vol.II.,P. 10—held inapplicable 35 E.L.R. 195
Abdul Jalil. Chaudhury v. Rathindra Nath Sen (A. I. R. 1955 Assam 51)—ref. 38 E. L. R. 383, 384—considered 38 E.L. R. 411—held 38 E.L. R. 445
Abdul Mijs-;d v. Bharonavas (A.T.R, 1965, Kerala 18)—ref. 34 E.L.R. 136; 146; 293; 306; 365; 41 E.L.R. 262—relied upon 38 E.L.R. 39; 42 E.L.R. 466
Abdul Shakur v. Rikhab Chand, A.I.R. 1968 S.C. 52—ref. 33 E.L.R. 163, 34, E.L.R. 3; 41 E.L.R. 154
Abdul Rahim Khan v. Sadasive Tripathi, A.I.R. 1969 S.C. 302—ref. 41 E.L.R. 1; 42 E.L.R. 486
Abhsy Pada Saha v. Sudhir Kumar Mondsl 28 E.L.R. 179 (S.C.) A.I.R. 1967S.C. 115
—considered 42 E.L.R. 363
Abnash Chand v. Om, Prabha Jain (E.P. No. 19/67 decided on 16-1! -67 (Punjab)—distinguished 34 E.L.R. 360
Adams v. Leveson Gswer, I O.M. & Hardcastle 218—ref. 41 E.L.R 262
Adityan, S.B. v. S. Kandaswami and Others (A.I.R. 1958 S.C. 857)—ref. 33 E.L.R. 120; 35 E.L.R. 60;
Administrator General of Madras v. Anandachari and Ot'i.rs T.I .R. 9, Madras466—ref. 38 E.L.R. 39 •—relied on 38 E.L.R. 50
Aga Jan Khan Rahim Khan and Another v. Keshavrao Nathuram Maratha(A.I.R. 1940 Nagpur 217)
—ref. 34 E.L.R. 136, 144, 35, E.L.R. 1Agnes Dorothy Vermani v. Boyant David Verrnani (A.I.R. 1943 Lahore 51)
—ref. 38 E.L.R 39—relied on 38 E.L.R. 50
Ahmsdimiya Sherumiya Shaikh v. Chhippa Ibrahim Nuraji and Others (XVIIE.L.R 218)
—ref. 33 E.L.R. 120Alamgir v. Kamrunnissa (4 C.L.J. 442 at 460)
—ref. 38 E.L.R. 307, 340
Ailam Krishmiah v. Creppalli Venkata Subbaiah, E.P. No. 10 of 1967 (A.P.H.C.) :
—ref. 38 E.L.R. 50
(xiv)
(xv)
Atmrsingh v. Karnail Kaur, (A.f.R. 1956 Rajasthan 169)—ret. 42 E.L.R. 54
Amin Lai v. Hunna Mai 1965 f.S.C.R. 393 (A.I.R. 1965 S.C. 1245)—ref. 33 E.L.R. 120. 36 E.L.R. 357; 38 E.L.R. 382, 390, 39 E.L.R.
447—followed 39 E.L.R. 424
Amir Chand v. Sucheta Kripalani (XXI E.L.R. 286)—ref. 35 E.L.R. 131
Amir Chand v. Surendra Lai Jha and Others (10 E.L.R. 57)—rof. 38 E.L.R. 120, 33 E.L.R. 2; 36 E.L.R. 61; 39 E.L.R. 392; 42
E.L.R. 161—considered 38 E.L.R. 129
Amritsir and Shlkot (Geisral) Rural Constituency 1937 (Ssn and Podar IndianElection Casss 21)
—ref. 34 E.L.R. 235
Anup Singh (Dr.) v. Shri Abdul Ghani and Another (A.I.R. 1965 S.C. 815)—ref. 38 E.L.R. 3S2, 392; 34, E.L.R. 293, 39 E.L.R. 364
Anadi Mohan Ghose v. Rabindra Nath Dutta and Others (A.I.R. 1962 Cal. 265)—ref. 34 E.L.R. 136; 35 E.L.R. 2
Anjaneya Reddy v. Gangi Reddy and Others 21 E.L.R. 246—ref. 34 E.L.R. 74, 36 E.L.R. 61, 39 E.L.R. 24
Appaswamy v. R. Sarangapani, A.I.R. 1966 Mad. 196—ref. 42 E.L.R. 54
Atam Das v. Suriya Prashad, 41 E.L.R. 359 (S.C.)—ref. 42 E.L.R. 486
Atar Rahnm v. Tijjddin Ahmad Civil Rule 321 of 1962 (Assam)—relied on 39 E.L.R. 320 ,
Atta Mohammad Shah v. Saran and Others A.I.R. 1930 P.C. 57—rsf. 51 E.L.R. 85
Australian Boot Trade Employees Federation v. Whybrow & Co. (1910) IIC.L.R. 311 at 338—ref. 41 E.L.R. 248
Babu v. Ths State of U.P., A.I.R. 1965 S.C. 1967—ref. 42 E.L.R. 54
Babulal Shaima v. Brijoarayan Brajesh & Others (A.I.R. 1958 M.P. 175, 14E.L.R. 72 (F.B)—ref. 41 E.L.R. 261, 42 E.L.R. 54
Babu Rao Patel v. Dr. Zakir Hussain, A.I.R.1968, S.C. 904—ref. 39 E^L.R. 635; relied on 42 E.L.R. 161
Badat & Co. v. East India Trading Co. A.I.R. 1964 S.C. 538—ref. 34 E.L.R. 188
Badri Nariin Singh and Others v. Kamdo Prasad Singh and Another 21 E.I .R.64, A.I.R. 1961 Pat. 41.—ref. 33 E.L.R. 265, 279, 37 E.L.R. 20, 39 E.L.R. 25, 41 E.L.R. 262
Badri Prasad v. Satish Kumar, A.I.R. 1964 M.P. 1841 —ref. 37 E.L.R. 46
Baidyanath Panjiar v. Sita Ram Mahto, 42 E.L.R. 330 (S.C.)- (1970) I.S.C.R.839—followed 42 E.L.R. 325
Balak Ram Vaish v. Badri Prasad AwasthI, E.P.I, of 1967 (Allah. H.C.).—ref. 39 E.L.R. 391
(xvi)
Balasubramanian P.N. v. Narasimham & Otheis, I E.L.R. 461—ref. 37 E.L.R. 20
Bilwan Singh v. Election Tribunal, Kanpur 15 E.L.R. 199(AUah)—ref. 41 E.L.R. 261.
Balwant Rai Tayal v. Bishan Saroop and Another, 17 E.L.R. 101—ref. 38 E.L.R. 120, 129; 34 E.L.R. 235; 36 E.L.R. 61; 39 E.L.R. 392
Balwan Singh v. Lakshmi Narain, (A.I.R. 1960 S.C. 770-22 E.L.R. 273(SC).—ref. 33 E.L.R. 75; 35 E.L.R. 81; 37 E.L.R. 20; 38 E.L.R. 382, 452; 39 E.L.R.25; 41 E.L.R. 370—followed 38, E.L.R. 393—relied on 38 E.L.R. 395, 456
Banerji, S.M. v. Sri Krishna Aggarwal (A.I.R. I960 S.C. 368) 22 E.L.R. 64—ref. 38 E.L.R. 306, 337; 34 E.L.R. 136; 42 E.L.R. 54—followed 34 E.L.R. 324; 36 E.L.R. 385; 42 E.L.R. 440
Bangilal Chowdhury v. Dahu, A.I.R. 1962 S.C. 1248—inapplicable 35 E.L.R. 195
Bankabehari Das v. Cliittaranjan Naik (A.I.R. 1963 Orissa 83)—ref. 38 E.L.R. 383; 420; 34 E.L.R. 235, 360; 41 E.L.R. 85.
Banka Bshari Singh v. CM. Thomas and Others (A.T.R. 1960 Orissa 126)—ref. 33 E.L.R. 265, 282.
Bansilal and others v. Md. Hafiz, A.I.R. 1959 Patna 77ref. 39 E.L.R. 391.
Bansi Ram Naru Ram v. Jit Ram Gebni Ram (A.I.R. 1964 Punjab 231)ref. 38 E.L.R. 222.relied on 38 E.L.R. 238.
Barnstable Case (20 M & H 236)—ref. 38 E.L.R. 268; 39 E.L.R. 392;—observed 38 E.L.R. 287.
Bani Madhub Mitter v. Matungini Dassi,13 Calcutta 104 (F.B.)—ref. 34 E.L.R. 324.
Baru Ram v. Srimati Prasanni and Others (1958) S.C.R. 1403) 16 E.L.R. 450(S.C.).
—ref. 38, E.L.R. I, 342; 383, 414; 34 E.L.R. 222; 42 E.L.R. 66 (S.C.)—Observed 38. E.L.R. 3.—relied on 39 E.L.R. 348; 413
Baru Ram v. Prasanni and Others 16 E.L.R. 127 (H.C.) 450 (S.C.)—ref. 33 E.L.R. 265; 42 E.L.R. 66—relied on 41 E.L.R. 149.
Basant Singh v. Ram Partap Garg, 1965; E.L.R. Supp. 538—ref. 40 E.L.R. 212.
Basappa, T.C. v. T. Nagappa and Others (3 E.L.R. 197)—ref. 38 E.L.R. 268, 382, 383, 411; 41 E.L.R. 149—observed 38 E.L.R. 291.
Basistha Narayan v. Debchandra, A.I.R. 1954 S.C. 513—ref. 34 E.L.R. 213
Bassappa v. Ayappa, (1959) S.C.R. 611.—ref. 39 E.L.R. 416.
Basavalingappa v. D. Munihinrappa (1965) I.S.C.R. 316-A.I.R. 1965 (S.C.) 1269—ref. 40, E.L.R. 296.—considered 42 E.L.R. 363
(xvii)
Basawaraj K. Nagur v. B.R. Shidlingappa (12 E.L.R. 168)—ref. 38 E.L.R. 120, 125; 39 E.L.R. 392.
Bayloy v. Edmunds, Byron & Marshall (1895) T.L.R. 537—Distinguished 41 E.L.R. 262.
Beal v. Smith (1869) E.L.R. 4 C.P. 145—ref. 41 E.L.R. 261.
Beni Madho Rai v. Bhola and others (6 E.L.R. 308)—ref. 35. E.L.R. 2.
Berwick-on-Tweed case (1880) 30' M & H 178 at III—ref. 37, E.L.R. 91.
Bewdley case (1870) I O' M & H. P. 16 at p. 17—ref. 35 E.L.R. 263.
Bewdly case (3 O 'M&H. 145)—ref. 38 E.L.R. 268, 288.
Bhagaban v. Ramnatan (A.I.R. 1960; S.C. 200)—ref. 35 E.L.R. 81.
Bhagat Singh v. Jaswant Singh (A.I.R. 1966 S.C. 1861)—ref. 34 E.L.R. 293.
Bhagirath Bilgaiya v. Rishab Kumar (1965 Doabia's Election Cases 208)—ref. 33 E.L.R. 245.
Bhagwan Datt Shastri v. Badri Narayan Singh and others (II E.L.R. 448 (S.C.)A.I.R. 1960 S.C. 200.—ref. 33 E.L.R. 95; 34 E.L.R. 105, 340; 41 E.L.R. 370
Bhagwan Singh v. Rameshwar Prasad (A.I.R. 1959 S.C. 876)—ref. 33 E.L.R. 51.
Bhaiya Lai v. Harikrishan Singh & Others (1965) 2 S.C.R. 877—ref. 40 E.L.R. 296—considered 42 E.L.R. 363
Bhandara District, D.C.E. Vol. I Case No. 40—ref. 37 E. L. R. I.
Bharai Bhas Nai & ano v. Gopi Natha Naik, (A.I.R. 1951 Allahabad 385)—relied upon 42 E.L.R. 466.
Bhaskar Rao v. C.V.K.Rao, (A.I.R. 1964 Andhra Pradesh 77)—ref. 36 E.L.R. 132
Bhikaji Keshao Joshi and another v. Brijlal Nandlal Biyani & Ors. (A.I.R. 1955S.C. 610) -10 E.L.R. 35 (S.C)—ref. 33 E.L.R. 228; 38 E.L.R. 382; 42 E.L.R. 299, 401;—followed 38 E.L.R. 395;—relied on 38 E.L.R. 394; 42 E.L.R. 162
Bhikhaji Keshao Joshi v. B.N. Biyani (10 E.L.R. 357 S.C.)—ref. 33 E.L.R. 75; 41 E.L.R. 370;
Bhim Sen v. Gopal and others (22 E.L.R. 288) (S.C)—ref. 38 E.L.R. 96, 117;—followed 41 E.L.R. 261;
Bholanath v. Krishna Chandra Gupta (6 E.L.R. 104)—ref. 33 E.L.R. 245, 257;
Biresh Misra v. Ram Nath Sarma and others (17 E.L.R. 243/A.I.R. 1959 Assam139)—ref. 33 E.L.R. 245,259; 35' E.L.R. 130; 38 E.L.R. 54, 85,90, 92,120,384,
438, 440; 39 E.L.R. 24, 250, 392; 41, E.L.R. 297;
(xviii)
Biswanath v. Harlal Das, (A.LR. 1958 Assam 97; 16 E.L.R. 405;—ref. 35 E.L.R. 263; 37 E.L.R. 20; 41 E.L.R. 149; 262;
Biswaswarlal Halwasya, R.B, v. Basup Rang La! Jajudia (Doabia's ElectionCases Vol. I. 1955 — Edition, P. 186)—ref. 38 E.L.R. 368
Blackburn Case (I O' M&H 198 at 202)—rei'. 38 E.L.R. 268, 287;
Bobba Suramma (Smt) v. Smt. Peddireddi Chandramma (A.I.R. 1959 A.P.568)—ref. 38 E.L.R. 243--observed 38 E.L.R. 254.
Bohray Ram Gopal v. Dr. Ladj Prasad Tandon (E.A. No.6 of 1961) 16.2. 1962(Allahabad)—ref. 41 E.L.R. 221, 244;
Bon Kwi v. S.K.R.S.K.R.Firm, A.I.R. 1926 Rangoon 128—ref. 42 E.L.R. 54
Borough of Bridgewater (1870) 1 0 'M & H 112—ref. 35 E.L.R. 263
Borough of Evesham (1881) III (I 0 'M & H 192—ref. 35 E.L.R. 263
Borough of Great Yarmouth Case (5, 0 'M & H 176)—ref. 38 E.L.R. 268, 287;
Borough of Kingston upon Hull, (6 0 'M & H 372)—ref. 36 E.L.R. 6!;
Borough of Warcester case (4 0 'M & H. 154)—ref. 38 E.L.R. 268, 289;
Boston Case (2 0 'M & H 61 at 167)—ref. 38 E.L.R. 268, 284;
Brijandralal Gupta and another v. Jwala Prasad & Others, (22 E.L.R. 366 S.C)A.I.R. I960 S.C. 1049.—ref. 34 F.L.R. 136; 39 E.L.R. 26; 42 E.L.R. 440;—relied upon 42 E.L.R. 467—inapplicable 36 E.L.R. 156
Brij Bhushan & Another v. Raja Anand Brahma Shah & Others (22 E.L.R. 225)—ref. 39 E.L.R. 2; 41 E.L.R. 85;
Brij Mohan Lai v. Election Tribunal Allahabad and others. (A.I.R. 1965 All.450)—ref. 38 E.L.R. 304
Brij Mohan Singh v. Priya Barat Narain Sinha and others (A.I.R. 1965 S.C. 282)- 26 E.L.R. 78 (S.C.)—ref. 38 E.L.R. 222, 237; 42 E.L.R. 429, 486
-observed 38 E.L.R. 239—distinguished 42 E.L.R. 385—relied on 42 E.L.R. 466;
Brij Sunder v. Shri Ram Dutt (A.I.R. 1944 Raj 99)—ref. 33 E.L.R. 221; 34 E.L.R. 294
Brindsena v. Nadhamariv (I.L.R. 12 Mad. 72}—distinguished 35 E.L.R. 94
Bruce v. Odhams Press Ltd (1936) 1 K.B. 697—ref. 41 E.L.R. 261
Brundaban Nayak V. (1965) 3 S.C.R. 53;—ref. 37 E.L.R. 42
(xix)
Buckingham & Carnatic Co. Ltd. v. The Workers of the Company, Lah. A.C.490—ref. 34 E.L.R. 294
Carbinez v. Powell, Vol. 36, C.L.R. 80—nf. 41 E.L.R, 248
Carter v. Mills (1874) (L.R.9 C.R.117)—ref. 38, E.L.R. 243, 251, 252—distinguished 41 E.L.R. 147
Chamoa Dev v. Jamuna Prasad and others (15 E.L.R. 443)—ref. 38 E.L.R. 382; 34 E.L.R. 293; 37 E.L.R. 91, 40 E.L.R. 148
Chand Basak v. Chairman Dacca Municipality, 24 C.W.N 189—ref. 36 E.L.R. 71
Chandeshwar Narain v. Basu Prasad (M.J.C.No. 36 of 1954 dt. 12-4-1955 PatnaH.C.)—ref. 37 E.L.R. 151; 38 E.L.R. 178, 201
Chandi Prasad Chokni v. State of Bihar (1962) 25 C.R. 289—ref. 41 E.L.R. 261
Chand Singh v. Shankarlal, 20 E.L.R. 63—ref. 34 E.L.R. 222
Chandra Sekhar Singh v. Sarjoo Prasad Singh and another 22 F.L.R 206 A I R1961 Patna 189—ref. 37 E.L.R. 151; 38 E.L.R. 178, 199 382; 39 E.L.R. 24, 25; 41E.L.R.371—relied on 38 E.L.R. 395—distinguished 41 E.L.R. 184; 42 E.L.R. 313
Chandrika Prasad Tripathi v. Shiv Prasad Chanpuria (21 E.L.R. 172 (S C )A.I.R. 1959 S.C. 827—ref. 34 E.L.R. 293; 40 E.L.R. 215
Channa Byra Sowia v. S.S. Ramiah & another (20 E.L.R. 37)—tef. 37 E.L.R. 20
Chaturbhuj Chunilal v. Election Tribunal Kanpur and others (A.LR 1958 All809) 15 E.L.R. 301—ref. 33 E. L. R. 120—Approved 39 E.L.R. 424
Chaturbhuj Vithaldas Jasani v. Moreshwar Parashratn and others (1954 S.C R817—9 E.L.R. 301)—ref. 38 E.L.R. 39; 35 E.L.R. 2; 40 E.L.R. 92, 101; 42 E.L.R 486—followed 39 E.L.R. 92; 183—distinguished 35 E.L.R. 22
Chertna Reddy, Dr. M. vs. Ramachandra Rao & another (40 E.L.R. 390 (S C )—ref. 41 E.L.R. 85, 296, 370
Chiranjit Lai Ram Sarup (Pt) v. Lahiri Singh Ram Narain A.I.R. 1958; Punjab433—rof. 34 E.L.R. 136
Chittarinal v. Shah Pannalal Chandulal, A.LR. 1965 S.C. 1440;—ref. 42 E.L.R. 54
Christie v. Griene I O' Malley & Hardcastle 251—ref. 41 E.L.R. 262
Chudalavada Subbarao v. Kasu Brahmananda Reddy and others A.I.R. 1967A.P. 158—ref. 33 E.L.R. 95; 38 E.L.R. 383; 385; 410; 420,; 451; 42 E.L.R. 264
(xx)
Chuailal Ken v. Radhcharan Sharma and others (21 E.L.R. 320)—ref. 38 E.L.R. 384; 41 E.L.R. 149
Coikermouth Division Case, (1901) 5 O, M&H 155—rof. 35 E.L.R. 263
Collector of South Satara v. Laxman Mahadev Deshpande (A.I.R. 1964 S.C.326—ref. 34 E.L.R. 2
Cumberland (Cockermouth Division) Case (1901) 5 O' M&H P.15—ref. 41 E.L.R. 190
Dalchand Jain v. Narayan Shankar (41 E.L.R. 163) (S.C.)—ref. 42 E.L.R. 54, 161
Dao Chand and others v. Vashist Narain & Others (6 E.L.R. 136)—ref. 37 E.L.R. 20
Daryao and others v. State of U.P. and others (A.I.R. 1965 S.C. 1457)—ref. 38 E.L.R. 222
Dasi Ram v. Emperor, (A.I.R. 1947 All. 429)—distinguished 42 E.L.R. 385
Dattatraya Narain Patil v. Dattatraya Krishnji Khanvilkar (A.I.R. 1964, Bom-bay 244)—ref. 33 E.L.R. 265, 271; 35 E.L.R. 261; 41 fe.L.R. 190
Davis, M.P. v. Commissioner of Agr. I.T. (A.I.R. 1959 S.C. 719)—ref. 33 E.L.R. 255
Deo Bhary v. Raghunath Misra (A.I.R. 1959 S.C. 589)—ref. 34 E.L.R. 2
Deonao v. Keshav (A.I.R. 1958 Bombay 314)—ref. 39 E.L.R. 391
Deshpande, R. v. Muttan Reddy (Doabia's Election Cases 1961, 88)—ref. 33 E.L.R. 245
Devashran v. Sheo Mahadev Prasad and others (10 E.L.R. 461)—ref. 34 E.L.R. 324; 38 E.L.R. 54
Deviah v. Nagappa, (A.I.R. 1965 Mysore 102)—ref. 41 E.L.R. 261
Dev Kanta Barooah v. Kushram Nath (A.I.R. 1961) S.C. 1125Inapplicable ; 35 E.L.R. 211
Dharamvir v. Bhalaram and others (7 E.L.R. 64)—ref. 38 E.L.R. 53
Dharanidhar Mohaptra v. Pradipata Kishore Das and others (17 E.L.R. 427)—ref. 37 E.L.R. 20; 38 E.L.R. 269; 41 E.L.R. 149
Didar Singh Chhada v. Sohan Singh Ram Singh and others (A.I.R. 1966 Pun-jab 282)—ref. 38 E.L.R. 384; 34 E.L.R. 293
Dina Nath Kaul Nadim v. Peer Mubarak Shah (A.I.R. 1962 J&K 28)—ref. 38 E.L.R. 385
Din Dayal v. Beni Prasad (15 E.L.R. 131)—ref. 41 E.L.R. 261
Dinesh Misra v. Ram Nath Sharma and others (A.I.R. 1969 Assam 139)—ref. 38 E.L.R. 384
Dipalla Suri Dora v. V. V. Giri & Others (A.I.R. 1958 Andh. Pi 724)—ref. 37 E.L.R . 20
(xxi)
Dipendra Nath Sarkar v. State of Bihar. (A.I.R. 1962 Patna 101)—ref. 40 E.L.R. 318
Durga Shankar Mehta v. Raghuraj Singh and others (A.I.R. 1954 S.C. 520) - 9E.L.R. 494—ref. 34 E.L.R. 136 ; 38 E.L.R. 306 ; 39 E.L.R. 122 ; 40 E.L.R. 148 ; 41 E.L.R.
150; 42 E.L.R. 440—followed 34 E.L.R. 324
Dwarkaprasad Mishra (Pandit) v. Kamal-Narain Sharma (1964 M.P.L. 1682;'A.I.R. 1964 M.P. 273)—ref. 34 E.L.R. 293—dissented from 39 E.L.R. 320
Dwijendra Lai Sen Gupta v. Hare Krishna Konar (23 E.L.R. 270; A.I.R. 1963Calcutta 1218—followed 34 E.L.R. 294—ref. 36 E.L.R. 71
Edward Mills v. State of Ajmer, (A.I.R. 1955 S.C. 25)—ref. 41 E.L.R. 221
Electrical Mfg. Co. Ltd. v. D.D. Bhargava, (A.I.R. 1967 Delhi 197)—ref. 42 E.L.R. 54
Emperor v. Haji Sheik Mohamed Shastri I.L.R. (1908) 32 Bom. 10 Ex. Parte.—ref. 35 E.L.R. 265
Emperor v. Jhabwala and others J.L.R. (1933) 55—ref. 35 E.L.R. 261
Emperor v. Madan Gopal, I.L.R. 34 AH. 589—ref. 35 E.L.R. 94
Emperor v. Muniben Kara (I.L.R. 57 Bom. 253)—ref. 34 E.L.R. 341
Evans v. Hartlem, (1937 A.C. 473, 480)—followed 41 E.L.R. 27
Gangadhar Maithani v. Narendra Singh Bhandari (18 E.L.R. 124)—ref. 33 E.L.R. 245, 258; 34 E.L.R. 235; 36 E.L.R. 61; 38 E.L.R, 120
Gangi Reddy, T.K. v. M.C. Anjaneya Reddy and others (22 E.L.R. 261)—ref. 33 E.L.R. 95; 34E.L.R. 74,340; 35 E.L.R. 263; 36 E.L.R. 1; 41 E.L.R.
190; 42 E.L.R. 343 (S.C.)
Ganpat Singh v. Brij Mohanlal Sharma, (A.I.R. 1959 Raj. 114)—ref. 39 E.L.R. 385
Gauri Shankar Shastri v. Mayadhardas & Others, (16 E.L.R. 441)—ref. 42 E.L.R. 486—distinguished 40 E.L.R. 101
Gaya Prasad v. Jamna Prasad 1959 M.P.L.J. notes of cases No. 143 dated22-4-1959—ref. 34 E.L.R. 136; 35 E.L.R. I
Gaya Prasad v. Jaswant Rat (A.I.R. 1930 All. 550)—ref. 34 E.L.R. 3
Ghamlal Prakash v. Mahadeodas (A.I.R. 1959 S.C. 781)—ref. 35 E.L.R. 131;
Ghasi Ram v. Dal Singh and others (36 E.L.R. (S.C.) 60; (1968) 3 S.C.R. 102—ref. 38 E.L.R. 120, 178;—followed 36 E.L.R. 102; 41 E.L.R. 147; 42 E.L.R. 161—distinguished 41 E.L.R. 36;
(xxii)
Ghasiram Majhi v. Onkar Singh (34 C.L.T. 328)—ref. 38 E.L.R. 452
Ghulara Moliiuddin v. Election Tribunal for Town Area Sakit and another(A.I.R. 1959 All. 357)—ref. 42 E.L.R. 2—applicable 36 E.L.R. 156—followed 42 E.L.R. 2 (per Mahajan J.)
Ghayur Ali Khan v. Keshav Gupta (16 E.L.R. 154; A.I.R. 1959 Allah. 264—ref. 34 E.L.R. 360; 37 E.L.R. 108; 39 E.L.R. 24, 250
Gian Chand v. Sriram Bansal and others Benarsi Dass v. Lekh Ram and others(2 E.L.R. 136)—distinguished 40 E-.L.R. 101
Gopala Karup Samuel v. Arulappan Paul and others (Doabia's Election Cases1961, P. 185)—ref. 38 E.L.R. 354
Giani Kartar Singh v. Jagjit Singh, F.A. No. 3 E of 1964 Punjab High Court;—ref. 33 E.L.R. 22;
Gillaram v. Kendranath (1956 Raj. Law Weekly 95)—ref. 33 E.L.R. 265, 272
Goon Durga Prasad Rao alias Pedda Babu and another v. Goona SundershanaSwami and 28 others (F.L.R. 1940 Madras 653)
—ref. 38 E.L.R. 39
Gopalla Reddy v. Bai Talpalikar (39 E.L.R. (S.C.) 305—ref. 41 E.L.R. 35; 391
Gopa! Swami v. Abdul Hamid Chaudhury (A.I.R. 1959 Assam 200)—ref. 41 E.L.R. 262
Govinda Malaviya v. Murli Manohar (8 E.L.R. 84)—ref. 39 E.L.R. 391
Govindaram v. Gulab Rao, (A.I.R. 1949 Nag. 394)—ref. 34 E.L.R. 293
Great Western Railway v. Bater, (1922) A.C. 1.—ref. 39 E.L.R. 391
Great Yarmouth Case, 5 0. M & H. 178—ref. 41 E.L.R. 149
Gulab Bai and others v. Manphool Bai (A.I.R. 1962 S.C. 214)—ref. 38 E.L.R. 222
Gulab Chand Chhotelal Parikh v. State of Gujarat (AJ.R. 1965 S.C. 1153)—ref. 38 E.L.R. 222
Gulab Chand Palliwal v. Govind Sahai and others (A.T.R. 1964 Rajasthan 155)—ref. 38 EX.R. 382 .
Gulab Singh, T. v. Rai Bahadur Kharajit Singh Misra (Case No. XXII) Reportsof 16 Election Petitions, 1927 Hammond Vol. Ill P. 178—ref. 38 E.L.R. 353
Guragi Shridhar v. Vithalrao, (40 E.L.R. 189 (S.C.)—rcf. 41 E.L.R. 370
Gurbanta Singh v. Piara Ram Jaggu Ram and others, (A.I.R. 1960 Punjab 614)—ref. 33 E.L.R. 95; 34 E.L.R. 235; 42 E.L.R. 264—inapplicable 36 E.L.R. 307
Gurmerj Singh v. Pratap Singh (A.I.R. 1960 S.C. 122)—ref. 34 E.L.R.2
(xxiii)
Goviiida Basu v. Sankari .Prasad (A.I.R. 1964, S.C. 254) 25 E.L.R. (S.C.) 77— ref. 33 E.L.R. 163, 244, 254; 34 E.L.R. 3; 36 E.L.R. 308 ; 39 E.L.R. 391:
41 E.L.R. 84, 85; 42 E.L.R. 127
Guru Govinda Basu v. Shankari Prasad Ghosal and others, (23 E.L.R. 356-(!964)4S.C.R. 311—ref. 34 E.L.R. 340; 41 E.L.R. 154 N
Gurunath Reddy v. Seshaiah (A.I.R. 1966 A.P. 331 at 335)—ref. 34 E.L.R. 196
Guruswamy, K.N. v. The State of Mysore and others, (A.T.R. 1954 S.C. 592)—ref. 38 E.L.R. 243
Guruswamy Nadar v. Irulappa Konar (died) and others, (67 M.L.J. Reports!389)—ref. 38 E.L.R. 39
HabibBhaiv. Pyatelal and others (A.LR. 1964M.P. 62)—ref. 38 E.L.R. 54
Hackney Case (1874) 2 O* M & H 77;—ref. 41 E.L.R. 263
Haji Abdul Wahid v. B.V. Keskar, 21 E.L.R. 409—inapplicable 39 E.L.R. 464
Haji Aziz and Abdul Shakoor Bros. v. Commissioner of Income-Tax, BombayCity 1961 (2) S.C.R. 651 '
Hanuman Prasad v. Bhagwati Prasad (I.L.R. 24 All. 236)—ref. 42 E.L.R. 54
tfansa Jeevraj Mehta v. (ndubhai Amin (I.E.L.R. 171)—ref. 34 E.L.R. 3
Hansraj v. Pt. Hari Ram & others (40 E.L.R. 125 (S.C.)—ref. 41 E.L.R. 86; 297: 42 E.L.R. 307
Harcharan Singh v. Mohinder Singh, A.I.R. 1968 S.C. 1500;—ref. 42 E.L.R. 1
Hanumant Govind Nargund Kar and another v. State of Madhya Pradesh(A.I.R. 1952 S.C. 343)
—ref. 33 E.L.R. 95; 38 E.L.R. 383
Hariram Singh v. Kamtaprasad Sharma (A.I.R. 1966 M.P. 253)—ref. 33 E.L.R. 245, 259; 34, E.L.R. 282; 37 E.L.R. 349; 38 E.L.R. 120,
382,383
Harish Chandra Bajpai and another v. Triloki Singh and others, (12 E.L.R.461—A.I.R. 1957 S.C. 444; 1957 S.C.R. 371)—ref. 33. E.L.R.95; 34E.L.R. 235,293; 35 E.L.R. 242; 36 E.L.R. 268; 37 E.L.R
108;39;E.L.R.2;392;40E.L.R.215; 41 E.L.R. 27;42. E.L.R. 54—explained 41 E.L.R. 261—followed 42 E.L.R. 149
Hari Sins?h v. Chandrasekar Goyal (Doabia's Election Cases, Part I, 1967) CaseNo. 13 at P. 84—ref. 37 E.L.R. 91
Harivishnu Kamath v. Ahmed Ishaque (A.I.R. 1955 S.C. 233— 10 E.L.R. 216(S.C.)—ref. 35 E.L.R. Ill; 41 E.L.R. 206; 42 E.L.R. 49
Hai i Vishnu Kamath v. Election Tribunal, Jabalpur (5 E.L.R. 248)—ref. 41 E.L.R. 261
Harold I Cammar v. United States of America (100 Lawyer's Election 384)—ref. 39 E.L.R. 391
(xxiv)
Har Singh v. Veerka, I.L.R. (1958) 8 Rajasthan 380—rcf. 39 E.L.R. 385
Har Swarup and another v. Brij Bhushan Saran and another (A.I.R. 1964 All.340).—ref. 38 E.L.R. 382
Har Swarup and another v. Brij Bhushan Saran and others (A.I.R. 1967 S C836) — (1967) I.S.C.R. 342—ref. 33 E.L.R. 120, 34 E.L.R. 294; 38 E.L.R. 382 39 E.L.R. 447—followed 39 E.L.R. 424
Hate Singh v. State of MadhyaBharat (A.I.R. 1963 S.C. 468 at 470)—ref. 41 E.L.R. 85
Hegerston Case (5 O'M and H 70)—ref. 38 E.L.R.54
Hirabai Gendalal v. Bhagirath Ram Chandra (A.I.R. 1946 Bombay 174)—ref. 33 E.L.R. 245, 255
Koldsworth, W.O. v. State of U.P. 1957 S.C. 887—ref. 33 E.L.R 51
Hotilal v. Raj Bahadur, (A.I.R. 1959 Raj, 227)—ref. 39 E.L.R. 391
Hotha Sitaram v. State of Andhra Pradesh (A.I.R. 1959 Andh. P. 359)—ref. 42 E.L.R. 54
Hrishikesh Banerjeeand others v. Sushil Chandra Moulik (A.I.R. 1957 Calcutta211)—ref. 34 E.L.R. 136; 35 E.L.R. 2
Hukam Singh v. Banwari Lai Bapra (A.I.R. 1965 All. 552)—ref. 38 E.L.R. 96, 34 E.L.R. 294
Hussen Khan and another v. Nijalinaappa (A.I.R. 1968 Mys. 18)—ref. 37 E.L.R. 349
Inamati Mallappa Basappa v. Desai Basavaraj Ayyappa, (A.I.R. 1958 S.C.698—14 E.L.R. 296 (S.C.)—ref. 42 E.L.R. 108
Inayatullah v. Diwanchand (A.I.R. 1959 M.P. 58-15 E.L.R, 219)—ref. 34 E.L.R. 294; 35 E.L.R. 265; 37 E.L.R. 20; 42 E.L.R. 486—followed 41 E.L.R. 263; 467—disapproved 36 E.L.R. 71
Inder Lai v. Lai Singh (A.I.R. 1961 Raj. 122)—ref. 41 E.L.R. 262
Inder Lai v. Lai Singh, (A.I.R. 1962 S.C. 1156—23 E.L.R.252—ref. 33 E.L.R. 75; 34 E.L.R. 104, 161; 35 E.L.R. 152; 263; 36 E.L.R. 328-37 E.L.R. 108
In re. Caughery, ABTS I Chancery Div. 521;—ref. 35 E.L.R. 265;
In re Krishna Naicker and another (I.L.R. 54-Madras 618)—ref 38 E.L.R. 161
InR.V. Chat tie, 13ofB. 447—ref. 39 E.L.R. 391,
In the matter of Vindhya Pradesh Legislative Assembly Members (4 E.L.R. 422)—ref. 39 E.L.R. 391; 41 E.L.R. 84;
Jabar Singh v. Genda Lai (A.I.R. 1964 S.C. 1200) 25 E.L.R. 323;—ref. 38 E.L.R. 96, 36 E.L.R. 71; 132, 246; 39 E.L.R. 251; 42 E.L.R. 199—inapplicable 35 E.L.R. 195
(XX V)
Jadav, K.K. v. State of Gujarat (A.I.R. 1966 S.C. 821)—ref. 41 E.L.R. 230
Jadunandan Mehton v. Mosaheb Singh and others (Indian Election case bySen & Podar 1951, Edition 641)—ref. 38 E.L.R. 305
Jagadananda v. Rabindra Nath , (A.I.R. 1958 Calcutta 533)—ref. 34 E.L.R. 136; 35 E.L.R. 2
Jagadish Prasad v. State (A.I.R. 1957 M.P. 226—ref. 42 E.L.R. 54
Jagannath v. Emperor, A.I.R. 1932 Lahore 7—disapproved 4i E.L.R. 133
Jasannath & another v. Narayan Uttamrao Deshmukh & another (C.A. No. 159"(N.C.R.) of 1968 (S.C.) dated 6-9-1968 .—ref. 40 E.L.R. 207; 444; 41 E.L.R. 204
Jagan Nath v. Jaswant Singh and others (A.I.R. 1954 S.C. 210, 9 E.L.R. 231).—ref. 33 E.L.R. 120,128; 34 E.L.R. 293; 35 E.L.R. 242; 36 E.L.R. 132; 268;39 E.L.R. 26; 40 E.L.R. 215; 42 E.L.R., 12—relied on 35 E.L.R. 195; 41 E.L.R. 261
Jagan Prasad Rawat v. Krishna Dutta Paliwal (20 E.L.R. 443)—ref. 38 E.L.R. 243; 35 E.L.R. 265; 41 E.L.R. 149
.ragdev Singh Sidhanti v. Pratab SinghDaulta and others (A.I.R. 1965 S.C. 183—1964(6)S.C.R750—ref. 33 E.L.R. 31, 80; 36 E.L.R. 190,284,328; 37 E.L.R. 1,13,108,151; 38E.L.R., 54, 161, 178, 243, 268; 39 E.L.R. 25, 250, 305, 635; 40 E.L.R. 203;41 E.L.R. 35, 204, 370; 42 E L.R. 192;—relied on 37 E.L.R. 46 . k
—distinguished 40 E.L.R. 319
Jagdish v. Mathura Prasad, Appeal No. 357 of 1963 (Allah. H.C.)—rcf. 37 E.L.R. 138
Jagdish Singh v. Rudra Deolal and others (8 E.L.R. 311)—ref. 34 E.L.R. 324
Jagjit Singh (Dr.) v. Giani Kartar Singh, (A.I.R. 1966, S.C. 773; 28 E.L.R.81 (S.C.)—ref. 33 E.L.R. 22; 75, 95; 38 E.L.R. 54, 96, 384; 34 E.L.R. 104; 293, 294;36 E.L.R 1,308, 328; 37 E.L.R. 20,108; 151; 39 E.L.R. 25; 26; 41 E.L.R. 348,372; 42 E.L.R. 401—observed 35 E.L.R. 233, 242, 263—followed 42 E.L.R. 320
Jai Singh v. Ram Kishan and others (E.P. No. 37 of 1967 dated 4-12-67).—ref. 38 E.L.R. 120
Jamatiai Kowalji Govani v. State of Maharashtra, Cr. Appeal No. 217 of 1966dated 4-4-1967 (S.C.)—ref. 35 E.L.R. 261
Jamuna Prasad Singh v. Shri Ramniva's and others (A.I.R. 1959 M.P. 226)—ref. 38 E.L.R. 54
Janak Singh v. Mahanath Ram Kishore Das ( E.P. No. 4 of 1967 Patna dated12-4-1968)—ref. 38 E.L.R. 178
Janardhan C.S. v. Joseph (A.I.R. 1968 Kerala 169)—ref. 42 E.L.R. 264
Jangal Nath v. Moti Ram and another, (A.I.R. 1951 Punjab 377)—ielief upon 42 E.L.R. 466
(xxvi)
Jangh Bahadur Singh v. Basant Lai and others (8 E.L.R. 429)—ref. 38 E.L.R. 382
Jannalagadda Rarnalingayya and others v. Emperor (A.T.R. 1936 Mad. 835)—ref. 34 E.L.R. 341
Jaswant Singh v. Mangal Dass (9 E.L.R. 385)—inapplicable 35 E.L.R. 195
Jayalakshmi Devamma v. Janardhan Reddy (1959) XVII E.L.R. 302 (A.P.)—ref. 33 E.L.R. 12; 37 E.L.R. 20; 41 E.L.R. 85
Jiwan Baksh v. Khan Bahadur Khan (19 IC. 528)—distinguished 42 E.L.R. 385
Jnanendra Nath Ghose V. The State of West Bengal (A.I.R. 1959 S.C. 1199)—ref. 34 E.L.R. 235
John Blundell v. Charles Harrison 3 O'M & H Hardcastle 148—ref. 41 E.L.R. 262
Joshbhai Chunnibhai Patel v. Anwar Beg A. Mirza (39 E.L.R. (S.C.) 438—ref. 41 E.L.R. 86
Jujhar Singh v. Bhairon Lai and others (7 E.L.R. 457)—ref. 38 E.L.R. 384
Kala Ram S. Bhag Singh v. Fayal Bari Khan and others, (A.I.R. 1941 Peshawar38)—ref. 34 E.L.R. 136; 35 E.L.R. I.
Kamal Narain Sharma v. Dwaraka Prasad Misra, (A.I.R. 1966 S.C. 436)—ref. 40 E.L.R. 318
Kamaraja Na'dar, K. v. Kunju Thevar and others, (A.I.R. 1958 S.C. 687); 14 (S.C.)E.L.R. 270— (1959) S.C.R. 611—ref. 33 E.L.R. 120; 34 E.L.R. 293; 35 E.L.R. 182; 36 E.L.R. 109; 39 E.L.R.446—applied 40 E.L.R. 141
Kamalnarain Shanna v. Pt. Dwarka Prasad Mishra and others, (A.I.R. 1965, MP.15, A.I.R. 1966 S.C. 436)—rcf. 38 E.L.R. 382
Kanauji Lai v. Bhaswai Din (2. E.L.R. I)—lef. 33 E.L.R. 287
Kandaswamy v. Subiamani Goundar, (5 E.L.R. 156)—ref. 35 E.L.R. I l l ; 37 E.L.R. 20
Kandaswami, S. v. S. B. Adityan and others (19 E.L.R. 260; A.I.R. i960 SC770)—ref. 34 E.L.R. 340; 36 E.L.R. 102; 37 E.L.R. 20; 39 E.L.R. 25
Kannailal Bhattacharjee v. Nikhil Das, (A.I.R. 1969 Cal. 267)—ref. 42 E.L.R. 232
Kannidas Harda and another v. Sailaza Kanta Maitra, (A.I.R. 1940 Pat. 685)—ref. 41 E.L.R. 85
Kanucharan Sarat and another v. Radhamohan Padhi, (A.I.R. 1965 Orissa 219)—ref. 33 E.L.R. 265
Kapildeo Singh v. Suraj Narayan Singh, (A.I.R. 1959 Pattia 250)—ref. 35 E.L.R. 120, 135
Karan Singh v. Jamurta Singh, (15 E.L.R. 310; A.I.R. 1959 AIL 427)—ref. 34 E.L.R. 360; 37 E.L.R. 108
Kartar Singh v. Rii ihir and others (1967 P.L.R. 72S)—ref. 42 E.L.R. 227
(xxvii)
Karwada v. Shambhakar (I.L.R. 1959 Bombay 229);—rcf. 38 E.L.R. 38
Kashinath Pandey v. Shibban Lai Saiena, (A.I.R.. 1959 Allah. 54)—ref. 39 E.L.R. 364
Kastur Bhai v. Hira Lai D. Nanawati, (A.I.R. 1923 Bom. 23)•—ref. 42 E.L.R. 54
Kataria Takandas Hemroj v. Pinto Fredrick Michael, (18 E.L.R. 403)—rcf. 38 E.L.R. 269, 384; 34 E.L.R. 235
Kattimani Chandappa Jampanna, Settlement. Hubli v. Laxman Siddappa Naik& Others (A.I.R. 1967 Mysore 182)
Keeje Khanavvar Khadaskhan Hushen Khan and another v. S. Najalingappaand another (A.I.R. 1968, Mysore 18)—dissented from 38 E.L.R. 354
Keshaiilal Kavi v. Narain Prakash, Civil Misc. Restoration Application No.93 of 1967 (Rajasthan H.C.) dated 19-4-1968—ref. 39 E.L.R. 385
Keshaoprasad v. A.D. Mani, (Doabias Election Cases 133)—ref. 34 E.L.R. 294
Kesho Ram v. Hazura Singh , (8 E.L.R. 320)—held inapplicable 35 E.L.R. 195
Keshav Lakshman Borkar v. Deorao Lakshman Anande, (A.I.R. 1960 S.C. 131)—ref. 38 E.L.R. 384—differed 39 E.L.R. 193
Khader Sheriff v. Munuswami Gounder and others, (A.I.R. 1955 S.C. 775)2 E.L.R. 208;—ref. 34 E.L.R. 360; 38 E.L.R. 383,452; 35 E.L..R. 130, 261; 36 E.L.R. 61;41 E.L.R. 85, 370; 42 E.L.R. 541.
Khairul Bashar v. Thannu Lai, (A.I.R. 1957 Allah. 553)—ref. 33 E.L.R. 51
Kumara Nand v. Brijmohan Lai, A.I.R. 1967, S.C. 808 (1967) 2, S.C.R 127,26 E.L.R. 436 (S.C.)—ref. 33 E.L.R. 75; 34 E.L.R. 74, 104, 101, 161; 35 E.L.R. 242; 36 E.L.R.308; 37 E.L.R. 108; 38 E.L.R. 54, 305, 384—followed 39 E.L.R. 320, 41 E.L.R. 261
Khilumal Topandas v. Arjundas Tulsidas, (22 E.L.R. 404)—ref. 37 E.L.R. 21—distinguished 41 E.L.R. (S.C.) 36;
Khub Chand v. State of Rajasthan, (A.I.R. 1967 S.C. 1074)—ref. 33 E.L.R. 310
Kishan Singh v. Bhanwarlal, 1966 E.P.LJ. 563—ref, 34 E.L.R. 293; 41 E.L.R. 391
Kishore Singh v. Banwarlal, 1966, M.P.L.J. 563—ref. 37 E.L.R. 107; 41 E.L.R. 390
Konappa Rudrappa Nadgowda v. Vishwanath Reddy, (A.I.R. 1969 S.C. 447)—ref. 42 E.L.R. 486
Kondaveti Gurunath Reddy v. Seshaiah and others (A.I.R. 1966 A.P. 331)—ref. 38 E.L.R. 410
Kothepally Narasayya v. Jammana Jogi and Finninti Jammayya, (E.P. No.of 1957)—ref. 38 E.L.R. 50
(xxviii)
Krishi Pandit Rishap Kumar and others, (A.I.R. 1960, MP 27)—ref. 33 E.L.R. 117
Krishnji Bhimrao Antrolikar v. Shanker Shantaram More and others, (7 E.L.R.100)—ref. 37 E.L.R. 20; 38 E.L.R. 383
Krishana Kumar v. Krishna Gopal, (A.I.R. 1964 Rajasthan 21)—ref. 38 E.L.R. 120; 35 E.L.R. 265; 41 E.L.R. 262;
Krishna Rao Madhorao Patil v. Onkar Narain Wagh, (14 E.L.R. 386)—relied upon 42 E.L.R. 466
Kultar Singh v. Mukhtiar Singh (A.I.R. 1965 S.C. 141; 24 E.L.R. 419)—ref. 33 E.L.R. 75, 83; 35 E.L.R. 31, 152; 38 E.L.R. 161, 268, 305, 306, 384,36 E.L.R. 190; 37 E.L.R. 21; 42 E.L.R. 343 (S.C.)—distinguished 41 E.L.R. 36
Kumaranand v. Brij Mohan Lai (26 E.L.R. (Raj.) 100)—ref. 33 E.L.R. 265
Kundan Lai v. Custodian Evacuee Property, A.I.R. 1961 S.C. 1316—ref. 37 E.L.R. I.
Kunhiraman, P.V. v. R. Krishna Iyer, (A.I.R. 1962 Kerala 190 (F.B.)—ref. 39 E.L.R. 26—held inapplicable 36 E.L.R. 156—relied upon 42 E.L.R. 467
Kunj Lai and another v. Dharam Pal, E.P. 54 of 1967 dt. 7-5-1968 (J&K)—ref. 42 E.L.R. 299
Lachiram v. Jumuna Prasad Mukhsriya and others, (9 E.L.R. 149)—ref. 33 E.L.R. 245; 36 E.L.R. 262; 37 E.L.R. 138; 38 E.L.R. 268;39 E.L.R. 464
Lachman Singh Gill v. Bibi Harparkash Kaur, (A.I.R. 1960 Punj. 395)—ref. 39 E.L.R. 24
Lakhan Lai Mishra v. Tribeni Kumar and others, (3 E.L.R. 423)—ref. 34 E.L.R. 324
Lakhi Prasad Agarwal v. Shri Nathmal Dhokania, (33 E.L.R. 300)—distinguished 42 E.L.R. 232
Lakshmi Narain v. Balwant Singh, (20 E.L.R. 76)—ref. 33 E.L.R. 51; 35 E.L.R. 110
Lakshmi Shankar Yadav v. Kunwar Shipal Singh, (22 E.L.R. 47)—ref. 42 E.L.R. 199—disapproved 36 E.L.R. 71
Lala Hem Chand v. Lala Pearey Lai, (A.I.R. 1942 P.C. 64)—ref. 35 E.L.R. 30
Laliteshwari Prasad v. Bateshwar Prasad, (A.I.R. 1966 S.C. 580)—ref. 33 E.L.R. 51; 35 E.L.R. 22; 40 E.L.R. 425; 42 E.L.R. 486—relied upon 39 E.L.R. 87, 92; 40 E.L.R. 101
Lai Singh Keshri Sing Rehvar v. Vallabhdas Shankerlal Thekdi and others (A.I.R.1967, Gujarat 62)—ref. 33 E.L.R. 245; 34 E.L.R. 293; 35 E.L.R. 265; 36 E.L.R. 190; 37E.L.R. I; 38 E.L.R. 383, 384; 41 E.L.R. 262
Lai Shyam Shah v. V.N. Swami, (16 E.L.R. 74)—ref. 34 E.L.R. 324
Lai Singh Rehvar v. Vallabhdass, (7 E.L.R. 753)—ref. 34 E.L.R. 161;
(xxix)
Lancaster's case (5 O'M & H 39, 44)—ref. 38E.L.R.54
Latafat Hussain v. Onkar Mai, (A.I.R. 1935 Oudh41);—ref. 35 E.L.R. 2
Laxman Siddappa Naik v. Kathmani Chandappa Jampanna and others, (A.I.R.1968 S.C. 1269)—followed 42 E.L.R. 363
Laxmi Narayan Das and others v. The Province of Bihar (A.I.R. 1950 F.C.59)—ref. 37 E.L.R. 108
Laxmipat Chorasia and others v. State of Maharashtra, (A.I.R. 1968 S.C.938)—ref. 41 E.L.R. 296
Lehri Singh v. Attar Singh, (3 E.L.R. 403)—ref. 35 E.L.R. 2;
Leonard Metchaif v. Marga E. Nitchell, 70 Lawyers Edition 384;—ref. 39 E.L.R. 391
Liladhar Bapia v. Mabibi and others (A.I.R. 1934 Nag. 44)—ref. 34 E.L.R. 136; 35 E.L.R. 2
Linge Gowda v. Shivananjappa, (1953) VI E.L.R. 288;—ref. 33 E.L.R. 2
Lily White v. Hanumat, (A.I.R. 1963 Mad. 13).—ref. 35E.L.R. 131
Londonery Case (1870) S O'M & H 274 at P. 278;—ref. 35 E.L.R. 263; 41 E.L.R. 149
Louisville Evansuelle and St. Lowis Railroad Co. V. Elueford Hilson, UnitedStates, 34 Lawyer's Edition (United States. SC.)ref. 39 E.L.R. 391,415
Lt. Hector Thomas Huntley v. Emperor, A.I.R. F.C. 66—ref. 37 E.L.R. 108
Macdonald, W.C. v. Fred Latiner, (A.I.R. 1929 P.C. 15)—ref. 34 E.L.R. 235
Madan Singh v. Kalayan Singh and others, ( 6 E.L.R. 405)—ref. 38 E.L.R. 53
Madhev Deo Joshi, S. v. Rajbhoj Pandurang Nathbhoj, (13 E.L.R. 430)—ref. 40 E.L.R. 148; 41 E.L.R. 150
Madho Lai Singhu v. Asian Assurance, (A.I.R. 1954 Bom. 305)—ref. 41 E.L.R. 296
Madho Prasad Singh v. Sher Bahadur Singh. (A.I.R. 1936 Oudh. 181)—ref. 42 E.L.R. 54
Madhu Singh Mukha Ram v. Ram Saran Chand Mittal and others, (A.I.R. 1966,Punjab 66)—ref. 33 E.L.R. 180, 220; 38 E.L.R. 269, 382
Maganlal Radhakishan Bagdi v. Hari Vishnu Kamath, (15 E.L.R. 205)—ref. 36E.L.R. 61; 38 E.L.R. 305, 383, 384; 34 E.L.R. 235; 35 E.L.R.263; 40 E.L.R. 208; 41 E.L.R. 85
4 EC/74—3
(xxx)
Mahabir Singh v. Rohin Ramandhwaj Prasad Singh, (A.I.R. 1961 S.C. 1277)—ref. 34 E.L.R. 136
Mahadeo v. Babu Udai Pratap Singh and others (28 E.L.R. 72 (S.C.), A.I.R.1966 S.C. 824)—ref. 34 E.L.R. 213, 222, 324; 36 E.L.R. 71; 38 E.L.R. 96; 39 E.L.R. 100
Mahesh Prasad Sinha v. Mangay Lai, A.I.R. 1964 Patna 53;—ref. 40E.L.R. 318
Mallappa Basappa Imamati v. Basavaraj Ayyappa (A.T.R. 1958 S.C. 698—14 E.L.R. (S.C.) 296)—ref. 33 E.L.R. 120; 40 E.L.R. 215
Mani Gopal Swami v. Abdul Hamid Choudhury, (19, E.L.R. 1959 P.175)—ref. 34 E.L.R. 340
Manikchand v. Krishna, (A.I.R. 1932 Nag. 117)—ref. 34 E.L.R. 136; 35 E.L.R. I
Manubhai Nandalal Amersey v. Popatlal Manilal Joshi, (41 E.L.R. 26/S.C.)—relied on 42 E.L.R. 162
Marshal v. James (1874) (L.R. 9 C.R. 702)—ref. 38 E.L.R. 243
Martin Burn Ltd. v. B.N. Bannerjee, (A.I.R. 1958 S.C. 79)—ref. 34 E.L.R. 294
Masalti v. State of Uttar Pradesh, (A.I.R. 1965 S.C. 202)—ref. 34 E.L.R. 161
Mast Ram v. Harnam Singh Sethi and others, (7 E.L.R. 301)—ref. 38 E.L.R. 54
Mast Ram v. S. Iqbal Singh (1955), (12 E.L.R. 378)—ref. 33 E.L.R. 2
Maulana Abdul Jalil v. Rabindra (13 E.L.R. 290)—ref. 33 E.L.R. 301; 35 E.L.R. Ill
McFailane v. Hulton (1899) (I) Ch. 884 at 888—ref. 41 E.L.R. 36
McMillan v. Guest (1942) Appeal Cases 561;—ref. 40 E.L.R. 81
Md. Dharsiri Ansari v. M.R. Masaniand others, (18 E.L.R. 160)—ref. 37 E.L.R. 20
Meghrmal Kothari v. Delimitation Commission and others, (A.I.R. 1967 S.C.669)—ref. 38 E.L.R. 383
Mehar Sin?h v. Mshar Singh , (A.I.R. 1961 Punjab 44)—ref. 36 E.L.R. 61
Mehar Singh, S. v. Umrao Singh, (A.I.R. 1961 Punjab 244)—ref. 34 E.L.R. 105, 235; 37 E.L.R. 20; 38 E.L.R. 120; 39 E.L.R. 250, 392;42 E.L.R. 299
Mehta Govardhan Das Girdharilal v. Chavada Akbar Dalumiyan and others, (7E.L.R. 374).—ref. 38 E.L.R. 305
Metropolitan Meat Industry Board v. Shudy and others (1927) A.C. 899—ref. 33 E.L.R. 163
(xxxi)
Michael, G. v. S. Venkateswaran, Addl. Secretary to Govt. Public (Elections)Deptt. Madras (A.I.R. 1952 Madras 474)—ref. 38 E.L.R. 38
Misir Raghobardial v. Sheo Baksh Singh, (I.L.R. 9 Cal. 439)—ref. 38 E.L.R. 222
Mohammad Ghouse v. State of Andhra Pradesh, (A.I.R. 1960 Andh. P. 194) .—ref. 42 E.L.R. 54
Mohammad Raza and others v. Mst. Abbas Bani Bibi, (A.I.R. 1932, P.C.158)—ref. 38 E.L.R. 243
Mohammed Ayub Khan v. Beli Ram and others, (A.I.R. 1962, J & K 24)—ref. 38 E.L.R. 342
Mohan Raj v. Surendra Kumar, (39 E.L.R. 423 S.C.)—distinguished 42 E.L.R. 232
Mohan Singh v. Bhanwarlal and others, (A.I.R. 1964, S.C. 1366; 1953 M.P.L.J.498)—ref. 33 E.L.R. 95 120, 245, 392; 34 E.L.R. 74, 235, 340; 36 E.L.R. 190,37 E.L.R. 46; 41 E.L.R. 35, 370
Mohan Singh Laxman Singh v. Banwarlal Rajmal Nahata and others (A.I.R.1964, Madhya Pradesh 137)—ref. 33 E.L.R. 95; 36 E.L.R. 262; 37 E.L.R. 107; 41 E.L.R. 133
Mohd Yusuf and another v. D. and another, (A.I.R. 1968 Bom. 112)—ref. 41 E.L.R. 296
Mool Chand Jain v. Rulia Ram etc. (A.I.R. 1963 Punjab 516)—ref. 34 E.L.R. 235; 35 E.L.R. 131
Monterio, G A. v. The State of Ajmer, (A.I.R. 1957 S.C. 13)—ref. 39 E.L.R. 391
Moinduddin B. Harocis v. B.P. Dingi (3 E.L.R. 248)—ref. 33 E.L.R. 179, 197
M/s Chuiilal Dwvkanath v. Hartford Fire Insurance Co. Ltd, and another,A.I.R. 1958, Punjab 440—ref. 41 E.L.R. 85
M/s Gordhandas Baldev Das v. The Governor General-in-Council, (A.I.R.1952 Punj. 103)—ref. 42 E.L.R. 54 (
Motilal v. Mangla Prasad and others (A.I.R. 1958 Allahabad 794), (15 E.L.R.425)—ref. 35 E.L.R. 110; 36 E.L.R. 109; 38 E.L.R. 384; 42 E.L.R. 466
Moti Singh v. Bhaiyyalal, (A.I.R. 1968 BOM. 370)—ref. 42 E.L.R. 127
Mubarak Miztknr v. Lai Bahadur, (20 E.L.R. 176)—ref. 38 E.L.R. 54
Mulai and another v. Lai Dan Bahadur Singh and others, (9 E.L.R. 8)—ref. 38 E.L.R. 53
Munro v. Balfour (1893) I. Q. B. 113—ref. 38 E.L.R. 22
Murlidhar Singh, D. v. Manga Ram and others, (Doabia's Election Cases, 1966.P. 192)—ref. 39 E.L.R. 354
(xxxii)
Murarka Radhey Shyam Ram Kumar v. Rup Singh Rathore and others, (A.I.R.1964 S.C. 1545)—ref. 34 E.L.R. 293, 294; 35 E.L.R. 182; 36 E.L.R. 132, 357; 38 E.L.R. 382;39 E.L.R. 250, 364—applied 40 E.L.R. 141—distinguished 42 E.L.R. 232—relied on 39 E.L.R. 320
Muthiah Chettiar, M.A. v. Sa. Ganesan and another, (A.I.R. 1958 Mad. 553/21E.L.R. 215, A.I.R. 1960 Mad. 85)—ref. 35 E.L.R. 130, 173; 36 E.L.R. 284; 38 E.L.R. 54, 88, 244, 265, 384
Murlidhar Reddy, D. v. Pagatulla Rsddy and another (Doabia's Election Cases(1964) P. 218, Special Appeal No. 34 of 1963)—ref. 38 E.L.R. 378
Mylapore Krishnaswami v. Emperor, (32 Mad. 384-395);—ref. 41 E.L.R. 133
Nagabai Ammal and others v. B. Sharma Rao and others, (1956, S.C. 533)—ref. 34 E.L.R. 235
Nand Kishore Rath v. Himanshu Sekhara Pandhi (Doabia's Election CasesVol. I (1955) Edition P. 186)—ref. 38 E.L.R. 354
Nand Kishore Saraf v. The State of Rajasthan and another (A.I.R. 1965, S.C.1992)—ref. 38 E.L.R. 243, 250
Nandu V. Bhuwanoo, (A.I.R. 1929 Nag. 75)—ref. 42 E.L.R. 54
Nini Gjpal Swami v. Abdul Himid Choudhury and another, (A.I.R. 1959Assam 200/19 E.L.R. 175)—r:f. 33 E.L.R. 95, 175; 38 E.L.R. 120, 383, 384
NarasiTihan v. Nitssan Chettiar, (20 E.L.R. I)—ref. 34 E.L.R. 3; 36 E.L.R. 284; 41 E.L.R. 164
Nirayan Bhaskar Khare v. Election Commission of India, 13 E.L.R. 112,(S.C.)—ref. 34 E.L.R. 324; 35 E.L.R. 110—relied on 42 E.L.R. 49
Narasimha Reddy v. Bhumaji & another, (A.I.R. 1959 A.P. Ill (b)—ref. 42 E.L.R. 264
Narasimha Reddy, K. v. V.G. Bhupathi and Manik Rao, (Election PetitionNo. 18 of 1967 in Andhra Pradesh, H.C.)—rcf. 38 E.L.R. 50
Nirayan Reddi, B.K. (A.I.R. 1941 Madras 324)—ref. 33 E.L.R. 272
Narayan Vasudev Phadke v. Emperor, (A.I.R. 1940 Bombay 379)ref. 34 E.L.R. 341
Mirbada Prasad v. Chhagamal and others, 39 E.L.R, 277 (S.C.)—ref. 41 E.L.R. 27—inapplicable 39 E.L.R. 464—relied upon 40 E.L.R. 149—distinguished 41 E.L.R. (S.C.) 51
(xxxiii)
Nathulal v. Durga Prasad, (A.I.R. 1954 S.C. 355)—ref. 41 E.L.R. 296
Nathuram Shikshak v. R.P. Dixit (1965 A.L.J.P. 25)—ref. 38 E.L.R. 93, 117; 42 E.L.R. 199
Naunihal Singh v. Kishorilal Paliwal, (A.I.R. 1961 M.P. 84)—ref. 38 E.L.R. 269, 382
Nazamuddin v. Queen Batress, (T.L.R. 28 Cal. 344)—ref. 39 E.L.R. 391
Nazir Ahmed v. King Emperor, (A.I.R. 1936 P.C. 253; (2)—ref. 42 E.L.R. 466
Nazmul Haque v. Ajmad Ali and others. (18 E.L.R. 253)—ref. 38 E.L.R. 161
Neel Chand v. Rulia Ram Pannalal and another, (A.I.R. 1963 Punjab 51)—ref. 38 E.L.R. 382
Net v. Long bottom, I K. B. 767—ref. 37 E.L.R. 391
Niharendu Dutt Mazumdar v. Sudhir Chandra Bhandari, (6 E.L.R. 197)—ref. 35 E.L.R. 110, 37 E.L.R. 91; 40 E.L.R. 148; 41 E.L.R. 150
Nisar Ali v. State of Uttar Pradesh (1967) S.C.R. 651, 657;—rcf. 41 E.L.R. 184
North louth (1910 6 O'M & H. 103)—rcf. 33 E.L.R. 194
Nyalchand Virchand Seth v. Election Tribunal Ahmedatad and others, (8 E.L.R.417)—ref. 38 E.L.R. 385
Om Prabha Jain (Mrs) v. Abnash Chand and another, (C.A. No. 1862 of 1967S.C. dated 7-2-68)—ref. 38 E.L.R. 383—relied on 42 E.L.R. 161
Om Prabha Jain v. Gianchand and another, (A.I.R. 1959 S.C. 837—21 E.L.R.(S.C.) 54—ref 40 E.L.R. 215
P.A. Pleader of Bansi v. Judges of Allahabad High Court, (A.I.R. 1963, All.167)—ref. 42 E.L.R. 54
Palaman's Case, D.C.E. Vol. II Case No. 131—ref. 37 E.L.R. 20
Pandit K.C. Sharma v. Election Tribunal Chatarpur and others, (15 E.L.R. Ill)—ref. 39 E.L.R. 24
Pandit Ramnath Kalia v. Paul Singh, (17 E.L.R. 282)—ref. 33 E.L.R. 265 .
Pandit Shree Krishna Selot v. Ram Charan Pujari, (41 E.L.R. 50 (S.C.)—ref. 42 E.L.R. 81
Paokai Haokip v. Rishang and others, (39 E.L.R. (S.C.) 431,—ref. 41 E.L.R. 354—followed 41 E.L.R. 44; 42 E.L.R. 466
Paramalai, K. v. N. Alangaram and another, (H.C. of Madras) (decided on 5-10-1967)—ref. 38 E.L.R. 38
(xxxiv)
Parmar, Y.S. (Dr.) V. Hira Singh Pal, (1958) XVI E.L.R. 45)—ref. 36 E.L.R. 109.
Pashupati Nath Singh v. Harihar Prasad Singh, (A.I.R. 1968 S.C. 1064)35 E.L.R. 220 (S.C.) .—ref. 37 E.L.R. 349; 38 E.L.R. 354; 40 E.L.R. 36, 53, 102; 42 E.L.R. 275,291—relied upon 39 E.L.R. 211—followed 40 E.L.R. 131
Patil, K..H. v. K.P. Gadag and others, Mis F.A. No. 37 of 1965 (Mysore)—ref. 41 E.L.R. 85
Paynter v. Jam?s (1866-67) L.R. 2 C.P. 348—ref. 35 E.L.R. 221
Pearey Lai v. Amba Prasad and another, (Doabia's Election Cases, Vol. 11864-1935)—ref. 38 E.L,R. 353, 356.
Philips v. Philips, (1878) 4 of B.D. 127—ref. 41 E.L.R. 261
Plymouth's Case (1881) TH O'M & H 107 at p. 108—ref. 35 E.L.R. 261
Pannuswami, N.P. v. Returning Offber Namakkal, (A.I.R. 1952 S.C. 64,I E.L.R.. 133)—ref. 35 E.L.R. 261; 40 E.L.R. 355; 41 E.L.R. 206; 42 E.L.R. 49, 466
Pothu Reddiar N. v. Muthiah and another, (A.I.R. 1963 Madras 390)—ref. 38 E.L.R. 382; 33 E.L.R. 180, 230
Pottokkal Krishnan Sukumaran v. Kunjauvaree Joseph Mundasseri (A.I.R. 1959Kerala 120)—ref. 33 E.L.R. 265, 282 .
K Prabhakar Yagni, v. Dist. Magistrate, (1953 All. L.J. 667)—ref. 42 E.L.R. 2
Prabhu Das v. Jor Singh, (18 E.L.R. 110);—ref. 38 E.L. R. 90; 39 E.L.R.24; 41 E.L.R. 297—followed 36 E.L.R. 297
Prabhat Bank v. Babu Ram, (A.I.R. 1966 All. 134);—ref. 35 E.L.R. 131
Pratap Singh v. Crown .L.R. 7, Lahore 91);—ref. 34 E.L.R. 161
Pratab Singh v. Shri Krishana Gupta, (A.I.R. 1956, S.C. 140);—ref. 42. E.L.R.I., 2—relied on 35 E.L.R.182
Printers (Mysore) Pvt. Ltd. v. Union of India, (A.T.R.1966 Myso re 237);—ref. 42 E.L.R. 54
Priyabrat Narain v. Brijmohan Singh, (A.I.R.1964 Patna 2)—ref. 33 E.L.R.51
Public Prosecutor v. Venkatarama Naidu, I.L.R. (1944) Mad. 113;—approved 41 E.L.R.133
Punjab Cooperative Bank Ltd. V. Commissioner of Income Tax, Lahore, (67,I.A.464) . . :—relied on 35, E.L.R.182
Punjab Rao v. D.P. Meshram and others, (1965 I. S.C.R. 849)—ref1.'38 E.L.R. 38
(xxxv)
Pyndah Venkatanarayana v. G.V. Sudhakar Rao & others, (A.I.R.1967 A.P.11I)—ref. 38 E.L.R.382
Queen v. Owners (Vol. 121 English Reports P.36)—ref. 38 E.L.R.368
Queen v. The Inhabitants of Menil Worth 125 E.R. 631—ref. 34 E.L.R.3
Radha Krishnan v. Muthu Kumara Swamy, (19 E.L.R.481),—ref. 35 E.L.R.110
Radhakrishna v. Shridhar, (A.I.R.1954 Nag. 267).—ref. 42 E.L.R.54
Radha Krishna Shukla and another v. T.C. Maheshwar and others (12 E.L.R.378),—ref. 33 E.L.R.12; 37 E.L.R.20; 38 E.L.R.120, 126, 129;139
E.L.R.392.
Rashavamma, A and another v.Chenihanma and another, (A.I.R.1964 S.C.I36'—ref. A.I.R.1964 S.C.136.
Raghunath Misra v. Kishore Chandra Deo Bhanj and others, 17 E.L.R. 321;—ref. 34 E.L.R.324
Raehunath Singh v Kampta Prasad, (8.E.L.R. 424)—ref. 34 E.L.R.3.
Rai Kokilabai v. Keshvalal Mangaldas and Co., (A.I.R.1942 Bom 18)—ref. 34 E.L.R. 104
Raja Bahadur K.C. Deo Bhanj v. Raghunath Misra and others, (A.I.R. 1959S.C. 589)—ref. 37 E.L.R. 67; 38 E.L.R.306, 325
Raja Hiriider Singh H.H. v. S. Karnail Singh and others, (12 E.L.R. 421)—ref. 34 E.L.R.105
Raja Janaki Nath Roy and others v. Jyotish Chandra Acharya, (A.I.R. 1941,Calcutta 41.
—ref. 34.E.L.R. 136
Rajendra Prasad Yadav v. Suresh Chandra Mishra, (II E.L.R. 222),—ref. 38 E.L.R. 383; 41 E.L.R. 149
Rajindsr Singh v. Manga Ram and others, (Doabia's Election Cases 1966@P92) .—ref. 38 E.L.R. 353
Raj Krushna Bose v. Binod Kanungo and others, (A.I.R. 1954 S.C.202)—Ref. 38 E.L.R. 243, 383; 41 E.L.R. 221—relied on 38 E.L.R. 251
Rajaju v. Brij Kishore Pataria and others, (41. E.L.R. (S.C.) 347)—distinguished 42 E.L.R. 78 (S.C.)
Raja of Rarrmad v. Kamith Ravuthan, (A.I.R. 1922 Mad. 34),—ref. 42 E.L.R. 54
Raja Ram Sahu v. Brijraj Bahadur, (I.L.R. 38 Patna 59)—Ref. 39 E.L.R. 250
Raja Raj Dsv. v. Gangadhar Mohapatra, (A.I.R. 1964 Orissa 23 E.L.R. 283)—ref. 34 E.L.R. 196—distinguished 41 E.L.R. 184
Rijsnira Prasai Jain v. Silbhadrai Yajee, (A.I.R. 1967, S.C. 1455)—ref. 35 E.L.R.80; 39 E.L.R.25
Raju, V.B. v. V. Ramachandra Rao and others, (21 E.L.R. I)—ref. 38 E.L.R. 54, 354, 378
(xxxvi)
Ram Abhilakh Tiwari v. Election Tribunal Gonda and others, (-14 E.L.R. 375;A.I.R. 1958 All. 663 .—ref. 37 E.L.R. 108, 38 E.L.R. 54
Ramakrishna Reddy v. Kamale Devi., (5 E.L.R. 173)—disapproved 35 E.L.R. 195
Ramanbhai v. Dabhi Ajit Kumar, (A.I.R. 1965 S.C. 669)—ref. 34 E.L.R. 32, 340, 360; 35 E.L.R. 31; 36 E.L.R. 190; 284;
37 E.L.R.l 39 E.L.R. 464
Ram Kishan v. Jai Singh (37 E.L.R. (S.C.) 217)—rcf. 38 E.L.R. 120; 41 E.L.R. S.C. 35, 262, 370
Ram Kumar Singh v. Mohd Salim, (A.I.R. 1929 All. 339)—rcf. 42 E.L.R. 54
Ramappa v. Sangappa, (A.I.R. 1958; S.C. 937)—ref. 38 E.L.R. 3
Ramasvvamy, B.M. v. B.M. Krishnamurthy, (A.I.R. 1963 S.C. 458)—ref. 39 E.L.R. 122; 42 E.L.R. 2—inapplicable 36 E.L.R. 156
Ram Dial v. Sant Lai, (A.I.R. 1959, S.C. 885; 20 E.L.R. 482)—ref. 34 E.L.R. 161; 36 E.L.R. 190, 328; 39 E.L.R. 25, 250; 40 E.L.R. 304;
41 E.L.R. 27
Ramesh Chander v. State, (A.I.R. 1966, Punjab 93)—ref. 35 E.L.R. 60
Rameshwar v. State of Rajasthan, (A.I.R. 1952 S.C. 54),—ref. 34 E.L.R. 235; 38 E.L.R. 383
Ramishwar Dayal v. Sub Divisional Officer, Ghatanpur, (A.I.R. 1963, Allaha-bad 518)—ref. 40 E.L.R. 222
Ram Lai v. State of Bombay, (A.I.R. 1960 S.C. 961)—ref. 41 E.L.R. 250
Ram Laxman Singh v. Girindra Mohan, (A.I.R. 1963 Cal. 13)
Ram Phal Raghunath Sahai v. Brahm Prakash and others, (A.I.R. 1962 Punjab129) .—ref. 38 E.L.R. 120; 39 E.L.R. 392
Ram Murtthy v. Sumba Sada, (2 E.L.R. 330)—ref. 35 E.L.R. 2
Ram Siwak Yadav v. Hussain Kamil Kidwai and others, (A.I.R. 1964, S.C.1249; 26E.L.R. 14 (S.C.).—ref. 33 E.L.R. 22; 34 E.L.R. 294; 36 E.L.R. 1; 38 E.L.R. 96; 35 E.L.R. 242;
39 E.L.R. 26, 251—followed 36 E.L.R. 132; 42 E.LR. 320 (S.C.)
Ramshankar v. Jugal Kishore, E.P. 36 of 1967 dated 26-7-1967 (M.P.)—ref. 36 E.L.R. 357
Ram Phil Raghu Nath Sahai v. Brahm Prakash and others, (A.I.R. 1962 Pun-jab 129)—ref. 33 E.L.R. 95
Ram Swarup Prasad Yadav v. Jagat Kishore Prasad Narain Singh, (17 E.L.R.110) .—ref. 42 E.L.R. 2
(xxxvii)
Rananjaya Singh v. Baijnath Singh and others, (10 E.L.R. 129)—(1953)I.S.C.R. 671 . . .—ref. 35 E.L.R. 173; 36 E.L.R. 284; 38 E.L.R. 54, 244; 40 E.L.R. 126; 41
E.L.R. 86; 297—relied on 38 E.L.R. 88, 264
Ranchodlal Liladhar Vayada v. Sanjalia Mohanlal Virjibhai and others, (4E.L.R. 493) .—ref. 37 E.L.R. 20
Ranjit Singh v. Pritam Singh and others, (A.I.R. 1966 S.C.1626)—ref. 33 E.L.R. 51, 66, 287, 291; 34 E.L.R. 222; 36 E.L.R. 32; 38 E.L.R.
342—relied upon 41 E.L.R. 149
Rao C.V.K. v. D.B. Rao, (A.I.R. 1965 S.C. 93);—ref. 33 EX. R.51; 36 E.L.R. 226; 38 E.L.R. 306;
Rao, C.V.K. v. D.B. Rao (A.I.R. 1964 Andh. P. 185)—ref. 42 E.L.R. 264
Rattan Anmol Singh v. Ch. Atma Ram, (A.I.R. 1954 S.C. 510)—ref. 33 E.L.R. 51; 34 E.L.R. 282; 38 E.L.R. 53, 342
Rattan Singh and another v. Padam Chand Jain and others, (9 E.L.R. 189)—ref. 38 E.L.R. 53
Rattan Singh v. Devinder Singh, (7 E.L.R. 234)—ref. 34 E.L.R. 360
Rattan Shukla v. Dr. Brijindra Swarup and others, (II E.L.R. 332)—ref. 37 E.L.R. 20
Ravanna Subanna v. Kaggeerappa, (A.I.R. 1954 S.C. 653)—ref. 33 E.L.R. 244, 254; 34 E.L.R. 3; 41 E.L.R. 84
Rabindra Nath v. Raghuvir Singh, (A.I.R. 1968 S.C. 300)—ref. 42 E.L.R. 108
Reg. v. Frost, 4 St. Tr. (NS) '85 at P. 336—ref. 35 E.L.R. 261
Reg. v. Humphrey, 10 Ad. & E. 335—ref. 35 E.L.R. 221
Rhedoy v. Koylash , 13 W.R. (F.13) 3;—rcf. 34 E.L.R. 324
Reg. v. Ramajirao Jivbaji, 12 Bom. H.C.R.I.—ref. 39 E.L.R. 391
Rikhab Das v. Ridhichand Palliwal and others, (9 E.L.R. 115)—ref. 38 E.L.R. 382, 384; 40 E.L.R. 148; 41 E.L.R. 150
Riresh Mtsra v. Ram Nath Shartna, (A.I.R. 1959; Assam 139)—ref. 35 E.L.R. 173
Ross, W.L. v. Regional Transport Authority Lucknow (A.I.R. 1962 Allahabad574) . . . .—ref. 38 E.L.R. 243
Roop Lai Mehta v. Dhan Singh, A.I.R. 1968 Punj. I—ref. 42 E.L.R.I, 440 '—differred from 39 E.L.R. 26—followed 42 E.L.R. 2 (Per Mahajan J.)
Rosamma Punnose v. Bala Krishnan Nair, (14 E.L.R. 210)—held inapplicable 35 E.L.R. 195
(xxxviii)
Rudrappa Nagowdav. Bishwanath Reddy, C.A. 17505 of 1967 dt. 19-7-1968—distinguished 39 E.L.R. 305
Ruliya Ram v. Chaudhri Multan Singh, A.I.R. 1960 Punjab 45; 17 E.L.R. 6—ref. 37 E.L.R. 20; 41 E.L.R. 203
Ran Bahadur Singh v. Lacho Koer (l.L.R. II, Cal. 301)—ref. 38 E.L.R. 222
Rup Singh v. Election Tribunal Municipal Board, Aligarh & others(A.I.R. 1960 Allah. 66) . . .—ref. 37 E.L.R. 91
Rustom Satin v. Dr. Sampoornanand and others, (20 E.L.R. 221)—ref. 38 E.L.R. 161, 171; 33 E.L.R. 301; 35 E.L.R. 265; 41 E.L.R. 262
Sadhu Ram v. Hira Singh, C.O.P. 7 of 1967 dated Oct. 20, 1967 (Delhi)—ref. 35 E.L.R. 173; 36 E.L.R. 71
Sa Ganesan v. M.A. Muthiah Chettiar, (19 E.L.R. 16);.—ref. 38 E.L.R. 54
Sahai, L.P. v. Bateshwar Prasad and others, (A.T.R. 1966, S.C. 580)—ref. 38 E.L.R. 306
Saka Venkata Rao v. Election Commission, (1953) S.C.R. 114—ref. 37 E.L.R. 42
Salig Ram Jaiswal v. Sheo Kumar and others, (9 E.L.R. 67)—ref. 34 E.L.R. 104
Samant Balakrishna v. G. Fernandes, (C.A. 893 and 894 of 1968) 41 E.L.R. 260S.C.—ref. 41 E.L.R. 370, 42 E.L.R. 54, 162
Samat Prasad Singh v. Dasu Sinha Doabia Election Cases 1964 P. 205 at212 and 213.—ref. 39 E.L.R. 26
Sangappa v. Shivarammurthy (A.I.R.1961, Mys. 106; 13 E.L.R. 365).—ref. 34 E.L.R. 2.
Sankara Gouda v. Sirur Veerabadrappa, A.I.R. 1963, Mys. 81;—ref. 34. E.L.R. 2, 360
Sankara Reddi, N. v. Yashoda Reddi (1957) XIII E.L.R. 34;—ref. 33 E.L.R. 2
Sant Prasad Singh v. Dadu Sinha (A.I.R. 1964 Patna 26)—ref. 38 E.L.R. 268
Sarla Devi (Smt.) v. Birendar Singh, A.I.R. 1961, M.P. 127-20 E.L.R. 275, (1959)—ref. 34 E.L.R. 293; 36 E.L.R. 357; 41 E.L.R. 262
Sardul Singh Caveeshar v. Hukum Singh and others, (6 E.L.R. 316)—ref. 38 E.L.R. 383
Sarat Chandra v. Khagendranath and others (A.I.R. 1961S.C. 334)—ref. 38 E.L.R. 292; 41 E.L.R. 262
Sasivarna Theoar v. Arunagiri and others, (17 E.L.R. 313)—ref. 41 E.L.R. 261—distinguished 42 E.L.R. 313
Satis Kumar v. Election Tribunal (District Judge) Alwar and another (A.I.R.1963 Rajasthan 157)—ref. 38 E.L.R. 382
(xxxix)
Satyaketu v. Election Tribunal Bareilly (A.L.J. 1963, 841)—ref. 38 E.L.R. 96
Satya Parkash v. Bashir Ahmed Qureshi, (A.I.R. 1963 Madhya Pradesh 316);—ref. 34 E.L.R. 104
Savitri Devi v. Prabhawati Misra and another, (15 E.L.R. 358)—ref. 38 E.L.R. 54; 41 E.L.R. 164
Seetaramareddy v. Chinna Ramreddy, 1959 Andh. Law Times 61;—ref. 42 E.L.R. 54
Seshadri, R.M. v. Vasanta Pai, (40 E.L.R. 303 (S.C.),—ref. 41 E.L.R. 296;—relied on 42 E.L.R. 313
Shambu Nath v. State of Ajmer, A.I.R. 1956 S.C. 404 at 406—ref. 41 E.L.R. 85
Shah Umair Sahib v. Ram Charan Singh and others, (10 E.L.R. 162)—ref. 38 E.L.R. 382
S'lakti Prasad Shukla v. Balwant Singh, (4 E.L.R. 301)—Held applicable 35 E.L.R. 195
Sliamu Pattar v. Abdul Kadir Ravathur (1912) 39 LA. 213;—ref. 35 E.L.R. 261
Shankara Gowda v. Maniyappa and another, (IX E.L.R. 101)—ref. 34 E.L.R. 235, 360; 35 E.L.R. 227.
Shankar Shastri v. Mayadhardas, (A.I.R. 1959 M.P. 39)—ref. 36 E.L.R. 226
Shanta Devi Vaidya v. Bashir Hussain Zaidi and others (8 E.L.R. 300)—ref. 38 E.L.R. 382
Shanti Lai v. Bipen Lai and others, (A.I.R. 1964 M.P. 92)—ref. 38 E.L.R. 306, 382
Shanti Swarup Sharma v. Abdul Rehman Farooqui, (A.I.R. 1965 M P 65V—held inapplicable 35 E.L.R. 195 ' '
Sharraa K.C. v. Krishi Pandit Rishab Kumar and others, (AIR 1960 Ma-dhya Pradesh 27—20 E.L.R. 501) .—ref. 33 E.L.R. 95; 35 E.L.R. 31; 36 E.L.R. 262
Sharma, K.C. v. Rishabh Kumar Mohanlal and others (20 E L R 401) 0959M.P.L.J. 715) ' ' *•—ref. 38 E.L.R. 54; 33 E.L.R. 245, 261
Sheona Singh v. Narsih Chandra, (A.I.R. 1958 Raj. 324)—ref. 35 E.L.R. 172
Sheopal Singh v. Ram Pratap (A.I.R. 1965 S.C. 677) (1965) I S CR 175—ref. 34 E.L.R. 104; 38 E.L.R. 305, 384; 41 E.L.R. 190
Sheopat Singh v. Ram Pratap, (A.I.R. 1958, Rajasthan 324-16 E L R 103^-ref. 33 E.L.R. 75; 36 E.L.R. 284, 357; 37 E.L.R. 108; 41 E.L.R. 297, 370
Sheopat Singh v. Ram Pratap (A.I.R. 1965 S.C. 677, 16 E L R 435 (S C\-ref. 33 E.L.R. 75, 95; 34 E.L.R. 74; 35 E.L.R. 130; 36 E.L R 308- 37
E.L.R. 1; 38 E.L.R. 54; 39 E.L.R. 24, 25; 41 E.L R 297 370—followed 41 E.L.R. 261
Sheo Sadan Singh v. Mohanlal Gautam, 41 E.L.R. 146 (S.C ) 1969 (I) S CCases 408 ' '—ref. 42 E.L.R. 54
Shiv Deo Misra v Ram Prasad, (A.I.R. 1925 All. 19)—distinguished 42 E.L.R. 385
Shivram v. Shivcharan Singh, 1964 (Doabia's Election Cases 80- A.T.R. 1964Rii. 126)—ref. 34 E.L.R. 136; 38 E.L.R. 222, 239
Shivram Sawant Bhonsale v. Pratap Rao Deirao Bhonsale, (17 E.L.R. 37)—ref. 38 E.L.R. 54 ,85
Shiv Shankar Kanodia v. Kapildeo Narain Singh, Election Appeal No. 4. of1965 (Patna)—distinguished 34 E.L.R. 282—disapproved 35 E.L.R. 221
Shubnath Dsogram v. Ra-n Narain Prasad and others, (A.I.R. 1960 S.C. 148)—ref. 38 E.L.R. 161, 171, 360; 37 E.L.R. 1; 39 E.L.R. 464
Shyamsundar, B.v. Shankar Deo Vedalankar and others, (A.I.R. 1960 Mysore27)—ref. 38 E.L.R. 39, 49
Siddik Mohmed Shah v. Mt. Saran, A.I.R. 1930, P.C. 57 (I)—ref. 34 E.L.R. 235; 35 E.L.R. 30—inapplicable 36 E.L.R. 307
Sitaram Mahto v. Baidyanath Panjior, (40 E.L.R. 354)—ref. 42 E.L.R. 84
Sinha C.P. v. I.P. Mahton, (I.L.R. 30 Patna 1237)—ref. 39 E.L.R. 250
Sodhi Pindi Das v. Emperor, (A.I.R. 1938 Lahore 629)—disapproved 41 E.L.R. 133
Somchand Manubhai Solanki v. Karsondas Ukabhai Parmar, 39 E.L.R. 344(S.C.);—rcf. 42 E.L.R. 162
Soowalal v. P.K. Chaudhary and others, (21 E.L.R. 137)—ref. 38 E.L.R. 120, 127, 130; 34 E.L.R. 324; 39 E.L.R. 392
Sreenivasan, A. v. Election Tribunal (Madras, II E.L.R. 278)—ref. 39 E.L.R. 446
Sri Kishan v. Sat Narain, (37 E.L.R. 13)—ref. 39 E.L.R. I; 41 E.L.R. 164
Srinivasan v. Vasantha Pai and others, (10 E.L.R. 245)—ref. 39 E.L.R. 25
State Bank of Bombay v. Purshottam Jog Naik, (A.I.R. 1952 S.C. 317)
State of Andhra Pradesh v. Digyadarasan, (A.I.R. 1969 A.P. 9)—ref. 42 E.L.R. 54
State of Bihar v. G.N. Ganguly, A.I.R. 1958 Patna 26;—ref. 42 E.L.R. 54
State of Orissa v. Ramachandra, (A.I.R. 1964 S.C. 685)—ref. 34 E.L.R. 2
State of Punjab v. Sat Pal Dang and State of Punjab v. Dr. Baldev Prakash andothers, (1969) I.S.C.R. .—applied 40 E.L.R. 141
(xli)
State v. Ram Kishan Ktrpal Singh etc. (A.I.R. 1964 S.C. 1366)—ref. 33 E.L.R. 95
State of Uttar Pradesh v. Babu Ram Upadhyaya {A.I.R. 1961 S.C. 751)—ref. 40 E.L.R. I
State of Uttar Pradesh v. Manbodhanlal Shrivastava, (1958) S.C.R. 533—applied 40 E.L.R. 141
State of Uttar Pradesh v. Murtaz Ali, (1961, A.L.J. 287)—ref. 41 E.L.R. 248
State of Uttar Pradesh v. Singhara Singh and others, (A.I.R. 1964 S.C. 358)—ref. 38 E.L.R. 268, 274; 42 E.L.R. 466
State of W. Bengal v. Ram Ajodhya Singh, (A.I.R. 1965 Cal. 348)—ref. 42 E.L.R. 54
Subha Rao (C) v. K. Brahmananda Reddy (1966) II An. W. 401 at 409; A.I.R.1967 A.P. 155 .—ref. 34 E.L.R. 196; 235; 41 E.L.R. 250
Subha Rao v. Venkata Rama Rao, (A.I.R. 1964 A.P. 53)—ref. 34 E.L.R. 136; 35 E.L.R. I
Subha Rao, Ch. v. Member, Election Tribunal, Hyderabad and others, (A.I.R.1964 S.C. 1027) .—ref. 34 E.L.R. 293; 38 E.L.R. 382, 391, 39 E.L.R. 250, 364—relied on 35 E.L.R. 182—applied 40 E.L.R. 146—distinguished 42 E.L.R. 232
Subrahmanya Iyer, S. (Watrap) and others v. United India Life Insurance Co.Ltd. Madras and others, (A.I.R. 1928 Madras 1215)—ref. 38 E.L.R. 307, 339
Subramanian Goundar v. Election Tribunal, Vellore, (8 E.L.R. 66);—ref. 36 E.L.R. 71
Sudhansu Sekhar, v. Satyaendra Nath, (4 E.L.R. 73)—ref. 35 E.L.R. Ill
Sudhir Kumar Mondal v. Abhoy Pada Saha (A.I.R. 1966 Cal. .141)—ref. 38 E.L.R. 382, 385, 406, 451
Sudhir Laxman Hendre v. S.A. Dange and others (A.I.R. 1960 Bombay 249; 17E.L.R. 373).—ref. 33 E.L.R. 95; 35 E.L.R. 60; 37 E.L.R. 21; 38 E.L.R. 268, 291, 385,
412; 41 E.L.R. 149; 370
Sundra Lai v. Nandramdas, (A.I.R. 1958 M.P. 192; 14 E.L.R. 68—ref. 40 E.L.R. 215
Surendra Nath Khosla and another, v. Dalip Singh and others (A.I.R. 1957S.C. 242);—ref. 35 E.L.R. 265; 36 E.L.R. 32
Surendranath Roy v. Dwarka Nath Chakraburty, (A.I.R. 1917 Cal. 496)—ref. 42 E.L.R. 54
Surendra Narayan Sinha, R.B. v. Amulyadhone Roy and 43 others (1940 In-dian Election Cases by Sen and Poddar, Case No. XXX at 188 .—ref. 33 E.L.R. 2
Suresh Nath Khosla v. Dalip Singh, 1957 S.C. Notes 179,—ref. 37 E.L.R. 67
Swaminatha Merkondar v. Ramalingam and others, (2.E.L.R. 390)—ref.38 E.L.R. 383, 420; 42 E.L.R. 161
(xlii)
Swami Rameshwaranand v. Shri Madho Ram, 40 E.L.R. 281 (S.C.)—ref. 42 E.L.R. 281 (S.C.)
Swarup Singh v. Election Tribunal ,. A.I.R. 1960 All. 66—distinguished 42 E.L.R. 385, 422
Tarn Worth case (1 O.M. & H 75 at 81)—ref. 38 E.L-R. 268. 285
Tata Iron and Steel Co. Ltd. Jamshedpur v. Abdul Wahab, (A.I.R. 1966 Patna,458);—ref. 34 E.L.R. 136—relied upon 42 E.L.R. 466
Taunton Case (1870) (I O 'M & M 181 at 185)—ref. 35 E.L.R. 263; 38 E.L.R. 268, 285; 41 E.L.R. 149, 262
Tazuddin v. Dhaniram Talukdar, (A.I.R. 1959 Assam 128)—ref. 35 E.L.R. 110, I 1 1 ; 37 E.L.R. 67
Thakur Dso Singh v. Ramakrishna Rathor, (4 E.L.R. 34);—ref. 34 E.L.R. 2
Thakur Rudra Pratab Singh v. Mirtunjay Pratap Singh(A.I.R. 1957 All. 28)
—ref. 42 E.L.R. 54
Thakur Udaya Vir v. Arjuna Hammond, Page 326—ref. 38 E.L.R. 305, 323
The Statesman (Private) Ltd. v. H.R. Dev and others (1958) 3 S.C.R. 614—ref. 40 E.L.R. 81
Thungablmdra Industries Ltd. v. Govt. of Andhra Pradesh (A.I.R. 1964 S.C.1372)—ref. 38 E.L.R. 305
Tikani Bai v. Punjab State, (A.I.R. 1964 Punjab 15)—ref. 41 E.L.R. 85
TippeararyCase(1875)5O M&H19—ref. 36 E.L.R. 446
Tirlochan Singh v. Karnail Singh (Punjab & Haryana H.C.), (—34 E.L.R. 234) .—ref. 38 E.L.R. 120, 130; 40E.L.R. 85—followed 33 E.L.R. 143
Tribeni Ram Satyadeva's Case, (A.I.R. 1966 All. 20)—followed 36 E.L.R. 246
Triloki Singh v. Shivrajwati Nehru, (1958) XVI E.L.R. 234—ref. 33 E.L.R. 2; 38 E.L.R. 268, 292
Trojan and Co. v. Nagappa Chettiar, (A.I.R. 1955, S.C. 235)—ref. 35 E.L.R. 30
Udainath Singh v. Jagat Bahadur Singh and others. (5 E.L.R. 199)—ref. 34 E.L.R. 320, 326
Udit Narayan Singh v. Board of Revenue, (A.I.R. 1963 S.C. 786)—ref. 41 EX.R. 209
Umar Abir v. State of Bihar, (A.I.R. 1965 S.C. 277)—ref. 41 E.L.R. 184
Umrao Singh v. Darbari Singh, A.I.R. 1968, (Punjab and Haryana 450)—ref. 42 E.L.R. 127
Union of India Delhi, v. Jogendra Kumar Choudhry, (A.I.R. 1964 Tripura 23)—ref. 42 E.L.R. 54
(xliii)
Union of India v. H.C. Goel, (A.I.R. 1964 S.C. 364) .—ref. 41 E.L.R. 296
Union of India v. Pandurang Kashinath More, (A.I.R. 1962, S.C. 630) .—ref. 34 E.L.R. 293
United States v. Tulius F. Sartwell, U.S.A. S.C. 18 Lawyers' Edition 830—ref. 39 E.L.R. 391,415
Upendralal Mahendralal v. Smt. Narainee Devi Jha, (1967 M.P.L.J. 895)—ref. 37 E.L.R. 10S
Vasantha Pai, G. v. A. Srinivasan and others, (22 E.L.R. 221)—ref. 36 E.L.R. 284
Vashist Narain Sharma v. Dev Chandra and others, (A.I.R. 1954 S.C. 513,IOE.L.R. 30 — (1955) I.S.C.R. 509—ref. 34 E.L.R. 222, 38 E.L.R. 382, 406; 35 E.L.R. 2, 111, 36 E.L.R. 32; 37
E.L.R.20,67;39E.L.R. 100,251,432;40 E.L.R. 148; 41 E.L.R. 150,354,370; 42 E.L.R. 108
—followed 41 E.L.R. 44, 263; 42 E.L.R. 466
Velu Pillai v. Paramandan (A.I.R. 1954Travancore Cochin 152at 154);—ref. 41 E.L.R. 85
Velsuswami Thevar, N.T.v. Raja Nainar and others, (A.I.R. 1959 S.C. 422;17 E.L.R. 181)—ref. 34 E.L.R. 136; 42 E.L.R. 440—distinguished 36 E.L.R. 384
Venges Manufacturing Company v. Suraj Mall (5 Calcutta 669)—ref. 38 E.L.R. 307, 340
Veakataramaiya v. Appala Charyulu, (A.I.R. 1926 Mad. 1003)—ref. 34 E.L.R. 3
Venkataramiah D. v. Narayan Gowda, (20 E.L.R. 101) .—ref. 35 E.L.R. 81
Verma, N.L. v. Munilal and others, (Punjab H.C. 15 E.L.R. 495—ref. 37 E.L.R. 21; 38 E.L.R. 54; 41 E.L.R. 164—distinguished 41 E.L.R. (S.C.) 36;
Vidyacharan Shukla v. G.P. Tiwari Dist, Judge, Member Election Tribunal andothers, 1963, M.P.L.J. 688;—ref. 34 E.L.R. 294
Vidyacharan Shukla v. Khub Chand Baghel (1964) 6 S.C.R. 129—A.I.R. 1964S.C. 1099—25 E.L.R. 354 (S.C.)—ref. 39 E.L.R. 364; 42 E.L.R. 54—distinguished 39 E.L.R. 446
Vidya Sagar Joshi v. Surinder Nath Gautam, [40 E.L.R. (S.C) 29] .—ref. 41 E.L.R. 86, 297; 42 E.L.R. 54
Vigan Case, Reports of Election Petitions of Great Britain and Ireland, (Vol. IVPart II)—ref. 34 E.L.R. 340
Vijaya Mohan Reddy v. Page Pulla Reddy and others, (2 E.L.R. 414)—ref. 37 E.L.R. 20
Vilkes, R. (1769) 4 Burr 2527;—ref. 42 E.L.R. 54
Virendra v. State of Punjab and another, (A.I.R. 1957 S.C. 896) .—ref. 38 E.L.R. 268, 275
(xliv)
Vishwanath Prasad v. Salamat Ullah and others, (U.P. Gazette of 24th July,1965 P. 516)—ret. 37 E.L.R. 138
Vithaldas v. MoreshwarP. Ram, (9 E.L.R. 301)—ref. 38 E.L.R. 306, 333
Wakefield Case (1874) II O. M &H TOO at P. 103; .—ref. 35 E.L.R. 263; 41 E.L.R. 149
Wigai 4 O' M and H 13 . . i—ref. 36 E.L.R. 61
Wilson v. Michigan State Board 199 N. W. 643;—ref. 42 E.L.R. 54
Windsor 20 O.M and H. 88 . •—ref. 36 E.L.R. 61
Windsors, Case (1870) I O.M & H. P. I; .—ref. 35 E.L.R. 263
York (County) East Riding Buckrose Division Case (1886) 4 O.M & H. P. 110at P. I l l . .—ref. 37 E.L.R. 91
Yugal Kishore Sinha v. Nagendra Prasad Yadav 1965 Doabia's ElectionCases; case No. 30/236—ref. 34 E.L.R. 104
Zahidi,K.G.v. State, 1964 All. Law Journal Vol. 62, P. 545—dissented 34 E.L.R. 340
Zamindar Newspaper, Lahore; In re, A.I.R. 1934 Lahore 219—ref. 34 E.L.R. 341
A DIGESTOF THE
ELECTION LAW REPORTSVOLS. xxxm TO x m
AGENCYSee 1. Corrupt Practice (I. General Principles)
2. Election Agents.
3. Nomination of Candidates.
BALLOT PAPERSACCOUNTABILITY
S. 100 (I)(d)(iii)—Ballot papers issued are not accounted for—Whe-ther attracts Section 100(7) (d) (Hi).
HELD :If all the ballot papers that had been issued to the voters hadnot been accounted for, it does not bring the case within the purview ofSection 100(1) (d) (iii) of the Act.
Champa Devi v. Jamuna Prasad, 15 E.L.R. 443; referred to. LAXMANPRASAD VAIDYA v. GANGADHAR YADAORAO TAMASKARAND OTHERS, 34 E.L.R. 292.
—discrepancy in the account of ballot papers—Difference in the designof reprinted ballot papers—Whether the result of election materially affec-ted under Section 100 (/) (d) (zv) and Rule 30 of Conduct of ElectionsRides 1961.
HELD : Where there is some discrepancy in the account of the ballotpapers and there was some difference in the design of reprinted ballotpapers, it had to be proved that election was materially affected on accountof non-compliance with the provisions of section 100(1) (d)(iv) of theAct and Rule 30(1) of the Conduct of Elections Rules, 1961.
Champa Devi v. Jamuna Prasad and others, 15 E.L.R. 436 (443) ;T. C. Basappa v. T. Nagappa and others, 3 E.L.R. 197; Govind Malaviyav. Murli Manohar and others, 8 E.L.R. 84; Shanta Devi Vaidya v. BashirHussain Zaidi and others, 8 E.L.R. 300; Jang Bahadur Singh v. BasantLai and others, 8 E.L.R. 429; Ganga Prasad Sastri v. Panna Lai and others,
4EC/74—4
8 E.L.R. 448; Shah Umair Sahib v. Ramcharan Singh and others, 10 E.L.R.162; Naunihal Singh v. Kishorilal Paliwal and others, A.I.R. 1961, M.P. 84;Madhu Singh Mukh Ram v. Ram Saran Chand Mittal and others, A.I.R.1966, Punjab 66; Vashis Narain Sharma v. Dev Chandra and others A.I.R.1954, S.C. 513; N. Pothu Reddiar v. Muthiah and another, A.I.R. Mad.
390; Rikab Das v. Riadhichand Palliwal and others, 9 E.L.R. 115; VashistNarain Sharma v. Deochand and others, 10 E.L.R. 30; Sudhir KumarMandal v. Abhoy Pada Saha, A.I.R. 1966, Calcutta 141; Hariram Singh v.Kamta Prasad Sharma, A.I.R. 1966, M.P. 255; referred to. BIRENDRACHANDRA DUTTA v. J. K. CHOUDHURY, 3S E.L.R. 381.
—Rules, Form 20.—Election—Irregularity—-late receipt of ballotpapers—absence of polling agent of a particular candidate in the pollingstations—omissions to keep the accounts of the ballot papers—late sub-mission of Form 20—whether material irregularities. (See also Electionpetition—General Principles).
HELD :Mere late receipt of the ballot boxes would not by itself leadto the inference that the polling was held in contravention of the rules,orders and regulations under the Representation of the People Act, pre-judicing the prospects of the election of the petitioner. In general elec-tions where there are numerous polling stations it may not be possible forthe contestants to provide polling agents on all polling stations, but theabsence of a polling agent at a polling station would not make the pollillegal and against rules. The omission to keep the ballot paper accountsor even late submission of Form 20 in respect of certain pollingstations would be only a technical lapse on the part of the officers andcannot be said to be an irregularity materially affecting the result. Itcannot be held to be either an intentional act done with the purpose offabricating documents or even if it is held to be a non-compliance of th*erules, it is not of substantial character, ABDUL GANI MALIK v. SYEDAHMED AGA AND ANOTHER, 40 E.L.R. 148.
—Scrutiny—Ballot papers—Rejection of—Representation of thePeople Act, 1951, section 64—Conduct of Elections Rules, 1961—Rule 56,sub-rules (1) and (2)—Scope of—Returning Officer if should examineeach and every ballot paper—
The petitioner challenged the election of the first respondent on theground that there was improper reception, refusal or rejection of votesand reception of void votes; and the result of the election in so far as itconcerned the first respondent was materially affected thereby. The peti-tioner contended that sub-rule (2) of Rule 56 ves*s a definite duty on theReturning Officer to reject every ballot paper which reveals any of thedefects stated therein and therefore each ballot paper has to be scrutinised
by the Returning Officer himself; otherwise it was not possible for him tocarry out the duty. The respondent contended that sub-rule (2) onlycreated a fetter on the power of the Returning Officer vested under Sec-tion 64 in respect of the votes that require to be rejected as invalid andnot for the votes which were to be received as valid votes. Dismissingthe petition
HELD : (i) In order to make the provisions of Section 64 and sub-rule (1) and sub-rule (2) of Rule 56 consistent and effective, the betterconstruction to be placed on sub-rule (2) is that it may take in its fold thestage or act of rejection of ballot papers and not the acceptance of ballotpapers as valid votes. Having regard to the importance attached in theConstitution of India to the right of franchise of every citizen entitled toexercise such right, by sub-rule (2) of rule 56 the legislative authorityintends that before a citizen entitled to exercise his right of franchise isdeprived of it by his vote being thrown out on the ground of it being invalid,the more responsible officer, the Returning Officer must himself carefullyapply his mind to it. Further, the scheme of the Rules itself treats theprocess or act of rejection apart from other stages of counting particularlyof the scrutiny of ballot papers. Therefore, having regard to the expressprovision of section 64 read with sub-rule (1) the language of sub-rule (2)cannot be held to impose a duty to examine each and every ballot paperby the Returning Officer himself, (ii) The principles laid down by theSupreme Court in Ram Sewak v. H K. Kidwai, (A.I.R. 1964 S.C. 1249)and Dr. Jagjit Singh v. G. Kartar Singh, (A.I.R. 1966 S.C. 773) haveto be borne in mind before an order for granting inspection on recount ismade. No prima facie case was made out that any votes were improperlyreceived from among the doubtful votes. G. G. MEHTA v. MANU-BHAI AMARSEY & ANR. 36, E.L.R. I.
—Ballot Papers—Scrutiny of—Duty of Returning Officer—Handbookfor Returning Officer for General Elections, 1967, Instructions 17(») and(o)—scope of.
HELD : When the counting of votes is carried on under the provi-sions of the Conduct of Elections Rules, 1961, it is obligatory on theReturning Officer to see for himself whether all bundles of valid voteshave been correctly stored and none of the bundles contains any ballotpapers which ought to have been rejected or ought to have been placedin the bundle of another candidate. What Instructions 17(n) and (i) ofthe Handbook for Returning Officer for General Elections, 1967, mean isthat the Returning Officer should see for himself all the bundles and notmerely one bundle out of the stack of bundles of each candidate. TheReturning Officer has to satisfy himself about the votes which are treated
as valid by his counting assistants and counting supervisors and see whetherthey are properly sorted out and treated as valid. Under the Rules thepower to decide whether a particular ballot paper should or should notbe rejected is conferred on the Returning Officer alone and not on any ofhis subordinates. It is obligatory on the Returning Officer, if he has chosento take the assistance of counting assistants and counting supervisors, tosee that the tests which have been followed by his counting staff are thecorrect tests. In the present case this was obviously not done and there-fore there was wrongful reception of votes. (The Court ordered a generalrecount). SHANKARLAL MAGANLAL RAVAL, v. GURMANSINHJI VIR SINHJI & ANR. 36, E.L.R. 176.
-~-Ballot papers—scrutiny of—when may be properly ordered. In apetition challenging the appellant's election to the Lok Sabha, it was alleg-ed by the first respondent, inter alia, that (i) the defeated candidate waspermitted only one counting agent when three persons were counting votessimultaneously, and it was therefore impossible for his counting agent todetect any improprieties of the counting staff who were hostile to the defea-ted candidate; and (ii) several votes of the defeated candidate were im-properly rejected while invalid votes and votes of the defeated candidatewere counted in favour of the appellant. A schedule attached to the peti-tion gave some figures of such improper rejection and improper acceptance.In the verification to the petition it was stated that the allegations weremade on the basis of information received from the workers and thecounting agents of the defeated candidate and that the election petitionerbelieved the information to be correct. No names of such workers or thesource or basis of their information were given. No written objection wasfiled during the counting, either to the acceptance or the rejection of anyvote, nor was any application made at the time for a recount. At thecommencement of trial of the election petition, the first respondent filed anapplication for permission to inspect the packets of ballot papers containingthe accepted as well as rejected votes of the candidates. In the affidavit insupport he averred that on one of the days of counting, he was the count-ing agent of the defeated candidate and had personal knowledge of suchimproper rejection and acceptance. The High Court allowed the appli-cation and permitted scrutiny solely on the basis of the allegations in theelection petition and the affidavit in support of the application seekingscrutiny. Allowing an appeal the Supreme Court.
HELD : In view of the importance of maintaining the secrecy of theballot papers, scrutiny can only be ordered if the election petition containsan adequate statement of the material facts on which the petitioner relies,that is the material facts disclosed must afford an adequate basis for theallegation; and, the Court must be prima facie satisfied that in order to
decide the dispute and to do complete justice between the parties inspectionof the ballot paper is necessary.
In the present case, the High Court stated that it was so satisfied onthe mere statement of some figures in the petition and affidavit. It alsodid not give any reason in support of its satisfaction as to the need forinspection.
The petitioner has not stated that any of the counting agents appoin-ted by the defeated candidate or his election agent, in accordance with therules, had been refused admission to the place of counting. Therefore,the allegation that enough number of counting agents were not permittedwas not supported by any statement of material fact.
Similarly, with regard to the rejection of the votes cast for the defea-ted candidate; under the rules, before a vote is rejected the agents ofthe candidate must be permitted to examine the concerned ballot paper;this provides an opportunity for the serial numbers of the concerned ballotpapers to be noted. In the present case, the election petition was how-ever silent about such inspection and notes of the ballot papers and othermaterial facts such as raising objections and asking for a recount.
Therefore, the scrutiny of the ballot papers was sought on the basisof mere assertions and allegations which were neither accompanied by astatement of material facts nor were they supported by any evidence; theHigh Court should therefore have rejected the application for scru-tiny.
Ram Sewak Yadav v. Hussain Kamil Kidwai, (1964) 6 S.C.R. 238and Dr. Jagjit Singh v. Giani Kartar Singh, A.I.R. 1966 S.C. 773 ;28 E.L.R. 81 (S.C.), followed. JITENDRA BAHADUR SINGH v.KRISHNA BEHARI & OTHERS (S.C.), 42 E.L.R. 319.
—Recount—Section 83 (v) (a)—Conduct of Elections Rules, 1961,Rule 56, Sub-Rule (2)—Election Petition without material particulars—•Allegations that the Returning Officer was biased and acted against law—Plea for recount of votes—Evidence on the bias of the Returning Officer—Requirements of law—circumstances when a limited recount of ballotpapers permissible.
The petitioner, a defeated candidate, challenged the election of theFirst Respondent to the State Assembly, alleging inter alia that thepetitioner was defeated by a narrow margin of votes, that the ReturningOfficer was biased against the petitioner and that there was illegal rejectionof votes polled by him and improper reception of votes in favour of the
6
first respondent. It was further claimed that the petitioner's applicationfor a recount and for being permitted to note the number of illegally rejec-ted votes and to allow him to put his seal on the bundle of such rejectedballot papers was rejected by the Returning Officer who acted against thelaw. The first respondent denied the allegations and alleged that thepetitioner from the very start of the counting was preparing the groundfor an election petition in the event of his defeat in the election,
HELD : Dismissing the petition : On the facts and after the recountof votes polled at a particular polling station only six ballot papers of thepetitioner were wrongly rejected and therefore the election petitioner hadfailed to prove his allegations.
If it was proved that the Returning Officer was biased against thepetitioner and his conduct smacked of a partisan attitude and where hefailed to act in accordance with law, in the interests of justice and forthe purity of election, the petitioner would be entitled to the limitedscrutiny prayed for. Such limited scrutiny would not, in any manner,violate the secrecy of ballot or lead to a roving and fishing enquiry.
Munro v. Bulfour (1893) I Q.B. 113; Ram Sewak Yadav v. HussainKamil Kidwai and others, A.I.R. 1964 S.C. 1249; Giani Karlar Singh v.Jagjit Singh, F.A. No. 3 E of 1964 Punjab High Court; Dr. Jagjit Singh v.Giani Kartar Singh, A.I.R. 1966, S.C. 773; referred to. PARKASHSINGH v. HARCHARAN SINGH AND OTHERS, 33 E.L.R. 21.
—Recount—Circumstances in which recount can be ordered—Assis-tant Returning Officer, duties of—Onus of Proof for making out case forrecount—Conduct of Elections Rules, rule 63(4), rule 3—Nature of thejunctions discharged by the Returning Officer.
HELD : Directions in the Madras Election Manual do not have anystatutory force, but where they are not in conflict with statute* they canbe viewed as providing valuable directions which the statutory authoritiescan be expected to adopt.
There was prima facie case for believing that at the time of scrutiny ofvotes by the Assistant Returning Officer, the required safeguards had notbeen adopted as also the required directions in the statute as well as in thepowers the Returning Officer can delegate to the counting staff. The assistanceof the counting staff is to be taken only for the purpose of separation of thevotes into bundles containing valid votes and bundles containing invalidvotes and calculating their number. But the actual scrutiny has to bedone by the Assistant Returning Officer. Where there is reason to holdthat this duty has not been discharged by the Assistant Officer in respect
of the valid votes, reasonable doubt is cast upon the correctness and pro-priety of the scrutiny made by the Assistant Returning Officer. Such aprocedure attracts the provisions of s. 100(1) (d) (iv), namely, non-compliance with the provisions of the Constitution or of the Act or of anyrules or orders made under the Act, leading to an inference of the likeli-hood of improper reception, refusal or rejection of votes. In the presentcase there was a difference of only 154 votes between the petitioner andthe returned candidate. In such circumstances there was also room toentertain a reasonable doubt that the above irregular procedure would havematerially affected the result of the election. Further, under Rule 63(4)of the Conduct of Elections Rules for every decision the Returning Officerhas to give reason. The Returning Officer, according to his evidence,stated that he rejected the request for counting valid votes because thepetitioner did not give reasons for it. In dealing with an applicationunder rule 3 he discharges a quasi-judicial function. The ReturningOfficer in this case appears.to have entertained the belief that the petitio-ner had some justification for re-opening the scrutiny of invalid votes buthad no justification for reopening the scrutiny of valid votes. Thoughunder the. law the onus is on the petitioner to make out a prima faciecase for recount. When the entire evidence is before the court and ifafter a consideration of such entire evidence the court is able to holdthat a prima facie case for recount is made out the question of onus ofproof becomes academical. For coming to a decision in such case itcannot be laid down that the court should confine itself entirely to thepetitioner's evidence. On the facts and circumstances of this case, theAssistant Returing Officer did not make a complete and thorough scrutinyof all the valid votes cast for the candidate as required under the rules.(The Court directed that a recount be made of the votes cast in thiscase including scrutiny of all the valid votes cast; after the recount thepetition was dismissed).
Ram Sewak v. H. K. Kidwai, A.I.R. 1954 S.C- 1249; Jagjit Singh v.G. Kartar Singh A.I.R. 1966 S.C. 773; Sheopal Singh v. Ram PratapAIR 1965 S.C. 657 Pethu Reddiar v. Muthia, A-I.R. 1963 Mad. 390;Madhu Singh v. Ram Saran A.I.R. 1966 Pun 66; referred to. R.CH1DAMBARA BHARATHY v. P. R. RAMA RAJU RETURNINGOFFICER & ORS. 33 E.L.R. 178.
—Ballot pscpQK—Recount—S. 83(1),—Conduct of Elections Rules,1961, Rule 86—Plea for scrutiny of ballot papers—material facts, require-ments of.
HELD : In the absence of a concise statement of material facts asrequired by Section 83(1) of the Act, there would be no justification for
an order for scrutiny of the ballot papers. JAI SINGH v. RAM KISHAN& OTHERS, 34 E.L.R. 73.
—Recount—grounds for ordering recount—Conduct of Elections Rules,1961, Rule 63—Nature of discretion conferred to order recount. It wasalleged in the Petition that the returning officer had illegally rejected twoapplications made by the petitioner, on the apprehension that there "mightliave been" some mistake in counting, one for recount of votes and the otherfor recount of bundles prepared on counting of the votes, and that in reject-ing those two applications, the returning officer had violated the statu-tory provisions enshrined in rule 63 of the Conduct of Elections Rules,1961.
Dismissing the petition.HELD : A mere assertion or an expression of a suspicion by a petitioner
that there has been a mistake in counting votes will not justify a recount or aninspection of ballot papers, which a recount necessarily presupposes. Thecloseness of the voting or a narrow majority does not itself justify a recount.There must be prima facie evidence of good grounds for believing that theremay have been a misconduct on the part of the Returning Officer. In thepresent case the petitioner had not made out any case for directing recountof votes.
Ram Sewak v. H. K. Kidwai A.I.R. 1964 S.C. 1249; N. Pethu Reddiarv. V. A. Muthiah A.I.R. 1965 Mad. 390; Tribeni Ram v. Satyadeo SinghA.I.R. 1966 All 620; referred to.
The wording of sub-rule (3) of Rule 63 of the Conduct of ElectionsRules clearly arms the Returning Officer with the discretion to accept orreject the application for recount. The only obligation he is placed underis that his decision sha.ll be in writing and it shall contain reasons there-for.
In the present case the application for recount was rejected on thescore that the petitioner had not alleged in his application that the count-ing assistants or counting supervisors had been guilty of committing mistakesand that the allegation that due to chaos and confusion in the countinghall the agents could not concentrate on counting, would not justify re-counting of votes. The other application for recount of bundles was re-jected on the grounds that the result of all the counting at each table wassupervised by counting agents of all the candidates and that no agent hadcomplained that there had been any mistake in counting. Thus the reasonsgiven by the Returning Officer in reference to both the applications wereadequate and the discretion vested in him had been properly exercised.MADHAV UPENDRA TALAULICAR v. YASHWANT SITARAMDESAI & ORS, 33 E..L.R. 224.
9
—Conduct of Elections Rules 1961, Rules 2(1) (i), 53, 56 Sub-Rule2(b)—-Hand Book for Returning Officers->-^General Election 1967, In-struction No. 17, Clauses (n) and (o)—Failure to comply with—effect of.
HELD : In view of the failure on the part of the Assistant Return-ing Officer in not checking the work of preliminary sorting of votes by theCounting Supervisors and Counting Assistants as required under Rule 56of the Conduct of Elections Rules, 1961 and under Clauses (n) and (o) ofinstruction 17 of Hand Book for Returning Officers, General Elections,1967, the possibility that all votes which should have been rejected as in-valid, were not in fact so rejected, could not be ruled out. Prima faciethere was thus wrongful reception of votes for one or the other candidate andthe Court therefore directed a recount of the votes by a Commission. As aresult of the Commission's report, the petition was dismissed as not proved.BHAILALBHAl NAROTTAMDAS PATEL v. MANGALDAS GOR-DHANDASS POLA & ANOTHER, 34 E.L.R. 269.
—Plea for inspection and recount of votes—Evidence—requirementsof law—See Election Petition—General Principles. LAXMAN PRASADVAIDYA v. GANGADHAR YADAORAO TAMASKAR AND OTHERS.34 E.L.R. 292.
—Conduct of Elections Rules, 1961, rule 56—Ballot papers—Inspectionand recount—Conditions for grant of-—
HELD: The inspection of ballot papers and recount cannot be claimedas a matter of right or on mere asking but it may be a ground in suitablecases provided two conditions are fulfilled : (i) that the petition containsan adequate statement of material facts and (ii) that the Tribunal is primafacie satisfied that in order to decide the dispute and to do complete justicebetween the parties inspection of the ballot papers is necessary. An orderfor inspection cannot be granted to support vague pleas.
Ram Sewak v. Hussain Kamil, A.I.R. 1964 S.C. 1249; Dr. Jagjit Singhv. Gtani Kartar Singh, A.I.R. 1966 S.C. 773; referred to RAMDHANIMISHRA v. JAGDISH PRASAD AND OTHERS, 35 E.L.R. 241.
—Recount—Inspection of—Ballot papers—Conditions for granting of—Right of the other party to adduce oral evidence. Conduct of ElectionsRules—Rule 39(1) (b), 56(2)—Rule 39(1) (b) not mandatory—voidvotes and invalid votes—distinction between.
10
After evidence was led on behalf of the petitioner in order to establish aprima facie case for having inspection and recount, an application was putin to permit him to have inspection and recount. The respondent objectedthat the order for inspection and recount could not be made unless thefirst respondent had his opportunity of leading evidence to show that thiswas not a fit case to grant inspection on recount. While the scrutiny wasin progress the respondent raised a point of law as regards the reception ofvotes of such ballot papers which though marked by the voter in the columnor segment provided for particular candidate were not marked on or nearthe symbol but marked on or near the name of the candidate. This ob-jection was raised on the ground that s. 59 read with rule 39 required thatthe mark must be made on or near the symbol and if it is so made then thatvote must be rejected as a void vote under rule 56(2) (b).
HELD : An order for inspection may not be granted as a matter of course;the Court would be justified in granting an order provided two conditionsare fulfilled : (i) that the petition for setting aside an election contains anadequate statement of the, material facts on which the petitioner relies insupport of his case; and (ii) the Tribunal is prima facie satisfied that in orderto decide the dispute and to do complete justice between the parties, ins-pection of the ballot papers is necessary. Even if it be assumed that thepetitioner has not to prove the facts to make out a prima facie case forinspection but has merely to place material from which the Court has toderive satisfaction that an order for inspection is necessary, it does notfollow that the other side has no right to lead oral evidence to point out tothe Court that there is no sufficient material from which the Court couldbe satisfied that inspection is necessary to\do justice between the parties.Ram Sewak v. H. K- Kidwai, A.T.R. 1964 S.C. 1249; Jagit Singh v. KartarSingh, A.I.R. 1966 S.C. 773; followed.
Where the petitioner only seeks election of the returned candidate tobe declared void, or even where over and above that declaration a furtherdeclaration is sought that the petitioner or any other person be declaredelected, if the returned candidate has not filed recriminatory statement,the general inspection or scrutiny of all the voting papers will not begranted. In such a case the inquiry is limited to determine whether anyvotes have been improperly received in favour of the returned candidateor any votes have been improperly refused or rejected in regard to anyother candidate. But in case where a recriminatory statement is filed afull inspection and scrutiny can be allowed. Jabar Singh v. Genda Lai,A.T.R. 1963 S.C. 1200; referred to.
There is a clear distinction intended by the Act and the Rules betweena void vote and an invalid vote. "Void" votes are those are ab initio voidand not those which becomes invalid because of non-compliance with
11
some mandatory requirement of law. Clause (b) of Rule 39(1) is notmandatory. By the amendment of clause (b) of Rule 56(2) in 1966only two types of ballot papers are intended to be covered; one wherethere is no mark at all to indicate the vote and second the mark is madeotherwise than with the instrument provided to indicate the vote and notthe third type where to indicate the vote the mark is not placed on or nearthe symbol but is made on or near the name. PRABHATGIRI GULAB-GIRI GONSAI v. SHIVRAJKUMAR ALABHAI KHACHAR & OTHERS,36, E.L.R. 131.
—Recount—S- 100(i) (d)(iii)—Scope of—Conduct of Elections Rules,1961—Rule 60—"as far as practicable" significance of—Recount—Prayerfor, When to be made.
The petitioner sought to set aside the election of respondent No. 1 andget himself declared elected. He alleged that a large number of ballotpapers cast in favour of the petitioner were illegally rejected and a largenumber of invalid ballot papers were counted as yah'd votes in favour ofthe respondent; and that by the improper rejection and by the improperacceptance of the ballot papers the result of the election was materiallyaffected. He further alleged that the Returning Officer, rejected the petitionfor recount in utter disregard of rule 63 of the Conduct of Elections Rules.
Dismissing the petition.
HELD : (i) The scope of enquiry under section 100(1) (d) (iii) is todetermine 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 and these are the only two matters whichwould be relevant for deciding whether the election of the Returned candi-date has been materially affected or not. The onus of proving the conten-tion is entirely upon the petitioner.
Jabar Singh v. Gendalal, A.I.R. 1964 S.C. 1200; referred to.
The acts done by public servants shall be presumed to be correct untiland unless that presumption is rebutted by cogent and reliable evidence. Inthe present case the petitioner and his agents had, according to the evidenceadduced, every opportunity of clearly watching the procedure of the entirecounting, the mistakes even if detected were admittedly rectified before thefinalisation of form no. 2 and as such they cannot be regarded as havingrobbed the counting of the presumption of its correctness.
(ii) Under rule 60 of the Conduct of Elections Rules, 1961, the count-ing should proceed continuously "as far as practicable" and its latter part
12
envisaged certain procedure to be adopted if there is any interval. In the ins-tant case there was no cessation of work. The expression "as far as practic-able" in the rule is significant and with an eye to continuity of voting thecounting assistants were given permission to go out for a short while with-out detriment to work. If no recess or interval was granted, the rule cannotbe said to have been violated.
(iii) The prayer for recount under sub-rule (1) of rule 63 only arisesafter the grand total of each of the stations is announced. In the present casethere is no convincing evidence that the application was filed after the saidannouncement was made as such the petition for recount was rightly rejected.Since the petition for recount was premature, its rejection on the ground thatit was frivolous or unreasonable did not arise.
Tribeni Ram Satyadev's case A.I.R. 1966- All. 20; followed. KASHES-WAR KUSHESWAR BARUAH v. PREMDHAR BORA, 36 E.L.R.245.
—Ballot papers—-inspection and recount—when may be ordered.The petitioner's application for inspection and recount of ballot papers wasimproperly rejected. The respondent contended that since the petitionerdid not object to the nomination paper of the second respondent at the timeof scrutiny, he could not raise this objection at the time of the trial of thepetition.
HELD : Before an order for inspection and recount can be made, twomain questions arise for consideration viz., (1) whether upon the allegationsmade in the petition the petitioner has made out a prima facie case for ins-pection and recount and (2) whether it is in the interests of justice to makesuch an order. In the present case the petitioner had not either in the petitionor by evidence made out any prima facie case for inspection and recount.BRIJMOHAN v. HARDAYAL DEVGUN AND ANR, 36 E.L.R. 384.
•—Recount—Ss. 100 and 123—Conduct of Election Rides 1961—Improper reception, refusal or rejection of votes—Recount—circumstancesjustifying.
The petitioner challenged the validity of the election of first respondentto the U.P. Legislative Assembly on the grounds inter alia, (i) that theelection had been vitiated by improper refusal and rejection of votes validlycast in his favour and by the improper reception of invalid votes infavour of the first respondent.
HELD : That the petitioner had not established any of the groundsset out in his election petition. The Returning Officer had rightly reject-ed an application for recount.
13
Niharendra Dutt Mazumdar v. Sudhir Chander Bhandari & Ors. 6 E.L.R.197 ; Champa Devi v. Jamuna Prasad & Ors. (15 E.L.R. 443) ; RupSingh v. Election Tribunal Municipal Board, Aligarh & Ors. A.I.R. 1960Allah. 66) ; Hari Singh v. Chandrasekhar Goyal (Doabia's Election casesPart I, 1967) Case No. 13 at p. 84 ; Berwick-on-Tweed Case (1880) 30'M & H 178 at p. 182 ; York (County) East Riding Buckrose DivisionCase (1886) 4 O.M. & H. 110 at p. I l l ; referred to. RAM LAKHANSHUKLA v. ATHAI RAM AND OTHERS, 37 E.L.R. 91.
—Inspection and recount of votes—when may be ordered. The electionwas challenged on the ground that the result of the election was materiallyaffected by the improper refusal and rejection of votes which should havebeen counted as valid votes of the petitioner.
DISMISSING THE PETITION
HELD : The petitioner had failed to make out a#y case for the ins-pection of ballot papers and recount.
An order for inspection may not be granted as a matter of course. ACourt may be justified in granting such an order if two conditions arefulfilled ; (i) that the petition contained an adequate statement of thematerial facts on which the petitioner relies in support of his case and (ii)that the Court is prima facie satisfied that in order to decide the disputeand to do complete justice between the parties, inspection of the ballotpapers is necessary.
The mere fact that the first respondent won by a small majority isnot a valid consideration either for allowing inspection of ballot papersor for ordering a recount of votes. SAHODRABAI RAI v. RAMSINGH AHARWAR AND OTHERS, 37 E.L.R. 176.
—Recount—Circumstances justifying—Application for recount—duty togive reasons while rejecting request. The appellant filed a petition for set-ting aside the election of the first respondent on the ground that the result ofthe election in so for as it concerned the first respondent had been materiallyaffected by improper reception of votes. It was his case that bundles ofdoubtful ballot papers were mixed up with bundles of valid ballot papers infavour of the first respondent. Protests are made by both the parties whenthe counting was proceeding and after the counting was completed. The Re-turning Officer rejected the application for a recount without recording anyreason in support of his order. The High Court recorded the conclusionthat it was not proved that the bundles of doubtful votes were mixed upwith the valid votes secured by the first respondent. The High Court didno deal with the application filed by the appellant for inspection of the
14
ballot papers. Setting aside the order of the High Court and remanding thecase.
HELD :
(i) A party is not entitled at the trial of an election petition to claimrecount as a matter of course. He must establish a prima facie case thatthere has been improper reception, refusal or rejection of votes or recep-tion of void votes before an order for recount is made by the Court.
(ii) On the facts of the present case a prima facie case was made outby the appellant. There are certain broad considerations which justifya,n order for recount. They are :
(1) That both sides had before the counting was completed madeallegations of irregularities ;
(2) that the order made by the Returning Officer lends somesupport to the plea raised by the appellant that the conditionsin the counting room were unsatisfactory ;
(3) that the procedure followed by the Returning Officer was irre-gular. Form 16 was not filled in as required by the rules andhe made statements in the orders which have been found onscrutiny of evidence to be untrue ; and
(4) that the Returning Officer gave no reasons for coming to theconclusion that the application was unreasonable. He apparentlyheard arguments but did not hold any investigation to determinewhether there was prima facie, justification for the plea raisedby the appellant. NATHU RAM MIRDHA v. GORDHANSONI AND ANOTHER, 38 E.L.R. 16. (S.C.)
—Returning Officer—Failure to observe the Rules—inspection of ballotboxes—Plea of petitioner for—Rejection of Plea by Returning Officer againstthe Rules—Requirements of Sections 83(1) (a), 92, Rule 73(1) (d) —Whether such plea is sustainable before Tribunal.
HELD :The rejection of ballot papers at the time of counting which did not
bear the endorsement "rejected" in the handwriting of the Returning Officerwas illegal in view of rule 73(1) (d) of the Conduct of Elections Rules,and the ballot papers so rejected would have to be re-checked.
When the petitioner had substantially established after a recount of therejected ballot papers, that the votes were wrongly counted and that thevotes cast in his favour were wrongly reiected, his subsequent plea for arecount of other ballot papers alleged to have been illegally accepted infavour of the first respondent was sustainable and could be granted in theinterest of justice by the Tribunal in exercise of the powers under Section
15
92 of the Act. It would not amount to a fishing or roving inquiry, sincethe petitioner was denied the opportunity of giving the details of such ballotpapers in his petition, as required under Section 83(1) (a) of the Act.
Hukam Singh, v. Banwari Lai, A.I.R. 1965 All. 552; Dr. Jagjit Singh, v.Giani Kartar Singh and others, A.I.R. 1966 S.C 773; Mahadeo v. UdaiPartap Singh and others, A.I.R. 1965, S.C. 824; Ram Sewak Yadav v.Hussain Kamil Kidwai, A.I.R. 1964, S.C. 1249; referred to. RAM MILANSINGH v. HARI SHANKAR PARSAD GUPTA & OTHERS, 38 E.L.R.95.]
—Inspection of ballot papers, Plea of, under section 100(1) (d) (iii),101, 102—Rule 93—Burden of Proof.
HELD : Under sections 100(1) (d) (iii), 101, 102 of the Act and Rule93 of the Conduct of Elections Rules, 1961, for a plea of inspection ofballot papers, the petitioner has to make out a prima facie case that aninspection is necessary in the interest of justice.
Ram Sewak Yadav v. Hussain Kamil Kidwai and others A.I.R. 1964S.C. 1249: Dr. Jagjit Singh v. Giani Kartar Singh and others A.I.R. 1966S.C. 733 referred to. MAHANT MAHADEVANAND GIRI v. AMBIKASHARAN SINGH AND OTHERS, 39 E.L.R. 23.
—Plea for recount of votes on ground of irregularities in counting—Principles to be followed at a recount.
HELD : In the recount of ballot papers the touchstone for judging thevalidity of a ballot paper is to read the mind of the voter as far as practi-cable and a mere technical defect should not be given too much importancein order to reject a ballot paper which otherwise clearly shows the inten-tion of the voter to cast his vote in favour of a particular candidate. Thewords "the result of the election has been materially affected" indicatethat the result should not be judged by the mere increase or decrease inthe total number of votes secured by the returned candidate, but thereshould be proof of the fact that the wasted votes would have been distri-buted in such a way between the contesting candidates as would havebrought the defeat of the returned candidate. This has to be proved andthe onus of proving it lies upon the petitioner and he had failed to provethat there were irregularities in counting of votes under section 100(1)(d) (iii) of the Act.
Vashisht Narain Sharma v. Dev Chandra and others. A.I.R. 1954. S.C.513 ;
16
Jabar Singh v. Genda Lai, A.I.R. 1964, S.C. 1200;
Ram Sewak Yadav v. Hussain Kamil Kidwai and others, A.I.R. 1964S.C. 1249; referred to. PRIYA GUPTA v. ABRAR AHMAD ANDOTHERS, 39 E.L.R. 249.
—Recount—prayer for—without pleading on which it could rest—ifcan be granted. In the petition there was also a prayer that a generalrecount was wrongly disallowed by the High Court and that it should beordered in the present appeal.
HELD : A scrutiny of the pleadings showed that there was no plea onwhich the prayer for a recount could be rested though in the relief clausethere was mention of a general recount. The pleas concerned the votescast by impersonators and rejected votes and as these had already beenconsidered, there was no room for a further count. JOSHTBHAI C.PATEL v. A. BEG A. MIRZA, 39 E.L.R. 438 (S.C.).
—Recount—Section 100(1) (d) (in)—Conduct of—Elections Rules,1961, Rule 92(2)—Corrupt practice—Allegations of improper reception andrejection of ballot papers—Allegations of tampering with bellot papers afterdeclaration of results while in custody of the Returning Officer—Burdenof proof—Recount of ballot papers.
The petitioner, a defeated candidate, challenged the election of thefirst respondent to the Assembly alleging inter alia that at the time ofscrutiny of ballot papers, some bundles of doubtful ballot-papers of somepolling stations were included in bundles of the ballot papers of the firstrespondent, inadvertently or deliberately, and that at the time of counting,similar mistakes took place and that the two applications made by the peti-tioner drawing attention to the mistakes were rejected by the ReturningOfficer.
The first respondent, while denying the allegations of the petitioneraverred that no allegation in the election petition was made by the petitionerabout the two applications filed by him before the Returning Officer. Hefurther alleged that he had strong reason to apprehend that the petitionerbeing an influential person and being a Minister, got the ballot paperstampered with, while they were in the custody of the Returning Officerfor about six days after the declaration of the result on 22-2-1967. Fur-ther, it was urged that the petitioner had no case for a recount. Thefirst respondent also filed a recriminatory petition. The second respondent,the Returning Officer, denied the allegations.
The election petition was dismissed by the High Court and on an appealby the petitioner to the Supreme Court, that Court remanded the case tothe High Court for a recount and to decide the petition.
17
HELD :
After a recount and examination of all the double marked 1376 ballotpapers alleged to have been tampered with after the declaration of theresult, it was shown conclusively that the seal marks in the ballot papersin the compartment of the petitioner were made when these ballot paperswere in bundles of 50, and they were tampered with after the declarationof the result. Thus, the valid ballot papers of the respondent were soughtto be made invalid by making the seal mark in the compartment of thepetitioner. There is only intrinsic evidence of tampering in this case.There is extrinsic evidence to show that there was an opportunity to tamperwith the ballot papers as they were detained at Merta upto the eveningof 28th February, 1967 and neither the respondent nor any of his agentshad put his seal or signatures on the envelopes containing the ballot papersas required by Rule 92(2) of the Conduct of Elections Rules, 1961, afterthe counting was over on the 22nd February, 1967.
HELD further, that if it was proved that a seal mark was put in thecompartment of the petitioner after the declaration of the result by tamper-ing with the ballot papers, it cannot be said that ballot paper which wasmarked for the respondent only at time of counting had been improperlyaccepted for the respondent by the Returning Officer. There was nocontravention of the provisions of Section 100(1) (d) (iii) of the Act.NATHU RAM MIRDHA v. GORDHAN SONI AND ANOTHER, 40E.L.R. 62.
—Recount—application for, after form No. 20 signed—if belated—whether other circumstances justify recount. On appeal to the SupremeCourt,
HELD : dismissing the appeal : after a scrutiny of about 1286 rejectedvotes, not more than 3, if at all, could be said to have been wronglyrejected. The election petitioner had therefore been unable to sustain hisclaim that his votes in large numbers had been wrongly rejected. SHAM-SHER CHAND v. PARKASH CHAND AND OTHERS (S.C.) 40E.L.R. 73.'
—Recount, Grounds for a—// properly refused in circumstances of thecase—See Corrupt Practice—Publication of false statement. SMT.SAHODRABAI RAI v. RAM SINGH AHAROWAR AND OTHERS,(S.C.) 42 E.L.R. 77.
Ballot papers-—recount—circumstances justifying.
In his election petition the petitioner asked for a general recountIEC/74—5
18
The trial Judge held that in view of the decisions of the Supreme Court inRam Sewak Yadav v. Hussain Kamil Kidwai (1964) 6 S.C.R. 233 andDr. Jagjit Singh v. Giani Kartar Singh A.I.R. 1966 S.C. 773, the petitionerwas not entitled to the general recount asked for. According to the iearnedjudge the petition did not contain adequate statements of material factsand the petitioner had not given particulars of the polling stations at whichvotes were alleged to have been rejected improperly. It was held that thecomplaint of the petition regarding ballot papers of Khalsa Jurasi PollingStation based on the allegation that in a bundle of fifty only the votingpaper at the top was in favour of the first respondent and the remaining49 were of the petitioner was one about which no grievance had been madeat the time of counting nor was any irregularity alleged. In the appeal tothe Supreme Court it was contended that there was sufficient material toorder a general recount but the appellant would be content with a recountof only the votes cast at Khalsa Jurasi Polling Station.
HELD : A mere allegation that petitioner suspected or believed thatthere had been an improper reception, refusal or rejection of votes wouldnot be sufficient for ordering inspection. But no hard and fast rules couldbe laid down in this matter. In the present case the discovery of 49 votesout of a bundle of 50 in the Khalsa Jurasi segment, if correct, would go toshow that there had been very serious irregularities in the matter of count-ing of votes at that polling station. The irregularity alleged is of such agrave nature that in the interests of justice it is a matter which calls forscrutiny.
Ram Sewak Yadav v. Hussain Kamil Kidwai (1964) 6 S.C.R. 233 ;Dr. Jagjit Singh v. Giani Kartar Singh, A.I.R. 1966 S.C. 773 referred
to. SWAMI RAMESHWARANAND v. MADHO RAM AND AN-OTHER (S.C.) 40 E.L.R. 281.
—Ballot, Papers—Inspection of—Principles which govern grant of per-mission by court or tribunal not applicable to grant of permission by Elec-tion Commission—Principles governing such permission by Commission—Conduct of Election Rules, 1961—Rule 93.
The election of respondent No. 1 was challenged on the ground thata number of ballot papers which should have been counted in favour ofthe petitioner were counted in favour of the respondent and many otherswhich should have been counted in favour of the petitioner were improperlyrejected; and this irregularity in counting materially affected the result ofthe election. The respondent, in his recrimination, took up the preliminary
19
point that the petitioner was wrongly allowed by the Election Commis-sion to inspect the ballot papers. He contended that the principles gov-erning the grant of permission to inspect by a court or tribunal were appli-cable to the grant of permission to inspect by the Election Commission andwhen judged in the light of those principles the order passed by the Elec-tion Commission allowing inspection must be held to have been passedfor irrelevant reasons; and therefore the materials discovered by the peti-tioner as a result of that inspection had to be ignored and the avermentsin the petition based on such material had to be struck off,
HELD : (i) The irregularities pointed out by the petitioner had notmaterially affected the election result; and the petitioner had not obtaineda majority of the votes and was not therefore entitled to any relief.
(ii) Except for the requirement that the secrecy of the ballot shouldnot be infringed, the principles which govern the grant of permission toinspect election records by a court or tribunal are not at all applicable toinspections made under the orders of the Election Commission. TheElection Commission is not concerned with ss. 100(1) (d) (iii), 101, 102or 83(l)(a) of the Act; its power to order an inspection is solely derivedfrom Rule 93. The principles governing the exercise of powers conferredby rule 93 must necessarily be broader and more general than those gov-erning the jurisdiction of courts and tribunal in such matters. The basicrequirements are (1) the Election Commission must comply with theprovisions of rule 93(1) by recording its reasons in writing and by allowingthe candidates or their duly authorised agents a reasonable opportunity ofbeing present at the inspection; (2) the Commission's order should not bearbitrary or based on irrelevant considerations; (3) the Election Commis-sion should be satisfied that inspection is necessary to further the ends ofjustice and (4) the Election Commission should take care to ensure thatthe secrecy of the ballot is not infringed.
In the present case the Election Commission had complied with allthese requirements. When the Election Commission passed the order forinspection relying on (a) the fact that the petitioner wished to file an elec-tion petition and (b) the fact that the margin between the successful candi-date's votes and the petitioner's was very narrow, it had in mind the alle-gation regarding the improper acceptance and rejection of votes contained inthe petitioner's application.
Ram Sewak Yadav v. Hussain Kamil Kidwai, A.I.R., 1964 S.C. 1249;Di. Jagjit Singh, v. Giani Kartar Singh, A.I.R. 1966 S.C. 773; TribeniRam v. Satyadeo Singh, A.I.R. 1966 All. 20; Kuruma v. The Queen, (1955)A.C. 197; Herman King v. The Queen, (1968) W.L.R. 391; Income TaxOfficer, Agra v. Firm Madan Mohan, 70 I.T.R. 293; referred to. DUTTAS. G. v. KRISHNA BAJPAI, 42 E.L.R. 353.
20
—Recount—Court finding on evidence that Forms 16 and 20 of somepolling stations deliberately manipulated—Presumption that the Forms ofother polling stations correctly filed is rebutted.
The petitioner in his election petition alleged that there was improperreception of votes which were validly cast in favour of the petitioner butwere wrongly counted in favour of respondent 1 and other respondents.He contended that this materially affected the result of the election andtherefore sought a declaration that the election of respondent 1 be declaredvoid and he be declared elected. From the evidence on record the courtcame to the conclusion that in certain polling stations the votes receivedby the candidates were interchanged in the relevant Form 16 with theresult that the petitioner was shown to have secured 1391 votes less thanwhat he actually secured: and further in Form 20 there was a totallingmistake due to which the petitioner was shown to have secured 200 votesless. It was urged on behalf of the petitioner that having succeeded inshowing that in the above mentioned polling stations he had secured 1591votes more than shown in Forms 16 and 20 he was entitled to a declarationthat he was duly elected. The respondent urged that there was no alle-gation in the petition that Forms 16 and 20 had been incorrectly filled inand therefore the evidence adduced by the petitioner should not be consi-dered. Further, in the alternative, it was urged that if mistakes of a seriousnature could be made in Form 16 of the above mentioned polling stations,there was no guarantee that similar mistakes were not committed in the caseof remaining polling stations and therefore unless there was a completerecount a clear picture could not be obtained.
HELD : The evidence adduced by the election petition on IssueNo. 2(c) showed that in case of certain polling stations while filling upForms 16 and 20 the number of votes secured by the petitioner had beennoted against respondent 3 and vice versa. The Returning Officer admittedthat the above interchange appeared to be deliberate on the part of thesupervisors concerned. In this state of affairs any presumption that Forms16 and 20 of the remaining polling stations were correctly filled in would be,to a large extent, rebutted. Therefore the correct overall position cannotbe ascertained unless and until all the ballot papers are again scrutinisedand counted.
Swami Rameshwaranand v. Shri Madho Ram, 40 E.L.R. 281 (S.C.);Lakshmi Shankar Yadav v. Kunwar Sripal Singh, 22 E.L.R. 47 (Allahabad);Jabar Singh v. Seth Genda Lai, 25 E.L.R. 323 (S.C.); A.I.R. 1964 S.C.1200; Nathu Ram Shikshak v. R. P. Dixit, 1965 A.L.J. 25 (Allahabad);referred to.
21
After a general rescrutiny and recount the court declared the electionof respondent 1 void and further declared that the petitioner was dulyelected. M1SRA S. N. v. DR. RAM MANOHAR LOHIA ANDOTHERS, 42 E.L.R. 198.
—Marking of Ballot papers—Conduct of Elections Rules—Rules52(2) (d)—"on or near the symbol" meaning of—Marking of ballot paperswith any part of instrument—other than rubber stamp—Rule 56(2) (h) —distinguishing mark—rejection of ballot paper on ground same ink used fordistinguishing mark as well as voters' mark—Rule 30(1) and Instructions—Returning Officer if has power to put serial numbers—Implications ofRule.
HELD :
(i) The provision as to the marking of the ballot paper on or nearthe symbol of the candidate for whom the voter intends to vote is directoryand not absolute and, if substantially obeyed, is sufficient. A ballot papercannot be rejected unless the manner in which the mark has been placedmakes it doubtful to which candidate the vote has been given. The ex-pression "on or near the symbol" in Rule 56(2) (d) should be construedto mean that the mark is nearer the symbol of one candidate than the sym-bol of any other.
(ii) When a mark is put on a ballot paper with any part of the "instru-ment" other than the rubber stamp itself or a mark is put by any othermethod the ballot paper has to be rejected.
(iii) Under sub-rule (1) of Rule 38 and Rule 56(2) (h) of the Con-duct of Elections Rules, every ballot paper shall bear on its reverse facethe distinguishing mark directed by the Election Commission: if there isno such distinguishing mark on a ballot paper it shall be rejected by theReturning Officer; but when the Returning Officer is satisfied that theabsence of the distinguishing mark is due to any mistake or failure of thePresiding Officer or the polling officer, he shall accept the ballot paper asvalid.
(iv) Sub-clauses (a) to (h) of Rule 56(2) of the Conduct of Elec-tions Rules, 1961, do not provide that the Returning Officer has the powerof rejecting a ballot paper on the ground that the same ink has been usedboth for the distinguishing mark and the voters' mark.
(v) The Instructions to the Returning Officers read with rule 30(1) ofthe Conduct of Elections Rules 1961 lead to the conclusion that the Re-turning Officer or his assistant has no power to put down the serial num-bers of ballot papers in cases of mistakes or omissions. Their clear dutyis to bring this matter to the notice of the Chief Electoral Officer.
22
(vi) The necessary implication of the direction of the Election Commis-sion pursuant to Rule 30(1) is that each ballot paper must contain anumber; its further direction to the Returning Officers to ensure on receiptof the ballot papers that "the serial numbering thereon has been done cor-rectly at the proper place", and the references to "serial numbers" of ballotpapers in the various Rules as well as in Form No. 16, is that ballot papersare to be used or issued at the polling stations serially except that a tenderedballot paper under Rule 42(3) (a) shall be serially the last in the bundle ofballot papers issued for use at the said section. NARTNDRA NATHSEN v. MANI SANYAL AND ANOTHER, 36 E.L.R. 69.
•—Markings with instrument—Ballot papers—must be reasonably cap-able of being ascertained.
The petitioner, in his election Petition challenged the election of res-pondent No. 1 and alleged that a number of ballot papers cast in hisfavour were improperly rejected.
DISMISSING THE PETITION
HELD : If the mark on the ballot paper can reasonably be said to havebeen made by the instrument provided, the vote is valid and if it cannotreasonably be ascertained that it is made with that instrument, then thesame has to be rejected. In the present case none of the marks on theballot papers which the petitioner alleged were wrongly rejected appeared tobe with the instrument provided. Most of these marks were smudges andin some case thumb-impressions.
Kartar Singh v. Randhir & others, 1967 E.L.R. 728; referred to. JAIMUNI v. GIAN CHAND, 42 E.L.R. 227.
—Conduct of Elections Rules, 1961—Rule 39(1) (b)—Ballot papers—rejection of—Seal impressions on the back of the paper—// can be acceptedas Valid. Evidence Act, Section 35—Entries by Head Moharrirr ofPolice Station in register for births and deaths—Admissibility.
HELD : (i) The result of the election had not been materially affectedby the wrong acceptance or rejection of votes and the petitioner had notreceived a majority of valid votes.
In the present case the ballot papers were printed on opaque paperand it was not possible to discern the candidates' symbols on the back ofthe paper. In the circumstances the seal impressions on the back of thepaper cannot be accepted as valid votes recorded in accordance with theprocedure laid down in rule 39(1) (b) which says that the voters shall"make a mark on the ballot paper with the instrument supplied for the
23
purpose on or near the symbol of the candidate for whom he intends tovote."
Swamp Singh v. Election Tribunal, Municipal Board, Aligarh, A.I.R.1960 Allahabad 66; distinguished. RAJENDRA KUMAR v. CHANDRANARA1.N SINGH, 42 E.L.R. 385.
—Seal impressions on back of opaque paper—Conduct of ElectionsRules—Rule 39(1) (b)—cannot be counted as valid.
HELD:
(i) The result of the election had not been materially affected by theirregularities in the acceptance, rejection and counting of votes pointed outin the petition for the petitioner had still not received a majority of votes.
(ii) The seal impressions on the back of an opaque paper cannot beaccepted as valid votes recorded in accordance with the procedure laiddown in rule 39(1) (b) which says that the voter shall "make a mark onthe ballot paper with the instrument supplied for the purpose on or near thesymbol of the candidate for whom he intends to vote". They have thus tobe rejected under cl. (b) of rule 56(2) of the Conduct of Elections Rules.
Swarup Singh v. Election Tribunal, A.I.R. 1960 All. 66; distinguished.SMT. BENI BA1 v. PREM NARA1N AND OTHERS, 42 E.L.R. 422.
—Missing ballot papers—Section 100—Whether Election has beenmaterially affected—Proof of—.
HELD : The question whether the result of the election has beenmaterially affected had to be decided on the basis of the circumstances ofthe case and not the oral evidence of voters. The circumstances of thecase made it clear that either the petitioner had not suffered on account ofballot papers being found to be missing or, in the alternative, he had failedto discharge the burden to prove that the result of the election wasmaterially affected as a result of the missing ballot papers.
Vashist Narain Sharma v. Dev Chand, 10 E.L.R. 30; referred to.KANHIYA LAL BALMIK1 v. RAM CHARAN, 42 E.L.R. 107.
—Tampering of Ballot boxes—S. 58—report by the Returning Offi-cer—relevant only when found that the election materially affected bv suchtampering—-Recount—request for—whether rejection proper where suffi-cient reason not shown.
HELD : Under section 53(1) (a) of the Act it is obligatory on theReturning Officer to report the matter forthwith to the Election Commission
24
if any ballot box used at a polling station is found tampered with to suchan extent that the result of the poll at that polling station could not be as-certained. In the present case no such report in terms of s. 58 had beenmade and even assuming that the presiding officer had put two ballotpapers in the box, breaking and opening it after it was sealed, as allegedin the petition, the trial court had rightly found that this materially affect-ed the result of the election.
Unless valid grounds are shown in a petition for recount of votes, it isproper for the Returning officer to reject a petition and refuse recount.LAXMAN PRASAD VAIDYA v. SRI GANGADHAR YADAORAOTAMASKAR AND OTHERS, (S.C.), 41 E. L. R. 15.
—Ballot papers—Recount—Principles Governing—Conduct of Elec-tions Rules, 1961, R. 56(2), Second Proviso—if applicable.
The High Court came to the conclusion that no satisfactory evidencehad been produced by the appellant to substantiate the allegationsmade in respect of any mistake or discrimination on the part of the officersconcerned in the counting of votes nor had any prima facie case beenmade out for ordering a total recount. Dismissing the appeal to theSupreme Court, HELD : (i) The appellant had not substantiated his alle-gations, (ii) In the light of the Principles laid down in DR. JAGIT SINGHv. GIANI KARTAR SINGH, the prayer for a total recount was rightlynot entertained by the High Court.
Dr. Jagjit Singh v. Giani Kartar Singh, A.I.R. 1966 S.C. 773, referredto RAJAJU v. BRU KISHORE PATERIA, 41 E.L.R. (S.C.) 347.
CONSTITUTION
—Constitution of India, Article 14—Contravention of article not groundfor setting aside election.
HELD : The contravention of Article 14 of the Constitution,even if true, is not an electoral offence. Nor does it afford a ground forsetting aside an election. That apart, there was no evidence to provediscrimination in the matter of supplying supplementary voters' List.J. K. CHOUDHRY v. BIRENDRA CHANDRA DUTTA, 42, E.L.R.,66. rs.c.)
—Articles 102(1) and 191(1)—Scope of —See Disqualification of Can-didates—Holding of office of Profit. D. R. GURSHANTAPPA V. ABDULKHUDDUS ANWAR AND OTHERS (S. C.) 41 E.L.R. 153.
—Art. 103—Scope of.
25
The petitioner filed a petition under Art. 103 of the Constitution beforethe President alleging that the respondent had committed two corrupt practicesduring his election in February, 1967 to the Lok Sabha. The respondent,while denying the allegation of corrupt practices raised a preliminary ob-jection to the effect that the present petition was incompetent; it was con-tended that according to the petitioner's own case the alleged corrupt prac-tices were committed during the preceding general election and before therespondent was declared elected. Accordingly, the petitioner could onlychallenge the election by an election petition under the relevant provisionof the Representation of the People Act, 1951. HELD : The prelimi-nary objection must be upheld. The language of Article 103 clearlyshows that the disqualification referred to therein must be a dis-qualification incurred after a person has become a member ofParliament. In other words, the disqualification must be engendered bythe commission of a corrupt practice or an electoral offence or otherwiseafter a person has become a member of Parliament. The mention of thewords "a member" and "has become subject" in article 193(1) clearlyshows that the disqualifications must be supervening or post-election dis-qualifications. It is well settled that Article 103 of the Constitution is appli-cable only in the case of a supervening or post-election disqualification andnot in the case of any pre-election disqualification. In other words, the ques-tion, which may be raised under Article 103 is as to whether a member ofeither House of Parliament has become subject to any of the disqualificationsmentioned in Article 102(1). If a disqualification has been incurred beforea person has become a member of either House of Parliament, then theremedy lies by means of an election petition under the relevant provisionsof the Representation of the People Act read with Article 329 (b) of theConstitution: Saka Venkata Rao's case (1953) S.C.R. 1144; Re: ShriBrundaban Nayak (1965) 3 S. C. R. 53; referred to. BABLESHWARHAJISAHEB AMINASAHEB v. SHRI DAMANI SURAJRATAN FAT-TECHAND, 37 E.L.R. 41.
—Article 133(l)(b) and (c)—Certificate to Appeal to SupremeCourt—Conditions for issuance of—See SUPREME COURT—DWARKAPRASAD MISRA v. KAMALNARYAN SHARMA and Another, 42E.L.R. 53 (S.C.)
—Article 324(1) of the Constitution, Scope of—See Election Commis-sion. RAM MILAN SINGH v. HARI SHANKAR PARASAD GUPTA &OTHERS, 38 E.L.R. 95
—Article 326—Burden of proof—Casting of votes by minors in contra-vention of Article 326 of the Constitution. HELD: When the petitioner
26
has alleged that some voters who had not attained majority had voted incontravention of Article 326 of the Constitution, the issue can be decidedby Court and election declared void if the allegation is proved.
Brij Mohan Singh v. Priya Brat Narain Sinha A.I.R. 1965 S.C. 282 ;
Roop Lai Mehta v. Dhan Singh, A.I.R. 1968, Punjab differed from.
Brijendra Lai Gupta and another v. Jwala Prasad and others. A.I.R.1960 S.C. 104; Kunhiraman v. Krishna Iyer, Doabia's Election cases 1962p. 399 at p. 421 para 76; referred to; MAHANT MAHADEVANANDGIRI v. AMBIKA SINGH AND OTHERS, 39 E.L.R. 23.
—Article 226—-Writ Jurisdiction.—Any act forming part of electionprocess cannot be challenged by proceedings—Article 329(6)—"Elec-tion"—meaning of.
The petitioner moved a petition under article 226 of the Constitution fora writ in the nature of mandamus directing the respondent not to hold mid-term election for the Legislative Assembly of the State of Bengal or, in thealternative, a writ of certiorari to quash all notices and notifications relevantto such mid-term election. The broad ground alleged was that the ensuingmid-term election was entirely illegal, unauthorised and ultra vires as thereis neither any provision for such election nor, is it otherwise permittedunder the Constitution of India.
HELD : The writ petition under Article 226 is not maintainable. Sub-Article (b) of the Article 329 provides that "no election to either Houseof Parliament or either House of the Legislature of a State shall be calledin question except by an election petition presented to such authority andin such manner as may be provided for by or under any law made by theappropriate legislature." The word "election" in the sub-Article is usedin a comprehensive sense as including the entire process of election andterminating with the declaration of election of a candidate. An applicationunder Article 226 challenging the validity of any of the acts forming part ofthat process would be banned.
Ponnuswamy v. Returning Officer, Namakkal, A.I.R. 1952 S.C. 64 ;H.ui Vishnu v. Ahmad Ishaque, A.I.R. 1955 S.C. 233; referred to. SAKTIKUMAR SARKAR v. THE ELECTION COMMISSION, 41 E.L.R. 206.
—Article 329(fo)—"Election" meaning of—Notification to conductelections by Election Commission—If could be challenged in writ proceed-ings—Constitution of India, Articles 226 and 227. The petitioner, a mem-ber of the Punjab Legislative Assembly, challenged by a peti-tion under Article 226 and 227 of the Constitution of India. Twonotifications issued by the Election Commission of India calling upon the
27
nembers of the Legislative Assembly to fill bv election two vacancies iniccordance with the programme fixed. The petitioner prayed for a writ or)rder quashing the notifications and directing the Election Commission toioM the poll for both seats on one single day.
HELD : The petition was barred by clause (b) of Article 329 of theConstitution.
The word election in Article 329 (b) means the entire election processculminating in a candidate being declared elected and includes a notification.The matter which had been agitated in the present petition for a writ cer-tiarari could be challenged at the proper time by filing an election petition.The observations of the Supreme Court in Narayan Bhaskar Khare v. Elec-tion Commission of India, 1957 S.C.R. 1081 were fully applicable to thefacts of the present case. N. P. Ponnuswami v. Returning Officer Namakkal,1952 S.C.R. 218; Hari Vishnu Kamath v. Ahmed Jshaque, A.I.R. 1956S.C. 233; Pritam Singh v. Shiv Singh, Civil Writ No. 216 of 1967 dt. Feb.20, 1967 (Punjab and Haryana); referred to. RATAN SINGH v. ELEC-TION COMMISSION & ORS. 42 E.L.R. 49.
—Arts. 342, 366, cl. (25), Constitution of India—See Scheduled Caste& Tribes—GAJO v. RAM CHAND AND OTHERS, 39 E.L.R. 99.
—Constitution of Jammu & Kashmir, 1956, Sections 51 (4), 69, 70, 142142(b)—Representation of the People Act (Jammu & Kaslimir Act) 4 of1957—Sections 24(d), 47(1)—Constitution of India, Articles 190(3), 192(7)—Election petition—Powers of the Speaker of Assembly under Sections69 and 70 under State Constitution—Reference of the Petition on 1962election by Speaker to the Election Tribunal and High Court—Validity of.The petitioner, a defeated candidate, challenged the election of therespondent on the grounds inter alia that the respondent had subsisting con-tracts with the Government on the material date ; and that the ReturningOfficer improperly rejected the nomination of "A" on the ground of hisbeing under-age which rejection had materially affected the results of theelection. The respondent pleaded that the petition was liable for dismissal onthe ground of res judicata since the petitioner had raised the question ofthe same subsisting contract which was the subject matter of an electionpe:ition on the 1962 elections, against the present respondent and the HighCourt had then held that the Respondent had no subsisting contract on therelevant date. In reply, the petitioner contended that the Speaker of theJammu & Kashmir Assembly, was not competent to refer the election peti-tion in regard to the 1962 election under sec. 69 and 70 of the Constitution ofJammu an Kashmir, which are similar to the provisions of Articles 190(3)and 192(1) of the Constitution of India, since the disqualification of the
28
respondent had occurred before he filed his nomination in 1962. Theremedy to set aside his election was only by an application to the ElectionTribunal and not by a reference to the High Court. Therefore, the decisionof the High Court in 1962 election, on the question of the subsisting contractcannot operate as res judicata in the present 1967 election petition.
HELD : Dismissing the petition : The provisions of Section 70 of theConstitution of Jammu & Kashmir are materially different from Article 192of the Constitution of India. It would appear that under sub-clause (b) ofSection 70 of the Constitution of Jammu and Kashmir, the Speaker hasauthority to make a reference to the High Court of an election petition, evenafter the result in the Election Tribunal, if a petition is filed, when he issatisfied that the circumstances disqualifying a member were not raised andcould not be raised before the Tribunal. The Speaker has wider powersunder Section 70 of the State Constitution and these powers are obviouslyintended to cover the grounds not covered by section 142 of the Act. Thereference to the High Court by the Speaker of the petition on the 1962election, on the question of the alleged subsisting contract against the presentrespondent was quite valid and competent and the decision of the HighCourt was final. This decision would operate as res judicata in relation tothe present election petition.
Misir Raghobardial v. Sheo Baksh Singh, I.L.R. 9, Cal. 439 ; RunBahadur Singh v. Lacho Koer, I.L.R. II, Cal. 301 at 308 ; Mst. Gulab Baiand others v. Manphool Bai, A.I.R. 1962, S.C. 215 ; Election Commissionof India v. Saka Venkata Rao, A.I.R. 1953, S.C. 210 ; Gulab ChandChhotelal Parikh v. State of Gujarat, A.I.R. 1965, S.C. 1153 ; Daryo andothers v. State of U.P. and others, A.I.R. 1961, S.C. 1457 ; referred to.The petitioner had failed to prove that the Respondent had incurredany disqualification within the meaning of section 24 (d) of the Act and hisnomination was rightly accepted.
Chatturbhuj Vithaldas Jasani v. Moreshwar Parashram and others, 9.E.L.R., S.C. 301, referred to. MOHAMMAD AKBAR v. K. H. LASSAWANI, 38 E.L.R. 221.
—Constitution of Jammu and Kashmir, sections 51, 64, 69(a)— Mak-ing and subscribing an oath by a candidate, whether it can be subscribed onthe date of scrutiny.
HELD : Dismissing the petition : (i) The petitioner had failed to provethat he had taken the oath before he filed his nomination papers and thatfixed for the scrutiny of the nomination papers and such qualificationcould not be acquired on the date of the scrutiny. Further, the petitionerhe had got the qualification to be declared as a candidate on the date
29
had failed to comply with Section 51 of the State Constitution as he hadnot made and subscribed before some person authorised in that behalf bythe Election Commission an oath or affirmation according to the prescribedform. The petitioner had not proved that the action of the ReturningOfficer not to, permit him to make and subscribe to the oath on the dateof the scrutiny was against law.
Pashupathi Nath Singh v. Han Ear Prassad Singh, A.I.R. 1968, S.C.1064; referred to. HAJI SAIF-UD-DIN v. MOHAMMED ASHRAFKHAN, 40 E.L.R. 35.
CORRUPT PRACTICE—1. GENERAL PRINCIPLES
(See—also Election Petition-General Principles)
1. NECESSITY OF FULL PARTICULARS.—S. 123(4)—Corrupt practice—Burden of proof—"Statement of fact" in section 123(4) Scope of—Defectin pleading whether evidence could cure the defective pleading—Attack onprivate and personal character—Burden of proof.
HELD : In considering the question as to whether a particular publica-tion made by a candidate or his agent or with his consent falls within themischief of Section 123(4), Courts should not be astute to read into thewords used in the impugned publication anything more than can be attri-buted to them or their fair and reasonable construction. The documentmust be read as a whole and its purport and effect determined in a fairobjective and reasonable manner. The expression "statement of facts" inSection 123(4) includes not only an express imputation but also aninnuendo if such may be reasonably raised from the language in which itis couched and the manner of its publication. The burden of provingthat the statements in the impugned article are false is on the petitioner.In order to constitute a corrupt practice under Section 123(4), one of theessential ingredients to be established by the petitioner is that the firstrespondent either believed the statement of fact published by him to befalse or did not believe to be true. The absence of such averment inthe petition about the requisite belief on the part of the first respondent,would bar the petitioner from raising any issue on the facts alleged at alater stage of the trial. Any amount of evidence cannot be a good substitutefor want of necessary pleading.
Jagjit Singh v. Giani Kartar Singh and others, A.I.R. 1966 S.C. 773 ;
S. Kandaswami v. S. B. Adityan, A.I.R. 1966 Madras 170 ;
Lachman Singh Gill v. Bibi Harprakash Kaur, A.I.R. 1960 Punjab395;
30
Gangi Raddi v. Anjaneya Reddy (1960) 22 E.L.R. 262 S.C.
Kultar Singh v. Muktiar Singh, A.I.R. 1965 S.C. 141;
Jagdev Singh Sidhanti v. Pratap Singh Daulta and others, A.I.R. 1965S.C. 183; • ,
fo v. National Union of Conservative and Constitutional Association(1900), 109 L.T. Jo. 493;
Kumara Nand v- Bripnohan Lai Sharma, A.I.R. 1967 S.C. 808;
Deviah v. Nagappa and others, A.I.R. 1965 Mysore 102;
Sheopat Singh v. Ram Pratap, A.I.R. 1965 S.C. 677;
Harish Chandra Bajpai and another v. Triloki Singh and another, A.I.R.1957 S.C. 444;
S.M. Banerji v. Sri Krishna Aggarwal, 22 E.L.R. 64;
Bhim Sain v. Sonali and others, 22 E.L.R. 288;
A.K. Gupta and Sons v. Damodar Valley Corporation, A.I.R. 1967S.C. 95; referred to.
Srirangam Chettiar v. Barham Pillai, A.I.R. 1935 Mad, 202;
Waldan v. Neal, (1897) I (Q) B. Div. 394
Gangamal Ram Chand v. Hongkong and Shanghai Banking Corporation,(1950) Bom. L.R. Ill; referred to. SAMAT NILKANT BALKRISHNAv. GEORGE FERNANDES AND ORS. 35 E.L.R. 259.
—S. 23—Election literature and speeches—construction of.
HELD : It is now a well settled principle that in construing election lite-rature or impugned parts of speeches, the document or the speech must beread or construed as a whole and its purport and effect determined in a fair,objective and reasonable manner. It would be unrealistic to ignore the factthat when election meetings are held and appeals are made by candidates ofopposing political parties, the atmosphere is usually charged with partisanfeelings and emotions and the use of exaggerated language, extravagance ofexpenditure and attacking one another, are all part of the game; and sowhen the question about the effect of speeches delivered or pamphlets dis-tributed at election meetings7 is argued in the cold atmosphere of a judicialchamber, some allowance must be made and the impugned speeches orpamphlets must be construed in that light. But at the same time it wouldbe unreasonable to ignore the question as to what the effect of the saidspeech or pamphlet would be on the mind of the ordinary voter who attends
31
such meetings and reads the pamphlets or hears the speeches. Further,topics like language or religion may be incidentally or indirectly touched byspeakers in political meetings while discussing political issues which formthe subject matter of controversy and care must be taken while decidingthe question as to whether the impugned parts of the speech do amount tocorrupt practice or not and the matter should be considered in the light ofthat relevant political controversy.
Kartar Singh v. Mukhtiar Singh A.I.R. 1965 S.C. 141 referred to.POPAT LAL JOSHI v. MANUBHAI N. AMERSEY AND OTHERS, 37E.L.R. 223.
—Particulars.—Full particulars absence of, in the petiiion-Whether ab-sence of Jurisdiction-Whether causes material prejudice.
HELD : Even though the requirements of full particulars of corruptpractice is of importance, where, notwithstanding the absence of those parti-culars in the petition evidence is allowed to be given and taken, the questionwould not be one of absence of jurisdiction but as to whether there has beenmaterial prejudice occasioned by the absence of particulars.
Sheopat Singh v. Harish Chandra, 16 E.L.R. 103 H. H. Raja Harin-der Singh v. S. Karnail Singh and others 12 E. L. R. 421 ; S. Mehar Singhv. Umrao Singh A. I. R. 1962 Punjab 244; Bhagwan Datta Shastri v. RamRatanji Gupta, A.I.R. 1960 S.C., 200; referred to. AMAR NATH v.SARDAR LACHMAN SINGH AND OTHERS, 34 E.L.R. 103.
—S.83(1) ( a )— Vague and general allegations—Vague allegations ofimproper rejection of valid votes and improper acceptance of invalidvotes—Whether comes within the scope of Section 83(1) (a) .
HELD : Vague or general allegations that valid votes were improperlyrejected or invalid votes were improperly accepted could not serve the pur-pose of Section 83(1) (a) of the Act. The petitioner has to make outa prima facie case for an inspection of the ballot paper or for a recount ofvotes; there should be sufficient evidence on record to show that any viola-tion of the Rules has in fact taken place and there should be evidence toconclude that it has in any way materially affected the result of the election.
Inayatullah v. Diwanchand, A.I.R. 1959, M.P. 58; Keshaoprasad v. A.D.Mani, Doabia's Election Cases 133; Hukamsingh v. Banwarilal Bipra, A.I.R.1965, All. 552; Brij Sunder v. Shri Ram Dutt, A.I.R. 1944 Raj. 99; Ram-sewak v. Hussain Kamil Kidwai, A.I.R. 1964, S.C. 1249; Jagjit Singh v.Kariar Singh, A.I.R. 1966, S.C. 773; Martin Burn Ltd. v. B.N. Bannerjee,A.I.R. 1958 S.C. 79; Buckingham and Carnatic Co. Ltd. v. The workers ofthe company, 1952 Lab. A.C. 490; referred to. LAXMAN PRASAD
32
VAIDYA v. GANGADHAR YADAORAO TAMASKAR AND OTHERS,34 E.LJL 292.
—Election petition—Legal requirements of—Whether particulars of personswho actually committed corrupt practice are required to be given—Burdenof proof.
HELD : Though it is not incumbent on the petitioner to give the namesof the witnesses relating to the corrupt practices, the names of the person whoactually committed the corrupt practices are required to be given in law.Further, the burden of proving that the respondent or with his consent, hisagent, distributed the objectionable pamphlet is on the petitioner and it mustbe established beyond reasonable doubt by clear and unambiguous evidence.
Mohan Singh v. Bhanwarlal, A.I.R. 1964 S.C. 1366; S. Kandaswamy v.S.B. Adityan, 19 E.L.R. 260 ; Gangi Reddy v. Anjaneya Reddy, 22 E.L.R.261; and Guru Govinda Basu v. Shankari Prasad Ghosal and Ors. 23 E.L.R.356; referred to. S. T. ADITYAN v. T. MARTIN, 34 E.L.R. 339.
—Sections 83, 123(3)—Corrupt Practice—Petition based on corruptpractice must contain full particulars.
HELD : (i) In the matter of pleadings, section 83 of the Representationof the People Act, 1951 makes a distinction between a petition based oncorrupt practices and a petition based on other improprieties. Section 83 re-quires full particulars in the former case. The corrupt practice must beestablished beyond reasonable doubt and by clear and unambiguous evidence.
Mohan Singh Rajpur v. Bhanwarlal Mehta, 1965 M.P.L.J. 498; referred to
(ii) The determination of a cause should be founded upon a case eitherto be found in the pleadings or involved in or consistent with the case madethereby. /
Siddik Mahomed v. Mt. Saren. A.I.R. 1930 P.C. 57; Lala Hem Chandv.Lala Pearey A.I.R. 1942 P.C. 64; and Trojan and Co. v. NagappaChettiar, A.I.R. 1955 S.C. 235; referred to. SHREEKRISHNA SELOT V.RAMCHARAN PUJARL, 35 E.L.R. 30.
—Ss. 83 and 123—requirements of s. 83—"material facts"—meaningof—allegations of corrupt practice—Need for furnishing particulars.
HELD : Sub-section (1) of s. 83 of the Representation of People Act,1951 lays down that an election petition contain a concise statement of thematerial facts on which the petitioner relies, etc. Where the allegations con-tained in the election petition are in the nature of allegations of bribery.
33
fraud or undue influence and the like, it is manifest that the expression "ma-terial facts" with regard to such allegations must include not merely the dateand the place of commission of each such corrupt practice, but also the namesof persons indulging in such acts as well as the names of the persons whowere the subjects of such acts.
Chaudeshwar Narain v. Basu Prasad (M.C. J. No. 36 of 1954 decided bythe Patna High Court on 12th April, 1955) and Chandrasekhar Singh v.Sarjoo Prasad Singh, A.I.R. 1961 Patna 189; referred to. SRI JANAKS1NHA v. MAHANT RAM KISHAN DAS ALIAS MAHANT RAMK1SHORE AND ORS. 37 E.L.R. 151.
—Election petition, requirements of—
HELD : The law contemplates that the petitioner should give the namesof the parties and the date and place of the commission of the corrupt prac-tice and and other particulars in as much detail as he can in the petition.
Harish Chandra v. Triloki Singh, A.I.R. 1957, S.C. 444; referred to.BHANU KUMAR SHASTR1 v. MOHAN LAL SUKHADIA ANDOTHERS, 38 E.L.R. 119.
—S. 83—Contents of the Election Petition—Details of Corrupt practicesnot given—non-compliance with the provisions of section 83—whether peti-tion can be dismissed under section 86-Whether General Law of evidenceand pleading must have effect.
HELD : Dismissing the petition: (i) On the evidence, the petitioner hadfailed to, prove his allegations against the returned candidate, (ii) Under theAct, as it stands at present, the election petition cannot be dismissed underthe provisions of s. 86 for non-compliance with the provisions of section 83of the Act, which deals with the contents of the election petition. It does notprovide as to what would happen if such details of corrupt practice are notgiven. IH such circumstances, the general law of evidence and pleading musthave effect. It is a salutary rule of evidence that the allegations against aparty must be clear so that he may properly meet the charge. The expres-sion "the name of the parties alleged to have committed corrupt practice"in Clause (b) of sub-section (1) of section 83 of the Act clearly indicatesthat the parties to the corrupt practices must mean both sides, namely, theperson who commits the corrupt practice as well as the person on whomthe corrupt practice is committed.
Badri Narain Singh and others v. Kamdeo Prasad Singh and anotherA.I.R. 1961 Patna 41; Chandrasekhar Singh v. Sarjoo Prasad Singh and an-other, A.I.R. 1961 Patna 189; Jagdeo Singh Sidhanti v. Pratap SinghDaulta and others A.I.R. 1965 S.C- 183; Dr. Jagjit Singh v. Giani Kartar4EC/74—6
34
Singh and others; A.l.R. 1966, S.C. 773; H.J. C. No. 36 of 1954; (Patna)referred to. PRIYA GUPTA v. ABRAR AHMED & ORS. 39 E.L.R. 248.
—83(1—b)—-Corrupt Practice—Full Particulars—What are-—SeeElection petition—General Principles—TEJ SINGH v. RAMACHANORAVIKAL AND OTHERS 42 E.L.R. 312.
(ii) ADMISSION IN PLEADINGS, EFFFXT OF—A new offence pleaded onthe basis of evidence which is not contained in the pleadings—whether itfulfils the requirements of section 83(7) (b) of the Act.
It was claimed in the Petition that the agents of the first Respondenthad assaulted the Petitioner's agents and other voters and thus committedcorrupt practice under Section 123(2) (a) (i) of the Act. The first Res-pondent denied the allegations.
HELD : The allegations in the petition about two acts of intimidationor violence by the first Respondent or his agents against the supportersof the petitioner from exercising their franchise were vague and did notsatisfy the requirements of Section 83(1) (b) of the Act. The evidenceled by the petitioner constituted a separate charge of undue influence forwhich there was no pleading. Any amount of evidence cannot take theplace of the necessary pleading. D.R. GURUSHANTHAPPA v. ABDULKHUDEES ANWAR AND OTHERS, 33 E.L.R. 162.
—Pleadings—Affidavit—Portions based on information—// should dis-close source of information—Code of Civil Procedure, 1908—Applicabi-lity of.
HELD : The affidavit does not conform to the form prescribed inForm 25 and as such is defective. It is not necessary for the affidavit todisclose the source of information with respect to the portions which werebased on information ; firstly, on the ground that the provisions of theCode of Civil Procedure are not applicable at all to the case so far asthe requirements of an affidavit are concerned under the proviso to sub-section (v) of section 83 of the Act, and secondly, on the ground that theform of the affidavit prescribed under the Act is to be preferred to theform contemplated, under the Code of Civil Procedure as it originally stoodwhen passed by the Central Legislature or as it stood amended by anyHigh Court under s. 122 of the Code of Civil Procedure.
The defect in the petition being not a vital defect under section 86 ofthe Act, an application to file a fresh affidavit may be allowed.
BAIJNATH SINGH VAIDYA v. RAVINDRA PRATAP SINGH,36 E.L.R. 327.
35
—Sections 77(3) and 123(6)—Corrupt Practice—Sufficiency of plead-ings.
The respondent challenged the election of the appellant on the groundthat the total expenses incurred by the appellant in connection with theelection exceeded the amount prescribed under S. 9A of the Act. TheHigh Court held that the appellant committed a corrupt practice withinthe meaning of Section 123(6). In the appeal to the Supreme Court itwas contended that a new case was made out by the High Court whichwas not set out in the petition and which the appellant bad no opportunityof meeting. It was urged that the allegations made in the petition wererestricted to a charge of infringement of the provisions of S. 77 (1) and 77(2) but the High Court made out a case of a corrupt practice under S. 77(3)read with S. 123(6) and that no issue was raised about the commission ofany corrupt practice under S. 123 (6) read with S. 77(3).
HELD : (i) By s. 123(6) it could be intended to refer to sub-section (3) of S. 77. The averment that the appellant had not includedthe expenditure incurred by him or at his instance in respect of the itemsspecified therein in the light of the other averments clearly indicates thatthe charge was one under S. 123(6) read with S. 77(3) of the Act. Theplea of the respondent that the expenditure was incurred by the appellant,amongst other purposes, for hiring vehicles in connection with the electionand that expenditure had not been included in the return and that if ithad been included the expenditure would have exceeded the prescribedamount under S. 77(3) of the Act, was clearly made the subject matter ofthe issues.
(ii) A charge of corrupt practice in an election petition must be clearand precise and supported by evidence which establishes the charge beyondreasonable doubt.
Jagdev Singh Sidhanti v. Pratap Singh Daulta, (1964) 6 S.C.R. 750;referred to. SHRI KRISHAN v. SAT NARA1N AND OTHERS (S.C.),37 E.L.R. 13.
—Ss. 79(b), and 123(7)—Election petition—Corrupt practice—Re-rements of Section 83(71.quirements of Section 83(7)
HELD : The allegation that the respondent canvassed to further hiselection prospects before his nomination should form a pleading of thecharge in the petition in terms of Section 83(1) of the Act. The petitionercould not be allowed to adduce evidence in support of the charges whichwere too vague and general.
36
Ghasiram Majhi v. Onkar Singh, 34 C.L.T. 328; Bhagwan Datta Shastriv. Ram Ratanji Gupta and others, A.I.R. 1960, S.C. 200; Balwant Singhv. Lakshmi Narain, A.I.R. 1960, S.C. 770; Abdul Hamid Choudhary v.Nani Gopal Swami and others, 22 E.L.R. 358 (S.C.); referred to.KRISHNA KANT MISHRA v. BANAMALI BABU, 38 E.L.R. 451.
—Corrupt practice—allegation of bribery to voters on mass scale—requirements of "material facts" in petition under s. 83(1) (a) (b) —Appeal on the basis of caste—scope of clauses (3) and (3A) of s. 123—corrupt practice.
HELD : (i) The expression "material facts" in section 83(1) (a) iswith regard to allegations of corrupt practice. To ensure a fair andeffectual trial of the election petition, it was necessary to indicate thenames of the persons who gave the bribe as also the "names of the partiesalleged to have committed such corrupt practice", as provided in clause (b)of sub-section (I) of Section 83 of the Act. This clearly indicates thatparties to the corrupt practice must mean both sides i.e. the person whocommits the corrupt practice as well as the person on whom the corruptpractice is committed. Unless these material facts are indicated, it wouldbe very difficult for the respondent to meet the allegations. With refe-rence to the allegations of corrupt practice against the returned candidateby carrying voters in hired trucks and buses, the petitioner had to furnishdetails as to from where the voters were carried to which booths and whowere these voters—and to prove the allegations to bring home to therespondent the charge of corrupt practice under section 83 read with sec-tion 123B(5) of the Act.
Badri Narain Singh and others v. Kamdeo Prasad Singh and another,A.T.R. 1961 Patna 41;
Chandrasekhar Singh v. Sarjoo Prasad Singh and another, A.I.R.1961, Patna 189;
Jagdev Singh Sidhanti v. Pratap Singh Daulta and ors. A.I.R. 1965,S.C. 183
Dr. Jagjit Singh v. Giani Kartar Singh and ors. A.I.R. 1966 S.C. 773;
M.J.C. No. 36 of 1954 (Patna)
Bhagwan Datta Shastri v. Badri Narain Singh and ors. A.I.R. 1960,S.C. 770;
Balwan Singh v. Lakshmi Narayan and others, A.I.R. 1960 S.C. 770;
37
Sheopat Singh v. Harish Chandra and another, A.I.R. 1960 S.C. 1217;referred to.
(ii) In an allegation against the returned candidate that he or hisagents indulged in mass scale bribery of voters, material details cannotobviously be given, and the petition should not be struck off in view ofthe provisions of section 83(l)(a)(b) of the Act, for want of such parti-culars of corrupt practice. The proof of the allegations depends on theintrinsic worth of evidence led in the case. If the rule is that the name,date and place of commission of the corrupt practice should be given inall cases, several election offences which would be committed in secrecy,could never come before the court and the purity of election could notbe maintained. Mechanical rejection of evidence of witnesses for the peti-tioner on the ground that it is partisan would lead to the failure of justice.In such cases the judicial approach has to be cautious in dealing with suchevidence.
Rajendra Prasad Jain v. Sheet Bhadra Yajee and ors. A.I.R. 1967,S.C. 1445;
5. Srinivasan v. Vasantha Pai and others, 10 E.L.R. 245:
S. Kandaswawami v. S- B. Adityan, 19 E.L.R. 260;
Ram Dial v. Sant Lai and others, A.I.R. 1959, S.C. 655 (20 E.L.R.482);
Chandrasekhar Singh v. Sarjoo Prasad Singh and am. A.I.R. 1961Fatna 189;
Jagannath v. Jaswant Singh and others, A.I.R. 1954 S.C. 210; re-ferred to.
(iii) Under Clauses (3) and (3A) of section 123, even one instanceof corrupt practice of appeal for votes on basis of caste will suffice toprove the charge. MAHANT MAHADEVANAND GIRI V. AMBIKASHARAN SINGH AND OTHERS, 39 E.L.R. 23.
—Practice and procedure—Corrupt practice—Evidence should be ledstrictly according to pleading.
The first respondent alleged in his election petition that the appellant,the returned candidate, through his agent entered into an agreement withthe Harijan voters to make a gift of Rs. 1,500 to them for the Harijansof that village. The High Court held the allegation proved and set asidethe Appellant's election. Allowing the appeal to the Supreme Court,
o
38
HELD: The finding of the Trial Judge that the appellant had met mem-bers of the Harijan community and promised to give Rs. 1,500 and hadmade over the amount as stated in the evidence, though not pleaded inthe petition, could not be upheld.
For the trial of an election petition evidence has to be scrutinised with agood deal of care, particularly where the commission of a corrupt practiceis alleged; and there is no reason for accepting a case where there is asubstantial difference between the pleading and proof as was allowed bythe trial Judge in this case. Evidence should be led strictly according tothe pleading and a party who proposes to set up a case at variance withhis pleading should apply for amendment thereof and it will then be forthe trial Judge to decide, whether amendment, should be allowed at thatstage. All these precautions were not taken in the trial from which thisappeal has been brought. There is no justification for the course adoptedat the (rial and on the evidence the decision of the trial Judge in settingaside the election could not be upheld. KARNAIL SINGH V. TRILO-CHAN SINGH AND OTHERS, (S.C.), 40 E.L.R. 435
(Hi) Candidate;—"Candidate", in section 79 (b), meaning of—when aperson becomes a "candidate"—determining factor—
HELD: " The determining factor is the decision of the candidatehimself and not the act of other persons or bodies adopting him as theircandidate. He should communicate his intention to the outside world bydeclaration or conduct that he intends to stand as a candidate...The peti-tioner has failed to establish the specific time when the second respondentheld himself to be a "candidate" within the meaning of Section 79(b) ofthe Act " SAMANT NILKANT V. GEORGE FERNANDES& ORS., 35, E.L.R. 259.
—"Candidate" in Section 79 (/;), Meaning of—See Corrupt Practice—Procuring assistance of Government servant—KRISHNA KANT MISHRAV. BANAMALI BABU, 38 E.L.R. 451
—Candidate—person who has withdrawn—•// 'candidate'.
See—Election Petition—Parties to the Petition—MOHAN RAJ v.SURENDRA KUMAR TAPARIA AND OTHERS, (S.C.) 39 E.L.R. 423
(iv) LIABILITY FOR ACTS OF THIRD PERSONS—AGENCY—DOCTRINE OFAGENCY IN ELECTION LAW.—Sections 101, 123— Corrupt practice—Non-refutation of allegation of respondent, whether can lead to inference ofimplied consent—Onus of proof—Circumstances when the onus shifts tothe opposite party—Inference of implied or tacit consent, when established.
39
The petitioner, a defeated candidate, challenged the election of the firstrespondent alleging inter alia that the first respondent committed various cor-rupt practices of making false statements of facts against the petitioner andmaking an appeal in the name of religion; furthermore certain posters andtwo weekly publications "Ek Jot" and "Jalti Jot" were published duringthe election campaign on behalf of or with the consent of the first respondentattacking the petitioners' personal conduct and character which materiallyaffected the results of the election. It was also alleged that the second res-pondent had commited corrupt practice within the meaning of section 123of the Act by publishing a false poster under the caption "Nakal Ka AsalRoop" and the cost of the publication of the poster was included in thereturn of election expenses by the second respondent,
HELD : Dismissing the petition :
(i) In the matter of a charge of corrupt practice the onus being on thepetitioner he has to prove beyond reasonable doubt that the offending publi-cations were directly done by or at the instance of the returned candidate.Mere suspicion cannot take the place of proof.
Hanumant Govind Nargund Kar and another v. State of Madhya Pradesh.A.I.R., 1952 S.C. 343; Chadalava Subba Rao v. Kam Brahmanda Reddy andothers, A.I.R. 1967 Andhra Pradesh 155 at 160, Harish Chandra Bajpaiand another v. Triloki Singh and others, A.I.R. 1957 S.C. 444; JagdevSingh Sidhanti v. Pralap Singh and others 1965 S.C. 183; Mohan Singh v.Bhanwarlal and others A.I.R. 1964 S.C. 1366; Dr. Jagjit Singh v. GianiKartar Singh and others, A.I.R. 1966 S.C. 773; A.I.R. 1966 S.C. 778;referred to.
(ii) To bring the statements of fact contained in the two impugned pub-lications within the mischief of section 123(4) of the Act, it must be shownthat the corrupt practice had been committed with the consent of the re-turned candidate or his election agent. In the absence of direct evidencewhich would connect the returned candidate with the editor of the twoweekly newspapers, it was difficult to hold that the returned candidatehimself published the same or himself was instrumental in bringing out thesame.
Bhagwan Datt Shastri v. Ram Ratan Gupta and others; BhagM'an DattShastri v. Badri Narayan Singh and others, 11 E.L.R. 448; Suhdir LaxmanHendru v. S.A Dange and others, 17 E.L.R. 373; Nani Gopal Swami v.Abdul Hamid, 19 E.L.R. 175; referred to
(iii) Mere knowledge of the article or its non-refutation by the respondentcannot lead to the inference of his implied consent.
40
Gurbanta Singh v- Paira Ram Jaggu Ram and others; A.I.R. 1960Punjab 614; Ram Phal Raghu Nath Sahai v. Brahm Parkash and others,A.I.R. 1962 Punjab 129; referred to.
(iv) The petitioner had to prove the facts and circumstances on thebasis of which the inference or tacit consent of the respondent could beestablished within the meaning of section 100(1) (b).
Tacit consent is consent within the meaning of section 100(l)(b).
Sheopat Singh v. Harish Chandra, 16 E.L.R. 103 at 120; referred to.
(v) Where the petitioner alleges that the offending portion of the arti-cle contains innuendos which are false, the onus to prove the falsity ofthe same is on the petitioner and if this is proved only then the onuswould shift to the respondent who has to prove the circumstances, if any,to dislodge the assertions of the petitioner.
T. K. Gangi Reddy v. M. C. Anjaneya Reddy and others, 22 E.L.R.261; State v. Ram Kishan Kirpal Singh etc.; Mohan Singh v. Bhanwarlaland others, A.I.R. 1964 S. C. 1366. RAM PIARA V. RAM LAL & AN-OTHER, 33 E.L.R. 94.
(vi) AGENCY—S. 123(4)—Corrupt Practice—Candidate—Determiningfactor—:—"Agent" under Election Law—Editor of a newspaper alleged tobe agent of returned candidate—Wether a Reporter of the newspaper issub-agent of the returned candidate in the course of agency—Whether anews item published by reporter is an admission of sub-agent under Sections18 and 19 of Evidence Act—
HELD : Dismissing the petition (1) On the allegation of the petitionerthat the contents of the article published by the first respondent, in the'Blitz' dated the 5th November, 1966, prejudicially affected the prospectsof the election of the second respondent, the question to be determinedwas whether the second respondent had held himself out as a prospectivecandidate under the provisions of Section 79 (b) at or previous to thetime when the impugned article (Ex. 57) in the "Blitz" was published.The determining factor is the decision of the candidate himself and notthe act of other persons or bodies adopting him as their candidate. Heshould communicate his intention to the outside world by declaration orconduct that he intends to stand as a candidate. The intention of thepublisher of the impugned article is a relevant factor and it has to beestablished that reasonable and probable consequences of the publicationare likely to prejudice the prospects of the candidate's election and suchwas also the intention of the publisher.
41
Further, the report of a news item by a reporter which was publishedin the "Maratha" on the 14th October 1966, to the effect that the secondrespondent had asked for a ticket for the South Bombay Constituencywould not amount to a statement of an admission by the Editor of"Maratha" that the second respondent had held himself to be a candidateon the date of publication of the news item. The news item could notbe regarded as a statement by a sub-agent. It is only a publication ofcertain information brought by or received by the reporter of "Maratha"and the report of the news item can never be regarded as an admission ofa sub-agent either under Section 18 or 19 of the Evidence Act. Further,the newspaper reports about the candidature of the second respondentwhich were not proved by authentic reports could not be taken as provedand acted upon as true statements of facts. The petitioner had failed toestablish the specific time when the second respondent held himself outto be a "candidate" within the meaning of Section 79(b) of the Act and,therefore, the impugned article would not amount to corrupt practice underthe provisions of Section 123(4) of the Act. The petitioner had notestablished the several essential ingredients of a corrupt practice underSection 123(4) of the Act, in relation to the publication of the article inthe "Blitz".
S. Khader v. Munnuswami, A.I.R. 1955 S.C. 775; 11 E.L.R. 208;
N. P. Ponnuswami v. Returning Officer, Namakhal, A.I.R. 1952 S.C.64 E.L.R. 133;
Emperor v. Jhabwala and others, I.L.R. (1933) 55;AH. 1040 at pp. 1070—1073 ;
Plymouth's case (1881) III O'M &H 107 at p. 108;
Shatnu Pattar v. Abdul Kadir Ravathur (1912) 39 I.A. 218;
Jamatiar Kowlji Govani v. State of Maharashtra, Cr. Ap'peal No. 217of 1966 dated 4-4-1967 (S.C.);
Reg. v. Frost, 4 St. Tr. (N.S.) 85 at P. 336 ;
Datatraya v. Dattatraya, A.I.R. 1964 Bom. 244; referred to. SAMANTN. BALAKRISHNA v. GEORGE FERNANDEZ & 35 E.L.R.259.
—Agency—123(7) Expl. (1)—Corrupt practice—"Agent" in Explanation(I) to Section 123(7), Meaning of.
42
HELD : Dismissing the petition:
(i) The word 'Agent' in Explanation (I) to Section 123(7) is given arestricted meaning in that it excludes a person who had acted with theknowledge, but not with the consent of the candidate.
The Vigan Case, Reports of Election Petitions in Great Britain and Ire-land, Vol. IV, P. II; Bhagwan Dalt Shastri v. R. P. Gupta IX E.L.R. p.448; Mani Gopal Swami v. Abdul Hamid Choudhury, E.L.R. Vol. 19, 1959p. 175; referred lo S. 13. ADITYAN v. T. MARTIN, 34 E.L.R. 339.
—Avency—S. 123, Explanation (!)—Election law-Agency, Scope of"Consent" "Knowledge",
HELD : On the question of whether the Editor of "Maratha" wasthe agent of the first respondent, what would be sufficient evidence toconstitute one person as the agent of another under the Election Law isa question of more fact than law. Under the present Indian Law, "consent"is necessary in all cases for a person acting in connection with an electionfor a candidate to be held to be the candidate's agent and "Knowledge"alone will not suffice. "Knowledge" with other circumstances, such asraising no objection or availing of the acts, may raise an inference ofexistence of "consent" but it must amount to "consent" as is defined inexplanation (1) of Section 123 of the Act.
Borough of Evesham (1881) III O'M&H 192;Borough of Bridgewater (1870) I O'M & H 112;Windsortz case (1870) I O'M & H P. 1 ;Londonery Case (1870) I O'M & H at P. 278 ;Bewdley Case (1870) I O'M & H P. 16 at P. 17 ;Taunton Case (1870) I O'M & H 181 ;Wakefield Case (1875) II O'M & H. 100 at P. 103 ;
Sudhir Laxman Hendre v. S. A. Dange & others, (1959) 17 E.L.R.373; A.I.R. 1960 Bom. 249 ;
Biswanath v. Harlal Das, A.I.R. 1958 Assam 97 ;
Maganlal Bagdi v. H. V. Kamath, A.I.R. 1960 M. P. 362; referred to.SAMANT NILKANT BALKRISHNA v. GEORGE FERNANDES &ORS., 35, E.L.R. 259.
—Agency—SS. 100(1) (b)(ii) 100(i) (d) (ii), 123(4)— Corrupt prac-tice under section 123(4), whether proof of "consent" of the returned can-didate is necessary under section 100(I)(b)—
43
HELD : In order a constitute a corrupt practice under Section123(4) the requisite belief must be entertained by the returned candidateat or prior to the time of a false statement in relation to the personalcharacter or conduct of the second respondent. His belief at the stageof a trial is irrelevant. The Section contains an ingredient of mens reaand such belief must exist at or prior to the time of publication. Fromthe evidence and facts of the case it had been proved by the petitionerthat a corrupt practice within the meaning of Section 123(4) of the Acthad been committed by the Editor of "Maratha" as the agent of the first res-pondent by publishing various items, cartoons etc, in his newspaper "Mara-tha" and that the Editor had the authority of the first respondent*o canvass for him and promote his election prospects in various ways. Butthe commission of a mere corrupt practice by an agent of the returnedcandidate does not ipso facto render the election of the returned candidatevoid or entitle the court to declare it void unless the ingredients under Clause(b) and (d) (ii) of Section 100(1) are proved by the petitioner. However,even in the case of a corrupt practice committed by an agent and fallingwithin the ambit of Section 123(4) the consent of the returned candidate orhis election agent is further required in order to satisfy the requirements ofSection 100(1) (b) and if such consent, either express or implied of thereturned candidate is not established, then the election cannot be declaredvoid. The petitioner had failed to prove that there was a design or cons-piracy between the Editor of "Maratha" and the first respondent, to carry onfalse propaganda against the second respondent. Further, the same stand-ard of proof that is required for establishing a corrupt practice is also re-quired for establishing consent of the candidate under Section 100(1) (b)before an election can be declared void. In the absence of any materialevidence imputing knowledge of these specific impugned publications to thefirst respondent before they were published in the issue of "Maratha", itis not possible for any one to predict how many and which proportion ofvoters will vote for the one or the other of the candidates, if such impugnedstatements had not been published in "Maratha". Even though the peti-tioner is confronted with a difficult situation, it is not possible to relievehim of the duty imposed on him by Section 100(1) (d) (ii) and hold with-out evidence that the duty had been discharged. The petitioner had failedto discharge the burden cast on him.
Mohamad Hani Kureshi's case (1959) S.C.R. 629 ;
Abdul Hakim Guerishi & others v. State of Bihar, A.I.R. 1961 S.C. 448;
Kumara island v. Brij Mohan Lai Sharma, A.I.R. 1967 S.C. 808;
Sheopal Singh r. Ram Pratap, A.I.R. 1967 S.C. 677 ;
Anjaneya Reddy v. Gangi Reddy & others (1960) 21 E.L.R. 247 ;
44
Gangi Reddy v. Anjaneya Reddi, (1960) 22 E.L.R. S.C. 261.
Nani Gopal v. Abdul Hamid, A.I.R. 1959 Assam 200 ;
Abdul Hamid Chowdhary v. Nani Gop'al, (1960) 22 E.L.R. 358 ;
Indar Lall v. Lai Singh, A.I.R. 1961 Rajasthan 122 ;referred to,
Sudhir Laxman v. S. A. Dange & others, 17 E.L.R. 373; relied on.
Rustom v. Dr. Sampoornanand and others (1959) 20 E.L.R. 221;
lagan Prasad v. V. Krishna Dutt Paliwal, (1959) 20 E.L.R. 443 ;Sarla Devi Pathak v. Birendra Singh & Others (1959) 20 E.L.R. 275;
M. A. Muthiah Chettiar v. Saw Ganesan (1960) 20 E.L.R. 215 at 216;
Bishwanath v. Harlal, A.I.R. 1958 Assam 97 ;
Krishna Kumar v. Krishna Gopal, A.I.R. 1964 Rajasthan 21 ;
Abdul Majid v. Bhargavan, A.I.R. 1963 Kerala 18:
Lai Singh v. VaUabhdas, A.I.R. 1963 Gujarat 62;
Daitataraya v. Dattatraya, E.P.I, of 1967 (Bombay) ;
Sheopat Singh v. Harish Chandra, A.I.R. 1958 Rajasthan; 324 andA.I.R. 1960 S.C. 1217;
Bhagwan Datta v. Ram Ratanji, A.I.R. 1960 S.C. 200;
Emperor v. Haji Sheik Mohammed Shastri, I.L.R. (1908) 32 Bom. 10;
In re Caughery, ABTS 1 Chancery Div. 521 ;
Vashisht Narain Sharma v. Dev Chand and others (1954-55) 10 E.L.R.30—A.I.R. 1954 S.C. 513;
Inayatullah Khan v. Diwan Chand Mahajan and otiiert (1958) 15E.L.R. 219;
Badri Narain Singh v. Kamdeo Prasad Singh & another A.I.R. 1961Patna 41;
Sangappa Andanappa v. Shivamurthiswamy Siddeppalyaswamy A.I.R.1961 Mysore 106 ;
Surendra Nath Khosla and another v. Dalip Singh and others A.I.R.1957 S.C. 242; referred to. SAMANT NILKANT BAL KRISHNA v. GE-ORGE FERNANDES & ORS; 35 E.L.R. 259.
45
—"Agent" who is—
HELD: Any person cannot be held as an agent of a candidate unlessit is also established that he acted with the consent of the candidate. Theterm "agent" in the election law has a wide significance and no authori-sation or declaration in writing is necessary. MOHAN v. ARJUN SINGH, 36,E.L.R. 267.
—"Agent"—who is—
An "agent" includes not only a person who has been specificallyengaged by the candidate or his election agent to work for him in theelection but also a person who does in fact work for him and whose ser-vices have been accepted by the candidate. An association of personsor a society or a political party and its prominent members, who set upthe candidate, sponsor his cause and work to promote his election maybe aptly called the "agent" of the candidate for election purposes. BAU-NATH SINGH VAIDYA v. RAVINDRA PRATAP SINGH, 36 E.L.R.327
—S.—100(1) (b) ,100(2) (b)—Corrupt practice by agent other thanelection or polling agent—proof of consent—Section 100(2) (£>)—if mo-difies Section 100(1) (b).
The petitioner challenged the election of the respondent on the groundsthat the respondent was guilty of various corrupt practices involving brib-es and undue influence committed by him or his agents or by other per-sons with his consent. The petitioner contended that once the agencyof the political party is established, consent of the respondent for actingby the party organisation as a whole and by members of the party inparticular, could fairly be presumed and hence further proof by petitionerof the consent of the respondent for ihe particular corrupt practice wasnot required.
Reading Section 100(1) (b) with the explanation clause with referenceto the expression "ag'ent", it seems that where a corrupt practice isattributed to an agent other than an election or polling agent, in orderthat an election can be held void due to it, such person should, in thefirst place, have acted in connection with the election with the consentof the candidate; and in the second place, the particular corrupt practiceshould have been proved to have been committed by such person withthe consent of either the returned candidate or his election agent. Wherethe corrupt practice is attributed to a polling agent, such consent for actingin connection with the election need not be separately established as it isself evident that he acted in connection with the election with his consent.
46
In his case, the candidate's consent with reference to the particular corruptpractice committed by the polling agent is enough. Such consent need notalways be express. It could be implied and can be proved by surroundingcircumstances including acts and conduct of the persons concerned. Thisview as to the meaning and scope of s. 100(1) (b) is not modified by any-thing contained in s. 100(2) (a).
Sheopat Singh v. Harish Chandra, XVI R.L.R 105: Sarla Devi v.Birendra Singh, XX E.L.R. 275; referred to. HARI VISHNU KAMATHv. CHAUDHURY NITIRAJ SINGH, 36 E.L.R. 356.
Agency—5. 123(4)—Corrupt practice—General Power if sufficient toestablish prior consent. See Corrupt Practice—Publishing False statements.RAM K1SHAN v. JAI SINGH (S.C.), 37 E.L.R. 217.
—Agency—S. 123—allegations of corrupt practice—proof of—Acts ofcandidate's election agent—nature of consent require to constitute cor-rupt practice—-
HELD, Regarding the liability of a candidate for the acts of his elec-tion agent, it is settled law that the onus lies heavily on the petitioner toestablish both the facts, firstly, the commission of certain acts by the agentsand secondly that the candidate is responsible for such acts by virtueof his consent. It is an undisputable proposition of law that it is notopen to the court to presume such consent merely on the basis of proba-bilities. A reading of Sec. 123 shows that the consent which is requiredin order to make a candidate vicariously liable is the consent for the par-ticular act which forms the basis of the corrupt practice. In other words,mere consent by a candidate for another person to act as agent generallydoes not necessarily imply consent on the part of the candidate with res-pect to any particular act which constitutes a corrupt practice. What isrequired is consent of the candidate for the particular act of his worker.RAMCHANDRA RAO V. v. (I) M. CHENNA REDDY AND ANOTHER37 E.L.R. 269.
—SS. 100(l)(6) and (d) (ii) 101(6), 123(5)—Political party advo-cating the cause of a non-party candidate—liability of candidates for acts ofothers—Agency, inference of.
HELD: Allowing the petition: (i) On the evidence, the SwatantraParty and the persons mentioned in the election petition by the petitioneracted as the agents of the first respondent, a non-party candidate, and com-mitted the corrupt practice mentioned in Section 123(5) of the Act withthe consent of the first respondent. Further, the petitioner had provedthat there was extensive use of hired and procured cars by the badgedvolunteers of the first respondent for conveying voters and soliciting votes
47
which had materially affected the result of the election. The election ofthe first respondent was therefore void under Section 100(1) (b) and (d)(ii) read with Section 123(5) of the Act and the petitioner was entitledto a declaration that he was duly elected under Section 101 (b) of theAct. VASANTHA PAT G. v. R. M. SESHADRI AND OTHERS, 38 E.L.R.267.
—"Agent" in Clause (7) of Section 123—Scope of.
HELD: For the purpose of clause 7 of Section 123 the term "agent"'has a wider connotation in Election Law. A candidate is bound by theaction of his agents and others including the party that set him up, pro-vided there is proof that he adopted their action or gave his consent totheir action.
T. C. Bassappa v. Nagappa and others, 3 E.L.R. 197; Sardul SinghGaveeshar v. Hukam Singh and others, 6 E.L.R. 316; Abdul Jalil Choii-dhury v. Rathindra Nath Sen, A.T.R. 1958 ; Assam 51 ; Nani Gopal Swamiv. Abdul Hamid Choudhury and another, A.I.R. 1959; Assam 200; Magan-lal Radhakrishan Bagdi v. Hari Vishnu Kamath, A.I.R. 1960, M.P. 362 ;Sudhir Laxman Hendre v. Shripat Amrit Dange and others, A.I.R. 1960Bombay 249 ; Inder Lai v. Lai Singh, A.I.R. 1961, Rajasthan 122 ; DinaNath Kaul Nadim v. Peer Mubarak Shah, A.I.R. 1962, Jammu and Kashmir28 ; Raj Krushna Bose v. Binod Kanungo, A.I.R. 1964, S.C. 202 ; BaruRam v. Prasanni, A.I.R. 1959, S.C. 93; Krishnaji Bhimrao Antrollkar v-Shankar Shantaram More and others, 7 E.L.R. 100 ; Nyalchand VirchandSheth v. Election Tribunal Ahmedabad and others, 8 E.L.R. 417 ; RajendraPrasad Yadav v. Suresh Chandra Mishra, 1J[ E.L.R. 222 ; Gurbanta Singhv. Piara Ram Baggu Ram and others, A.I.R. 1960; Punjab 614 ; LalsinghKeshrisingh Rehvar v. Ballabhdas Shankerlal Thekdi and others, A.I.R. 1967,Gujarat 62; referred to. BIRENDRA CHANDRA DUTTA v. J. K.CHOUDHURY, 38 E.L.R. 381.
--SS. 100(1) (ft), 100(1) (d)—Agent—Corrupt practice—Necessityof proof of candidate's consent to specific corrupt practice—Newspaperpublishing attacks on character of candidate—if editor can be deemed tobe agent of rival candidate—knowledge, if sufficient proof of consent.
HELD: In view of the activities of the editor of the "Maratha" andhis own personal hostility to the second respondent, every act of the editorcannot be attributed to the first respondent. The editor's field of agencymust be limited to what he said as the agent of the first respondent andwould not embrace the field in which he was acting as editor of his news-paper unless the first respondent's consent to the corrupt practices wasestablished.
48
Consent need not be directly proved and could be inferred from cir-cumstantial evidence, such as a consistent course of conduct of the candi-date. But the circumstances must point unerringly to the conclusion andmust not admit of any other explanation. Although, an election petitionis tried in accordance with the Civil Procedure Code, a corrupt practicemust be proved in the same way as a criminal charge is proved. Englishcases dealing with illegal practices in which the candidate is held res-ponsible for the acts of his agent, are not a proper guide because Englishlaw unlike Indian law makes a distinction between "Illegal practices" and"corrupt practices". Further, the consent of the candidate must be spe-cific and must be proved for each corrupt practice. If every act of anagent is presumed to be with the consent of the candidate there wouldbe no room for the application of the extra condition laid down by s.100(1) (d), namely, the material effect on the result of the election, be-cause, whenever agency is proved either directly or circumstantially, thefinding about consent under s. 100(1) (b) will have to follow.
In the present case, though the newspaper ran a special column as anelection front of the first respondent, no article or comment in that columnwas relied on for proving a corrupt practice. It was not even suggestedthat the first respondent wrote any article for the "Maratha". The state-ments which were relied on as corrupt practices were made by the edi-tor of the newspaper in the normal course of running a newspaper, asnews items or in the editorial. They stated the policy of the newspaperand its comments upon the events. Many of the news items appeared inmore than one paper. If it could not be said that the editors of each ofthose papers acted as an agent for the first respondent, there was no rea-son for holding that the editor of the "Maratha" alone acted as such agent.It was not as if the matter was left entirely in the hands of the editor whoacted as a wholetime agent or solely as the agent of the first respondentnor is it a case of some persons setting up the first respondent as a can-didate and sponsoring his cause. The editor did not publish any propo-ganda material such as leaflets or pamphlets. Therefore, though the edi-tor was a supporter and agent of the first respondentit could not be said that the first respondent consented to eachpublication as it appeared or even generally consented to the publicationof the items defaming the character and conduct of the second respondent.Even if he had knowledge, it would not be sufficient because the law re-quires some concrete proof, direct or circumstantial, of consent, and notmerely knowledge or connivance. Further, no such inference regardingthe first respondent's consent could be drawn from the comments andspeeches attributed to the first respondent by the "Maratha" and othernewspapers or from any similarity of ideas or language, because news itemswhen published are garbled versions and cannot be regarded as proof of
49
what actually happened or was said without other acceptable evidencethrough proper witnesses.
As regards the other two persons, even evidence regarding their agencywas non-existent and there was no material on which the first respondent'sconsent to their statements could be presumed or inferred.
Therefore, since the consent of the candidate to the corrupt practicewas not proved the case would have to be judged under s. 100(1) (d) (ii)and not under s. 100(1) (b).
Rama Krishna's case C.A. No. 1949/67 dated 23-4-1968—Inder LaiJugal Kishore v. Lai Singh A.I.R. 1961 Raj. 122—Gopal Swami v-'AbdulHamid Choudhury A.I.R. 1959 Assam 200—Adam v. Hon. E. F. LevesonGower, I O'Malley and Hardcastel 218—Chistie v. Grieve O'Malley & Hard-castle 251—Spencer—John Blundell v. Charles Harrison, 3 O'Malley & Hard-castle 148—Biswanath Upadhyaya v. Harilal Das, A.I.R. 1958 Assam 97—Abdul Majeed v. Bhargavan A.I.R. 1963 Kearla 18—Rustom Satin v. Dr.Sampoornanand 20 E.L.R. 221—Sarla Devi Pathak v. Birendra Singh20 E.L.R. 215—Krishan Kumar v. Krishna Gopal, A.I.R. 1964 Raj. 21—Lai Singh v. Vallabhdas, A.I.R. 1967 Guj. 62,—Badri Narayan v. Kam-deo Prasad, A.I.R. 1961 Patna 41—Sarat Chandra v. Khagendranath A.I.R.1961 S.G. 334 and—Taunton's case I O'Malley & Hardcastle 181,185, referred to. Bayley v. Edmunds, Buron Marshall (1894) 11 T.L.R.537; distinguished. SAMANT N. BALKRISHNA v- GEORGE FERNAN-DES AND OTHERS (SC) 41 E.L.R. 260.
—Agent—S. 123(6)—Relationship of Candidate and agent not commonlaw relation of principal and agent—
HELD: In election law the relation between the candidate and theagent is not the common law relation of principal and agent. A candi-date may be responsible for the acts of one acting on his behalf thoughsuch acts are beyond the scope of the authority given or indeed in violationof express injunction.
On a proper and reasonable interpretation of s. 123(6) of the Act acandidate cannot be held liable for expenses incurred by agents under theelectoral law on presumption of authorisation unless it is proved that theagents incurred expenses within the scope of his authority under the gene-ral law.
It is very difficult to draw a well defined line of demarcation betweenwhat is general propaganda and what is propaganda for individual can-didates and, therefore, it will be hardly appropriate to import a general4EC/74—7
50
rule in s. 123(6) by invoking the general law of agency and by referenceto the expanded constructive agency to make a candidate liable for theexpenses voluntarily incurred by the individual, groups or political parties.
Vidya Sagar Joshi v. Surinder Naih Gautam, C.A. 853 of 1968 de-cided on 13-9-1968 (S.C.) ;—Rananjaya Singh v. Biajnath Singh, 10E.L.R. 129, (S.C.) ;—Sheopat Singh v. Harish Chandra, 16 E.L.R. 103(Raj.);—Biresh Mishra v. Ram Nath Sarma, 17 E.L.R. 433;—Prabhudasv. Jorsang, 18 E.L.R. 110;—Hansraf v. Hariram, C.A. 863 of 1966 de-cided on 30-10-1968 (S.C.) ; referred to.
In the present case the extreme stand taken by the petitioner that theleading members of the Birla family, the Birla concerns, their officers, theSwatantra party and its workers being treated as the respondent's agentunder the election law, the respondent should be liable for the entire amountspent or deemed to have been spent by the Swatantra Party and theBirla group of concerns and their officers, could not be upheld. MAGRAJv. RADHA KISHNA BIRLA AND OTHERS, 41 E.L.R. 296.
CORRUPT PRACTICE—(2 APPEAL ON'GROUNDS OF RELIGION, CASTE ORCOMMUNITY)
—Cow—appeal in the name of—if appeal in the name of religion—
HELD : An appeal in the name of cow is not an appeal on the groundof religion.
AT. C. Sharma v. Krishi Pandit Rishab Kumar and others A.I.R. 1960Madhya Pradesh 27. Mohan Singh Laxmansingh v. Bhanwarlal RaimalNahata and others, A.I.R. 1964 Madhya Pradesh 137, referred to. RAMPIARA v. RAM LAL, 33 E.L.R. 94.
—Appeal on grounds of religion, caste, etc. Tests for determining—Proof of authorship of pamphlet—Section 127A.
The petitioner alleged (i) that the leaflets also appealed to the religious,racial and caste feeling of the voters thereby contravening sections 123(3)and (3A) of the Act, and (ii) in the counting of votes, several irregularitiestook place which rendered the election void.
HELD : What is visualised in section 123(3) is not an appeal ongeneral ground of religion, race, caste, community or language, but anappeal on the ground of a particular candidate's religion race, caste, com-munity or language. From the point of view of the narrow scope of thesection after the amendment based on the ground of the candidate's religion,
51
caste, etc., an appeal only to the caste consciousness of the electorate noton the ground of the candidate's caste but on the ground of the candidate'sprior conduct in a matter affecting the interest of the caste or communitywill fall outside the scope of the section. After the amendment the sectionmust be restricted only to cases where the appeals are based directly on theground of caste, religion etc. of the candidate. Exhibits PI and P3 areno appeals of the latter kind. Moinuddin B. Harris v. B. P. Dingi 3 E.L.R.248; Sardul Singh v. Hukum Singh 6 E.L.R. 316; referred to. The ap'pearance of the names of certain persons in a pamphlet as well as thenames of the printing press will not be sufficient to prove the authorshipof the pamphlet conclusively. Section 127A of the Act contains' essentialsafeguards in the matter of printing pamphlets, posters etc. When theauthorship of a pamphlet has to be considered and established beyond rea-sonable doubt in an election proceeding, the best evidence of proving theauthorship will be to summon from the printer the relevant declaration undersection 127A of the Act. The allegation of corrupt practice cannot beproved by preponderance of probability; election proceedings being quasi-criminal in nature, strict proof is necessary for such corrupt practices. Thistest had not been satisfied by the evidence adduced by the petitioner inthis case. Mohan Singh V. Bhanwarlal A.I.R. 1964 S.C. 1366, referredto. R. CHIDAMBARA BHARATHY v. P. R. RAMARAJU RETURN'ING OFFICER & ORS. 33 E.L.R. 178.
—Cow—Appeal for protection of cow, whether an appeal to religioiunder Section 123(3)—Significance of word "his" in Section 123(3).
HELD : (i) The cow, though considered an object of reverence andsacred by the Hindus, is not a religious symbol and, as such, an appeal thatto vote for the Congress will be as if one has shared the killing of a cowdoes not amount to an appeal on the basis of religion as contemplated bySection 123(3) of the Act. Mohan Singh Rajput v. Bhanwarlal Nahata,1953 M.P.LJ. 498; K. C. Sharma v. Rishab Kumar Mohanlal, 1959M.P.LJ. 715; K. C. Sharma v. Krishi Pandit Rishab Kumar, A.I.R. 1960M.P. 26; Lachhiram v. Jamuna Prasdd, 9 E.L.R. 149 and BhagirathBilgaiya v. Rishab Kumar, 1965, Dabia's Election Cases 208; referred to(ii) Section 123(3) of the Act comes into play only if any appeal is madeto voters to vote or refrain from voting for any person on the ground of hisreligion or community. The pronoun "his" used in the section is very signi-ficant and it refers to the person in whose favour a vote is to be cast or notto be cast. The contents of the impugned pamphlet did not amount to anappeal either on the basis of religion or community.
Lai Singh v. Ballabhdas, A.I.R. 1967 Gujarat 62; referred to.
NIRANJAN SHARMA v. RAMKUMAR AGARWAL & ORS.. 33E.L.R. 244.
52
—Cow Appeal for protection of—-Threat of divine displeasure—appealnot to vote for a candidate as she was addicted to unorthodox food—Whether falls under Section 123(2) (a) (ii) and 123(3)—Appeal to votersto vote for a candidate of a particular religion for establishment of theRaj of that religion—Whether attracts Section 123(3). The petitioner,an elector, challenged the election of the first respondent on the grounds,inter alia, that he committed various corrupt practices including making anappeal to religion and threatening divine displeasure.
HELD : Allowing the petition. As long as a candidate makes an appealonly about the need for the protection of every cow and every descendentof the cow (Go-Vansh), he cannot be charged with any corrupt practiceas religion as such has not come into the picture. But the moment thecandidate goes beyond this and asserts; that the elector would be commit-ing a sin, that is to say, something disapproved by the religion for whichthere shall be punishment in future life, he has crossed the line and commit-ted a corrupt practice and it is an appeal to religion and a threat of divinedispleasure. An appeal to voters not to vote for a candidate because sheeats beef or has addiction to unorthodox food and that the voters wouldbe committing the sin of Go-Hatya if they voted for that candidate, comeswithin the operation of Section 123(2) (a) (ii) of the Act.
, If any political party appeals to voters to vote for a candidate of aparticular religion for establishment of the Raj of a particular religion,their aim is unconstitutional and the appeal amounts to a corrupt practiceeoming under Section 123(3) of the Act. A mere exhortation to vote forJana Sangh because the other party has not imposed a ban on cow killingwould not be corrupt practice. But as soon as there is threat by votingCongress the electors would be earning the sin of go hatya, there is anappeal to religion which would amount to undue influence by threat ofdivine displeasure.
CHAGANLAL v. NARBADA ^RASAD AND OTHERS, 33 E.L.R.286.
—Corrupt practice—Pamphlets—Appeal to the effect that Muslims willnot vote for Congress—Whether attracts Section 123(3) or 123 (3A) —Members of a political party—Whether constitute a class of citizens—Failure to file copy of the election petition in accordance with the provi-sions of Section 81(3) read with Section 86—"shall" in Sub-section (3)of Section 81, whether mandatory—Whether the petition is liable to bedismissed. The petitioner, a defeated candidate, challenged the electionof the respondent to the Bihar Assembly on the grounds inter alia that therespondent's nomination was illegally accepted in violation of Sub-section(5) of Section 33 of the Act, and that the respondent himself and with
53
his consent his agents and workers committed corrupt practices by publica-tion of two pamphlets containing appeals in violations of s. 123(3) and(3A) and false statements of facts. The respondent refuted the allegationsand contended that the petition was liable to be dismissed as it failed tocomply with the provisions of sub-section (3) of Section 81 of the Act.
HELD: Dismissing the petition. An appeal in the impugned pamph-lets to the effect that Muslims will not vote for Congress, does not attractthe provisions of Sub-section 3 of Section 123 of the Act; nor could theappeal amount to promotion of, or attempt to promote, feelings of enmityor hatred between different classes of the citizens of India under Sub-Section (3A) of Section 123 of the Act; therefore the publication of theimpugned pamphlets did not constitute an act of corrupt practice. Further-more, members of a political party cannot be considered to constitute aseparate class of citizens of India and therefore Sub-Section (3A) can haveno application.
Rustorn, Satin v. Dr. Sampoornanand, 20, E.L.R. 21; Sardul Singh v.Hukam Singh, 6, E-L.R. 316; Maulana Abdul Jalil Choudhury v. RathindroNath Sen, 13, E.L.R. 290; referred to.
LAKHI PRASAD AGARWAL v. NATHMAL DOKANIA, 33, E.L.R.300.
—"his religion" meaning of—S. 123(3) —
HELD : While it is true that the corrupt practice of religious appealbeing a species of undue influence is necessarily an attempt to move avoter on grounds of religion and that such moving of the voter is possibleonly if his feelings are moved, and that therefore the religion or the religiousfeelings of the voter is an essential feature or factor in the corrupt practice,it is not possible to accept the suggestion that the religion or the religiousdescription which can be given to the conduct and practice of a candidateis an irrelevant fact. Because the appeal is for casting of votes in favourof the candidate, one has to take into account both sides of the appeal.
INAMDAR S. S. v. AGADI SANGANNA ANDANAPPA, 34 E.L.R. I.
—Election speeches by religious leader in favour of a candidate—ongrounds of religion—caste—threat of divine displeasure—whether corruptpractice.
The appellant, a Congress candidate, challenged the election of theFirst Respondent by an election petition on the grounds inter alia that atan election meeting an appeal was made on behalf of the first respondentnot to vote for Congress as it slaughtered cows and bullocks; that a hand
54
bill containing false statements as to the character and conduct of thepetitioner was distributed by the first respondent and his agents; and thatSambhu Maharaj, a popular religious leader, had delivered speeches withthe consent of the first respondent, making appeals in the name of religionand thereatening divine displeasure and spiritual censure to the voters ifthey voted for Congress. The petitioner also claimed that he should bedeclared elected.
HELD : Allowing the petition :
On the evidence, the religious leader in his speeches, made with theconsent of the First Respondent, had committed breaches of the provisionsof Section 123(2) and Section 123(3) of the Act. The election of theFirst respondent must therefore be set aside.
The election of the returned candidate can be set aside under Section100(1) (b) of the Act when it has been established that corrupt practicesunder Sections 123(2) and 123(3) of the Act were committed by a thirdperson with the consent of the returned candidate.
A declaration under Section 101 of the Act that the Petitioner was dulyelected is not possible when it is difficult to say due to the secrecy of theballot as to how many votes have been obtained by the First Respondentby corrupt practices unless and until any decision regarding the numberof votes so obtained can be reached.
PURSHOTTAMDAS RANCHHODDAS PATEL v. KANTIPRASADJAYSHANKER YAGNIK AND OTHERS, 34 E.L.R. 160.
—"Classes"—Definition of—in Section 153 (A) of the Penal Code—Provisions of Section 123 (3A) of the Act—Scope of.
HELD : In order to come within the mischief of Section 123 Sub-Section (3A) there must be promotion of or attempt to promote, feelingsof enemity or hatred between different classes of the citizens of India ongrounds of religion, race, caste, community or language; and the object ofthe impugned pamphlet would not result in creating hatred between theNadar community and the D.M.K. Party.
A political party is not a class of citizen falling within the definitionof "classes" in Section 153 (A) of the Penal Code, which definition is moreor less in similar terms to the provisions of Section 123 (3A) of the Re-presentation of the People Act, 1951, and which is not wide enough toinclude a political party; an attack on that party would not amount to acorrupt practice under the above section.
55
Kultar Singh v. Mukhtiar Singh, A.I.R. 1965 S.C. 141; Ramanbhai v.Dabhi Ajit Kumar, A.I.R. 1965 S.C. 669; referred to
K. G. Zahidi v. State, 1964 All. Law Journal, Vol. 62, P. 545; dissentedfrom
S. B. ADITYAN v. T. MARTIN, 34 E.L.R. 339.
—Cow slaughter issue—// appeal on the ground of religion—Whatamounts to such appeal.
The petitioner challenged the election of the respondent on the groundthat he committed various conupt practices. The main allegation wasthat a handbill was freely distributed and published by the respondentand his agents "appealing to the voters to vote for Jana Sangh candidate(the respondent) and not for the Congress candidate (the petitioner) incase they want to prevent the slaughter of cows and their progeny and thussave the Hindu religion and the Hindu civilisation which the Congress isout to destroy."
HELD : None of the corrupt practices had been proved.
If there is an appeal made by a candidate to the voters to vote in hisfavour in the name of the cow or for the protection of the cow that isnot an appeal on the ground of religion.
It is the appeal to the electorate on the ground personal to the candi-date relating to his religion which attracts the mischief of s. 100 read withsection 123(3). Therefore it is only when the electors are asked to voteor not to vote because of the particular religion of the candidate, that acorrupt practice may be deemed to be committed.
Mohan Singh Rajput v. Bhanwarlal Mehta, 1963 M.P.L.J. 498; K.C.Sharma v. Krishi Pandit Rishat Kumar, A.I.R. 1960 M.P. 27; JagdevSingh v. Pratap Singh, A.I.R. 1965 S.C. 183; Kultar Singh v. MukhtiarSingh, A.I.R. 1965 S.C. 141 and Ramanbhai v. Dabhi Ajit Kumar, A.I.R.1965 S. C. 669; referred to.
SHREEKRISHNA SELOT v. RAMCHARAN PUJARI, 35 E.L.R. 30.
—"his" in 123(3), meaning—
HELD : The word "his" in sub-section 3 of section 1'23 refers to theperson in whose favour the vote is to be cast or not to be cast.
DEVI PRASAD v. MALURAM SINGHANIA & ORS., 35 E.L.R. 59.
56
—Cow—"his religion", Scope of, Meaning of—Corrupt practice—Section123(2), (3), Cl. (a) (ii) of proviso to 123(2)—Appeal to voters in thename of religion, what amounts to—Cow slaughter—Cow if religious symbol.
The petitioner challenged the election of the first respondent on thegrounds that (i) one S who was working for the election of the first res-pondent made speeches and those speeches amounted to corrupt practicescontained in Section 123(2) and (3), and clause (a) (ii) of the provisoto Section 123(2) of the Act. It was alleged that in his speech (i) S askedthe electors not to vote for Congress party and its candidates as they didnot believe in religion and believed in suppressing Hindu Religion, (ii) thatS stated that about ten crores Congressmen and ten crores Mohamedansonly support the policy of the Congress party on the issue of cow slaughterand that all Congressmen are responsible for the cow slaughter in India;and (iii) S stated that vote to the Congress is a vote for cow slaughteringand one who would vote for Congress would share the sin of cow slaughter-ing and that those who will commit such a sin would go to hell and suchpersons will never get salvation for several generations.
Held : Dismissing the petition :
(i) Clause (a) (ii) of the proviso to Section 123(2) is a definitiveprovision and lays down that the acts mentioned therein if done by anyperson referred to in the main part shall be presumed to interfere with thefree exercise of the electoral right. The pith of this provision obviouslyis inducing of the belief specified and what is intended to be hit by it isthe act or attempted act of creating such belief. It is not possible to holdthat if a person is not head of a particular religion or a religious sect or areligious leader he can never be said to have induced a belief in a voterthat he will become an object of divine displeasure or spiritual censure.In each case the Court has to judge on the facts before it whether the actamounts to inducing or attempting to induce such belief.
What is hit by sub-section (2) of Section 123 is the effect which theimpugned action has on the free exercise of the electoral right.
The phrase "his religion" occurring in sub-section (3) of Section 123refers to the religion of the candidate in whose favour or against whom theappeal is made on the ground of religion and not the religion of eitherhis voters or the person who is making such appeal.
The first part of the speech, if established to have been made, wouldamount to an appeal not to vote for the Congress candidate on the groundof his religion within the meaning of sub-section (3) of Section 123. Thespeaker conveyed to the listeners that the Congress candidate though born
57 '
a Hindu did not believe in Hindu religion and was anti-Hindu religion.Though the other candidates may be of the same religion, if the appeal ison the ground that though he is born in that religion, he is a non-believerin that religion and is working against the interest of that religion, it wouldamount all the same to an appeal not to vote for him on the ground ofhis religion.
The second part of the speech neither amounts to the corrupt practiceof undue influence under sub-section (2) nor corrupt practice under sub-section (3). Nor is the cow a religious symbol of the Hindus.
The third part of the speech, if established to have been made, wouldclearly transgress the provision of clause (a) (ii) of the proviso to sub-section (2) of section 123.
Ram Dial v. Sant Lai, A.I.R. 1959 S.C. 855; Lai Singh v. Vallabhdas,7 Guj.L.R. 753; Ramanbhai v. Dabhi Ajit Kumar, A.I.R. 1965 S.C. 669;Jagdev Singh v. Pratap Singh, A.I.R. 1965 S.C. 183; Mohan Singh v.Bhanwar Lai, A.I.R. 1954 M.P. 137, referred to.
(ii) No corrupt practice of any nature alleged by the petitioner wasproved to have been committed by S.
(iii) In deciding the question as to whether corrupt practice has beet)committed under section 123(3), care must be taken to consider the im-pugned speech on appeal carefully and always in the light of the relevantpolitical controversy. It would be unreasonable to ignore the question asto what the effect of the speech or pamphlet would be on the mind of theordinary voter who attends such meetings or reads the pamphlets.
Kultar Singh v. Mukhtar Singh, A.I.R. 1965 S.C. 141, referred to.
' SHAH JAYANTHILAL AMBALAL v. KASTURILAL NAGINDASDOSHI 36, E.L.R. 188.
-—s. 123(3)—Corrupt practice—Appeal to support cow protection—if Appeal on the ground of religion. Held :
To ask the voters to vote for a person who spreads Indian culture orsupports cow protection and works for ban on cow slaughter cannot beregarded a corrupt practice such as is contemplated by Section 123(3) ofthe Representation of the People Act, 1951. Thus the pamphlets andposters could not be said to contain an appeal on the ground of religion.
Lachhiram v. Jamna Prasad, 9 E.L.R. 149; Mohan Singh v. Banwarilai,(1965) Jabalpur Law Journal 555 and K. C. Sharma v. Krishi Pandit; 20E.L.R. 501; referred to.
58
UMRAO SINGH v. GOPIDAS AND OTHERS, 36 E.L.R. 261.
—s. 123(3) "his religion" meaning of—
HELD : Mere display of election symbol of "star" even on a holyplace cannot amount to an appeal on the ground of religion or cannotamount to undue interference, direct or indirect, with the free exerciss ofany electoral right. Merc canvassing in this manner, therefore, cannotamount to undue influence or cannot be said to be an appeal on the groundof the candidate's religion. The words "his religion" in s. 123(3) of theAct mean the candidate's religion.
Ramanbhai Ashabhai v. Dabhi Ajit Kumar, A.I.R. 1965 S.C. 669 ; re-ferred to.
KARIMJI RAHMANJI CHIPA v. ABDURAHIM TAJUJI, 36 E.L.R.283.
—ss. 100(1) (b), 123(3)—Corrupt practice—proof of-~Appeal to voterson the basis of tribe—if appeal on the basis of race, caste and community.It was alleged by the petitioner that certain political organisations canvassedvotes for the first respondent with his consent by means of bulletins promot-ing hatred and enmity among the tribes. Setting aside the election of thefirst respondent—
HELD :It is proved by satisfactory and cogent evidence that the lea-flets were distributed by the first respondent himself and by his agents withhis consent. His propaganda for votes on the basis of caste, race andcommunity amounted to corrupt practice within the meaning of s. 123(3)of the Act of 1951 as amended by Act 40 of 1961. As such his electionwas voidxunder s. 100(l)(b) without any further proof of the result hav-ing been materially affected.
The word 'agent' in s. 123(3) of the Act of 1951 is wide enough toinclude an editor, a printer or a publisher of any newspaper provided heacted with the consent of the candidate as his agent in connection withthe election. Consent has to be inferred from the surrounding circumstan-ces.
Dharanidhar Mohanatra V. Pradipta Kishore Das & Ors., 11 E.L.R.427: Biswanath Upadhaya v. Haralal Das and Ors., A.I.R. 1958 Assam97: Krishnaji Bhimrao Antrolikar v. Shanker Shantaram More and Ors.17 E.L.R. 100; referred to.
In the present case the first respondent indulged in appeals to thevoters on the basis of his tribe and this was an appeal on the basis ofrace, caste and community clearly falling under s. 123(3) of the Act.
59
JV. L. Verma v. Muni Lai and ors., 15 E.L.R. 495; Sudhir LaxmanHendre v. S. A. Dange and Ors., 17 E.L.R. 375; Kultar Singh v. MukhtiarSingh A.l.R. 1965 S.C. 141; Khilumal Topandas v. Arjundas Tulsidas,A.LR. 1959 Raj. 280; referred to.
In the context in which the statement that the petitioner and other rivalcandidates would sell away the country was made it has to be held thatthe statement was not merely based on policy or politics but amounted topersonal malicious allegations.
The offer to give a "general election cup" and its actual award con-stituted "bribery" within the meaning of s. 123(1) (A) of the Act of 1951.
HAOKHOLAL THANGJOM v. LALROUKUNG AND ANOTHER,37 E. L. R. 19.
—Ss. 123(3) and (3A)—"Corrup practice" within s. 123(3) and s.123(3-A)—meaning of—
It was alleged by the petitioner that respondent No. 1 who belongedto the 'Ahir, caste had himself and through his workers and supporters act-ing with his consent, appealed to voters belonging to that community tovote for him and to refrain from voting from the petitioner thus committinga corrupt practice within the meaning of section 123(3) and 123(3-A)of the Representation of People Act, 1951. Dismissing the petition,
HELD : Under section 123 clause 3 and 3-A of the Representationof People Act, 1951, the expression "corrupt practices' would include anappeal by a candidate or by his agent or by any other person with theconsent of the candidate or his election agent to vote or to refrain fromvoting for any person on the ground of religion, race, caste, community orlanguage. Similarly, it would include promotion of feeling of enmity orhatred between different classes of the citizens of India on the ground ofreligion, race, caste, community or language by a candidate or his agentor by any other person with the consent of the candidate or his electionagent in either case for the furtherance of the election prospects of thecandidate or prejudicially affecting the election of any other candidate.
The petitioner had altogether failed to discharge the onus of proving thealleged corrupt practice.
RAM LAKHAN SHUKLA v. ATHAI RAM AND OTHERS, 37E.L.R. 91.
—Cow—ss. 123(2), 123(3) and 123(4)—Corrupt practice—Publica-tion of pamphlet appealing to voters to vote in the name of cow and for
60
protection of cow—// appeal on the ground of religion—Interpretation ofsuch pamphlets—.
The petitioner sought to set aside the election of the first respondent tothe Lok Sabha in the election held in February 1967 on the grounds, interalia, that he resorted to various corrupt practices falling within s. 123 ofthe Representation of People Act; and in particular that the first respon-dent or his worker or agents circulated a pamphlet wherein an appeal wasmade to the voters to vote on the ground of religion.
HELD : (i) It had not been established by the petitioner that the firstrespondent or his workers or agents with his consent distributed any pamph-lets at the places where such distribution was alleged. No corrupt practicefalling under section 123(2), 123(3) or 123(4) of the Act had beenmade out against the first Respondent and the interpretation placed on thepamphlet in the varioue clauses of the petition to bring it within the mis-chief of the above-mentioned sections was wholly erroneous.
The essential ingredient of an allegation under s. 123(3) of the Act isthat there should be an appeal made by a candidate or his agent or anyother person with the consent of the candidate to vote or refrain from vot-ing for any person on the ground of his religion, race or community. Ifthe crux of the appeal is understood, the various sentences said to havebeen used should be correlated. So read, the plain object of the appeal inthe present case was to limelight the policy of the Jana Sangh in respect ofcow protection and to criticise the Congress policy on the subject. Cowworshipping as such was not an idea behind the pamphlet complained of.The appeal when properly understood, only sought co-operation to fulfil acause deemed to be noble by the author of the pamphlet and the cause ofcow protection has been held in many cases to be justifiable even on eco-nomic grounds (Mohan Singh Rajput v. Bhanwarlal Nahata, 1963 M.P.L.J.198; K. C. Sharma v. Krishi Pandit Rishab Kumar and Ors. A.I.R. 1960M.P. 27, referred to).
It is well settled that the courts should not be astute to read into thewords used in the appeal anything more than can be attributed to them onits fair and reasonable construction and the document must be read as awhole and its purpose and effect determined in a fair, objective and rea-sonable manner. In regarding such documents, it would be unrealistic toignore the fact that when election meetings are held and appeals are madeby candidates of opposing political parties, the atmosphere is usually sur-charged by partisan feelings and emotions and the use of hyperboles andexaggerated language or the adoption of metaphors and the extravaganceof expression in attacking one another are all a part of the game.
61
Kultar Singh, v. Bakhtiar Singh, A.I.R. 1965 S.C. 141.
Jagdev Singh v. Pratap Singh, A.I.R. 1965 S.C. 183.
Raman Bhai v. Dabhi Ajit Kumar A.T.R. 1965, S.C. 669; referred to.
SAHODRABAI RAI v. RAM SINGH AHARWAR AND OTHERS,37 E.L.R. 176.
—SS. 123(3), (3A) Corrupt practice—Appeal to Muslim voters not tovote for Communist candidates on the ground of the Ideology of that party,being opposed to the tenets of Islam—whether appeal violates section 123of the Act—The significance of word "His" in Section 123(3) —The Communist Party whether a "class" of citizens within themeaning of Section 123(3A). The petitioner, a defeated candidate,challenged the election of the respondent to the Lok Sabha on the groundthat the respondent committed the corrupt practices under Section 123r
sub-section (3), (3A) and 4 of the. Act. It was alleged in the petitionthat the respondent in order to secure the votes of the Muslim voters andcreate enmity and hatred between Muslim and non-Muslims, had got threeleaflets printed and published in the name of a religious leader of theMohammadans asking the Muslim voters not to vote for the CommunistParty, because communism was "Against God and religion" and the eco-nomic system enjoined by communism was "entirely antithetical to thetenets of Islam" and the Communist Party had been guilty of fraud anddeceit.
The respondent denied the allegations and stated that as soon as hecame to know about the publication of these leaflets, he issued a pamphletdenying any connection with the offending leaflets.
HELD : Dismissing the petition.
On the facts, the petitioner had failed to prove that the respondentcaused the publication of the impugned leaflets or that there was distributionof the leaflets or holding of meetings where the contents of the leaflets wereexplained and the respondent or his election agent had committed any cor-rupt practice as alleged in the petition.
The impugned leaflet had brought out only the difference in the.ideologies of the Communist Party and the followers of Islam and there wasnothing in the leaflet which could be said to offend a communist. Theleaflet in question did not contain anywhere an appeal to Muslims to.refrain from voting for the Communist candidates on the ground of theirreligion and, therefore, it did not come within the mischief of Section 123(3)of the Act. The provisions of Section 123(3) of the Act after their;
62
amendment by Act 40 of 1961, are confined to an appeal to vote andrefrain from voting for any person on the grounds of his religion, etc.The word "his" in the first part of Section 123(3) before the words "religion,race; caste etc." is very significant. A mere general appeal to vote orrefrain from voting made to the electorate without reference . to thecandidate or candidates concerned and not based on the candidate'sreligion, race, community etc. cannot be held to be a corrupt practiceunder Section 123(3). The word "his", it is manifest, does not attachto the voter or the person who makes the appeal.
Kultar Singh v. Mukhtiar Singh, A.I.R. 1965 S.C. 141; Jagdev SinghSidhanti v. Pratap Singh Daulta and others, A.I.R. 1965 S.C. 193; NazmulHaque v. Amjad AH and others, 18 E.L.R. 253; Rustom Satin v. Dr. Sam-poornanand and others, 20 E.L.R. 221; Shub Nath Deogam v. RamNarain Prasad, A.I.R. 1960, S.C. 143; referred to :
The contents of the impugned pamphlet did not come within the mis-chief of Section 123 (3A) of the Act. The members of the CommunistParty do not constitute a. "class" within the meaning of Section 123(3A)of the Act. The contents of the leaflet do not amount to promotion offeelings of enmity and hatred between any two "classes" on the ground ofreligion. The leaflet only speaks of what is personal to those who are com-munists and it does not speak of any anti-Islamic religious practices.Further, the Communist Party consists of members of different faiths andso the Party cannot be classified as a particular "class" of citizens. It onlypoints out the difference in the respective approaches of the CommunistParty and of followers of Islam to the various problems in the countryand, therefore, the leaflet in question did not come within the mischiefof Section 123 (3A) of the Act. SHR1 MOHAN SINGH OBEROI v.,SHRI ALHA-I-AHMAD, 38-E.L.R. 160.
—Representation of the People Act, 1951, Section 77, 123—Corruptpractice—Undue influence—Use of National Flag—Appeal to voters ongrounds of religion and that of divine displeasure—Burden of proof.The petitioner, a defeated candidate, challenged the election of the res-pondent alleging, inter alia, that the respondent, his agents, workers andsupporters committed corrupt practices of appealing through pamphletsto Jatav electors who belonged to the Budhist Religion, to swear by LordBuddha to vote for the respondent and that if they failed to vote for himthey would become object of divine displeasure; that they published state-ments attacking the character and conduct of the petitioner; that the res-pondent hired or procured motor vehicles for free conveyance of voters, andthat the respondent incurred expenditure in excess of the permitted maxi-mum.
63
HELD : The petitioner had failed to discharge the onus of proof withregard to the allegations that ihe respondent's appeal to Jatav voters to votefor him in the name of religion, exercised undue influence or the threat ofdivine displeasure under section 123(2) and (3).
Smt. Robba Suramma v. Smt. Peddireddi Chandramma, A.I.R. 1959,Andhra Pradesh 568; Jagdev Singh Sidhanti v. Pratap Singh Daulta andothers, A.I.R. 1965, S.C. 183; referred to. SHEODAN SINGH v. MOHANLAL GAUTAM, 38 E.L.R. 242.
—SS. 123(3), 3 (A)—Corrupt practice—Appeal on grounds of profici-ency in languages and ability of candidate, whether attracts Section 123(3)and 3(^4). Held : The impugned pamphlet exhorting the electorate that pre-sent day legislative work required a person to be conversant with law andadministration with a good knowledge of Tamil and that in view of this thefirst respondent would be the best choice and not the petitioner, cannot besaid to constitute an appeal on the ground of language to attract the provi-sions of Sections 123(3) and (3A) of the Act; not could it be held that thecontents of the impugned pamphlet would lead to any hatred or illwill bet-ween different sections of the citizens in that part of the Country.
Kultar Singh v. Mukhtiar Singh, A.I.R. 1965, S.C. 141 ; Shubnath v.Ram Narain, A.I.R. 1960, S.C. 148; Lachiramv. Jamuna Prasad Mukha-raiya, 9 E.L.R. 149 ; Sant Prasad Singh v. Dasu Singh, A.I.R. 1964, Patna26 ; Jagdev Singh v. Pratap Singh, A.I.R. 1965, S. C. 183; referred to.VASANTHA PAI v. R. M. SESHADRI AND OTHERS, 38 E.L.R. 267.
—"his" in sub-section (3) of section 123, Scope of—Held : The word"his" in sub-section (3) of Section 123, which has been used in the firstpara of the Section, clearly means the religion of the candidate, and not thereligion of the elector, to whom the appeal is made in the name of religion.An appeal to vote or refrain from voting for any person must be on theground of that person's religion, race, caste, etc. A mere appeal systema-tically or otherwise to vote on the ground or in the name of religion generaly,is not sufficient.
Shubnath Deogan v. Ram Narain Prasad, A.I.R. 1960, S.C. 148;Kultar Singh v. Mukhtiar Singh, A.I.R. 1965, S.C. 141; Jagdev SinghSidhanti v. Pratap Singh Daulta and others, A.I.R. 1965, S.C. 183; referredto; HARISH CHANDRA DEOGAM v. BAGUN SUMBRUI, 38 E.L.R.305.
—Section 123(3)—Corrupt practice—Appeal in the name of religionand threat of divine displeasure—Burden of proof. Held : It had not beenestablished that the "Rising Sun", which was the symbol of the respondent,
64
constituted the religious symbol of the Adivasis. The appeal by the res-pondent to Adivasi voters to vote for his symbol would not amount to anappeal on the grounds of religion or threat of divine displeasure and itwould not attract the provisions of Section 123(3) of the Act.
Shubnath Deogan v. Ram Narain Prasad, A.I.R. 1960, S.C. 148;Kultar Singh v. Mukhtiar Singh, A.I.R. 1965, S.C. 141; Jagdev SinghSidhanti v. Praiap Singh Daulta and others, A.I.R. 1965, S.C. 183; referredto; HARISH CHANDRA DEOGAM v. BAGUN SUMBRUI, 38 E.L.R305.
—Sections 123(3), (3/4) and (4)—Corrupt Practice—Promotion of ill-feeling between different Communities, etc., when corrupt Practice. Held :The propaganda and leaflets issued by the respondent and his party pro-moting ill-feeling between different communities and the publication of astatement of fact that the petitioner was anti-Bengali, which the respondentdid not believe to be true, in relation to the personal character and conductof the petitioner, being a statement calculated to prejudice the prospects ofthe petitioner's election, the first respondent committed a corrupt practice,within the meaning of sub-sections (3) (3A) and (4) of Section 123 of theAct.
Biresh Misra v. Ram Nath Sharma, 17 E.L.R. 243; Kataria Tgkandasv.Pinto Frederic Michael, 18 E.L.R. 403; Jujhar Singh v. Bhairon Lai, 7E.L.R. 457; Abdul Mil Chaudhary v. Jatindra Nath Sen, A.I.R. 1968,Assam 51; Kultar Singh v. Mukhtiar Singh, A.I.R. 1965, S.C. 141; LalsinghKeshrising Rehan v. Vallabhdas Shankarlal Thekdi and others, A.I.R.1967, Guj. 63; Inder Lai v. Lai Singh and others, A.I.R. 1962, S.C. 1156;Kumara faand v. Brijmohan Lai Sharma, A.I.R. 1967, S.C. 803; AbdulMajeed v. Bhanwarlal and others A.I.R. 1964, S.C. 1366; Didar SinghGheeda v. Sohan Singh Ram Singh and others, A.I.R. 1966, Punjab 282;Sheomal Singh v. Ram Praiap, A.I.R. 1965, S.C. 677; Dr. Jagjit Singh v.Giani Kartar Singh and others, A.I.R. 1966, S.C. 773; Keshav LakshmanBarkar v. Deorao Lakshman Anande, A.I.R. 1960, S.C. 131 ;Sudhir Kumar Mondal v. Abhoy Pada Saha, A.I.R. 1966, Cal. 141;Chadalavada Subba Rao v. Kasu Brahmananda Reddy and others, A.I.R.1967, A.P. 156; Kuttimandi Chandappa Joshappa Settlement Hubli v. Lax-man Sidappa Naik and others, A.I.R. 1967, Mysore 182; referred to.BIRENDRA CHANDRA DUTTA v. J. K. CHOWDHRY, 38 E.L.R. 381.
—SS. 123(3), (3A)—Corrupt Practice—Appeal on basis of Caste—scope of clauses (3) and (3A) of S. 123—See Corrupt Practice—Bribery.MAHANT MAHADEVANAND GIRI v. AMBIKA SHARAN SINGH &ORS., 39 E.L.R, 23.
65
—SS. 33(5), 116-/1 and 123(2) (ii)—threatening voters they could beCommitting the sin of gohatya by voting for opponent—If corrupt practice—Assessment of evidence by Supreme Court in Appeal under s. 116-A.
The appellant's election to the Madhya Pradesh Legislative Assemblyfrom Khategaon constituency was challenged mainly on the ground thatthere was a violation of s. 123 (2) of the Act, in that the appellant and hiselection agent made speeches to the effect that Congress had not abolishedcow slaughter in India and that to vote for that party would be to com-mit the sin of gohatya. The High Court allowed the petition on bothgrounds.
On appeal to the Supreme Court,
HELD : Dismissing the appeal.
By stating that if the voters voted for Congress they would be com-mitting the sin of Gohatya, the appellant and his agent attempted toinduce the voters to believe that they would become objects of divinedispleasure or spiritual censure and thus committed an election offenceunder s. 123(2) (ii) of the Act.
Since the witnesses who spoke about the speeches were believed by thetrial Judge not on the probabilities of the case, but on his observation oftheir demeanour, the Supreme Court would be slow to depart from thetrial Judge's assessment of the evidence. According to that evidence, thevoters were reminded that they would be committing the sin of gohatya.Since the cow is venerated in this country and it is also believed thatgohatya is one of the cardinal sins, such a reminder would be equivalentto reminding them that they would be objects of divine displeasure orspiritual censure. The case therefore fell within s. 123(2) (ii) and the trialJudge was right in holding that the election of the returned candidateshould be set aside. NARBADA PRASAD v. CHAGANLAL ANDOTHERS, (S.C.), 39 E.L.R. 277.
—S. 123—Corrupt practice—Burden of Proof—The eletcion petition inthe present case challenging the respondent's election was based on threecorrupt practices. The petitioner alleged (i) that the respondent or hiselection agent published and distributed leaflet Ex. I containing defama-tory allegations relating to the personal character and conduct the petitionerand the petitioner was therein depicted as a person of depraved character;and (ii) another leaflet issued by the respondent was a religious mandatefrom the Panchayat of Meghwal community, which was binding on allmembers of the community, stating that it was the religious duty of allMeghwals to vote for the respondent; Held :4EC/74—8
66
If the petitioner was able to prove that the respondent or his electionagent distributed the leaflet Ex. 1, then the election of the respondent wasliable to be set aside without proof that by doing so the result of theelection was materially affected. In the present case there was no evidenceto prove this.
(ii) There was nothing in the leaflet which could lead any memberof the Meghwal community to believe that it contained a religious mandateor spiritual censure. D1NESH RAI DANGI v. DAULATRAM, 39 F.L.R.463.
—SS. 123(3)—Evidence—Appeal to religion—Essential elements ofevidence—Held :
The essential elements of an appeal to religion is the implied reward orpunishment by a supernatural agency, most often God himself, in this ormore frequently in after-life. If the direction or appeal is backed by asanction of such reward or such punishment, it is certainly an appeal toreligion. In the case of the sanction of punishment it would also be undueinfluence by threat of divine displeasure KESHAVDEV v. KHUMMANSINGH AND OTHERS, 40 E.L.R. 242.
—Jamtnu & Kashmir Representation of the People Act—s. 123—Corrupt practice Appeal in the name of Muslim Religion—Slogans have tobe viewed in the context of the Speeches.
Practice and Procedure—Affidavit—Not sworn as true to knowledge orinformation—// defective—Code of Civil Procedure, O. 19, r. 3—if petitionliable to be dismissed.
The election of the first respondent to the Jammu & Kashmir Assemblywas challenged on the ground that he committed various corrupt practices.The main ground alleged was that the respondent, his election agents andworkers appealed to the voters of the constituency in the name of MuslimReligion. The substance of the speeches made was said to have been anappeal to the religious sentiments of the Muslim voters, and decrying theCongress Party of which the petitioner was a candidate as a Hindu com-munal body out to wipe out the Muslims and Muslim culture. It wasalso alleged that the speeches included the recital of slogans like "Allahhu-Akbar, Nari-a-Hadari and Islam Zindabad"; the respondent denied theallegations of corrupt practice and also contended that the petition was liableto be dismissed as it was defective for want of a proper affidavit particularlyin relation to the allegation of corrupt practice. Dismissing the petition,
67
HELD :
(i) The allegations in the election petition regarding corrupt practicearc not claimed to have been true to the knowledge of the petitioner, butthey are said to be true on information given to the petitioner though noname of his informant is mentioned in the election petition or in theaffidavit. The affidavit was not sworn in the manner as required under therules, and for this reason the petition is defective, not being even in accord-ance with the provision of Order 19 Rule 3 of the Civil Procedure Code.But the whole election petition need not be dismissed on this ground alone,not even in relation to the allegation of corrupt practices when evidence hasbeen allowed to be given by the parties.
State of Bombay v. Purshottam~7~og~Naik, A.I.R. 1952 S.C. 317;Dipendra Nath Sarkar v. State of Bihar, A.I.R. 1962 Patna 101; MaheshPrasad Sinha v. Man jay Lai, A.I.R. 1964 Patna 53; referred to.
Kamal Narain Sharma v. DwarKa Prasad Misra, A.I.R. 1966 S.C. 436;held inapplicable.
(ii) The allegations of corrupt practice as made out in the petition, iftrue, would be covered by the provision of sub-section 3 of S. 123 of theAct. In the context of the speeches following after the slogans, if they aretrue, would surely make the slogans also an appeal in the name of religion.But the petitioner had not proved satisfactorily any of the allegations aboutthe corrupt practices.
Jagdev Singh Siddhanli v. Pratap Singh Daulla, A.I.R. 1965 S.C. 183 ;distinguished. GHULAM HASSAN KHAN v. SHAMIM AHMADSHAMIM AND OTHERS, 40 E.L.R. 318.
—Cow—S. 123(2) (3), (3A)—Corrupt practices—"Undue influence"appeal to religion—Speech by Swamiji—Appeal to put an end to CowSlaughter, if appeal to religion.
The petitioner's case was that respondent No. 1, the returned candidate,secured votes by committing the corrupt practice of appealing to religionand threatening with divine displeasure those who might vote for the Cong-ress Party. It was alleged that the respondent published a poster on thetop right hand side of which was a picture of the Swamiji of Bhanpura andat the bottom was the Swamiji's facsimile signature. Further, the petitioneralleged that at the instance of the respondent Swamiji made speeches be-ginning with a religious cry and response :
"(i) I shall shout Jai Shiv Shankar and you should respond Har HarGanga. 'if^f
68
(ii) I want you to take the name of Bhagwan Shankar so that this cor-rupt Congress Government may be ended and it may be possible to protestGomata.
(iii) The voting day is an "Ekadashi" considered holy by the Hindusas they keep fast on that day. On that you should earn religious merit(punya) by putting the seal on the Deepak—the symbol of the JanSangh . . . every vote given to the Congress is equivalent to the sin ofGohatya.
(iv) I, a monk, am giving you this sermon from the holy seat ofBhagwan Sankaracharya.
(v) To the Mussalmans and the Bohras assembled here I say that if theydid not join us in this holy task that day is not far away when their masjidsand idgahs will stand unprotected."
HELD : The election of the respondent had to be declared void :
(i) A mere appeal in the poster to put an end to cow slaughter is notan appeal to religion, unless it is accompanied by threat of some super-natural punishment in future life which would strictly speaking, come under"undue influence" and the promise of supernatural reward on the earningof religious merit which would come under the heading "appeal to religion".The poster is on the borderland. It has deep overtones involving religiousfeeling. But the respondent must be given the benefit of doubt on thequestion whether the publication of the poster is really corrupt practice.
(ii) The speeches made by the Swamiji came both under the descrip-tion of "undue influence" and "appeal to religion". The evidence dis-closed that these speeches were made at the instance of respondent No. 1.CHIRANJIV LAL v. MOHAN LAL SETHIA, 40 E.L.R. 373.
. . —-Corrupt practice—Organisations formed on commund basis—put upcandidates and appeal to the members of the community to vote for himalone—issue pamphlets to the effect—whether corrupt practice.
The returned candidate filed the present appeal against the order of the Ju-'dicial Commissioner setting aside his election on various grounds of corruptpractice. The Judicial Commissioner found, inter alia, that the followingcorrupt practice were committed by the appellant : (i) H.N.U. a CommunalOrganisation of the Hmar Tribe, in alliance with the P.N.C. anothercommunal organisation of the Paites Tribe, sponsored the candidature ofappellant and appealed to the members of the two communities to vote forthe appellant alone and not for any other candidate; and for this purposeissued pamphlets and newspaper writings based on the ground of caste andcommunity; Held : P. N. C. and H. N. U. were purely communal organisa-tions their membership being confined to the members of the two tribes,
69
namely, Hamars and Paites only. No attempt was made to show that themembership was open to other tribes. Being the largest of the non-Naga Tribes in Manipur, the object of combining together was to ensurethe election of the candidates from their tribes only and to give no chanceto anyone else to succeed in the election. The appeal by these organisa-tions was not made on the footing that if the appellant, a Rmar,, was electedby the two tribes, he would undertake work of general utility for the twotribes or try to redress their grievances. On the other hand the appeal wasto vote for the appellant, being a member of the Hmar community andcaste and fell within the mischief of S. 123(3) of the Representation of thePeople Act, even if a restricted meaning was to be attributed to the word"community" in the light of the other words, namely, caste, language andreligion, used along with it in that sub-section.
Ghasi Ram v. Dal Singh, 36 E.L.R. (S.C.) 60 ; N. L. Verma v. MuniLai 18 E.L.R. 495; Khilumat v. Das 12 E.L.R. 404; Kultar Singh Arjun v.Muktiar Singh A.IR. 1965 S.. 141; distinguished. LALROKUNG v.HAOKHOLAL THANGJOM & ANOTHER (S.C.), 41 E.L.R. 35.
—S. 123(2) and (3)—Corrupt practice—appeal to voters to vote in the'name of religion and on basis of candidate's caste—that vote for a partywould be in favour of cow slaughter and incur divine displeasure—if corruptpractice.
The appellant's election to the Gujrat Assembly in 1967 was challeng-ed by the defeated candidate mainly on the ground that one ShambhuMaharaj, addressed public meetings in the constituency where he exercisedundue influence by threatening divine displeasure and addressed an appealon the basis of religion and the candidate's caste; that the appellant waspresent at the meetings and did not dissociate himself therefrom; and thathe had thus committed corrupt practices under S. 123(2) and (3) of theAct. The allegations were sought to be proved with reports compiled byPolice Constables from notes made by them at meetings. The High Courtallowed the petition holding that certain passages in his speeches wherebyShanbhu Maharaj :
(i) appealed to the Hindu voters not to vote for the Congress Party lestthey might be betraying their religious leader Jagadguru Shankaracharya ofPuri who had fasted for 73 days in the cause of preventing cow slaughter;
(ii) called upon the voters to vote for the Swatantra Party on the basisof religion and claimed that a direct relationship existed between theslaughter of 33,000 bullocks every day and natural calamities like famineand flood;
70
(iii) asked his voters to vote for the appellant because he was aBrahmin; and
(iv) stated that if anyone voted for the Congress who were responsiblefor 24 crores of cows being slaughtered then God would be displeased;contravened the provisions of S. 123(2) and (3). Dismissing an appeal tothe Supreme Court; Held (i) (Per Sikri and Bachawat, / / .) : The first setof statements did not amount to corrupt practice, because there was noproof that the Jagadguru was the religious head of the majority of theelectors in the constituency or that he exercised great influence on them;it could not therefore be held that an ordinary Hindu voter of the consti-tuency would feel that he would be committing a sin if he disregarded thealleged directive of the Jagadguru.
Ram Dial v. Sant Lai (1959), Supp. 2. S.C.R. 748, distinguished.
(Per Hegde, J. Dissenting) : The statement amounted to corrupt practice.What s. 123(2) requires is to induce or attempt to induce "an elector"—which means even a single elector—that he will be rendered an object ofspiritual censure if he exercises or refused to exercise his electoral right ina particular manner. Whether a particular statement comes within thesub-section or not depends on various factors such as the nature of thestatement, the person who makes it and the persons to whom it is addressed.Therefore, when a respected religious preacher induces or attempt to inducethe illiterate and superstitious voters who form the bulk of the voters thatthey will become objects of divine displeasure if they do not exercise theirfranchise in a particular manner, though his statements are not supported byreligious books he himself may not be a religious head of the majority of theelectors, the statements may yet amount to a corrupt practice in law-
(ii) (per Sikri and Bachawat. // .) : There is no bar to a candidate orhis supporters appealing to the electors not to vote for the Congress in thename of religion, or appealing to them to vote for the Swatantra Party be-cause the people in that party are fond of their religion. What s. 123(2)of the Act bars is that a candidate or his agent should appeal to the votersto vote or refrain from voting for any person on the ground of his religion,that is the religion of the candidate. The statements complained of did notamount to corrupt practice within s. 123(2) proviso (a)(ii), because thelaw does not place any bar on describing a party as irreligious or saying thatbecause that political party is irreligious natural calamities had resulted onaccount of its disregard of religion.
(iii) Asking the voters to vote for the appellant because he was aBrahmin, fell within the mischief of s. 123(3).
71
(Per Hegde, J. dissenting) : When he stated that there should be atleast one Brahmin Minister in the Cabinet Shambhu Maharaj was merelygiving expression to the fact that communal and regional representations inour political institutions have come to stay and was not appealing to thevoters to vote on the basis of the appellant's caste.
(by the Full Court) : (iv) As this statement constituted an attempt toinduce the electors to believe that they would become objects of divine dis-pleasure if they voted for the Congress and thereby allow cow-slaughter tobe continued, and as in circumstances of the case, it must be deemed tohave been made with the appellant's consent, the appellant was guilty ofcorrupt practice within the meaning of S. 123(2) Proviso (a) (ii),
Narbada Prasad v. Chhagan Lai 1969 1 S.C.R. 499 followed.
KANTI PRASAD JAYSHANKAR YAGNIK v. PURUSHOTTAM-DASS RANCHODDAS AND OTHERS (S.C.), 41 E.L.R. 132.
—Sections 123(3) and 7(1)—Corrupt Practices—Canvassing of voteson communal basis—proof of—where canvassing is widespread whetherparticulars necesary.
HELD : (i) If the appellant wanted to challenge a finding of fact arrivedat by the High Court it would be for him to show the reason establishingits incorrectness. An electoral compaign on the lines of caste and commu-nity is destructive of the country's integration and the concept of seculardemocracy which is the basis of our constitution and it is this which isreflected in section 123(3) of the Representation of the People Act. Butthere is a possibility of the danger of a frustrated candidate mustering anumber of his followers to testify falsely in a vague manner that hisopponent had campaigned on the basis of his caste or community. There-fore, before such an allegation is accepted the Court must be on guardagainst such a possibility and must demand adequate particulars. A witnessdeposing to such an allegation must point out when, where and to whomsuch an appeal is made. But where the allegation is that such canvassingwas widespread and at several places it would be impracticable to call uponthe election petitioners to give the names of persons alleged to have beenapproached with such an appeal and the actual words spoken to each ofthem. In short the question as to the extent of particulars which the Courtwould demand depends on the circumstances of each case, the nature of thecharge alleged and the quality and reliability of evidence before it. Theabsence of any documentary evidence, for instance, at least a complaint tothat effect to the election authorities to corroborate the oral evidence ofwitnesses would not be treated as a ground to negative the allegations con-tained in the petition.
72
Ram Dial vs. Sant Lai (1959) Supp. S.C.R. 748 Chandrasekhar Singhv. Sarjoo Prasad Singh A.I.R. 1961 Pat. 189;
Raj Dev v. Gangadhar Mahantra, A.I.R. 1964, Orissa 1, 5; 23 E.L.R.283; distinguished. AMBICA SARAN SINGH v. MAHANT MAHADEVNAND GIRI (S.C.) 41 E.L.R. 183.
—S. 132—Constitution of Jammu and Kashmir—Corrupt practice—Vagueness of allegations—Appeal in the name of religion—Merereading of verse from Holy Quoran would not amount to appeal in thename of religion :
HELD : The allegations of corrupt practice are all of a generalnature, giving no definite details thereof. The charges of corrupt prac-tice are therefore fit enough to be thrown out on the ground of vaguenessalone. While the court has undoubtedly the power to permit amendmentof the schedule of corrupt practices by permitting the furnishing of betterparticulars as regards the items therein specified, there was no duty castupon the court to direct suo motu the furnishing of better particulars.
If any speaker at a meeting predicates his speech by invoking the nameof God or his faith or recite any verse from any holy scripture of his re-ligion, it will not amount to corrupt practice within the meaning of section132 of the Act, unless he asks the voters to vote for a particular candidatein the name of religion. The petitioner had failed to prove the charge thatany appeal was made on behalf of respondent No. 1 to vote for him in thename of religion.
Bhikaji Kashav Joshi and Ors. v. Brijlal Nandlal Biyani and Ors. A.I.R.1955 S.C. 610 : [Dr. Jagjit Singh v. Giani Kartar Singh & Ors. A-I.R. 1966S. C. 773; referred to ] [SARDAR HARBANS SINGH v. PEER SHAMS—UDDIN & ORS. 42 E.L.R. 400.]
CORRUPT PRACTICE—(3. BRIBERY)
—Bribery—123(1)—Corrupt Practice—first Respondent was Minis-ter—grants for amenities for Kumhars and sweepers communities beforeelection—allegations that grants were made to secure votes—Evidence—Whether large grants from discretionary funds at the time of the electionamount to corrupt practice.
The Petitioner, a defeated candidate, challenged the election of the firstRespondent to the Haryana Assembly on the grounds that the first Res-pondent who was a Finance Minister at the relevant period made grants outof the discretionary funds of Rs. 50,000 placed at her disposal; Rs. 14,250were disbursed in her constituency to Kumhars and sweepers communities
- 73
for their amenities with a view to secure votes for herself. It was furtherclaimed that these grants were made on condition that the voters shouldvote for her. It was also alleged that some amounts were placed in thehands of the leaders of the communities and not with the Governmentofficers and actual disbursements of these amounts were made after theelection was over.
The first Respondent denied the allegations and urged that the discretion-ary grant has to be disbursed on the entire discretion of the Minister; theamount would lapse by the 31st March of 1966 and the grants had to bemade in the normal course and not with a view to secure the votes.
HELD : Allowing the petition : (i) That offer of gratification or pay-ment of money to secure the votes of a community made to the representa-tives of the community will clearly fall within the ambit of Section 123(1)of the Act. By and large the village communities act or vote together andin a broad sense the benefit was to accrue to each member of the com-munity. In every case from the mere distribution of funds from the dis-cretionary grant, no inference will arise that it was disbursed to secure votesbut where it is proved that the disbursements had direct relation with thesecuring of votes, the conclusion would be irresistible that the disbursementswere nothing but an act of bribery and that the charges have been broughthome to the Respondent beyond a reasonable doubt under Section 123(1)of the Act.
Tarlochan Singh v. Karnail Singh, Election Petition No. 33 of 1967(Punjab and Haryana High Court), followed. ABNASH CHAND v.SMT. OM PRABHA JAIN & ANOTHER, 33 E.L.R. 142.
—Bribery—s. 123(1) (A) (b)—Corrupt practice of offers of money tosecure votes—Burden of Proof. It was alleged in the petition that corruptpractice was resorted to by the respondent by paying money to voters tosecure their votes in his favour. Allowing the petition, Held :The petitionerha,d proved the allegations about practice within the meaning of s. 123(I)(A)(b) of the Act. Therefore the respondent's election must be dec-lared void under s. 100(1) (b) of the Act. KOLAKA NILAKANTHAMv. ANANT RAM MAJHI, 34 E.L.R. 212.
—s. 123(1)—Gift for construction of Dharmshala for Harijan com-munity on the promise to sett the votes for the Harijans—Ingredients as towhen a gift to a public purpose is a 'bribe' under section 123(1).
The petitioner, a defeated candidate, challenged the election of the firstrespondent to the Punjab Assembly on the ground that he committed a
74
corrupt practice in that he made a gift of Rs. 1500 to the Harijan com-munity of a village for construction of a Dharmshala on condition that theHarijan voters of the village would vote for him. It was further allegedthat the first respondent got published a poster seeking Sikh votes on threatof divine displeasure. The first respondent while denying the allegationscontended, inter alia, that a gift or promise made for a public purposewould not amount to "bribery".
HELD : Allowing the petition :
(i) A gift or promise of such a gift made for a public purpose wouldfall within the definition of "bribery" under Sub-Section (1) of Section123 of the Act if it satisfied the following conditions :
(1) That it gives satisfaction or pleasure to an individual or indivi-duals;
(2) The gift or promise, which is to give such a gratification orpleasure to the individual, is of some value; and lastly;
(3) The gift or promise by a candidate is made with the corruptmotive of directly or indirectly inducing the persons gratifiedto vote in his favour or to induce other electors to vote in hisfavour.
Mool Chand Jain v. Rulia Ram etc., A.I.R. 1963 Punjab 516;Mehar Singh v. Vmrao Singh, A.I.R. 1961 Punjab 244; BalwantRai Tayal v. Bishan Saroop and another, 17 E.L.R. 101; Gangadhar Mai-thani v. Narendra Singh Bhandari, 18 E.L.R. 124; Mohan Singh v. Bhan-warlal and others, A.T.R. 1964 S.C. 1366; Magan Lai Bagdi v. Hari VishnuKamath, 15 E.L.R. 205; Shankara Gowda v. Marlyappa and another, IXE.L.R. 101; Amritsar & Sialkot (General Rural) Constituency, 1937, Senand Podar Indian Election Cases P. 21 and Kataria Takandas Hemraj v.Pinto Frederick Michael, XVII E.L.R. 403; referred to.
(ii) The two main witnesses of the petitioner who were directly con-cerned and privy to the offence of giving the bribe and through whoseeffort and instrumentality the respondent was persuaded to pay the amountfor the construction of Dharmshala on the promise to sell out the votesof the Harijans, were in the nature of accomplices. The rules of prudence,which impels a court to seek for independent corroboration on materialpoints of the evidence of an accomplice and it is not considered safe toreiy on the sole testimony of an accomplice, who is a tainted witness, shouldequally apply in the trial of a corrupt practice in election cases, since chargeof corrupt practice is in nature of a criminal charge.
75
Mohan Singh V. Bhanwarlal, A.I.R. 1964 S.C. 1366; Harish ChandraBajpai and another v. Triloki Singh and another, A.I.R. 1957 S.C. 444;Jagdev Singh Sidhanti v. Pratap Singh Daulta and others, A.I.R. 1965S.C. 183; C. Subba Rao v. K. B. Reddy and others, A.I.R. 1957 A.P. 155;Rameshwar V. The State of Rajasthan, A.I.R. 1952 S.C. 54; W.C. Macdo-nald V. Fred Latiner, A.I.R. 1929 P.C. 15 and Bankabehari Das V. Chitta-ranjan Naik, A.I.R. 1963 Orissa 83; referred to.
A silent spectator to a commission of an offence of either giving orreceiving bribe by third parties, even though the spectator did not protestor disclose the offence, cannot be categorised as an accomplice. Tbeweight to be attached to the evidence of the spectator is a matter of appre-ciation by the trial judge depending on the peculiar circumstance of thecase.
(Hi) On the facts, the petitioner had proved that the first respondenthad committed the corrupt practice of "bribery" as denned in Clause 'A'of Sub-Section (1) of Section 123 of the Act.
hmnendra Nath Ghose V. The State of West Bengal, A.I.R. 1959 S.C.1199; Rameshwar v. The State of Rajasthan, A.I.R. 1952 S.C. 54;Gurbanta Singh v. Tiara Ram Gaggu Ram and others, A.I.R. 1960 Punjab614; Siddik Mahomed Shah v. Mt. Saran, A.I.R. 1930 P.C. 57(1) andNagabai Ammal and others v. B. Sharma Rao and others. 1956 S.C. 533;referred to. TIRLOCHAN SINGH v. KARNAIL SINGH AND AN-OTHER 34 E.L.R. 234.
—S. 123(1)—bribery—corrupt practice by person not an agent nor withconsent of respondent—Whether respondent liable for corrupt practice.
HELD : Dismissing the petition,
The petitioner had not established that K was the agent of the FirstRespondent. The requirements of Section 100(1) (d) (ii) were not satis-fied because K who committed the corrupt practice by payment or holdingout promises of bribes to voters had presumably done so in the interestof the First Respondent without his consent.
BHAILALBHAI NAROTTAMDAS PATEL v. MANGALDAS GOR-DHANDAS POLA & ANOTHER 34 E.L.R. 269.
—Bribery—Section 123(1)—Donation by Minister out of discretionaryfund on the eve of election—when can constitute corrupt practice. It wasalleged that the respondent, a Minister, committed corrupt practicewithin the meaning of Section 123(1) inasmuch as he made a donation orgrant out of his discretionary fund on the eve of the election. Dismissingthe petition.
76
HELD : The motive or intention for making a donation or grant hato be judged from all facts and circumstances and if it can be establishetthat the object was dishonest or corrupt in the sense of winning supporin elections, then even a charitable donation or grant would become briber)and thus constitute corrupt practice. In the present case the sole motivtand object of the respondent in giving the donation was not to further thecause of his election or to canvass support in that behalf.
Bankabehari Dass v. Chittaranjan Naik, A.I.R. 1963 Orissa 83; SankarcGowda v. Maniappa, 9 E.L.R. 101; and Khadar Sheriff v. MuniswamyA.I.R. 1955 S.C. 775; referred to.
Abiiash Chand v. Om Ptabha Jain, E.P. No. 19 of 1967, decided Nov.16, 1967 (Punj.); distinguished.
DR. AMAR NATH VERMAN AND ANOTHER v. DEV RAJANAND & ORS. 34 E.L.R. 359.
—Sections 101 (b), 123(1) (A) (b)—Corrupt Practice—Bribery—Offer of bribery", scope of expression—Ingredients of section 101 (b).
The petitioner prayed that the election of the respondent should bedeclared void and he be declared elected on the grounds the respon-dent was guilty of the corrupt practice of bribery within the meaning ofsection 123(1) (A) (b) of the Act.
HELD : The petitioner had established beyond reasonable doubt thatthe respondent resorted to a corrupt practice within the meaning of s.123(1) (A) (b) of the Act. The election of the respondent must there-fore be declared void under s. 100(i)(b) of the Act.
The burden of proving that the election of a successful candidate is tobe set aside for corrupt practices lies heavily upon the petitioner.
Jagdev Singh v. Pratap Singh, A.I.R. 1965 S.C. 183 ; referred to.
The expression "offer of bribery" in s. 123 must be given a very widemeaning and not a narrow construction in order to ensure that electionsare held in an atmosphere of absolute purity.
Rajendra Prasad Jain v. Silbhadrai Yajee, A.I.R. 1967 S.C. 1455; re-ferred to.
There were no materials on record to justify the conclusion that butfor the corrupt practice of bribery the petitioner would have got the majorityof the valid votes. Such an inference was not possible merely because the
77
difference between the votes obtained by the respondent and the petitionerwas 677. The petitioner had failed to establish the ingredients of S. 101 (b).
GHASI RAM MAJHI v. OMKAR SINGH, 35 E.L.R. 80.
—Bribery—s. 123(1) (2) and (7)— Winning candidate holding officeof Minister prior Jo election—using discretionary funds to remove publicgrievance—if corrupt practice. Expenditure of discretionary funds forPublic good just before election—desirability of-—.
The appellant challenged the first respondent's election on the grounds,inter alia, that prior to his election, the respondent, who was a Minister inthe State Government and had available to him certain discretionary funds,had used these funds to bribe the voters; it was alleged that prior to theelection he had made various discretionary grants to GrSm Panchayats,given funds for the construction of a sacred tank in one village, for build-ing public utility works, community centres and for repairs of Harijan wellsin different villages. It was also alleged that he had used his position asMinister to favour some of the villagers by providing certain irrigationfacilities in some villages with a view to securing support for his candi-dature. The High Court dismissed the election petition.
On appeal to the Supreme Court,
HELD : Dismissing the appeal, ,
The law requires that a corrupt practice involving bribery must be fullyestablished. The evidence must show clearly that the promise or giftdirectly or indirectly was made to an elector to vote or refrain from votingat an election. The position of a Minister is difficult. It is obvious thathe cannot cease to function when his election is due. He must of neces-sity attend to the grievances, otherwise he must fail. He must improvethe image of his administration before the public. If every one of hisofficial acts done bona fide is to be construed against him and an ulteriormotive is spelled out of them, the administration must necessarily come toa stand still.
On the evidence in the present case the money was not distributed amongthe voters directly but was given to Panchayats and the public at large. Itwas to be used for the good of those for and those against the candidate.No doubt this had the effect of pushing forward the respondent's claimsbut that was inevitable even if no money was spent but good administra-tion changed the people's condition. It could not therefore be held thatthere was any corrupt practice. If there was good evidence that the Minis-ter bargained directly or indirectly for votes, the result might have beendifferent, but there was no such evidence.
78
Borough of Kingston upon Hull 6 O'M and H 372; Windsor 20 O'Mand H-88; Salisbury 4 O'M and H 28; Wigan 4 O'M and H 13; S. MeharSingh v. Mehar Singh, A.I.R. 1961 Punjab 44; Maganlal Bagdi v. HariVishnu Kamath, 15 E.L.R. 205; Khadar Shariff v. Munnuswami Gounderand others, A.I.R. 1955 S.C. 775; Radha Krishna Shukla V. Tarn ChandMaheshwar, 12 E.L.R* 378; Gangadhar Maithani v. Narendra SinghBhandari, 18 E.L.R. 124; Balwant Rai Tayal v. Bishan Saroop, 17 E.L.R.101; Amirchand v. Surendra Lai Jhait, 10 E.L.R. 57; Anjaneya Reddy v.Gangi Reddy and Ors. 21 E.L.R. 247, Referred to.
Election is something which must be conducted fairly. To arrangeto spend money on the eve of elections in different constituencies, althoughfor general public is good, when all is said and done, is an evil practice,even if it may not be corrupt practice. The dividing line between an evilpractice and a corrupt practice is a very thin one. It should be understoodthat energy to do public good should be used not on the eve of electionsbut much earlier and that even slight evidence might change this evil prac-tice into corrupt practice. Payments from discretionary grants on the eveof elections should be avoided.
GHASI RAM v. DAL SINGH AND OTHERS (S.C.) 36 E.L.R. 60.
—Bribery—Section 123(1)—Election—Minister making discretionarygrants—when amounts to corrupt practice.
The first respondent challenged the appellant's election alleging corruptpractices by way of payment of certain discretionary grants to bargain forvotes and to influence the voters in favour of the appellant. Certain sumsof money had been placed at the disposal of the appellant, who was aMinister in Haryana after the formation of that State in November 1966,to be used at her discretion for purposes of public utility, general publicbenefit and uplift of backward communities. The money had to be dis-bursed by 31st March, 1967. The appellant sanctioned certain paymentsfor building two dharamshalas in two wards of the Municipality. Sometime after the sanction, she became a candidate of her party for electionto the Vidhan Sabha. After she was elected, the money was made avail-able to two wards in her constituency though the recipients had been writ-ing and pressing for the payment of money immediately. On these factsthe election petition was allowed by the High Court.
On appeal to the Supreme Court,
HELD : The action of the appellant could not be construed against her,It was done in the ordinary course of her duties as Minister and there wasno evidence that it was, directly or indirectly, part of a bargain with the
79
voters. No hurry to make the money available to the recipients emanatedfrom the appellant. It was only the persons who were to benefit by thediscretionary grant that were anxious to lay hands on the money, as soon aspossible, so that the grant might not be cancelled later by a change of atti-tude caused by the election going against the particular party. .
Ghasi Ram v. Dal Singh & Ors., (1968) 3 S.C.R. 102; followed.
Bhagwan Dutta Shastri V. Ram Ratanji Gupta, A.I.R. 1960 S.C. 200and Kardaswami v. Adityan, 19 E.L.R. 260, referred to.
OM PRABHA JAIN v. ABNASH CHAND AND ANOTHER (S.C.),36 E.L.R. 101.
—Bribery—s. 123(1) (A) or (B)—Corrupt practice—proof of—remis-sion and exemption of land revenue on uneconomic holdings—// amountsto gratification and bribe
The petitioner sought to set aside the election of the respondent to theMadhya Pradesh Legislative Assembly on several grounds including chargesof corrupt practice under s. 123 of the Representation of People Act, .1951.It was alleged, inter alia, (i) that the policy of remission and exemptionof land revenue announced by the Chief Minister of U.P. as an agent ofthe respondent with his consent amounted to gratification to induce thevoters to vote for the respondent.
HELD : The policy of remission and exemption of land revenue of"uneconomic holdings" which was adopted by the Madhya Pradesh Gov-ernment had no effect of exercising undue influence in favour of the firstresp< indent and did not amount to any gratification to induce the votersto vote in his favour nor did it amount to the corrupt practice of briberyfalling under s. 123(1) (A) or (B).
Upendralal Mahendralal Chowdhary v. Smt. Narainee Devi Jha, 1967M.P.L.J. 895 and Laxmi Narayan Dass and Ors. v. The Province of Bihar,A.I.R. 1950 F.C. 59; referred to.
Charges of corrupt practice are quasi-criminal in character and the al-legations relating thereto must be sufficiently clear and precise to bringhome the charges. For establishing a corrupt practice beyond reasonabledoubt, it is not necessary as a requirement of law to establish it absolutelyor with mathematical precision. Law does not insist that it should be prov-ed conclusively after excision of every speculative or captious doubt. Thestrength of the circumstances does not lie in segregating them into groups
80
and drawing conclusions singly from such circumstances. Considered in iso-lation a circumstance may not carry conviction. They have to be con-sidered separately and as a whole. It is the considered effect of concur-rence of authenticated circumstances which should determine the existenceof corrupt practice as it determines the guilt of the accused person and thelaw does not insist on any absolute or demonstrative certainty.
Lt. Hector Thomas Huntley v. Emperor A.I.R. 1944 F.C. 66 HarishChandra V. Trilok Singh A.I.R. 1957 S.C. 444; Inderlal v. Lai Singh andOthers, A.I.R. 1962 S.C. 1156; Dr. Jagjit Singh v. Kartar Singh and Others,A.I.R. 1966 S.C. 773; Kumara Nand v. Brij Mohainlal Sharma, A.I.R.1967 S.C. 808 and other cases referred to.
NARAYAN SHANKAR TRIVEDI v. DALCHAND JAIN ANDANOTHER, 37 E.L.R. 107.
—Bribery—s. 123(1) & (2)—Corrupt practices—Bribery and undueinfluence—Corrupt practice of bribery in the nature of quasi-criminalcharge.
The appellant challenged the election of the respondent on the groundth&t the respondent exercised undue influence at the polling station and thathe was guilty of bribery. These allegations of corrupt practice were heldby the High Court not to have been proved by the appellant. In theappeals to this Court the same grounds were urged.
Dismissing the appeal, ' *
HELD : There was no reason to interfere with the findings of theCourt.
The charge of the corrupt practice of bribery under the Election Lawis in the nature of a quasi-criminal charge and cogent reasons have to beadvanced for differing from the view taken by High Court.
JAGPATI SINGH v. RAMANAND SINGH (S.C.), 38 E.L.R. 25.
—Bribery—allegation of votes on mass scale—requirements of "mate-rial facts" in petition under s. 83 (f) (a) (ft)—Appeal on basis of caste—scope of clause (3) and (3A) of s. 123—corrupt practice.
HELD : The petitioner, a defeated candidate, challenged the electionof the first respondent to the State Assembly alleging that the first respon-dent in his official capacity arranged for free supply of hand pumps amonghis voters and distributed money and bribed Harijan voters and bribedsome of the contestants to withdraw their candidature in his favour.
81
HELD : allowing the petition : (i) On the evidence, the petitionerhad proved that the first respondent and his agents had paid bribes toHarijan voters and that the first respondent, his agents and his workersindulged in the corrupt practice of securing votes on the basis of an appealbased on caste ;
[See also Corrupt Practice—General Principles—Necessity of full Par-ticulars].
MAHANT MAHADEVANAND GIRI v. AMBIKA SHARAN SINGHAND OTHERS, 39 E.L.R. 23.
S. 123(1)—Corrupt Practice—Bribery—Presumption—Burden ofProof.
The petitioner also alleged that the respondent was guilty of the cor-rupt practice of bribery as defined in Section 123(1) of the Act. It wasalleged that the respondent visited several places in the constituency andoffered and promised to get public works executed in the respective areasif the electors promised to cast their votes for her.
HELD : Mere proof of promise or of its implementation before thepoll is not sufficient to bring home the charge of corrupt practice unlessit is proved beyond reasonable doubt that the object of the promise wasto induce the electors to vote for the candidate. The mere fact that apromise is made or that relief or benefit is given on the eve of electiondoes not raise any presumption that this was done for the purpose of in-ducing the voters to vote for the candidate concerned. The petitioner hasfailed to prove that the respondent committed any of the corrupt practicesalleged against her in the petition.
Harish Chandra Bajpai v. Triloki Singh, A.I.R. 1957 S.C. 444; Basaw-raj K. Nagaur v. B. R. Shidlingappa, 12 E.L.R. 168; Radha Krishna Shuklav. T. C. Maheshwar, 12 E.L.R. 378; Biresh Misra V. Ram Nath Sarma &Ors., 17 E.L.R. 243; Gangadhar Maithani v. Narendra Singh Bhandari,18 E.L.R. 124; Soowalal V: P. K. Choudhry, 21 E.L.R. 137; Ram Phal v.Braham Prakash, A.I.R. 1962 Punjab 129; Hariram Singh v. Ramtaprasad,A.I.R. 1966 Madhya Pradesh 255; Mehar Singh v. Umrao Singh, A.I.R.1961 Punjab 244; Balwant Rai Tayal v. Bishan Saroop, 17 E.L.R. 101;Amir Chand v. Surendra Lai Jha, 10 E.L.R. 57; Ghasiram v. Dal Singh,(1968) 3 S.C.R. 102; Tralochan Singh v. Karnail Singh, Election Petition33/67 dated 13-12-67, (Punjab), referred to.
NANAK CHAND SURANA v. SMT. KANTA KHATORIA, 39E.L.R. 390.
4EC/74—9
82
—Section 1:23(1)—Corrupt Practice—Payment to a worker for ex-penses does not fall within the mischief of section—Bribery.
; HELD : Any payment to a worker even if it be for his expenses orfor his salary is an expense incurred so that he can wield his influence withthe eiectors, but that by itself cannot amount to bribery within the mean-ing of s. 123(1) of the Act. So long as the payment is made to a workeronly for his expenses it will not fall within the mischief of the section.
ONKAR SINGH v. GHASIRAM MAJHI (S.C.), 39 E.L.R. 477.
—Section 123—Corrupt practice—Bribery.
HELD : While it is meritorious to make a donation for a charitablepurpose, if made on the eve of the election, it is open to the charge thatits real object was to induce tfie electors to vote in favour of a particularcandidate.
In the present case there was no evidence that the respondent installedthe hand pump.
OM PRAKASH v. LALCHAND AND OTHERS, 40 E.L.R. 203.
—Section 123(1)—Corrupt practice—Bribery—Burden of proof-—evidence to pass the normal tests to bring home charge of corrupt practiceagainst a returned candidate.
The petitioners who were two electors, challenged the election of therespondent to the Legislative Assembly alleging inter alia that the respon^dent committed corrupt practices of bribery, by making payments to aPanchayat Member and Lambardar of Village Dhansu for construction ofa bridge over a canal in Hissar, and to the Sarpanch of village SatroadKhats for construction of a tube-well. It was alleged that these paymentswere made as an inducement to the electors of these villages to vote forhim. The respondent denied the allegations and stated that he had notmade any donation to the two villages and the funds for the proposedconstruction of the bridge and the tube-well were provided by the concern-ed Panchayats. It was also averred that the petitioners were supporters ofthe defeated candidate of the Congress Party, who had been his rival inprevious elections, and that he had fabricated false evidence to involve therespondent in the alleged corrupt practice.
HELD : Dismissing the petition :
The evidence on record was not such as would justify a finding that ithad been established beyond all reasonable doubt that the respondent hadpaid the alleged donations to the Member of the Panchayat and Lambardar
83
of Dhanser and Satroad Khas villages for construction of a bridge and atube-well respectively, as consideration for getting votes. Further, the evi-dence adduced by the petitioners was not reliable and trustworthy and therecords of the Panchayats are not maintained properly and are not reliable.The mere fact that to establish an allegation of corrupt practice of briberyin an election trial mostly depends on oral evidence and that it is verydifficult to establish such a corrupt practice will be no ground for actingon evidence which does not pass the normal tests that have to be appliedin bringing home the charge of corrupt practice against a returned candi-date. In the instant case the petitioners had failed to establish either ofthe charges relating to the alleged bribery by the Respondent as an induce-ment to the electors of the villages to attract section 123(1) of the Act.
Jagannath V. Narayan Uttamrao Deshmukh, C.A. 159(NCE) of 1968dated 6-9-1968 S. C. referred to.
HUNA MAL AND ANOTHER v. BALWANT RAI TAYAL, 40E.L.R. 444.
—Corrupt practice—Donation to a Muslim Festival by the returnedcandidate prior to the date of poll—allegations that the donation was madewith corrupt or dishonest motive to induce voters—Burden of proof- -whensuch donation attracts sub-section (1) of 123.
HELD : A donation for a charitable purpose made by a candidate atthe time or on the eve of an election, may raise a strong suspicion of briberyagainst the donor. In the instant case taking into account all circumstan-ces, the person who gave donation, the institution to which the donationwas given, the accustomed course of charity by the respondent and theamibiguity as to the amounts of contribution given in previous years, itcannot be reasonably inferred that this donation of Rs. 101 in the year1967, a few days prior to the date,of elecdon to the Jhela Committee forthe celebration of the Urs of Hejebux was made with uny corrupt or dis-honest motive inducing directly the electors to vote for the respondent; itmust therefore be held that the first respondent did not commit the corruptpractice of bribery under section 123(1) of the Act.
.S. Khader Sheriff v. Munnuswamy, A.I.R. 1955, S.C. 775;Magan Lai Radhakishan Bagdi v. H. V. Kamath, 15 E.L.R. 205;Bra) Bhushan v. Raja Anand Brahma Shah, 1960 (22 E.L.R. 225):Bankabeharidas v. Chittaranjan Naik A.I.R. 1963 Orissa 83;
Tirlochan Singh v. Karnail Singh A.I.R. 1968 Punjab and Haryana,416; referred to. BAPURAO v. STDRAMAPPA AND OTHERS, 41E.L.R. 83.
84
—Section 123(1) (A) and (B)—Corrupt ^practice—Bribery—Proof of—Necessity of particulars.
HELD : It is not established that any bribe was paid by RespondentNo. 5 or by anybody on his behalf.
To bring home the charge of corrupt practice under Clause (B) ofs. 123(1) to the candidate his part in the receipt of the bribe has to beconsidered. In case of receipt all that will be necessary is to prove that thebribe flows from the candidate directly or through his election agent or anyperson with his consent. It will not be necessary to prove specificallywhether the bribe was actually given by the candidate or by any otherperson. In a case covered by clause (A) however, it will be necessaryto show as to who actually made the gift offer or promise to a particularperson—whether it was the candidate himself or his agent or any otherperson with his consent.
In the statement of allegations as they are contained in the petition noevidence can be permitted to be led on the payment of bribe by a parti-cular person to another specified person.
RAJ PAL SINGH v. OM PRAKASH GARG AND OTHERS, 41E.L.R. 221.
S. 123—Bribery—Corrupt practice—returned candidate's party inpower prior to election—Government issuing Ordinance benefitting certainagriculturists—granting allowances to Government employees, whetherattracts s. 123(1).
The respondent, a Congress candidate, was elected to Parliament fromthe Hoshangabad Parliamentary Constituency. The appellant challengedhis election on the ground that various corrupt practices were committed.It was alleged (i) that the Government of the State where the Congressparty was in power granted exemption through issuing an ordinance in thepayment of land revenue on holdings by certain agriculturists just prior tothe election; this was done although the exemption had been claimed forsome time by the opposition parties; (ii) the State Government announcedan increase in dearness allowance to certain Government employees justbefore the election.
HELD :
(i) On the evidence, it could not be held that the respondent commit-ted a corrupt practice under s. 123 (I) A. The ordinance was passed bythe State Government. Although as a result of the ordinance a large
85
number of agriculturists got exemption from land revenue, such an exemp-tion did not amount to a gift, offer or promise of any gratification withinthe meaning of s. 123(1) (A) nor was it possible to say that the Gov-ernment was the agent of the respondent. The Congress Party was thenin power. But the exemption was not given by the Congress Party. Itwas given by the Ordinance which was passed by the Government.
(ii) The grant of the increased dearness allowance could not be re-garded as a gift, offer or promise of any gratification within the meaningof s. 123 (I) (A) nor it was possible to say that the Government or theChief Minister who had announced the increase was the agent of the res-pondent. The employees of the Government had given notice to go onstrike a week before the election and without their cooperation the entireelection would have been at a standstill. The Government thought thatthe demand of the employees was legitimate and therefore made the an-nouncement on the eve of the election to that demand.
H. V. KAMATH v. CH. NITIRAJ SINGH (S.C.), 41 E.L.R. 343.
—Bribery by a third person, whether attracts s. 123 (T)—Consent—corrupt practices—Burden of Proof—Bribery.
HELD : It was not proved that the person who offered the bribe wasthe agent of the respondent nor was it proved that he offered the bribe withthe consent of the respondent. Offer of bribe by a person who is not anagent of a candidate is not a corrupt practice within s. 123(1) of the Actunless it is committed with the consent of the candidate.
KAMAL NARAYAN SHARMA v. D. P. MISHRA, 41 E.L.R. 369.
—Jammu & Kashmir Representation of the People Act, ss. 91 (b), 108,132(7)—Allegations of corrupt practices—Vagueness—Corrupt practice—Burden of proof—Execution of general welfare schemes on the eve ofelection—By itself does not constitute corrupt practice.
HELD: Reading the definition of corrupt practices in s. 123(7) withs. 108 of the Act which mentions the ground for declaring an election to bevoid, a corrupt practice should have been committed by a returned candi-date or his election agent or any other person with the consent of the re-turned candidate or his election agent. The allegations of corrupt prac-tice should be proved satisfactorily and should not be based on mere con-jectures and surmises.
It is true that certain works were executed during the election periodbv the Block Development Officer, and these measures were for the good ofthe general public. The evidence is not at all satisfactory that the res-pondent had anything to do with the sanction or the execution of this
86
scheme. Any measure sanctioned or executed during the election periodcannot come within the definition of "corrupt practices" on the part of acandidate of the ruling party only for the reason that such schemes weretaken up on the eve or in the midst of the election period though theywould have the tendency for vote catching for the candidates of the rulingparty.
Kunj Lai and Bansi Lai v. Dharam Pal, Election Petition 54 of 1967dated 7-5-1968 (J&K); Mehar Singh v. Umrao Singh, A.I.R. 1961 Punj.244; referred to.
SATYA PAUL v. SHRI PARAMANAND, 42, E.L.R. 298.
—Section 123(1) (A) and B—Corrupt practice—Bribery—Proof of—Ingredients.
HELD:
Both respondents are guilty of the corrupt practice of bribery withinthe meaning of section 123(I)A&B of the Act.
What is to be proved is a gift, offer or promise of gratification to aperson to stand or not to stand as, or to withdraw or not to withdrawfrom being, a candidate at an election or the receipt of or agreement toreceive a gratification, by a person for standing or not standing as. or forwithdrawing or not withdrawing from being a candidate.
In the present case these ingredients are satisfied.
SARLA PRASHER v. SHRI RAM DEV, 42 E.L.R. 412.
CORRUPT PRACTICE—(4- PUBLISHING FALSE STATEMENTS)
—Publishing false statements—Section 123—123(4)—Corrupt Prac-tices—Journal publishing allegations that the petitioner offered money toanother candidate to withdraw from the contest and the Petitioner offeredpackets of sweet-meats to voters—whether the allegations are attacksagainst the personal character of the Petitioner—Respondent distributingcopies of journal containing the impugned articles—whether Respondentliable for corrupt practice—
HELD : Allowing the petition.
The publication of articles in a journal that the Petitioner offered moneyto a candidate to withdraw his candidature would certainly be attack onthe personal character of an individual. The allegations in the same jour-nal that the Petitioner was making vain efforts for securing votes by offering
87
packets of sweet-meats to voters would amount to attributing to the Peti-tioner a corrupt practice under Section 123(1) (A) of the Act. In view ofthe distribution of copies of the journal containing the impugned articlesby the First Respondent amongst voters in the constituency when the elec-tion campaign of the rival candidates was going on, it is reasonable to inferthat these statements were reasonably calculated to prejudice the prospectsof the Petitioner's election and to further the First Respondent's electionprospects.
Inder Lai v. Lai Singh, A.I.R. 1962 S.C. 1159; Sheopal Singh V. RamPratap A.I.R. 1965 S.C. 677; Dr. Jagjit Singh v. G. Kartar Singh, A.I.R.1966 S.C. 773; Kumara Nand V. Brijmohan Lai, A.I.R. 1967 S.C. 808;referred to.
KARASANDAS UKABHAI PARMAR v. SOMCHAND MANUBHAISOLANKI AND ANR., 33 E.L.R. 74.
—S. 123(4)—Hand bills containing false statement that the Petitionera relation of the Chief Minister—No attacks on Petitioner's private charac-ter—Whether the false statement corrupt practice under Section 123(4).
It was alleged in the petition that the second Respondent had publisheda hand bill stating that the Petitioner was a relation of the Chief Ministerof Mysore which statement caused prejudice to the prospects of the Peti-tioner's election; therefore the second Respondent committed a corruptpractice under Section 123(4) of the Act.
HELD : That publication of the hand bill stating that the Petitionerwas a relative of the Chief Minister, though a false statement, did nottouch the private character of the Petitioner and such a false statement didnot amount to a corrupt practice under Section 123(4) of the Act.
GURUSHANTHAPPA v. ABDUL KHUDDEES ANWAR ANDOTHERS, 33 E.L.R. 162.
—Ss. 123(4), 123(3) and (3A)—Statements in relation to personalcharacter and conduct, what amount to.
The petitioner challenged the election of the second respondent on thegrounds (i) that two leaflets Exhibits PI and P3 were widely distributedthroughout the constituency by the agents and supporters of the secondrespondent with the knowledge and consent of the second respondent; thatthese leaflets contained facts which were false in relation to the personalcharacter and conduct of the petitioner and therefore fell within the mis-chief of section 123(4) of the Act;
88
HELD : (i) Election literature should neither be judged strictly nortaken literally and the courts ought not to read more in such literature thanwhat appears on its face. The question whether a statement impinges onthe personal character or public character or is an impingement on the per-sonal conduct as distinguished from his public conduct is a question of factin each case. In the present case what Exhibit PI and P3 did in effectwas to hold up to the people certain aspects of the public conduct of thepetitioner in making a speech in the no-confidence motion in the Assemblyand also in supporting the Government at a time when they took strongmeasures against communal disturbances; and both the appeals asked thepeople to judge impartially and give their verdict upon the manner in whichthe petitioner had expressed his views about a particular community in theAssembly and the manner in which he supported the Government in theiraction in the area. The leaflets did not involve a statement in relation tothe personal character or conduct of the petitioner, but they really touchedupon his public character and conduct and therefore the publication couldnot be considered prejudicial acts within the meaning of section 123(4) ofthe Act.
Ramanbhai v. Dabhi Ajit Kumar A.I.R. 1965 S.C. 669; Kultar Singhv. Muktiar Singh A.I.R. 1965 S.C. 141; Inder Lai v. Lai Singh A.I.R. 1962S.C. 1156; Jagjit Singh v. Kartar Singh A.I.R. 1966 S.C. 773; referred to.
CHIDAMBARA BHARATHY, R. v. P. R. RAMARAJU RETURN-ING OFFICER & ORS. 33 E.L.R. 178.
—Return of Election expenses—inclusion of items of printing, expendi-ture of impugned posters and letters—whether consent implied—Implica-tion of word "authorised" in Section 77(1)—Inaction by Respondent todisassociate himself from the posters—whether inference of tacit consentof the candidate established.
HELD : Allowing the Petition,
(i) The expense of printing the impugned poster containing allegationsagainst the personal character of the petitioner, which were included in thereturn of the election expenses of the first Respondent, established that itwas published with the consent of the first Respondent and that the ex-pense for it was either incurred by him or authorised by him. The legis-lature has been careful enough not to use the word 'ratified' instead of"authorised" in Section 77(1) of the Act. Authorisation precedes the in-curring of expense whereas ratification is a subsequent event which validatesan unauthorised expense. In view of the provisions of Section 77 readalong with the provisions of Section 78 and Rule 86, the only conclusionpossible was that the poster was published with the consent of the first
89
Respondent and he cannot escape the consequence that follows from thesame.
When the first Respondent had knowledge of the poster, it was his dutyto countermand it, particularly when the allegations in it were false andserious. His inaction in not disassociating himself from the poster provedhis consent to it.
The publication of a poster stands on a different footing than othersingle publication. If the poster is pasted in prominent places with theobject that the public go through its contents and each day the posteris open to public view, there will be publication of the poster each day.The.exhibition of the impugned poster in the election office of the firstrespondent, after knowledge of its publication, amounted to his consent toits subsequent publication.
Sheopat Singh V. Harish Chandra and others, A.I.R. 1960, S.C. 1217;referred to.
Once it is proved that the allegations in the posters published on behalfof the first Respondent, are false to the hilt and there is no basis for thesame, the inference would be obvious that the first Respondent believedthem to be false and did not believe them to be true; therefore, the chargeunder Section 123(4) had been brought home to the first Respondent thatthe impugned poster was published with the implied or tacit consent ofthe Respondent.
Kumara Nand v. Brij Mohan Lai Sharma, (1967) 2 S.C.R. 127; Anja-neya Reddy V. Gangi Reddy and others. 21 E.L.R. 246; T. K. GangiReddy v. M. C. Anjaneya Reddy and others, 22 E.L.R. 261; Mohan Singhv. Bhanwarlal and others, 1964 S. C. 1366, referred to. JAI SINGH v.RAM KISHAN & OTHERS, 34 E.L.R. 73.
—Publishing False Statement—ss.9A, 77, 123(4) and (6)—Corrupt Prac-tice—Burden of Proof—Donation or contribution to party funds, whetherattracts Section 123(4).
The petitioner, an elector, challenged the election of the first respondentto the Haryana Legislative Assembly on the grounds of corrupt practicealleging, inter alia, that the first respondent made a false statement relat-ing to the twelfth respondent in public to the effect that he purchased theCongress ticket by payment of one lakh of rupees to the Chief Minister, thatthe first respondent was disqualified to file the nomination as he had somesubsisting contracts with Government on the relevant dates; and that hefailed to keep a separate and correct account of all his election expensesas required under section 77 of the Act.
90
HELD : Dismissing the petition:(i) The offending statement that a certain amount of money was given
to the Chief Minister as bribe is capable of being understood by severalpersons to mean that the payment had the character of a donation or con-tribution to a political party or the party funds and would not necessarilycontain an imputation of a personal bribe having been given to the ChiefMinister; accordingly, even if it be assumed that the offending statement.was made by the first respondent, it would not fall within the mischiefof Section 123(4) of the Act. The main onus is on the petitioner underSection 123(4) and he has to show that a statement of fact was publishedby a candidate or his agent etc., and also to show that the statement wasfalse and related to his personal character or conduct. Once that is provedthe burden shifts to the candidate making the false statement of fact toshow what his belief was.
Kumar a Nand v. Brijmohanlal Sharma (1957) 2 E.L.R. 126 (128) ;Dr. Jagjit Singh v. Giani Kartar Singh, A.I.R. 1966, S.C. 773 ; SheopalSingh v. Ram Pratap, A.I.R. 1965 S.C. 677; Inderlal v. Lai Singh andOthers, A.I.R. 1963 S.C. 1156, referred to; AMAR NATH v. SARDARLACHMAN SINGH AND OTHERS, 34 E.L.R. 103.
—S. 123(4)—Statement of fact—Statement of opinion—Distinction—Attack on personal character—Hand bills—Criticism of a person's politicalor public activities—whether corrupt practice—Evidence of partisan wit-ness—whether permissible—election pamphlets—
HELD : A statement in a hand bill (Ex. Z-l) that the petitioner had noregard for the life of Jagatguru is an expression of opinion distinguished froma statement of fact and therefore, is not hit by the provisions of Section123(4) of the Act. The law requires that the statement must be in rela-tion to the personal or moral character or conduct of any reflection of theman beneath the politician. Statements that the petitioner was puffed withpride and about his political and public activities do not attract the pro-visions of Section 123(4).
Judicial approach has to be cautious in dealing with evidence by wit-nesses who are partisan or interested, but the plea that such evidence shouldbe rejected because it is partisan cannot be accepted as correct.
Inderlal v. Lai Singh A.I.R. 1962 S.C. 115; Masalti v. State of UtterPradesh, A.I.R. 1965 S.C. 202; Ram Dial v. Sant Lai, A.I.R. 1959 S.C855; Lai Singh Rehvar v. Vallabhdas, 7 G.L.R. 753; Kultar Singh v.Mukhtiar Singh A.I.R. 965 S.C. 141; Kumara Nand v. Brijmohan LaiSharma A.I.R. 1967 S.C. 808; referred to. PURSHOTTAMDAS RAN-CHODDAS PATEL v. KANTIPRASAD JAYSHANKER YAGNIK ANDORS., 34 E.L.R. 160.
91
Section 123(4)—Corrupt Practice—Statements about personal cha-racter and conduct—Principles for deciding what amount to.
The election of the respondent was challenged on grounds, inter alia,(i) that the respondent did not keep separate and correct accounts ofelection expenses; and (ii) the respondent published statements in relationto the personal character and conduct of the petitioner which were falseand which the respondent did not believe to be true: and these statementswere calculated to prejudice the prospects of the petitioner's election withinthe meaning of sub-section (4) of section 123 of the Act. A translationof the offending portion read:
"The real representative of the people is only he who treats every-body equally with humility and not he who on getting the chairstarts threatening, bullying abusing and exerting undue pressureon government servants and poor people and showing falsearrogance. One of the candidates for our Vidhan Sabha has,even before fighting the elections, started bullying and givingseveral types of threats.";
Held, Dismissing the Petition ;
In dealing with corrupt practices alleged under s. 123(4), in border-line cases, a working line has to be drawn to distinguish private characterfrom public character and it may also have to be borne in mind that insome cases, the false statement may affect both the private and the publiccharacter as well.
The first sentence of the impugned statement can by no stretch ofimagination be in relation* to the personal character and conduct of thepetitioner. The statement in the second sentence has to be understoodin the context of the statement contained in the immediately precedingsentence because it has a direct relation thereto. If the first two sentencesare read together, the statement in the second sentence is no doubt aboutthe public conduct or character and not about the personal or privateconduct or character.
Inder Lai v. Lai Singh, A.T.R. 1962 S.C. 1166 and Kultar Singh v.Mukhtiar Singh A.I.R. 1965 S.C. 141; referred to. BASANT RAM vNALU RAM 35 E.L.R. 151.
—8. 123(4)—Corrupt Practice—Statements affecting personal characterto prejudice the prospects of candidates election whether corruptvractice.
92
HELD : False statement of facts affecting the public or political charac-ter of a candidate are not brought within the mischief of section 123(4).If a false statement is made in regard to the public or political characterof a candidate, it would not constitute a corrupt practice even if it is likelyto prejudice the prospects of that candidate's election.
Inder Lai v. Lai Singh, A.I.R. 1962 S.C. 1156; Dr. Jagjit Singh v- GianiKartar Singh A.I.R. 1966 S.C. 773; referred to BAIJNATH SINGHVAIDYA v. R.P. SINGH, 36 E.L.R. 327.
—5. 123(4)—Statement about personal character and conduct on theeve of election likely to prejudice the prospects of election—Burden ofproof.
HELD : The statements made against the candidate in the leaflet relatedto his personal character and conduct.
The circulation of false statements about the private and personal cha-racter of the candidate during the period preceding election is likely to workagainst the freedom of election itself inasmuch as the effect created by falsestatements cannot be met by denials in proper time and so the constituencyhas to be protected against the circulation of such false statements whichare likely to affect the voting of the electors. In the present case the publi-cation of false statements was reasonably calculated to prejudice the pros-pects of the election of the candidate.
But, as the petitioners failed to prove that the leaflet annexure 'C wasdistributed by the agents of the respondent with his consent, he cannot beheld guilty of the commission of corrupt practice under sub-section (4) ofsection 123 of the Representation of the People Act.
The initial burden of proving the falsity of the allegation is on thepetitioner, but the burden is a light one. The burden of proving the state-ments to be false may be discharged by some prima facie evidence and insome cases by the simple denial of the person against whom allegations havebeen made.
Badri Prasad v. Satish Kumar, A.I.R. 1964 M.P. 184 Mohan Singh Lax-man Singh v. Banwarlal Rajmal Nahata A.I. R. 1964 M.P. 137; referred to.SUBHASH CHANDRA v. RAM BABU MAHESHWARI, 37 E.L.R. 45.
—S. 123(4)—Publication of false propaganda in news papers—relevanceof distinction between Public and Political and Personal character of candi-date.
93
It was alleged that the respondent and his agents with his consent causedto publish in Hindi newspapers propaganda in relation to the personal cha-racter of the petitioner which was false and was made to prejudice the pros-pects of the petitioner's election.
HELD : On the facts the corrupt practice under s. 123(4) was proved.The petition must therefore be allowed and the election of respondent No. 1declared void.
In considering whether a publication amounts to a corrupt practice with-in the meaning of s. 124(4), the Court would be entitled to take into ac-count matters of common knowledge among the electorate and read the pub-lication in that background. Statements made on the eve of elections tovote for the congress necessarily referred to the candidate set up by theCongress.
Mohan Singh v. Bhanwarlal, A.I.R. 1964 S.C. 1366; Kishore Singh v.BhanwarM, 1966 M.P.LJ. 563; referred to.
—S. 123(4) postulates a distinction between a false statement made inregard to the public or political character of the candidate as opposed tohis personal character. However, a sharp and clear-cut dividing line cannotbe drawn to distinguish one from the other. There may be cases on theborder line where the false statement may affect both the politician andthe man "beneath the politician". Any statement which reflects on themental or moral character of a person is a reflection on his personal charac-ter whereas any criticism of a person's political or public activities andpolicies is outside it. It is possible that in a particular setting a bold state-ment without particulars may amount to a statement of fact or may bemerely an expression of opinion. The question will have to be resolved onconsideration of the circumstances of each case and the Court has toconsider the setting in which the statement was made and the entire writinghas to be judged in the context in which it appears. It may also be thatparticular acts may have been done in the course of political activities butsimply on that account they cannot be treated as allegations ofa political character. It is significant to note that character of a person mayordinarily be equated with his mental or moral nature. Conduct connotes aperson's action or behaviour. The question to be examined is whether thepublication is about the candidate's public conduct or whether it is anattack on the honour, veracity and purity of the man beneath the politician.NARAYAN SHANKAR TRIVEDI v. DALCHAND JAIN AND AN-OTHER, 37 E.L.R. 107.
—Section 123(4)—Corrupt Practice—General power if sufficient to-establish prior consent.
94
The respondent challenged the election of the appellant on the groundthat the latter committed various corrupt practices. The corrupt practicescharged included publication of a poster containing statements of facts,which were either false or were hot believed to be true, in relation to thepersonal character and conduct of the respondent and being statementscalculated to prejudice his prospects in the election. The High Court foundthat this corrupt practice was in fact committed by the candidate or hisagent with the consent of the candidate. In the appeal to the Supreme Courtit was contended that the publication of the poster was done by one Kwithout the consent or knowledge of the appellant and that therefore therequirements of S. 123(4) of the Act were not made out and the case didnot fall within s. 100 (1) (b) of the Act.
HELD : The corrupt practice was brought home to the appellant andthe High Court was right in declaring the election void.
In view of the general power which K enjoyed in the matter of the re-turned candidate's election campaign he must be held to be his agent forthe purpose of S. 123(4). This general power was sufficient to establisha kind of prior consent which is rendered more certain by the subsequentconduct of the candidate in not disowning or contradicting the poster or re-fusing to pay the charges of printing. RAM KISHAN v. JAI SINGH (S.C.),37 E.L.R. 217.
—Ss. 123(2) (c), (4), (6)—Corrupt Practice—undue inftence—Bur-den of proof—
HELD : The petitioner had failed to prove that the first respondent hadany connection with the issue of the impugned pamphlet by the fourthrespondent nor was the first respondent responsible for the corrupt practiceof undue influence of soliciting the votes on the basis of caste by the secondrespondent; the first respondent was therefore not responsible for corruptpractices committed under Section 123(2), (3) and (4) of the Act, bythe second and the fourth respondents. RAM DAYAL v. BRIJ RAJSINGH AND OTHERS, 38 E.L.R. 53.
—S. 123(4)—False statement by another candidate under Section 123(4)—Consent or knowledge of the returned candidate not proved—effect,of.
HELD : In order to bring an alleged oral statement made by the fourthrespondent, that the Congress nominee was an associate of dacoits, withinthe mischief of the definition of a false statement under Section 123(4) of
95
the Act, it must be a statement of fact as opposed to a statement or ex-pression of opinion. The petitioner has to prove the circumstances inwhich it was made and that it was a statement of fact. The petitioner hadfailed to establish that this corrupt practice was either committed by thefirst respondent or his agent or by any other person with his consent orthat of his election agent. .
Devasharam v. Sheo Mahadeo Prasad and others, 10 E.L.R. 461; HabibBhai v. Pyarelal and others, A.I.R. 1964 M.P. 62; Kumaranand v. BrijMohand Lai Sharma, A.I.R. 1967 S.C. 808; referred to : RAM DAYALv. i*RIJ RAJ SINGH AND OTHERS, 38 E.L.R. 53.
—S. 123(4)—Party organisation doing propaganda for party candi-dates—Publication of pamphlets issued by party organisation—Attack onthe personal conduct and character of the petitioner—Burden of proof—-Whether implied consent of the respondent can be presumed.
HELD : Every false statement regarding the personal conduct andcharacter of a candidate cannot prejudice the prospects of his election. Inorder to find out the effect of the false publication the court has to considerthe nature of the statement and the proximity of the impunged publicationto the date of the poll. Unless it is proved that the impunged pamphletattacking the petitioner's personal conduct and character was published bythe party organisation with the implicit consent of the first respondent, hecannot be charged with the corrupt practice. Neither could it be held thatthe impunged pamphlet was reasonably calculated to prejudice the prospectsof the election of the petitioner to attract Section 100(1) (d) (ii) of theAct.
Krishna Kumar v. Krishna Gopal, I.P.R. 1963, 13 Rajasthan 726; JnderLai v. Lai Singh, A.I.R. 1961, Rajasthan 122; Nani Gopal Swami v. AbdulHamid. A.I.R. 1959, Assam 200; Ram Kishan v. Jai Singh, C.A. No. 1949(NCE) of 1967 (Dt. 23-4-1964) ; Jai Singh v. Ram Kishan and others,E.P. No. 37 of 1967 (Dt. 4-12-1967), referred to. BHANU KUMARSHASTRI v. MOHAN LAL SUKHADIA AND OTHERS, 38 E.L.R. 119.
—Allegations of offence under Section 123(4)—Failure of Respondent todisprove the issue of impugned pamphlets, whether adverse inference couldbe drawn against respondent.
HELD : The failure by the respondent to disprove that he had notprinted the defamatory pamphlets would not warrant the inference thatthe petitioner had made out his case when there are several discrepanciesand shortcomings in the evidence adduced by the petitioner which failed toprove the allegations of corrupt practice by the respondent under section123(4).
96
Jagan Prasad Rawat v. Krishna Dutt Paliwal, 20 E.L.R. 443. SHEO-DAN SINGH v. MOHAN LAL GAUTAM, 38 E.L.R. 242.
5. 123(4)—Words like "Dhokhebaj", "treachery", "Deception","Fraud", "dishonesty" etc. whether attracts section 123(4)—whether thesewords relate to the personal character or conduct of a person.
HELD : Words like "Dhokhebaj", treachery", "Deception", "fraud""dishonesty" etc. used in the impunged pamphlet, Ex. 3 (a) referred to thealleged betrayal by the petitioner of the Jharkhand Party and thus to hispublic and political character or conduct. The alleged offending words andexpressions did not relate to the personal character or conduct of the peti-tioner. The man beneath the politician had not been attacked at all. Theissuance of the impunged pamphlet could not be held to have prejudiciallyaffected the prospects of the petitioner's election and it did not attract Sec-tion 123(4) of the Act.
Kultar Singh v. Mukhtiar Singh, A.I.R. 1965, S.C. 141; Maganlal v.Hari Vishnu Kamath, 15 E.L.R. 205; Inder Lai v. Lai Singh and others,A.I.R. 1963, S.C. 1156; Sheopal Singh v. Ram Pratap, A.I.R. 1965, S.C.677; Kumaranand v. Brij Mohan Lai Sharma, A.I.R. 1957, S.C. 808;Jadunandan Mahton v. Mosaheb Singh and others, Indian Election Caseby Sen and Podar 1951, Edition 641; Thakur Udaya Cir v. Arjuna, (Ham-mond, Page 326); Mehta Govardhan Das v. Girdhar Lai, 7 E.L.R. 374;referred to : HARISH CHANDRA DEOGAM v. BAGUN SUMBRUI,38, E.L.R. 305.
—S. 123(4)—corrupt Practice—Publication of pamphlets containingfalse statements attacking personal conduct and character of petitioner—proof of Authorship of pamphlets—whether necessary—burden of proof.
HELD : When the distribution of the impunged pamphlets by the res-pondent, his election agents and workers attacking the personal conductand character of the petitioner had been proved, it was not necessary toprove the authorship of those pamphlets and the respondents was respon-sible for the statements contained in the pamphlets, which attracted Section123(4) of the Act.
Nani Gopal Swami v. Abdul Hamid Qhowdhary and another A.I.R. 1959,Assam 200; Maganlal Radhakrishan Bagdi v. Hari Vishnu Kamath, A.I.R.1960, M.P. 362; Chunilal Kan v. Radhacharan Sharma and others, 21E.L.R. 320 ; Brish Misra v. Ramnat Sharma, 17 E.L.R. 243 ; Kataria Takan-das v. Pinto Frederic Michael, 18 E.L.R. 457; referred to. BIRENDRACHANDRA DUTTA v. J. K. CHOWDHRY, 38, E.L.R. 381.
97
—S. 123(4)—Winning candidate's supporter spreading false statementregarding candidature of petitioner on eve of election—if acting as his agentor with his consent within S. 123.
The petitioner appellant, who was a candidate of the Congress partyfor election to the Maharashtra Legislative Assembly from Sangola cons-tituency in February 1967, was defeated in the election by a narrow marginby the respondent, a candidate supported by the Sampoorna MaharashtraSamiti. The appellant challenged the respondent's election by a petitionmainly on the ground that the respondent had committed a corrupt practicewithin the meaning of S. 123(4) of the Act, by spreading on the eve ofpolling day, a false statement in an alleged circular letter from the PradeshCongress Committee to the effect that the Congress Party had withdrawnits support of the candidature of the appellant. It was alleged in the peti-tion that this was done, inter alia, by the display of a blackboard, containingthe matter complained of in the circular letter, outside the shop of one S,a staunch supporter of the respondent. It was claimed that this spreading offalse statements regarding the candidature of the appellant materially affect-ed the result of the election because except for the false statements the appe-llant would have secured more votes than the respondent. The High Courtdismissed the petition. On appeal to the Supreme Court.
HELD : Dismissing the appeal.
Although the evidence taken as a whole established that the blackboardcontaining the objectionable matter about the appellant was displayed out-side the shop belonging to S. it was not shown that S was an agent of therespondent or was acting with his consent within the meaning of S 123 (4V
Although there was evidence to show that S was a supporter of the res-pondent, but that by itself would not make him an agent of the respondentwithin the meaning of S. 123 BABUSAHEB BHIMRAO SALUNKHE v.GANPATRAO ANNASHEB DESHMUKH (S.C.) 39 E.L.R. 225.
—5. 123(4)—Corrupt Practice—allegations against personal characterand conduct—s. 123(4).
The petitioner challenged the election of respondent No. 1 on theground that the election of the respondent was vitiated by corrupt prac-tices committed by him and his agent with his consent. It was allegedthat the respondent and his agents with his consent published a pamphletin relation to the personal character and conduct of the petitioner.
HELD : The burden of proof is on an election petitioner unders. 123(4) to show that a statement of fact was published by a candidate orhis agent or by any other person with the consent of the candidate or his4EC/74—10
98
election agent and also to show that the statement was false and related tohis personal character or conduct. Once that is proved and the complain-ing candidate has sworn that the candidate publishing the statement believ-ed it to be false or did not believe it to be true, the burden shifts to thecandidate making the false statement of fact to show what his belief was.The further question as to prejudice to the prospects of election is generallya matter of inference to be arrived at by the Court on the facts and circum-stances of each case.
Kumara Nand vs. Brij Mohan Lai Sharma, A.I.R. 1967 S.C. 80S;relied on.
(On the evidence the Court held that the allegation of corrupt practicewas not proved).
GJRINDRA NATH GOGOI v. PROMODE CHANDRA GOGOI ANDOTHERS, 39 E.L.R. 319.
S. 123(4)—Object of section—orrupt practice as defined in section,ingredients of,
Upon the first respondent, who was a defeated candidate, challengingthe appellant's election to the Maharashtra Legislative Assembly in 1967.the High Court held that the appellant had made false statements about thepersonal character and conduct of the first respondent and was guilty ofcorrupt practice within the meaning of s. 123(4) of the Act. The HighCourt therefore set aside the election of the appellant. Allowing an appealto the Supreme Court.
HELD: (i) The election law in this country as in England guarantees free-dom of criticism of a political nature at the time of election. The freedomof criticism may sometimes be misused, but the advantage gained from freecriticism—though sometimes it may turn out to be irresponsible—in the longran, outweighs the disadvantages. It is in the interests of democracy thatsuch criticism should be allowed. However, democracy will be a farce ifinterested persons are allowed to freely indulge in character assassinationduring election. A political party may not be affected by passing winds buta campaign of slander against an individual is likely to create prejudice inthe mind of the people against him. Section 123(4) is designed to achievethe dual purpose of protecting freedom of speech and prevention of mali-cious attack on the personal character and conduct of rivals.
The ingredients of the corrupt practice mentioned in s. 123(4) are (1)the publication by a candidate or his election agent or by any other personwith the consent of that candidate or his election agent of any statement offact; (2) which statement is false and which was believed by the candidate
99
to be false or at any rate was not believed by him to be true; (3) the saidstatement relates to the personal character or conduct of a candidate or isin relation to his candidature or withdrawal; and (4) the same being astatement reasonably calculated to prejudice the prospects of that candi-date's election. The burden of proving every one of the ingredients of thecorrupt practice alleged is on him who alleges it.
Every false allegation does not come within the mischief of s. 123(4).The language of the section is 'any statement of fact which is false' and thatlanguage must be used in contrast to a false statement of opinion. The state-ment in question must be in relation to the personal character of candidate.It is when the false allegation pierces the politician and touches the personof the candidate that s. 123(4) is contravened. Further one of the ingre-dients of the corrupt practice under the section is that the statement com-plained of must be one reasonably calculated to prejudice the prospects of theelection of the person against whom it is made. 'Calculated' means design-ed: It denotes more than mere likelihood and imports a design to affectvotes. The emphasis in the last limb of the section is not so much on theintention of the publisher but on the probable effect on the election of thecandidate against whom those statements are directed.
(ii) In the present case the statements alleged to have been made by theappellant did not amount to corrupt practice within the meaning of s. 123(4)as they amounted either to fair political criticism or were mere expressionsof opinion. The complaint that the appellant had stated that the respondenthad a share in the profit earned by a contractor is neither alleged in theelection petition nor satisfactorily proved, v. M. C. Anjaneya Reddy andOthers. XXII E.L.R. 261 at p, 266 and Dattatraya Narayan Patil v. Datta-traya Khenvikar and Others A.I.R. 1964 Bom. 244. relied on
Sheopat Singh v. Ram Pratap, (1965) 1 S.C.R.; 175 T. K. Gangi Reddyv. M. V. Anjaneya Readdy and Others, XXII E.L.R. 261 at p. 266 Datta-traya Narayan Patil v. Dattatraya Khenvikar and Others, A.I.R. 1964 Bom.244; relied on.
Cumberland {Cokermouth Division) Case (1901) 5 O'M & H p. 155 :referred to. GURUJI SHRIHAR BALIRAM JIVATODE v. VITHALRAOAND OTHERS, (S.C.) 40 E.L.R. 189.
—S. 123(4)—Corrupt practice—Publications derogatory of the personalcharacter of a candidate—what amounts to corrupt practice—whether moreknowledge of the publications would make one liable.
HELD : Mere knowledge of some prejudicial matter having been pub-lished is not enough to make the candidate liable for the same. It must be
100
established beyond^all reasonable doubt, that such a matter was issued bythe respondent or with his consent. The direct evidence and the circum-stances surrounding the whole thing in this published either by the respon-dent or at least with his consent and as these contained case lead only to oneirresistible conclusion ; that the writing in question were allegations relatingto the personal conduct and character of the petitioner and were of a typewhich were likely to further the prospect of the respondent and to preju-dice the prospects of the petitioner, the respondent was guilty of corruptpractice as defined in sub-section (4) of Section 123 of the Act.
HARDWARI LAL v. PRATAP SINGH, 41 E.L.R. 58.
—5. 123(4), corrupt practice—publications derogatory of the personalcharacter of a candidate—no direct or circumstantial evidence to showcomplicity of the elected candidate—whether election vitiated—
The appellant, the successful candidate, filed the present appeal againstthe order of the trial court setting aside his election on the ground that hehad committed various corrupt practices. In the election petition filed by therespondent, it was alleged that : With the consent of the appellant,statements of fact which were false and which he did not believe to be truein relation to the personal character and conduct of Respondent No. 2, werepublished in papers and the same were distributed at his instance.
HELD : There was no direct evidence to show that the alleged pub-lication were made at the instance of the appellant. The circumstantial evi-dence relied on by the respondent did not conclusively establish that thepublications were with the appellant's consent. The omission on the partof the appellant to raise any objection regarding the publication did notestablish his consent. Similarly, the evidence as to the distribution of thepapers at the appellant's instance was not convincing. DALCHAND JATNv. NARAYAN SHANKAR TRIVEDI, 41 E.L.R. (S.C.) 163.
5 . 100(7) (d) (/) and 123(4)—Difference in requirements of—-Necessity of proof candidate's consent to specific corrupt practice—know-ledge, if sufficient proof of consent—statements in newspapers, weight of—requirements of proof that result of election was materially affected—burdenof proof.
HELP : To bring a case under s. 100(1) (d) (ii) it is not sufficientto prove that a person acted as an agent with the consent of the candidate.The petitioner must establish that the conditions required by s. (100) (1)(d)(ii) and s. 123(4) are satisfied, that is : (a) that a false statement wasmade by an agent, (b) that the first respondent did not believe the state-ment to be true or believed it to be false; (c) that it related to the personalcharacter and conduct of the second respondent; (d) that it was reasonably
101
calculated to harm the chance of the second respondent and (e) that It infact materially affected the result of the election in so far as the first res-pondent was concerned.
Conditions (a), (b) and (c) were admitted by the first respondent andsince the articles cast violent aspersions on the second respondent and show-ed a deliberate attempt to lower his character, condition (d) was also satis-fied. But as condition (e) was not satisfied the election petition had to bedismissed.
Even after considering the nature of attacks made on the second res-pondent the frequency and extent of publicity, the medium of circulationand the kinds of issues raised before the voters it could not be said in thecircumstances of this case that the result of the election in so far as the firstrespondent was concerned was materially affected. The matter could not bedecided on possibilities or on a reasonable judicial guess, because the lawrequires proof, and though s. 100(1) (d) casts a difficult burden on theelection petitioner, that burden must be successfully discharged by him.
There was a large difference (about 30,000) between the votes receivedby the two rival candidates, namely the first and second respondents and asmany as 38,565 votes were cast in favour of the remaining candidates; it isimpossible to say how much the second respondent lost or first respondentgained by reason of the false statements.
Vashisht Narain Sharma v. Deochandra (1955) 1 SCR. 509—SurendraNath Khosla v. Dilip Singh (1957) S.C.R. 179 and Inayatullah v. Diwan-chand Mahajan 15 E.L.R. 219, 235, 236 followed Hackney's case. 2O'Malley and Hardcastle 77, referred to- SAMANT N. BALAKRISHNAETC. v. GEORGE FERNANDEZ AND OTHERS (S.C.) 41 E.L.R. 260.
S. 123(4),—Corrupt practices—Burden of proof—bribery—publi-cation of false statement—consent of candidate can be inferred under S. 77.
HELD : It was proved that Mahakoshal, the Hindi Daily in which thealleged false statements were published and S. its editor, printer and publisherwere the agents of the respondent within the meaning of s. 123 of the Act.It was proved that the statements related to the personal character and con- .duct of the petitioner; that all the statements were false and that the respon-dent did not believe any of them to be true. These false statements were pub-lished with the consent of the respondent.
The question of consent is one of fact and it is to be decidedin each case on its facts and circumstances; the circumstancesin their entirety have to be kept in view. It is the overallpicture of the case which presents itself and not isolated facts, which
102
will guide the court to reach the conclusion, in the present case thecumulative effect of the respondent's closeness with the Mahakoshal andpersonal association with S. and the setting in which the false statementswere published one after another and the respondent not contradicting nordissociating himself from them, were sufficient to persuade the court to holdthese false statements were published with the consent of the respondent.But on all the issues of the Hindi Daily there was printed the name ofanother editor also. He may have in his own enthusiasm published thesefalse statements. (The Court therefore gave the benefit of doubt to therespondent "though not without much hesitation").
Vashisht Narain Sharma v. Deochandra, 1955 1 S.C.R. 509; SamantBalakrishna v. George Fernandez, (41 E.L.R. 260(S.C); Sheopat Singh v.Harish Chandra, A.I.R. 1960 S.C. 1217; Jagdev Singh v. Rana Pratap, 19646 S.C.R. 750; Ramakrishna v. Jai Singh C.A. 1949 of 1967 dated April 23,1968 (S.C.); Dr. Chenna Reddy v. Ramachandra Rao, 40 E.L.R. 390(S.C.)Guruji Sri V. Vithalrao, 40 E.L.R. 189 (S.C.); Sudhir Hendre v. ShripatDange, 17 E.L-R. 373 Mohan Singh v. Banwarlal A.T.R. 1964 S.C. 1361.Sheopat Singh v. Harischandra, A.I.R. 1960 SC. 1217; referred to.KAMAL NARAYAN SHARMA v. D. P. MISHRA, 41 E.L.R. 369.
S. 123(4)—poster containing allegations of smuggling against candi-date—reference to Candidate as an obnoxious person—whether allegationsin relation to the personal character and conduct of candidate—EvidenceAct s. 45—Expert evidence— Court must assess and form its own conclu-sions.
The appellant challenged the first respondent's election to the Assemblyin the mid-term poll in May 1968, alleging, inter alia, (1) that the firstrespondent had a poster Exhibit P.W. 1/1 containing statements againstthe personal character of the appellant printed and circulated; this consli-tuted a corrupt practice within the meaning of s. 123(4); (2) that thereligious head of the Namdhari sect issued an appeal and a farman infavour of the first respondent and therefore the provisions of s. 123(2)were attracted; (3) that the first respondent was guilty of the corrupt prac-tice of bribery under s. 123(1) having given Rs. 20,000 in cash to oneof the candidates to contest the election. The petition was dismissed bythe High Court. In appeal the Supreme Court found that the allegationsof corrupt practices under s. 123(1) and (2) were not proved on theevidence on record, but allowing the petition on the view that a corruptpractice within the meaning of s. 123(4) had been committed.
HELD : The evidence in the present case established—first thatExhibit P.W. 1/1 was published ; secondly, that respondent No. 1 got theposter printed and published, thirdly that the statement in it to the effect
103
that the appellant was indulging in smuggling and was an obnoxious personwas in relation to the personal character and conduct of the appellant;fourthly, that the statement was false, and fifthly that the same was calcu-lated to prejudice the prospects of the appellant's election. OM PRAKASHv. LALCHAND AND ANOTHER (S.C.), 42 E.L.R. 336.
—S. 123(4)—Allegations against "personal character and conduct".—Scope of Expression.
The appellant challenged the first respondent's election to the Lok Sabhaon the ground that the respondent committed various corrupt practices withinthe meaning of section 123(2), (3), (3A) and (4). The High Court foundthat the corrupt practices were not established on the evidence and rejectedthe Petition. Dismissing an appeal to the Supreme Court.
HELD : The High Court had rightly found that none of the corruptpractices alleged were established. The provisions contained in sub-s. (4) ofs. 123 are contravened when "any false allegation of fact pierces the politicianand touches the person of the candidate". It is personal character andconduct of the candidate which is to be protected from malicious or falseattacks. The words "personal character and conduct" are to be equatedwith mental or moral nature and the word "conduct" connotes a person'sactions and behaviour. The statement in question has to be first a falsestatement bearing on the personal character and conduct of the candidateand secondly, it must be one which is reasonably calculated to prejudicethe prospects of the election of the person.
I.K. Gangi Reddy v. M. C. Anjaneya Reddy, (1965) S.C.R. 175; re-ferred to.
In reading a document in relation to elections it would be unrealistic forthe Court to ignore that when appeals are made by candidates there is anelement of partisan feeling and there is extravagance of expression in attack-ing one another; and it would be unreasonable to ignore the question as towhat the effect of the pamphlet would be on the mind of the ordinary voterwho reads the pamphlet. ; '
Kuitar Singh v. Mukhtiar Singh (1964) 7 S.CR. 790; referred to.MAURYA B. P. v. PRAKASH V1R SHASTRI AND OTHERS ( S O42 E.L.R. 342.
CORRUPT PRACTICE—(5. STANDARD OF PROOF)
—Standard of proof—Election Law—Requirement of.
HELD : As charges of corrupt practices are quasi-criminal in character,the allegations should be sufficiently clear and precise to bring home the
104
charges to the candidate and the statutory requirements of the Election Lawmust be strictly observed.
Jagannath v. Jaswant Singh, 9 E.L.R. 231; Harish Chandra v. TrilokSingh, 12 E.L.R. 461; Gangadhar Maithani v. Narendra Singh Bhandari,18 E.L.R. 124 Balwant Rai Tayal v. Bishan Saroop. 17 E.L.R. 101; BireshMisra v. Ram Nath Sharma, 17 E.L.R. 243 and Hariram Singh Thakur v.Kamta Prasaa Sharma, 1966 M.P.L.J. 77; referred to. NIRANJAN LALSHARMA v. RAMKUMAR AGARWAL & ORS., 33 E.L.R. 244.
—Burden and standard of proof.
HELD : The parties are required to plead as in civil case and to leadevidence likewise but in the matter of proof of corrupt practice which isregarded as a sort of criminal charge, the trial may be likened to a criminaltrial and the burden of proof and the standard of proof as required in acriminal trial is insisted upon.
Nani Gopal Swami v. Abdul Hamid Chaudhry, 19 E.L.R. 175; referredto. DR. POHU MAL v. BHAGWANDAS SHASTRI, 33 E.L.R. 264.
"—Any other person" in Section 101(7) (ft),—Scope of—Burden of'proof.
HELD : An agent other than an election agent does not figurealthough he may be included in the expression "any other person",but in that case the petitioner is required to prove the commission of acorrupt practice with the consent of the candidate under Section 100(1) (b);where there is no suggestion or proof that the respondent had knowledge ofthe contents of the paper alleged to have been distributed by the editorand that he consented to such distribution, the responsibility of the respon-dent for such distribution cannot be said to have been established.
Sheopat Singh v. Harishchandra, A.I.R. 1958 Rajasthan 324; BadriNarain Singh and others v. Kamdeo Prasad Singh and another, 21 E.L.R. 64;and Kumaran v. Brijmohanlal, E.L.R. 15 Rajasthan 322; referred to. DR.POHU MAL v. BHAGWANDAS SHASHTRI, 33 E.L.R. 264.
—Corrupt Practice—Burden of proof—tainted evidence of persons whoare in the nature of accomplices—Whether corroboration of evidence necea-sary.
HELD : Since a finding of guilt in respect of a corrupt practice underSection 123 entails serious civic disabilities the standard of proof is as highas in a criminal case and the charge must be proved beyond reasonabledoubt and not merely by a balance of probabilities as in a civil case. la
105
dealing with corrupt practices, as a rule of prudence, the tainted evidenceof persons who are in the nature of accomplices should not normally beacted upon unless it is corroborated in material particulars by some in-dependent evidence of a direct or circumstantial nature.
Jagdev Singh v. Ptaiap Singh A.I.R. 1964 S.C. 133 at 188, C. SubbaRao v. K. Brahmananda Reddy, (1966) II. An. W. 401 at 409, GurunathReddy v. Seshaiah A.I.R. 1966 A.P. 331 at 333 and Raja Raj Dev. v.Gangadhar Mohapatra A.I.R. 2964 Orissa; referred to. SHANTA BAITALPALIKAR v. D. GOPALA REDDY AND OTHERS, 34 E.L-R.195.
—Corrupt practice—charges of—Nature of Election Petition—Merestatutory proceeding.
HELD : The petitioner had not proved any of the corrupt practices.
The charges of corrupt practices are criminal in character and theallegations relating thereto must be sufficiently clear and precise to bringhome the charges to the candidate. The success of a candidate who haswon at the election should not be lightly interfered with and any petitionseeking such an interference must conform to the requirements of law; oneof the essentials of the election law is also to safeguard the purity of theelection process and to see that people do not get elected by corrupt practices.The statutory requirements of the election law must he strictly observed andan election contest is not an election at law or a suit in equity but is purelya statutory proceeding unknown to the common law and the court poss-es no common law powers.
Jagannath v. Jaswant Singh, 9 E.L.R. 231; Harish Chandra v. TrilokSingh, 12 E.L.R. 461; referred to. MOHAN v. ARJUN SINGH, 36 E.L.R.267.
—S. 123—Allegations of Corrupt Practice—Nature of Proof required :
HELD : It has been repeatedly held that charges of corrupt practices arequasi-criminal in nature and the allegations relating thereto must be suffi-ciently clear and precise to bring home the charges to the persons accusedof indulging in corrupt practices. Naturally, the evidence which is requiredfor the purpose must also be clear, cogent and convincing. In order tosucceed, the election petitioner must prove his allegations of corrupt prac-tices in both its branches, namely (i) the commission of the acts which thelaw regards as corrupt and (ii) the responsibility therefor of the success-ful candidate, either directly or through his agents or with his consent.Both these requirements must be proved not by mere preponderence of
106
probability, but by cogent and reliable evidence beyond any reasonabledoubt, otherwise the election petition must fail.
Dr. Jagjit Singh v. Giani Kartar Singh & Ors. AIR 1966 S.C. 773 andJagdev Singh Sidhanti v. Pratap Singh Daulta & Ors. AIR 1965 S.C. 181;referred to. SRI JANAK SINHA v. MAHANT RAM KISHAN DAS,37 E.L.R. 151.
—S. 123, Cls. I, 2, 2(a), 3 3A, 5, 6 & 7—Election Petition—burdenof proof—appreciation of oral evidence—guiding principles—Representa-tion of the People Act, S. 123, Cls. 1, 2, 2(a), 3, 3A, 5, 6 and 1—allega-tions of corrupt practice—proof of.
The petitioner challenged the election of the first respondent to theAndhra Pradesh Legislative Assembly from the Tandur Assembly consti-tuency at the general elections held in February 1967. The Election waschallenged, among others, on, the ground that the first respondent commit-ted various acts, by himself and through his agents, which constitutedcorrupt practice within the meaning of S. 123 Cls. 1,; 2, 3, 3A, 5, 6 and 7;it was contended that the election of the first respondent should thereforebe declared void.
HELD : The election of the first respondent, the returned candidate, wasvitiated by corrupt practices and his election must therefore be held to bevoid. It was established on the evidence that corrupt practices were com-mitted by the first respondent or by others with the consent through offersof gratification to induce electors to vote for the first respondent; exerciseof undue influence, the making of an appeal to voters on the ground ofreligion, promotion of enmity and hatred between different classes on thebasis of religion, and incurring of election expenditure in excess of theprescribed limit.
The general rule is well settled that the statutory requirements of elec-tion Law must be strictly observed and that an election contest is not anaction at law or a suit in equity but is a purely statutory proceeding un-known to common law and that the court possesses no common law power.It is also well settled that it is a sound principle of natural justice that thesuccess of a candidate who has won an election should not be lightly inter-fered with and any petition seeking such interference must strictly conformto the requirements of the law.
Jagannath v. Jaswant Singh, A.I.R. 1954 S.C. 210; referred to;
In the trial of an election petition, the burden of proving corrupt prac-tices by the candidate or his agents lies heavily upon the petitioner andunless it is established in both its branches i.e. the commission of acts
107
which the law regards as corrupt and the responsibility of the successfulcandidate directly or through his agents or with his consent for its practice,not by mere preponderance of probability, but by cogent and reliable evi-dence beyond any reasonable doubt, the petition must fail.
Jagdev Singh v. Pratap Singh A.I.R. 1965 S.C. 183, referred to. RAMA-CHANDRA RAO v. (1) M. CHENNA REDDY (2) SIDDARAMAPA,37 E.L.R. 269.
—Corrupt Practices—Nature and Standard of Proof required-
HELD : Charges of corrupt practice arc quasi criminal in character andallegations relating thereto must be sufficiently clear and precise to bringhome the charges to the candidates. Furthermore, the standard of proofrequired is the standard applicable to criminal cases, i.e., the corrupt prac-tice must be proved beyond any reasonable doubt.
Harish Chandra Bajpai v. Tirlok Singh, 12 E.L.R. 461 and Bri] Bhu-shan and Am. v. Raja Anand Brahma, Shah and Ors- 22 E.L.R. 225; re-ferred to. DURGA PRASAD v. JAYENDRA SINGH AND OTHERS,39 E.L.R. 1.
Corrupt practice—Nature of proof required.
In his election petition the first respondent alleged that the appellant thereturned candidate and his agents with his consent published or distributedfalse statements in relation to the personal character and conduct of the res-pondent. The High Court held that the defamatory matter was publishedby the appellant's counting agent with the consent of the appellant and conse-quently set aside the election. Allowing the appeal to the Supreme Court.
HELD : The evidence adduced did not lead to the conclusion thatthe publishing of the defamatory matter was with the consent of the appel-lant or even to his knowledge.
The person seeking to establish commission of a corrupt practiceagainst a candidate must bring the court unimpeachable evidence whichwould justify the court in coming to the conclusion that a charge ofcorrupt practice had been proved in such a way that there could be noreasonable doubt about the commission thereof in the mind of a,ny person.
Speaking generally, the evidence of a witness deposing to the fact ofdistribution of defamatory matter contained in a leaflet not publishedby the candidate would require some corroboration. In this case onlyfour witnesses were examined to speak about the distribution of theoffending publication at four different places. The learned trial judge had
108
discarded the evidence of three but accepted the evidence of one asbeing sufficient in this opinion to establish the charge. SOMCHANDMANUBHAI SOLANKI v. KARSONDAS UKABHAI PARMAR ANDANOTHER (S.C.), 39 E.L.R. 344.
—Corrupt practice—Nature of evidence required to prove—Evidenceof witnesses in the nature of accomplices. S. 123(1)—Bribery—If evidencetendered proved allegations of bribes for votes.
The respondent, the defeated candidate, challenged the appellant'selection to the Orissa Legislative Assembly on the ground inter alia thathe had offered bribes to secure certain votes for himself. Although theappellant filed a written statement contesting the allegations, he was notpresent when the only two witness for the respondent gave evidence insupport of the allegation of bribery and he did not therefore cross-exa-mine them. The High Court accepted the evidence of these witnessesand set aside the appellant's election.
Allowing the appeal to the Supreme Court.
HELD : The evidence of the two witnesses was not of such a kind asshould have been accepted by the High Court. This was a case in whichthe High Court should have used its power under the Evidence Act(Section 165) to put question to the witness to find out the truth or fal-sity of the allegations. In the present case the evidence was of accomp-lices who took bribes to vote and might well come forward to give evi-dence on receiving a similar fee. There was nothing by way of corrobo-ration to enable the Court to hold that they were telling the truth. ANANTRAM MAJHI v. KOLAKA NTLA KANTHAM (S.C.), 39 E.L.R. 359.
—S. 123—Corrupt practice—-proof of—High Court cannot rely on ir-regularities in respondent's evidence to prove petitioner's case.
HELD : The High Court went wrong in accepting the case of electionpetitioner merely because it found that the evidence adduced on behalf ofthe respondent in the election petition suffered from many defects and thatthere were many contradictions in the testimony of the witnesses. The chargeof corrupt practice is in the nature of a criminal charge and must be estab-lished by cogent and reliable evidence without any reasonable doubt relat-ing thereto. It cannot be held proved on a consideration of the probabilitiesof the case. In this case the evidence fell short of the standard of proofrequired. ONKAR! SINGH v. GHASIRAM MAJHI (S.C), E.L.R. 477.
—S. 123(4)—Corrupt Practice—Burden of Proof—
109
HELD : (i) The charges of corrupt practice are of a nature requiringthe same standard of proof as in criminal cases. Election cases are notto be settled by preponderance of probability.
Jagdev Singh Sidhanti v. Pratap Singh Daulta, A.I.R. 1955 S.C. 183and Rulya Ram v. Chaudhuri Multan Singh, A.I.R. 1960 Punjab 45;referred to.
(ii) The petitioner has not proved that the poster containing falsestatements regarding his personal character and conduct was published bythe first respondent or his agent. OM PRAKASH v. LALCHAND ANDOTHERS, 40 E.L.R. 203.
•—Corrupt practice—Appeal in the name of Muslim. Religion—Sloganshave to be viewed in the context of the Speeches—SEE CORRUPT
PRACTICE—APPEAL OF GROUNDS OF RELIGION ETC.—GHULAM HASSANKHAN v. SHAMIM AHMAD SHAM1M AND OTHERS, 40 E.L.R. 318.
—Burden of Proof—Assessment of evidence in election trials—Failureof a candidate to lead evidence which was available to rebut the allega-tions-—effect of—whether adverse inference can be drawn against thecandidate—SEE CORRUPT PRACTICE—APPEAL OF GROUND OF RELIGION
ETC.—CHENNA REDDY M. v. V. RAMACHANDRA RAO ANDANOTHER (S.C.), 40 E.L.R. 390.
CORRUPT PRACTICE—(6. HIRING OR PROCURING VEHICLES)
—Hiring or procuring vehicles for conveying votes—S. 123(5)—CorruptPractice—Burden of proof—Tainted evidence of persons who are in thenature of accomplices—Whether corroboration of evidence necessary.
HELD :The election of the first respondent must be set aside. Itwas established on the evidence that the first respondent had hired a busfor the conveyance of voters to the polling station; and that promises ofpayment were made by him to voters if they would travel to the pollingstation and vote for him- SHANTA BAI TALPALIKAR v- D. GOP ALAREDDY AND OTHERS, 34 E.L.R. 195.
•—SS. 123(5)^ 77—Vehicles—Wear and tear of—// should be includedas election expenses—Section 123 (5)—Candidate using his own vehiclenot corrupt practice.
HELD : The wear and tear of one's own vehicle is not an expense "in-curred" and is not be included in the Return of Expenses. HIRA SINGHPAL v. MADAN LAL, 35 E.L.R. 123.
110
—Section 123(5)—Candidate using his own vehicle not corrupt practice.The petitioner alleged that the respondent was also guilty of corrupt
practice within the meaning of s. 123(5) inasmuch as he procured vehiclesto convey the voters to and from the polling stations.
HELD : If the respondent carried voters to the polling station in his/>wn jeep, it would not be a corrupt practice as contemplated by sub-section(5) of section 123 of the Act. SURINDER NATH GAUTAM v. VIDYASAGAR JOSHI, 35. E.L.R. 129.
—S. 123(5)— Transport, hiring of when Corrupt Practice.
HELD : Mere hiring of a bus is not an offence; besides proving that thebus Was hired for conveying voters it has to be shown, in view of theamendment of s. 123(5) by Act 47 of 1966, that the conveyance was used"free.
Balwant Singh v. Lakshmi Narain and Ors. A.I.R. 1960 S.C. 770 ; Md.Ansari v. M.R. Masani and others, 18 E.L.R. 160; Channa Byra Sowiav. S.R. Ramiah and Anr;, 20 E.L.R. 37; referred to HAOKHOLALTHANGJOM v. LALROKUNG AND ANOTHER, 37 E.L.R. 19-
—Corrupt practice—Burden of proof—Allegation against the respon-dent under Section 123(5)—Burden of proof :
HELD : Unless the petitioner is able to prove the requisite elements tojustify a finding that the election of the first respondent is void either underClause (b) or under Clause (d) (ii) of Section 100(1) of the Act, theplea of the petitioner should fail- Where the first respondent is chargedwiih a corrupt practice within the meaning of Section 123(5) or at hisinstance, which could fall within the scope of Clause (b( or Clause (d)(ii) of Section 100(1) of the Act, the petitioner has to prove by evidenceto the effect that such vehicles were hired or procured by the first respondentpersonally or by any of his agents with his consent. Further, it has to beproved what was the total number of voters who were so transported so asto give an indication of the fact that by reason of the commission of suchcorrupt practice, the result of the election was materially affected so far asthe first respondent was concerned.
Chandershwar Narain v. Basu Prasad, MJ.C. No. 36 of 1954, dated12th April, 1955, referred to. DASU SINHA v. RAM LAKHAN SINGHYADAV AND OTHERS, 38 E.L.R. 177.
—Scope of Section 123(5)—Badged volunteers of first respondent soli-citing votes—Whether attracts Section 123(5).
HELD : The liability of a candidate for corrupt practice committed byothers is to be gathered from the relevant provisions of Section 123(5) of
I l l
the Act. If a corrupt practice is committed by any person other than theelection agent, there must be consent of the returned candidate. Consenthas double significance in Election law : (1) Consent for the person toact as the agent and, (2) Consent to commit the corrupt practice. Con-sent need not be express consent. It may be by implication. It can beinferred from the conduct of the parties. It depends upon the facts andcircumstances of each case so that no hard and fast rule can be laid downwhich will conclusively prove agency.
The Boston Case, 2 O'M & H, 61 at 167; The Tamworth Case, I O'M& H, 75 at 81; The Blackburn Case, I O'M & H, 198 at 202; TheTanton Case, 1 O'M & H, 181 at 185; The North Norfolk Case, 7O'M&H 236; The Barnstople Case, 2 O'M & H, 105; The Burroughof Great Yarmouth Case, 5 O'M & H 176; The Bewdley Case,3 O'M & H 145; The Borough of Worcester Case, 4 O'M & H 154; TheHarwhich Case, 3 O'M & H 61; Bassappa v. Nagappa, 3 E.L.R. 197;Sudhir Laxman Hendre v. S. A. Dange) 17 E.L.R. 373; Saw Ganesan v.M. A. Muthiah Chettiar, 19 E.L.R. 16; Triloki Singh v. ShivrajwantiNehru, 16 E-L.R. 234; Dharanidhar Mohapatra v. Pradipata Kishore Das,17 E.L.R. 427; Bhagwan Datta v. Ram Ratangi, A.I.R. 1960, S-C. 200;Sarat Chandra v. Khagendranath, A.I.R. 1961, S.C. 334; Kataria Takandasv. Pinto Frederick Michael, 18 E.L.R. 403; Naunihal Singh v. Kishorilal,A.T.R. 1961. M.P.; Madhu Singh v. Ram Saran, A.I.R. 1966, Punjab 66;referred to. VASANTHA PAI G. v. R. M. SESHADRI AND OTHERS,38 E.L.R, 267.
—Corrupt Practice—Burden of proof—-Representation of the PeopleAct, 1951, S 123(5)— Allegation of carrying voters to polling in vehicles—if proved.
HELD : An appellant, when he questions a finding of fact will berequired to establish to the satisfaction of this court how that finding iserroneous. Although this court would reappraise the evidence if it is aquestion of the credibility of a witness depending upon the estimates of histruthfulness formed after observation of the witness by the court of trial,this Court will be slow to interfere unless there is something radically wrongwith the approach of the Trial Judge.
The acts constituting corrupt practice must be proved and establish-ed by direct evidence. In other words if a particular type of corruptpractice is pleaded and alleged, it must be established by clear and cogentevidence that the corrupt practice did in fact take place. The evidencemust be positive and definite.
112
Jagdev Singh Sidhanti vs. Pratap Singh Daulta, 1964 S.C.R. 750;Mohan Singh v. Banwarilal, 1964 S.C.R- 750; Mohan Singh v. Banvarilal1964 S.C.R. 12; referred to.
The case as presented by the election petitioner regarding the -hiringof the bus and carrying of voters to the polling station was rightly held tohave been proved in this case. GOP ALA REDDY D. v. S. BAI T A L P A -L1KAR AND OTHERS, (S.C.), 39 E.L.R. 305.
—S. 123(5)—Ingredients of the corrupt practice that must be proved.
HELD : Dismissing the appeal, S. 123(5) requires three things : (1)hiring or procuring of a vehicle; (2) by a candidate or his agent, etc. and(3) for the free conveyance of an elector.
In the present case there was proof that the vehicles were procured;there was also proof that particular vehicle was in fact used for the con-veyance of the three lady voters to the polling booth ; what was not provedwas that there was free conveyance of the ladies in that vehicle. The burdenof establishing this fact was on the appellant-petitioner and it was notimpossible of proof because the owner of the car or the driver or the ladiescould have been examined to show that the ladies had travelled freel in thevehicle. In the absence of this proof the ingredients of the section had notbeen established and there was therefore no room for interference with theHigh Court's decision though based on slightly different reasons. The HighCourt's finding that the ladies must have travelled free was a mere surmisebecause there was no evidence whatever on this part of the case. JOSHI-BHAI CHUNIBHAI PATEL v. ANWAR REG. A. MIRZA (S.C.)^.39E.L.R. 438.
—S. 123(5)—Employment of cars for conveyance of voters—// ade-quately pleaded and proved. Election law Trial—Judge calling witnesses andexaminining documents suo moto—if empowered to do so. Code of CivilProcedure O. XVI r. 14—Applicability and scope of.
HELD : Dismissing the appeal : On the facts, the High Court hadrightly found that many cars were employed for the conveyance of votersin the constituency. The circumstantial chain of evidence was sufficient toshow the connection between the appellant and the use of the cars for theconveyance of voters. The corrupt practice under s. 123(5) was there-fore brought home.
(i) The plea in the petition in essence was that cars were used for thepurpose of conveying voters contrary to the prohibition contained in theElection Law. The names of the booths and the divisions in which thebooths were situated together with the particulars of the cars and the persons
113
primarily concerned with cars at the polling-booths had been mentioned.The connection of the appellant with the use of the cars had been specificallypleaded. Sufficient particulars of the allegation had therefore been givenand the rest were matters of evidence which did not require to be pleaded.
(fi) The power of a Civil Court to summon court witnesses is con-tained in O. XVI r. 14 of the Code of Civil Procedure. The Representationof People Act enjoins that all the powers under the Code can be exercisedand all the procedure as far as may be applicable to the trial of civil suitsmay be followed in the trial of election petitions. The court trying an elec-tion petition therefore has the power to summon a court witness if it thinksthat the ends of justice require or that the case before it needs that kind ofevidence. The policy of election law seems to be that for the establishmentof purity of elections, investigation into all allegations of malpractices in-cluding corrupt practices at election should be thoroughly made. In thepresent, case a large number of cars were obviously used presumably for thepurpose of carrying voters to the booths. Tn the face of this voluminousevidence it was open to the Judge, if evidence was available to establishwho had procured or hired vehicles, to summon witnesses who could de-pose to the same. Such a power was therefore properly exercised by thelearned Judge.
(iii) In the present case it was not possible to reach the conclusion thatas the voters were brought to the polling booths in violation of s. 123(5)the result of the election had been materially affected. In a single trans-ferable vote, it is very difficult to say how the voting would have gone, be-cause if-- all the votes which the appellant had got, had gone to one of theother candidates who were eliminated at the earlier counts, those candi-dates could have won. The declaration of the respondent's electionwould be merely a guess or surmise as to the nature of the voting whichwould have taken place if the corrupt practice had not been perpetratedand the High Court's direction declaring him elected must therefore be setaside.
(iv) The appellant was properly named as guilty of corrupt practicealthough the order was incorporated by the learned Judge through a review.It was his duty to have named persons who had been guilty of corruptpractice and he made this up later. There is no need for any specific powerfor review since other power to name any person guilty of corrupt practiceis already contained in the Act. Whether it comes in the original Judgmentor by a supplementary or complementary order, is not much to the purpose;that order was correctly made. SESHADR1 R. M. v. G. VASANTHAPAI (S.C.),40E.L.R. 303.4EC/74—11
114
. CORRECT PRACTICE (7 INCURRING UNAUTHORISED EXPENSES).
[See also Election expenses]
—S. 77(1). 78, R. 86—Incurring or Authorising of expenditure incontravention of Sec. 77—Election expenses—return of—inclusion of itemsof printing, expenditure on impugned posters and letters—implication ofword "authorised" in Section 77(1) —
HELD : Allowing the Petition :
The expense of printing the impugned poster containing allegationsagainst the personal character of the petitioner, which were included in thereturn of the election expenses of the first Respondent, established that itwas published with the consent of the first Respondent and that the expensefor it was either incurred by him or authorised by him. The legislaturehas been careful enough not to use the word 'ratified' instead of "authoris-ed" in Section 77(1) of the Act. Authorisation precedes the incurring ofexpense whereas ratification is a subsequent event which validates an un-authorised expense. In view of the provisions of Section 77 read alongwith the provisions of Section 78 and Rule 86, the only conclusion possiblewas that the poster was published with the consent of the first Respondentand he cannot escape consequence that follows from the same.
JAI SINGH v. RAM KISHAN AND OTHERS, 34, E.L.R. 73.
—55. 123(l)(A)(a), 123(4), 123(3) and 123(7)—Corrupt Prac-tice—Taking of election expenses does not form corrupt practice—'gift' ifamounts to corrupt practice—Performance of Yagna whether CorruptPractice.
HELD, dismissing the petition : (i) Taking of election expenses doesnot form a corrupt practice. The words "gift, offer or promise by a can-didate or his agent or by any other person" clearly show that what is con-templated is the making of a gift. These words are wholly inappropriateto describe the acceptance of a gift. The words "with the object directlyor indirectly, of inducing" also indicates that only the making of a gift iscontemplated, for the object is of the person making the gift and not theperson accepting it. , In the instant case even if it is assumed that Rs. 400/-were paid as election expenses it does not in any way form a corruptpractice.
Adityan S. T. v. Kandaswamy & Ors., A.I.R. 1958 S.C. 857; referredto.
(ii) Performance of any Yagna or contributing to the expense for thesame is not any corrupt practice under the Act.
DEVIPRASAD v. MALURAM SbNGHANIA AND ORS, 35 E.L.R. 59.
115
•—Section 123 (6) and 77—Return of Expenses—Money paid as securityfor Congress ticket—Breach of condition—Forfeiture of money—^-If ex-penses "incurred"-—"Date of payment" or "date of forfeiture"—"Incurring",meaning of—Section 79 (b) Candidate, meaning—
The respondent, the returned candidate, paid on December 24, 1966 asum of Rs. 500/- as security to the Himachal Pradesh Congress Committeefor the allotment of a Congress Ticket. One of the conditions to which therespondent agreed was that the security deposit was to be forfeited if therespondent contested the election against the official candidate. On therespondent committing a breach of this condition the security deposit wasforfeited on February 6, 1967. The notification for the election was issuedon January 13, 1967, Polling took place on February 18, 1967 and theresult of the election was declared on February 22, 1967. In the returnof expenses filed by the respondent the amount shown was Rs. 1862.05.But if the Rs. 500/- forfeited by the Himachal Pradesh Congress wasincluded the total amount would exceed the Rs. 2000/- limit fixed forHimachal Pradesh.
HELD: The respondent committed the corrupt practice as contemplatedby sub-section (6) of section 123 and therefore the election of the res-pondent must be declared void.
(i) The respondent was a candidate within the meaning of s. 79 (b)of the Act on December 24, 1966 when he paid the amountto the Himachal Pradesh Congress Committee. Under thatsection the candidature commences when the person beginsto hold himself out as a prospective candidate.
Khadar Sheriff v. Munuswamy, A.I.R. 1955 S.C. 775; referred to,
(ii) The word "incurring" necessarily postulates a pecuniary liabi-lity on the candidate himself even though the expenses mayhave been authorised by the candidate or his election agentOne incurs expenditure when one actually spends money.One authorises expenditure when one incurs a pecuniaryliability.
Skeopat Singh v. Rarish Chandra, A.I.R. 1958 Raj. 324; Biresh Misrav. Ram Nath Sharma, A.I.R. 1959 Assam 139 and Muthiah Chettiar v.Ganesan,, A.I.R. 1960 Mad. 85; referred to.
The condition of not contesting election against the candidate put upby the Congress was violated irrevocably on January 23, 1967 when therespondent did not withdraw and in fact contested the election against the
fI6
Congress candidate. The forfeiture would come into effect only on orafter January 23, 1967 and not before. Therefore the amount of Rs. 500/-was incurred by him only when liability in respect thereof was incurredby him and that undoubtedly was on or after January 23, 1967.
(iii) The agreement or its consideration or object is not of such anature as to defeat the provisions of the Act. Nor is such anagreement opposed to public policy.
Prabhat Bank v.Babu Ram, A.I.R. 1966 All, 134; Lily White v- Hanu-mat, A.I.R. 1963 Mad. 13; Moolchand v. Relic Ram, A.I.R. 1963 Punjab516; Gharulal Prakash v. Mahadeodas, A.I.R. 1959 S.C 781; Amir Chandv. Sucheta Kriplani, 1966 XXI E.L.R. 286; referred to. SUR1NDER NATHGAUTAM v. VIDYA SAGAR JOSHI, 35 E.L.R. 129-
Representation of the People Act, 1951 ss. 123(6) and 77—CorruptPractice—Hiring of vehicle by Congress Committee—// could beconsidered as hiring by agent of candidate—Explanation to Sec-tion 1 23—Inclusive definition of "Agent" does not apply to cor-rupt practice contemplated by 123(6)—-Ingredients of theoffence.
HELD : Dismissing the petition, the hire charges were actually paid bythe Himachal Pradesh Congress Committee and not by the respondent.The respondent cannot be said to have incurred or authorised this expensewithin the meaning of Section 77 of the Act and, therefore, he did notcommit the corrupt practice contemplated by sub-section (6) of Section 123of the Act of not including the amount of hire of jeep in his return ofexpenses. The crucial fact that has to be determined while consideringwhether the corrupt practice contemplated by sub-section (6) of Section^23 of the Act has been committed by the returned candidate is whetherthe returned candidate incurred or authorised the expense which has notbeen included by him in his return of expenses. The explanation to Sec-tion 123 of the Act has no application to the facts of this case. The inclu-sive definition of an agent in clause (1) of the Explanation is for the pur-pose of s. 123 only. Sub-Section (6) of Section 123 does not contain theword "agent". Therefore the above inclusive definition of "agent" cannotapply to the corrupt practice contemplated by sub-section (6) of Section123. Section 77 talks only of the candidate or his election agent. So faras the present case is concerned the respondent would be guilty of thecorrupt practice contemplated by sub-section (6) of Section 123 only ifthe expenditure in connection with his election so far as the jeep is con-cerned was incurred or authorised by the respondent himslf. Authoritycannot be presumed from the mere fact of user and no evidence had been
117
produced which could conclusively show that the respondent had authorisedthe Himachal Pradesh Congress Committee to procure the jeep. The cor-rect position in law is that even if an expense has been undertaken by aperson other than the candidate, the ultimate liability in respect of suchexpenses must be of the candidate himself. Sadhu Ram v. Him Singh,C.O.P. 7 of 1967 dt. October 20, 1967 (Delhi); Rananjaya Singh v. Baij-nath Singh and others, A.F.R. 1954 S-C. 749; Sheopatsing v. Harish chandra,A.l.R. 1958 Raj. 324; Biresh MLsra v. Ram Nath Sharma, A.I.R. 1959.Assam 139; Muthiah Chetiiar v. Ganesan, A.I.R. 1960, Mad. 85; referredto-
HANSRAJ v. HARl RAM, 35 E.L.R. 172.
—Ss., 77, 123(6) Election expenses—Scope—Corrupt Practices—-
HELD : Reading sections 77 and 123(6) of the Act together if isclear that the expenditure must be incurred by the candidate or his elec-tion agent and in order to prove a corrupt ^practice an excessive expendi-ture must be incurred or authorised either by the candidate or his electionagent. It is not a corrupt practice if a third person incurs expenditurewhich is not authorised by the candidate or his election agent. Whena question is raised about the non-compliance with the provisions of theAct and the Rules made thereunder as regards s. 77 and s. 123(6) of theAct. for setting aside an election it is further required under s. 100(i)(d)(iv) of the Act to make an allegation and prove that the result of theelection has been materially affected by such non-compliance. The peti-tioner has made no such allegation and there is no such proof.
MOHAN v. ARJUN SINGH, 36 E.L.R. 267.
—Ss. 77, 123(6)—Scope of s. 77—Evidence—If may be adduced inthe absence of particulars of corrupt practice.
HELD: It is well settled that the gist of the corrupt practices contem-plated by Sec 123(6) of the Act is the proof of expenditure eitheractually incurred or authorised by the candidate. Though Sec. 77 of theAct provides for the keeping of separate and correct account of all electionexpenditure by a candidate, there is unfortunately no sanction against anyviolation of these provisions by a candidate. In other words, failure tomaintain a proper account or to vouch for the items of expenditure « notby itself a corrupt practice. What is required to be proved under the Actby the petitioner is that the successful candidate incurred or authorised acertain expenditure which was not shown in the return of expenses.
118
The object of a specific plea in an election petition is to give anopportunity to the respondent's counsel to meet the allegations therein.Every item of expenditure is not by itself an independent corrupt practice.The petitioner can, therefore, advance evidence even in the absence ofparticulars if there is no objection by the respondent.
Balwan Singh v. Lakshmy Narain (1960) 22, E.L.R 273 referred;
(OBITER—Suitable provision by Parliament—requiring a candidatewho is a Minister to relinquish his Office when his nomination is accepted,suggested).
RAMCHANDRA RAO V. v. (1) M. CHENNA REDDY (2) SIDDA-EAMPPA, 37 E.L.R. 369.
—Corrupt Practice—s. 123(6)—concerns third part of s. 77— contra-vention of—failure to keep separate and correct account-—-does notamount to corrupt practice.
HELD : Dismissing the petition.
(i) On the evidence, none of the corrupt practices alleged had beenproved.
(ii) On its plain terms section 123(6) concerns only the third part ofsection 77, viz., that the total of the expenditure incurred or authorisedshould not, in the case of an election to the U.P. Assembly, exceed thesum of Rs. 9,000/- and it does not make a contravention of the first twoparts of section 77, a corrupt practice. In other words, if a candidatedoes not keep a separate and correct account either by himself or hiselection agent of all the expenditure incurred or authorised by him inconnection with his election between the relevant dates, or if the accountdoes not contain such particulars as may be prescribed, he would nodoubt be committing a breach of the aforesaid statutory requirements,but the said breach would not amount to corrupt practice which wouldrender his election void, under section 100(1) (b) of the Act.
Sri Krishna V. Satyanarayan, (C.A. No. 1321 of 1961 decided by theSupreme Court on 22-3-1968); referred to.
DURGA PRASAD v. SRI JAYENDRA SINGH AND OTHERS, 39E.L.R. I.
—Corrupt Practice—irregularity in maintaining election expenses—whether corrupt practice within the meaning of section 123(6), read withsection 77(3).
119
HELD: Irregularity in maintaining the election expenses account cannotbe said to be a corrupt practice within the meaning of section 123(6) readwith section 77(3) of the Act
Prabhiidas v. Jorsand, 18 E.L.R. 110;
Ghayar All Khan v. Keshav Gupta, A.I.R. 1959, Allahabad 264;
Chander Sheikhar Singh v. Sarjoo Prasad Singh, A-I.R. 1961, Patna 89;
Lachman Singh Gill v. Bibi Harparkash Kaur, A.I.R. 1960, Punjab395;
Biresh Misra v. Ram Nath Sharma and another, A.I.R. 1959, Assam139;
Sheopat Singh v. Harish Chandra, A.I.R. 1958, Rajasthan 324;
Pandit K. C. Sliarma v. Election Tribunal Chatarpur and others, 15E.L.R. Ill;
Anjaneya Reddy v. Gangi Reddy and others; 21 E.L.R. 247;referred to.
MAHANT MAHADEVANAND GIRI v. AMBIKA SHARAN SINGHAND OTHERS, 39 E.L.R. 23. *
—Ss. 77 and 123(6) Corrupt Practice— Expenditure on running andmaintaining cars allegedly excluded from return of expenses—// allegationproved.
The appellant was elected from the Bavla Legislative AssemblyConstituency in February 1967. His election was challenged mainly onthe ground that the election expenses were falsely declared by him in hisreturn and exceeded the total of Rs. 8,000 allowed under the law. TheHigh Court allowed the petition and set aside the appellant's election.
On appeal to the Supreme Court,
HELD: allowing the appeal; that the item of expenditure on therunning and repairs of cars by the appellant which, if added to the elec-tion expenses, would lead to an excess over the prescribed limit, hadnot been proved on the evidence before the High Court. There was there-fore no ground for setting aside the election.
DEVJIBHAI SADABHAI PARMAR v. BECHARBHAI PARMABHAI(S.C.), 39 E.L.R. 457.
—Sections 77(3) and 123(6)—Corrupt practice.
120
The election of the first respondent was challenged on the main grounds(i) that in making his return of expenses he suppressed the hire chargesof a taxi and the amount spent on petrol and oil for running it and if:.thisamount were included in the return the expenses would go beyond theprescribed limit and therefore would amount to a corrupt practice unders. 123(6) read with s. 77(3) of the Representation of the People Act;and (ii) there was an appeal to religion, caste or community etp, incertain pamphlets. The High Court dismissed the election petition hold-ing that the charges brought against the respondent had not been proved.Dismissing the appeal to the Supreme Court;
HELD :—(i) It is difficult to disagree with the findings of the HighCourt that the evidence of the witnesses is inconclusive to hold that thetaxi was employed in election work by the returned candidate and theexpenses were suppressed by him from his return of expenses.
(ii) The law requires that the corrupt practice should be committedeither by the returned candidate or his election agent or by any. otherperson with the consent of the returned candidate or his election agent.There was no evidence whatever to establish this.
; \\<t. I ••'•• f , ' / . ! ' • • '••
JAGANNATH AND ANOTHER v. NARAYAN UTTAMRAO &ESH-MUKH AND ANR., 40 E.L.R. 16 (S.C.).
—Sections 77(3) and 123(6)—sum paid for seeking Party ticket—whether liable to be included in return of election expenses—"Expenditurein connection with election incurred or authorised"—meaning of.
The respondent challenged the appellant's election to the Himacha!Legislative Assembly on the ground that he had committed a corruptpractice under s. 123(6) of the Representation of People Act, 1951, bynot having included in his return of election expenses a sum deposited byhim in seeking a Congress ticket and fought the election against the offi-cial Congress Party candidate. It was claimed that if this sum was ittclud-ed, the respondent's election expenses would exceed the prescribedamount, thereby contravening s. 77(3) of the Act. The High Courtallowed the election petition. Dismissing an appeal to the Sunprcme Court.
HELD :—Section 77 as framed now departs in language from theearlier provision on the subject which was r. 117. The words "conductand management of election" are not as wide as the words "all expendi-ture in connection with election incurred or authorised by him" ^hichnow find a place in s. 77 with "election" and "incurred or authorised"."Expenditure" means the amount expended and "expended" means to pay
121
away, lay out or spend. It really represents as money out of pocket, agoing out. The amount paid away or paid out need not be all moneywhich a man spends on himself during this time. It is money "in con-nection with" his election. These words mean, not so much as "conse-quent upon" as "having to do with". All money laid out and having todo with the election is contemplated. But here again money which isliable to be refunded is not to be taken note of. The word "incurred"shows a finality. It has the sense of rendering oneself liable for theamount. T'he words are not equivalent to "conduct or management of anelection" and the expenses need not be for promotion of the interest of thecandidate. Therefore the section regards everything for which the candi-date has rendered himself liable and of which he is out of pocket inconnection with his election, that is to say having to do with his election.
In the present case, the appellant put out the money for his electionsince he was trying to obtain a Congress ticket. If he had got the ticketand the money was refunded to him this would not have counted as an
. expenditure since the expense would not have been incurred. When theappellant knowing that the money would be lost went on to stand as anIndependent Candidate* he was willing to let the money go and take achance independently. So the amount was an expenditure within themeaning of the section.
Haji Aziz and Abdul Shakoor Bros. v. Commissioner o] Income-taxBombay City, 1961 (2) S.C.R. 651.
VIDYA SAGAR JOSHl v. SURINDER NATH GAUTAM (S.C.),40, E.L.R. 29.
—Corrupt practice—Expenses—Omission to include in the return vari-ous items of expenses incurred in the election—when corrupt practice.
HELD: Even if the expenses shown in the petition which were foundomitted in the return submitted to the Election Commission were added tothe amount shown in his return as expended by the respondent in theelection the total would remain within the maximum laid down in section77 of the Act; as such it cannot be said that he had committed anycorrupt practice on that score. HARDWARI LAL v- PRATAP SINGH,41 E.L.R. 58.
—Election petition—Allegations of corrupt practice against the returnedcandidate under section 11 and 123(6) without raising such a plea in thepetition—evidence on the allegations whether can be considered by court.
122
HELD : The contention of the petitioner that the failure on the partof the returned candidate to maintain accounts in accordance with sub-section (1) and (2) of section 77 of the Act should itself lead 10 auinference that he had a motive to suppress or minimise the expenditure in-curred by him and such failure to maintain the accounts, would itself
afford substantial evidence that the returned candidate incurred expenditurein contravention of section 77(3), is not sustainable.
To treat the charge of exceeding the maximum expenditure undersection 77 differently from the corrupt practice under section 123(6), inregard to the burden of proof and the standard of proof, there are no goodreasons to depart from the well accepted principle that the charge ofcommission of corrupt practice by a candidate under the Election Law isin the nature of quasi-criminal charge, the onus of establishing a corruptpractice is undoubtedly on the person who sets it up.
On a charge against the first respondent for contravention of section77 and 123(6), the court cannot consider any evidence when such aplea was not put forward in the petition.
Gangi Reddy v. Anjaneya, Reddy, (1960) 22 E.L.R. 262 169 ;K. H. Paid v. K. P. Gadag and others, Misc. First Appeal No. 37
of 1965 (Mysore) ;Shambu Nath v. State of Ajmer, A.I.R. 1956 S.C. 404 at 406;Dr. M. Chenna Reddy v. Ramachandraa Rao and Anr. C.A. 1449
of 1968 (S. C ) .M/s. Chunilal Dwarkanalh v. Hartford Fire Insurance Co. Ltd.
and another A.I.R. 1958 Punjab 440 ;Karnidas Rarda and another v. Shiaji Kant a Mitra and another
A.I.R. 1940 Patna 685 ;Vela Pillai v. Paramandan A.I.R- 1954, Travancore Cochin 152
at 154 ;Jayalakshmi Devamma v. Janardhan Reddy, A.I.R. 1959 A. P. 272
at 274 ;Hate Singh v. State of Madhya Bharat, A.I.R. 1963 S.C. 468 at
470;Attamohammad Shah v. Saran and others A.I.R. 1930 P. C. 57;
referred to. BAPURAO v. SIDRAMAPPA AND OTHERS,41 E.L.R. 83.
—S. 77—Corrupt practice— Expenses in excess of prescribed limit—proof of. It was also alleged that the respondent incurred expenses beyond
123
the limit of Rs. 8,000 prescribed under the Act and the rules made there-under ; an expenditure of Rs. 3,233.17 incurred by respondent No. 1 inthe election on account of an order placed on an electrical company wasnot shown in the returned filed before the Election Commissioner. Thetrial court rejected the petition. Dimissing an appeal to the Supreme Court.
HELD : There was no positive proof that the order on the electricalcompany was placed by Respondent No. 1 for their bill showed "for workdone for Gujarat Swatantra Party". Moreover, the appellant had failedto discharge the burden of establishing beyond doubt that respondent No. 1authorised his brother to give instructions regarding the work of illumina-tion and to incur the expenditure by placing an order with the said electriccompany. KARAMJI REHMANJI. CHA1PA v. A. T. KUNDIWALAAND OTHERS (S. C.) 41 E.L.R. 127.
—Ss. 77,123 (6)—Corrupt practice—Expenses—submission of incor-rect return of election expenses—effect of.
HELD : Section 123(6) of the Act lays down that the incurring orauthorising of expenditure in contravention of Section 77 of the Act is acorrupt practice. But every contravention of s. 77 does not fall withins. 123(6). S. 123(6) is related to s. 77(3) only. If the candidate incursor authorises expenditure in excess of the prescribed amount in contraven-tion of s. 77(3) he commits a corrupt practice under section 123(6). Thecontravention of s. 77(1) and (2) or the failure to maintain correct ac-counts and particulars does not fall within s. 123(6). Moreover, as section124(4) has been deleted by the Amending Act of 1956, the submission ofan incorrect return of expenses is no longer a corrupt practice.
Sri Kishan v. Sat Narain, 37 E.L.R. 13; Savitri Devi v. PrabhawatiMisra7 15 E.L.R. 358, 369: N. L. Verma v- Muni Lai, 15 E.L.R. 495, 499;Narasimhan v. Natesan, A.I.R. 1959 Mad. 514, 517-518—20 E L.R. I;referred to.
DALCHAND JAIN v. NARAYAN SHANKAR TRIVEDI AND ANO-THER (S.C.) 41 E.L.R. 163.
—Ss. 34, 77(1) 100(1) (b), 123(6)—incurring or authorising expendi-ture beyond prescribed limit—Deposit for party ticket—Loses character ofdeposits when party ticket is given—Deposit of security under s. 34 notexpenditure.
HELD : The respondent incurred or authorised expenditure in contra-vention of s. 77 of the Act and therefore was guilty of corrupt practiceunder s. 123(6) of the Act. The election of the respondent was void unders. 100(l)(b). of the Act. A deposit made for a party ticket loses its
124
character as deposit and becomes as "expenditure" the moment a partyticket, is given because then the money belongs to the party and ceases to berefundable.
Kadar Sharif] v. Mtimiswamy Gounder, 1955 2 S.C.R. 459 ; VidyaSagar Joshi v. Surinder Nath C.A 853 of 1968 dated Septem-ber 13, 1968 (S. C.) ; referred to.
The date of payment is not necessarily the date of incurring the ex-penditure. It must be held to relate back or to relate forward, as the casemay be, having regard to the nature of the expenditure. A deposit ofsecurity money under s. 34 of the Act cannot be characterised as an amountspent or consumed or used up unless and until it is forfeited. In this viewof the matter, the deposit which is made after the first material date unders. 77(1) and becomes compulsorily returnable on or before the .secondmaterial date under that section cannot be said to be an "expenditureincurred" within the meaning of that section. It becomes an expenditure onlywhen it is forfeited but not otherwise.
Chandrasekhar Singh v. Sarjoo Prasad Singh 22 E.L.R. 206; referred to.KAMAL NARAYAN SHARMA v. D. P. M1SHRA, 41 E.L.R. 369.
CORRUPT PRACTICE—(8. PROCURING ASSISTANCE OF GOVERNMENT
SERVANTS.)
—Obtaining or procuring assistance of Government servants.— Emp-loyee of an Income Tax Department—whether a Revenue Officer withinthe meaning of Section 123(7) (/) of the Act.
HELD : that an employee of the Income Tax Department being fiholder of a post discharging the functions concerned with collection orassessment of revenue he would be a Revenue Officer within the meaning ofSection 123(7) (f) of the Act.
Sheopal Singh v. Harishchandra, A.I.R. 1958 Rajasthan 324, referred to.KARASANDAS UKABHAI PARMAR v. SOMCHAND MANUBHA!SOLANK1 AND ANR, 33 E.L.R. 74.
—S. 1 23(7)—Corrupt practice—Construction- of Road—Procuring assis-tance of. Government servant, when corrupt practice.
HELD : Merely procuring the assistance of the Government official forconstruction of a road would not bring the case within Section 123(7) ofthe Act. It is to be further proved that this was done for the furtheranceof the prospects of the Respondent's election.
125
To bring home a charge under Section 123(7) it has to be proved thatthe service of the Government servant was secured by the candidate or hisagent or by any other person with the consent of the candidate or hiselection agent. ABNASH CHAND v. SMT. OM PRABHA JAIN & AN-OTHER, 33 E.L.R. 142.
—S. 123(7)—Corrupt practice—letters by Respondent seeking assistancefrom Government servants—whether corrupt practice.
HELD : On the facts it was established that letters were sent onbehalf of the first respondent with his consent, to Government servants,attempting to obtain their assistance for the furtherance of the prospects ofthe candidate's election and thus Section 123(7) of the Act was contra-vened. JAI SINGH v. RAM KISHAN AND OTHERS, 34 E.L.R. 73.
—S. 123(7)—"procure" "obtain" in 123(7)—meaning.
HELD : The word "procure" in s. 123(7) implies that the candidateshould commit an act consciously with a view to bring about the result ofreceiving the assistance from the person concerned. Similarly the word"obtain' in this sub-section connotes, the purpose or effect behind the actionof the candidate. DEVI PRASAD v. MALURAM SINGHANIA andOTHERS, 35 E.L.R. 59.
—Appointment of Government servant as polling agent does no; byitselj contravene s. 123(7).
HELD : The appointment of a Government servant as polling agentdocs not, without more particulars contravene section 123(7). If it is madeout that the candidate or his agent had abused the right to appoint a govern-ment servant as polling agent by exploiting the situation for furthering hiselection prospects, then the matter can be dealt with as an infringement ofs. 123(7). In the instant case there was no evidence that the first respon-dent or his election agent had abused the right to appoint a governmentservant as a polling agent by exploiting the situation for furthering hiselection prospects-
Y. S. Parmar v. Him Singh, A.I.R. 1959 S.C. 344 ; Satyadev v. PadamDev, A.I.R. 1954 S.C. 587; referred to. BABUBHAI VALLABHDASGANDHI v. PliLOO HOMI MODI, 36 E.L.R. 108.
—S. 123(7) (/)—Police Patel—functioning under Bombay Village PoliceAct, 1867—// a member of a Police force.
HELD : A police patel appointed and functioning under the BombayVillage Police Act, 1867, is a member of the police force. In view of themischief which is sought to be prevented by s. 123(7) and in view of theprovisions of s. 123(7) (f) and also in view of the dictionary meaning of
126
word "forces", the words "members of the police forces" apply to allpersons who are discharging police functions and who are organised in abody as such. The provisions of the Bombay Village Police Act make itclear that the police patel has the power to investigate, to record evidenceand statements and also the power to apprehend suspend offenders. There-fore he discharges police functions when he functions as a police patelunder the Act. B. V. GANDHI v. PILOO H. MODI OF EL.R. 108.
—'Procure' and 'obtain', meaning of—Police Patel functioning underBombay village Police Act, 1867, if member of Police force.—Assistanceof Police Patels for furtherance of one's election prospects.
HELD : The respondent did not 'procure' or 'obtain' the assistance ofanyone of the Police Patels for furtherance of his election prospects. Thewords 'obtain' and 'procure' occurring in s. 123(7) mean one and thesame thing, viz. any positive action on the part of the candidate concernedin order to see that such assistance by any person in the prohibited cate-gories was made available to him.
Motilal v. Mangla Prasad, A.I.R. 1958 All. 794 : referred to. BABU-BHAI VALLABHDAS GANDHI v. PILOO HOMI MODI, 36 E.L.R.108.
—Ss. 123(3) s. 123(7)—Assistance in Election work by PublicOfficer—When amounts to corrupt practice.
HELD : Under s. 123(7) of the Act mere carrying on of any canvas-sing or election activity or rendering of any assistance by a member of aPolice force is not enough. The assistance must have been obtained or pro-cured by the candidate or his agent or by any other person with the consent ofthe candidate. In the present case, there was no reliable evidence to showthat the first respondent or his election agent or any other person with theconsent of the first respondent had obtained or procured or attempted toobtain or procure the assistance of M for the furtherance of the first res-pondent's election. The petitioner had not discharged the burden of provingthe corrupt practice set out in s. 123(7) of the Act.
Jagdev Singh v. Pratap Singh, A.I.R. 1963 S.C. 183. referred to,KARIMJI RAHMANJI CHIPA v. ABDURAHIM TAJUJI, 36 E.L.R.283.
—S. 123(7)—Village chowkidar appointed under the Oudh Laws Act,1876, if in the service of Government and if member of police.
HELD : A village chowkidar appointed under the Oudh Laws Act, 1876is in the service ol the government and belongs to the police force. But
127
the respondent has not been proved to have committed the corrupt practiceof procuring or obtaining the assistance of the two chowkidars.
Raja Bahadur Deo Bhan v. Bagunath, A.I.R. 1959 S.C. 589 ; referredto. SHYAM LAL v. MANSA DIN AND OTHERS, 37 E.L.R. 67.
—S. 123(7)—Corrupt Practice—Officer voluntarily works for a candi-date with a view to gain his favour, whether corrupt practice.
HELD : If any officer of the classes mentioned in Sub-Section (7) ofSection 123, voluntarily works for a candidate with a view to gain hisfavour, it cannot be said that his services obtained or procured by the candi-date or his agent or by any other person with the consent of the candidateor his election agent, unless the petitioner proves the commission of corruptpractice within the meaning of section 123(7) of the Act. DASU SINHAv. RAM LAKHAN SINGH YADAV AND OTHERS, 38 E.L.R. 177.
—S. 123(7)— "Mandis" and "Mundas" of Kolhan area—Whether theyare Government servants.
HELD : It had not been proved that there was any relationship ofmaster and servant between holders of the office "Mandis" and the"Mundas" of the Kolhan area on the one hand, and the Government onthe other, and that there was any control by Government over their duties.The holders of these offices, therefore, could be said to be in the serviceof the Government.
Raja Bahadur K. C. Deo Bhang v. Ragunath Misra and Others,A.I.R. 1959, S.C. 589 ; Shanti Lai v. Bipen Lai, A.I.R. 1964, MadhyaPradesh 92; HARISH CHANDRA DEOGAM v. BOGUN SUMBRUI, 38E.L.R. 305.
—"obtain" in section 123(7), meaning of.
HELD : There was no force in the contention of the respondent thatSection 123(7) of the Act contemplates a positive act on the part of thecandidate in procuring the assistance of a Government servant and thatthe word "obtain" in the Section is not used in the sense of a merepassive receipt of assistance, without the candidate being even conscious ofthe fact that the assistance has been rendered. Such a contention is notsustainable, when there is sufficient evidence on record to show that theGovernment servant was canvassing for the respondent with his knowledgeand it was clear that the respondent had procured the assistance of theGovernment servant; his conduct therefore falls under Section 123(7) ofthe Act.
128
Rakhabdas v. Nidhichand Falliwal and others, 9 E.L.R. 115; MotiLai v. Mangallal Prasad and others, A.I.R. 1958, All 794 ; Dinesh Misrav. Ram Nath Sharma and others, A.I.R. 1969. Assam 139 ; referred to.B1RENDRA CHANDRA DUTTA v. J. K. CHOWDHURY— 38 E.L.R.381V
—Ss. 79(b), 123(7)—Seeking the assistance of Police Officer by res-pondent in his forthcoming election, before he is officially a candidate—whether a corrupt practice under Section 123(7).
HELD : There was nothing objectionable in the respondent-Ministergathering information from a police officer regarding political activities ofsome agitators so long as he had not sought the help of the Police officerfor furthering his election prospects after he became a candidate. In orderto come within the mischief of expression "candidate" in Section 79 (b)of the Act, the respondent must be brought within the meaning of thedeeming clause. KRTSHNA KANT MISHRA v. BANAMALI BABU, 38E.L.R. 451.
—"Holding out" to a person who is not an elector whether amountsto "holding out" within the meaning of Section 79(b).
HELD : The respondent's discussion on the phone with the Superinten-dent of Police on 18-6-1966, declaring that he would be a candidate in theforthcoming elections and that the Superintendent of Police should officiallyhelp him in different ways and in furtherance of his election, would notamount to a corrupt practice within the meaning of Section 123(7), sincethe Superintendent of Police was not an elector in. the constituency of therespondent. It is clear, that the "holding out" must be to an elector or to theelectorate ; "Declaration" to a person who is not an elector, about theprospective candidature is not "Holding out" within the meaning of Sec-tion 79 (b). Even if the version of the Superintendent of Police was accept-ed that the petitioner made an unambiguous declaration before him on18-6-66 that he would be a prospective candidate in the next election, itdid not amount of "holding out", as on that date, the respondent was nota candidate within the meaning of Section 79 (b). Section 123(7) envis-ages the commission of the corrupt practice by a candidate. If by 18-6-66,the respondent was not a candidate, then he would not be hit by Section123(7), even though he attempted to obtain the assistance of the Superin-tendent of Police to advance his election prospects in the coming election.
S. Khader v. Munnuswami, A.I.R. 1965, S.C. 775; referred to.KRISHNA KANT MISHRA v. BANAMALI BABU, 38 E.L.R. 451.
—Section 123(7)—Ingredients of-—If any missing—Charge of corruptpractice must fail.
129
HELD : The ingredients of the corrupt practice under s. 123(7) are,(1) the obtaining or procuring or the attempt to obtain or procure by thecandidate of assistance; (2) the said assistance should be obtained orprocured or attempted to be obtained or procured from a person in theservice of the Government or belonging to the armed forces of the Union ;(3) the said assistance should be for the furtherance of the election pros-pects of the candidate obtaining or procuring or attempting to obtain orprocure such assistance. It follows therefore that if any of these ingredientsis missing from the material particulars alleged in the petition, then thecharge of corrupt practice under section 123(7) must fail summarily.DURGA PRASAD v. SRI JAYENDRA SINGH AND OTHERS, 39,E.L.R. 1.
—S. 123(7)—Corrupt Practice—Government Officer requesting voteto a particular candidate—when corrupt practice.
A speech or request to the People to vote for a particular candidateby a Government officer would not constitute a corrupt practice underSection 123(7) (a) of the Representation of the People Act. The crux ofthe matter under Section 123(7) (a) is that the services of the officersmentioned in that section must be obtained or procured or attempted to beobtained or procured for furthering the prospects of a candiate's electionby the candidate, or by his agent, with the consent of the candidate or hiselection agent. Unless these ingredients are proved no candidate can beheld guilty of a corrupt practice under this section.
Wakefield case (1874) 2 O M & H 102; Great Yarmouth case (5 OM & H 178) ; Taunton case (108 M & H 181) ; Sudhir Laxman Hindrev.S.A. Dange (17 E.L.R. 371) ;T.C. Basappa v. Nagappa 3 E.L.R. 197 ;Rajendra Prasad Yadav v. Suresh Chandra Mishra (1) E.L.R. 222;Dharanidhar Mahopatra v. P. K. Das 17 E.L.R. 427 ; Biswanath Upadhyav. Ear Lai Dar 16 E.L.R. 405; Chunni Lai Ker v. Radha Char an Sharma21 E.L.R. 320 ; Jagan Prasad Rawat v. Krishna Dutt Paliwal 20 E.L.R.443; Londonerry case 10M and H. 274. ABDUL GANI MALIK v. SYEEDAHMED AGA AND ANOTHER; 40 E.L.R. 148, referred to;
—S. 123(7)—Corrupt practice—Interference by officers—proof requi-red-—two posible explanations regarding the conduct of officers in theelection—Explanation favourable to the respondent should be accepted.
HELD : When officials are implicated in a petition as havingcommitted corrupt practice by trying to influence the voters at the instanceof the respondent, it is the duty of the petitioner to establish that implicationbeyond reasonable doubt. If there are two possible explanations, one of whichis favourable to the respondent, who is in the position of the accused, he
4 EC/75—12
130
can certainly take advantage of the same. In the present case, from theevidence on the record, it was not possible to hold that there was anyinterference by the police much less any interference by the Police at theinstance of the respondent. HARDWARI LAL v. PRATAP SINGH, 41E.L.R. 58.
—S. 123(7)—Evidence—Corrupt practice—Obtaining the assistance ofGovernment servants—proof of.
HELD : When there is sufficient proof both oral and documentary toshow that the officers in the Department of Commercial Taxes canvassedand raised money for the appellant, the absence of particulars regardingthe names of those who were approached or the amount collected from themwould not, in the circumstances of the case, make the offence of procuringthe assistance of Government servants for election less serious. AMBIKASHARAN SINGH v. MAHANT MAHADEVANAND GIRI (SC.) 41E.L.R. 183.
CORRUPT PRACTICE—(9. UNDUE INFLUENCE)
—Undue influence.—S. 123(2)—Appeal to Sikh voters to supportPanthak candidate—Whether amounts to undue influence under Section123(2).
HELD : A statement by a Sikh leader that the decision of the Panthand Akal Takhat shall be respected by all Sikhs to support the Panthakcandidate does not fall within the purview of undue influence as definedin Section 123(2) of the Act. TIRLOCHAN SINGH v. KARNAILSINGH AND ANOTHER, 34 E.L.R. 234.
—S. 123(2)—Undue influence—Minister—as candidate for election—using discretionary funds to remove public grievances—if corrupt practice—See Corrupt Practice—Bribery. GHASI RAM v. DAL SINGH andOTHERS (S.C.) 36 E.L.R. 60.
—S. 123(2)—Corrupt practice—undue influence.
HELD : It is not necessary for an act to come within the mischief ofthe clause as to undue influence that it should amount to a direct or indirectinterference with the electoral right of a candidate; it is sufficient if itamounts to an attempt at interference with the candidate's electoral right.
Ram Dial v. Sant Lai, A.I.R. 1959 S.C. 855, referred to. BAIJNATHSINGH VAIDYA v. RAVINDRA PRATAP SINGH, 36 E.L.R. 327.
131
—S. 123(2)—Undue influence—Cow slaughter—appeal to cow if reli-gious symbol.
It was alleged by the petitioner that the respondent committed thecorrupt practice of undue influence as defined in section 123(2) of theAct; this was done by propaganda dubbing the Congressmen as cowkillers and telling people that if any one voted for them he could commitsin and go to hell. It was also alleged that the appeal to the cow wa,s anappeal to a religious symbol.
HELD : In the context in which the speeches were made they weremade only to impress upon the electorate that if cow was to be protectedJan Sangh should be voted to power and that there was danger to thecow if the Congress was voted into power. In this context the propagandacannot be said to amount to exercise of any undue influence as defined insub-section (2) of section 123 of the Act.
Though the cow may be a sacred animal among the Hindus and mayeven be regarded as a divinity, it does not stand or represent somethingmaterial or abstract so as to be termed as a religious symbol. SHY AMLAL v. MANSA DIN AND OTHERS, 37 E.L.R. 67.
—S. 123(2) Proviso (a) (ii)—corrupt practice—-Undue influence—What constitutes—"Object of divine displeasure or spiritual censure"—meaning—Persons who may induce or attempt to induce—Election literatureand speeches-—Construction of.
One Shambhu Maharaj, a well known saint and kirtankar and a socialworker of Gujarat, it was alleged, held meetings for supporting the candi-dature of the first respondent at several places. At each of those meetingsShambhu Maharaj was alleged to have appealed to the religious feelings ofthe people in the audience and exhorted them not to vote for the CongressParty candidate including the second respondent ; he pointed out that ifthey voted for them the voters would commit the sin of cow slaughter andurged them in the name of mother cow to take a vow not to vote for thecongress party candidates. The petitioner contended that the said appeal,exhortation and urging by Shambhu Maharaj amounted to inducing orattempting to induce the electors to believe that they would by voting forany congress party candidate including the second respondent, become orbe rendered the object of divine displeasure or spiritual censure, therebycommitting the corrupt practice of undue influence within the meaning ofsection 123(2), proviso (a) (ii) of the Representation of the People Act,1951.
132
HELD : The Commission of the corrupt practices and the consent ofthe election agent of respondent No. 1 had been established beyond reason-able doubt. As a consequence the election of respondent No. 1 must bedeclared void under section 101(1) (b) of the Act.
Sec. 123(2), Proviso (a) (ii) does not contemplate that the personuttering the words must be a person who is in a position to spirituallyinfluence his audiences and that too in a position to unduly influence soas to leave no chance to the electors to vote as they liked by inducing thebelief that they shftll be objects of divine displeasure or spiritual censure.Nor does the aforesaid section provide that the act or utterances madewould fall within the mischief of proviso (a) (ii) only when the Act isdone or words are uttered either (1) by a religious head believed to possesssome divine power or (2) by a person, though not a religious head, is aperson well-versed in religion and who has quoted some religious booksacceptable to the audience in support of the impugned utterances whichare alleged to induce the belief of spiritual threats. To render the sectionsuch a narrow construction would be to frustrate the very object of theprovisions. It is clear from the language used that it contemplates likelihoodof the commission of this corrupt practice by a candidate or his electionagent. To render it a narrow construction it would have to be assumed thatunder no circumstances could a layman ever induce a belief in a candidateor elector that he or they shall become or be rendered objects of divinedispleasure or spiritual censure. There is no warrant in the language usedto make such an absolute assumption. It is true that the words "to induce"and "to believe" must be given their due weight and it would be correct tosay that any thing said which cannot induce such a belief cannot amount tothis specific corrupt practice. It is in the nature of things that the facts asto who uttered the words or published the writing, the contents of suchutterances or publication, and before whom they are uttered or published,are relevant factors to be taken into account. For each case the Court hasto judge as a question of fact on the evidence before it whether the im-pugned act amounts to inducing or attempting to induce the belief in theelectors that they shall be rendered objects of divine displeasure or spiritualcensure. For doing so, the personality of the speaker and the sensitivenessof the audience in respect of religious sentiments are relevant factors to betaken into consideration. But that is quite different from saying that thespeaker must have some acknowledged status and belief to have some divineauthority in the hierarchy of the religion to which the electors belong, ormust be a savant able to quote chapter and verse from any religious bookaccepted as authority on religion by the audience. While construing thisProviso (a) (ii) it is very necessary to keep in mind the fact that it dealswith a specie of undue influence as defined in the first part of sub-section (2)of section 123 of the Act and therefore the nature of the mischief intended
133
to be forestalled by that provision has an impact on Proviso (a) (ii). Themischief which sub-section (2) is intended to prevent is the act which willpreclude the elector from sleeting a candidate of his own choice. Anysuch act done will fall within the vice of sub-sec. (2) and any act whichamounts to a spiritual influence that has the tendency to prevent the freechoice of a candidate would come within the mischief of Proviso (a) (ii).It is now well settled that the election law in India lays stress on the preven-tion of use of influence that has the tendency to interfere with the free choiceof a candidate by the electorate and does not emphasise the individualaspect of the exercise of such influence.
Ram Dial v. Sant Lai, A.I.R. 1959 S.C, 855 ; Lai Singh Rehvar v.Ballabh Das. VII G.L.R. 753 ; Mohamed Zakaria v. Mohamed Sadiq ofAmritsar City Vol. 2 of Indian Election Cases by Doabia, P. 600; JyostnaChandra v. Mehrabali, III E.L-R- p. 488 : Shubnath v. Ram Narain A.I.R.1960 S.C. 148; referred to. POPAT LAL JOSHI v. MANUBHAI N.AMERSEY AND OTHERS, 37 E.L.R. 223.
—S. 123(1) and (2)—Undue influence—respondent was Chief Minis-ter on relevant date—execution of public works for benefit of voters andgrants of concession in respondent's constituency, on eve of election—ifcorrupt practice.—
The petitioner, a defeated candidate, challenged the election of thefirst respondent alleging, inter alia, that he as the Chief Minister on therelevant date, committed several corrupt practices under Section 123 of theAct, and he incurred election expenses in excess of the prescribed limit.It was further alleged that the first respondent sanctioned and executed onthe eve of his election, works for the construction of roads, issuing of Pattasat concessional rates, opening of public taps in localities of his constituency,as inducement and bargaining for votes, and further it was alleged that hewas connected with the pamphlets issued by his party organisation attack-ing the personal conduct and character of the petitioner.
HELD : Dismissing the petition :
On the evidence, the petitioner had failed to prove any of the allega-tions.
Unless there is cogent proof of evidence of bargain made by theChief Minister with the voters that if they promised to vote for him hewould get the public works started before the poll, he had a "reasonableexcuse" to get public works done for the benefit of all sections of the publichis supporters as well as his opponents, his action would not attract Sec-tion 123(1) or (2) of the Act. It was the duty of the Chief Minister to
134
see the grievances of the people of the different parts of the State wereredressed and a Minister cannot cease to function as such when his elec-tion is due.
Basawaraj K. Nagur v. B. R. Shidlingappa, 12 E.L.R. 168 ; RadhaKrishna Shukla v. T. C. Maheshwar, 12 E.L.R. 379; Biresh Misra v.Ram Nath Sarma and others, 17 E.L.R. 243 : Gangadhar Maithani v.Narendra Singh Bhandari, 18 E.L.R. 124 ; Soowalal v. P. K. Chaudhry,21 E.L.R. 137 ; Ram Phal v. Braham Prakash, A.I.R. 1962, Punjab 129 ;Hariram Singh v. Kamtaprasad, A.I.R. 1966, Madhya Pradesh 255 ;S. Mehar Singh v. Umrao Singh, A.I.R. 1961, Punjab 244, Balvant RaiTayal v- Bishan Saroop, 17 E.L.R. 101; Amir Chand v. Surendra Lai Jim,10 E.L.R. 57 ; Ghasiram v. Dal Singh and others, C.A. No. 1632 of 1967(S.C.) Tirlochan Singh v. Kamail Singh and ethers, E. P. No. 33 of 1967,(Punjab); referred to. BHANU KUMAR SHASTRI v. MOHAN LALSUKHADIA AND OTHERS, 38 E.L.R. 119.
—S. 123, Scope of—Benevolent acts of Public and Civic Benefits by theGovernment of the Party in Power—when Corrupt Practice.
HELD : All benevolent acts of public and civic benefits, without dis-tinction of caste, creed etc. on the eve of elections, by the Government ofthe party in power would not lead to a presumption that such acts weredone with a corrupt motive, unless the contrary is proved. If at all, thecase may be one of evil practice or a malpractice and not of corrupt practicewithin the meaning of section 123 of the Act.
Swaminatha Merkondar v. Ramalingam and others, 2 E.L.R. 390 ;Hariram Singh v. Kamta Praiad Sharma, A.I.R. 1966, M.P. 255 ; Banka-behari Das v. Chittaranjan Naik, A.I.R. 1963, Orissa 83 ; ChadavalavadaSubba Rao v. Kasu Brahmananda Reddy and others, A.I.R. 1967, A. P.158; S- Khader Sheriff v- Munnuswami, A.I.R. 1955, S. C , 755; Ghasi Ramv. Dal Singh and others, C. A. No. 1632 of 1967, S. C, dated 7-2-1968 ;Mrs. Om Prabha Jain v. Abnash Chand and another, C.A. No. 1862 of1967, S.C. dated 7-2-1968; referred to. BIRENDRA CHANDRADUTTA v. J. K. CHOWDHURY, 38 E.L.R. 381.
—"Undue influence," Meaning of, in section 123 (2).
HELD : The corrupt practice of undue influence indicated in section123(2) of the Act does not emphasise the individual aspect of the exerciseof such influence, but pays regard to the use of such influence as has thetendency to bring about the result contemplated in the clause. What ismaterial is not the actual effect produced, but the doing of such acts asare calculated to interfere with the free exercise of any electoral right.
135
MAHANT MAHADEVANAND GIRI v. AMBIKA CHARAN SINGHAND OTHERS, 39 E.L.R. 23.
—S.S. 123, 127(A)—Corrupt practice—Resolution by Railways Emp-loyees Union to support the candidature of Congress candidate—Postersand leaflets issued in pursuance of the resolution asking the employees tovote for Congress—whether amounts to undue influence or interferingM>ith the free exercise of franchise :
The petitioner, a P.S.P. Candidate, challenged the election of thefourth respondent, a Congress candidate, to the Bihar Assembly alleginginter alia that he had taken the assistance of the Railway Employees whowere Government servants; that the N. F. R. Employees Union passed aresolution appealing to all the Railway Employees to vote for theCongress candidate; in pursuance of the resolution the Employees Unionprinted and circulated posters and leaflets in the Railway stations of theconstituency in contravention of s. 127A of the Act
HELD : The resolution passed by the Railway Employees Unionappealing to employees to vote for the Indian National Congress as itwas the only political party capable of leading the country towards pro-gress and prosperity, and giving publicity through leaflets and posterswould not amount to undue influence either directly or indirectly on thevoters or interfering with their free exercise of franchise and would notoffend the provisions of Section 123. Furthermore, the action of theRailway Union would not establish the charge that the fourth respondenthad obtained the assistance of Government servants in his election.
Ghayur All Khan v. Keshav Gupta, A.I.R. 1959 Allahabad 264;
Biresh Misra v. Ram Nath Sharma and others, A.I.R. 1959 Assam 139;
S. Mehar Singh v. Umrao Singh and another, A.I.R. 1961 Punjab 244;
Jagdev Singh Sidhanti v. Pratap Singh Daulta and others, A.I.R. 1965.S.C. 183;
Ram Dial v. Sant Lai and others, A.I.R. 1959, S.C. 355; referred toPRIYA GUPTA v. ABRAR AHMED AND OTHERS, 39 E.L.R. 249.
—Section 123—Corrupt Practice—undue influence.
HELD : A religious leader has a right of freedom of speech as anyother citizen. But it will amount to an abuse of his great influence if thewords he uses in the document, or utters in his speeches, leave no choiceto the persons addressed by him, in the exercise of their electoral rights.In order to constitute undue influence the exercise of which would leadto the election being declared void, the coercive element of threat of divine
136
displeasure and spiritual censure must be implicit in the words of themandate.
In the present case the petitioner has not succeeded in discharging theburden cast on him.
Ram Dial v. Sant Lai, 20 E.L.R. 482; referred to. OM PARKASH v.LAL CHAND AND OTHERS, 40 E.L.R. 203.
—S. 123(2), (3) (3A)—Cow slaughter.—appeal to put an end to— //appeal to religion—See corrupt practice—Appeal to religion etc.—CHIRAN-JIV LAL HARSOLA v. MOHAN LAL SETHIA, 40 E.L.R. 373.
—S. 123(2)—Corrupt practice undue influence speech on cow slaugh-ter—otherwise legitimate—when amounts to corrupt practice.
Respondent No. 1, an elector, sought to set aside the election of theappellant on the ground tha,t he induced the voters on the basis of a reli-gious appeal to vote for him. The allegation in the petition was that theapellant and his election agents induced the electors to believe that if theyvoted for the Congress party candidate, they would become the objects ofdivine displeasure and spiritual censure; one Shambhu Maharaj, with theconsent of an agent of the appellant appealed to the electors, in public meet-ings, that if they voted for the Congress candidate, they would commit thesin of gow-hatya.
HELD : Public criticism of the Congress party for not abolishingcow slaughter is permissible and legitimate. But the criticism ceases tobe legitimate if the speaker commits the corrupt practice of undue influ-ence under Section 123(2) of the Act, that is, if he interferes or attempts tointerfere with the free exercise of electoral right. In the instant case thespeech of Shambhu Maharaj, to the effect that those who voted to theCongress would be visited by divine displeasure, as the Congress was per-mitting cow-slaughter and thereby gow-hatya, amounted to interferencewith the free exercise of franchise as envisaged under Section 123(2) ofthe Act.
Ram Dial v. Sant Lai and others (1959) Suppl. 2 S.C.R. 748; NarbadaPrasad v. Chhagan Lai and others, C.A. 2(N.C.E.) of 196S; referred to.MANUBHAI NANDLAL AMERSEY v. POPATLAL MANILAL JOSHIAND OTHERS (S.C) 41 E.L.R. 26.
—S. 123 (2) Corrupt practice—appellant's polling agent and supportersattacking the polling agent of respondent on polling day—deterred votersfrom coming and exercising their franchise freely—whether amounts tocorrupt practice.
137
It was alleged in the petition that on one of the polling days, the appel-lant's agent arid supporters assaulted one of the polling agents of the res-pondent and the incident deterred the voters in the area from exercisingtheir right of franchise freely.
HELD : In the light of the propaganda carried on for the success ofthe appellant it was impossible to view the assault on the polling agent ofthe respondent by the appellant's polling agent as an isolated incident.Such rowdism at a polling station was bound to deter voters from comingto the polling station to exercise their franchise freely. Therefore, the as-sault by the appellant's polling agent attracted s. 123(2) Proviso(a).
LALROUKUNG v. HAOKHOLAL THANGJOM AND ANOTHER(S.C.), 41 E.L.R. 35.
—S. 123(2) (a) (H)—Propaganda regarding cow slaughter—whether—religious in nature.
HELD : The statement of the respondent in the meeting that "if onevote is cast for Congress it is equal to slaughter of a cow" would onlyamount to an allegation levelled against the Congress Party and there wasno invocation of divine displeasure upon the voters who chose to vote forthe congress so as to fall within the definition "undue influence" under s.123 (2) (a) (ii) of the Act.
Narbada Prasad vJ Chhagan Lai and others; 39 E.L.R. (S.C.) 277 dis-tinguished. PT. SHREE KRISHNA SELOT v. SHRI RAM CHARANPUJARI (S.C.) 41 E.L.R. 50.
Section 123(2)—Corrupt Practice—Undue influence—Contract Act,S. 16, difference between.
HELD : The provisions of sub-section. (2) of S. 123 relating toundue influence are different from those of S. 16 of the Contract Act.There is no reference in sub-section (2) section 123 to the position todominate the will of another. There is thus no question of the burdenshifting on to the person who is said to have exercised undue influence.
It would be necessary in the pleading to show the nature of the undueinfluence exercised by the candidate concerned. In the absence of anysuch particulars no evidence can be looked into or permitted to be led ona point which has not been alleged in the pleading. RAJ PAL SINGH v.OM PARKASH GARG AND OTHERS, 41 E.L.R. 221.
—S. 123(2)—undue influence—Appeal on basis of that of divine dis-pleasure—cow-slaughter, whether corrupt practice. The appellant chal-lenged the first respondent's election to Parliament that the first respondent
138
or his agents circulated a pamphlet containing an appeal in the name ofreligion by asking voters not to vote for those responsible for cow-slaughter;
Dismissing the appeal.
HELD : The printing and circulation of the impugned pamphlet con-taining an appeal to vote against those stated to be responsible for cow-slaughter did not amount to a corrupt practice within the meaning of s.123(2) (a) (ii) of the Act. SMT. SAHODRABAI RAI v. RAM SINGHAHARWAR AND OTHERS (S.C.) 42 E.L.R. 77.
—S. 123—Corrupt practice—undue influence—Ministers offer to imple-ment public Schemes of work—when amounts to corrupt practice.
It was alleged in the petition that some Ministers addressed electionmeetings supporting the candidature of the respondent and promised toimplement public schemes of works as a bargain to secure votes for therespondent.
HELD : It is open to Ministers to canvass for candidates of theirparty standing for election. Such canvassing does not amount to undueinfluence but is proper use of the minister's right to ask the public tosupport candidates belonging to^the Minister's party. It is only where aMinister abuses his position as such and goes beyond merely asking forsupport for candidates belonging to his party that a question of undue in-fluence may arise.
Baburao v.'Dr. Zakir Hussain, A.I.R. 1968 S.C. 904; Ghasi Ram v.Dal Singh A.I.R. 1968 S.C. 1191; Om Prabha v- Abnash Chand, A.I.R.1968 S.C. 1083; relied on.
Swaminathan v. Ramalingam, 2 E.L.R. 390, Amir Chand v. SurindraLai Jha, 10 E.L.R. 57; referred to. THIRUMALAI KUMAR v. KATHI-RAVAN ALIAS SHAMSHUDDIN, 42 E.L.R. 161.
CORRUPT PRACTICE—(10. USE OF NATIONAL OR RELIGIOUS SYM-BOLS) :
—S. 123(3)—Use of national or religious symbols—"OM", if religioussymbol.
HELD ; The picture on the cover of the pamphlet indicating thatthe earth itself is represented as the Linga of Siva, emanating from thesacred letter 'OM' cannot be regarded a religious symbol.
jagdev Singh v. Partap Singh A.I.R. 1965 S.C. 183: Ramanbhai v.Dabhi Ajit Kumar A.I-R- 1965 S.C. 669; Sangappa v. Shivaramamurthy
139
A.I.R. 1961 Mys. 106; Samkara Gouda v. Sirur Veerabadrappa A.I.R.1963 Mys. 18; referred to. 1NAMDAR S. S. v. AGADI SANGANNAANDANAPPA, 34 E.L.R. I.
—'Khanda' Sikh symbol, if constitute appeal to religion—"clauses" in(3A) does not mean political parties. The election of the first respondentwas challenged on the ground that his agents with his consent published ahand bill by which an appeal was made in the name of religion to Sikhvoters to vote for respondent 1 and use was made of the Sikh religioussymbol 'Khanda' for the furtherance of his election; that the hand bill wasdistributed with a view to provoking feelings of enmity and hatred betweendifferent classes of citizens on the ground of religion.
HELD : Before the amendment of Section 123(3) by Act 40 of 1961,the language employed banned a general appeal to vote or refrain fromvoting on the ground of religion, etc. But by the amendment the purposeof the appeal was narrowed down. It is only when the electors are askedto vote or not to vote because of the particular religion of the candidatethat a corrupt practice would be deemed to be committed under Section123(3). No such appeal is to be found in the offending poster in thiscase. A symbol stands for or represents something material or abstract;in order to be a religious symbol there must be a visible representation ofa thing or concept which is religious. By inscribing the symbol 'Khanda'or any other symbols which are ordinarily used by the Sikhs it cannotbe said that use was made of a religious symbol or an appeal was made toit in the sense in which if is used in Section 123(3) of the Act. The evi-dence disclosed that 'Khanda' is used in invitation cards because it is consi-dered to be auspicious. The word "classes" in clause (3A) of section 123cannot mean political parties.
Kultar Singh v. Mukhtiar Singh, A.I.R. 1965 S.C. 141; Jagdev SinghSidhanti v. Pratap Singh, A.I.R. 1965 S.C. 183; Shankaragauda v. SirurVeerabhadappa, A.I.R. 1963 Mysore 81; Ghayur Ali Khan v. KeshavGupta, 16 E.L.R. 154, Rattan Singh v. Devinder Singh, 7 E.L.R. 234;Ramanbhai Ashabhai Patel v. Dabhi A.jit Kumar Fulsinji, A.I.R. 1965S.C. 669; Shubnath Deogam v. Ram Narain Prasad, A.I.R. 1960 S.C 148;and Koran Singh v. Jamuna Singh 15 E.L.R. 370; referred to. AMARNATH VERMAN v. DEV RAJ ANAND ORS. 34 E.L.R. 359.
—SS. 100(1) (b), 123(3)—Corrupt Practices—Burden of proof-Appeal to religious symbol by religious head—whether proof of consent ofthe returned candidate is necessary under section 100(1) (b).
HELD : On the facts and evidence, neither the publication of thecartoon and poem (Ex. X. 16) in the "Maratha" by use of the cow as a
140
religious symbol, nor the statement by Jagadgura Shankaracharya at thePress Conference were made for furtherance of the prospects of election ofthe first respondent or prejudicially affected the prospects of election ofthe second respondent. Even asuming that the publication of the cartoonand the poem (Ex. X. 16) and the speech by the Jagadguru would amountto an appeal to a religious symbol under Section 123(3) of the Act, theelection of the first respondent could not be held to be void under Section100(1) (b) of the Act as the petitioner had failed to prove that the im-pugned publication and the speech by the Jagadguru were made with theconsent of the first respondent and that the result of the election had beenmaterially affected.
Jagdev Singh Sidhanti v. Pratap Singh Daulta and others, A.l.R. 1965S.C. 183:
Ramanbhai Ashabhai Patel v. Dabhi Ajit Kumar Fulanji and othersA.l.R. 1965 S.C. 669;
K. C. Sharma v. Krishi Pandit Rishab Kumar and others, A.l.R. I960M.P. 27;
Mohan Singh Laxman v. Bhanwarlal Rajmat Mahata and others,A.l.R. 1964 M.P. 137; referred to. SAMANT NILKANT BALKRISHNAv. GEORGE FERNANDES AND OTHERS 35 E.L.R. 259.
—Cow slaughter Appeal on the ground of religion and religioussymbol—Cow, if religious symbol—
HELD : A cow is not a religious symbol of the Hindus. A symbolrepresents something material or abstract. In order to be a religious sym-bol there must be a visible representation of a thing or a concept whichis religious.
Jagdev Singh Sindhanti v. Pratap Singh, A.l.R. 1965 S.C. 183; referredto. BAIJNATH SINGH VAIDYA v. RAVINDRA PRATAP SINGH,36 E.L.R. 327.
—"Allah" if Religious symbol—"Any person", meaning of —Testsfor determining religious appeal.
It was alleged by petitioner that the respondent distributed to the electorscertain pamphlets and posters appealing to the muslim voters not to votefor the Congress but to vote for the Muslim candidate, the posters andhandbills used religious symbols to further the prospects of the election ofthe respondent;' and therefore these constituted an appeal on the groundof religion in violation of sub-section (3) of Section 123 of the Representa-tion of the People Act, 1951.
141
HELD : A perusal of sub-section (3) of Section 123 shows that theword "his" refers to any candidate in whose favour or against whom anappeal is made. In other words the pronoun "his" qualifies the words"any person". In the pictorial part of the annexure which allegedly con-tains Kalimah, picture of Gaba Sharif, minaret of Masjid—S—Hara andpicture of Quaran Sharif, it is difficult to read into the language of the appealany implicit negative appeal in the name of Muslim religion not to votefor the muslim candidate. In that view it cannot be said that it was anappeal to the voters to vote for the Congress candidates or not vote for theMuslim candidate on the ground of his religion-
Lalsing v. Vallabhdas, A.I.R. 1967 Gujarat 62; Jagdev Singh Sidhantiv. Pratap Singh Daulta.. A.I.R. 1965 S.C. 183; refered to.
The word "Allah" is not a religious symbol. Before anything can betermed as a religious symbol, it must represent something material or abs-tract and there must be a visible representation of a thing or concept whichis religious.
Jagdev Singh Sidhanti's case, A.I.R. 1963 S.C. 183; Ramanbhai v.Dabhi Ajit kumar, A.I.R. 1965 S.C. 669; Shubnath Deogam v Ram NarainPrasad, A.I.R 1960 S.C. 148; referred to.
Before a person can be condemned on the ground of use of a religioussymboL it must be established that the object was, in fact, a religioussymbol understood in the context of the same being socially rooted andsocially supported.
Even though the word "Allah" and the picture of the minaret in theAnnexures are not religious symbols, Kalimah on the top of the Annexureis a religious symbol. This is an, accepted concept in the Muslim religion.It also is a visible representation and, therefore, amounts to a visible represn-tation of a concept and is a religious symbol.
But there was np evidence to connect the respondent with the distribu-tion of any of the anenxures. AMAR NATH GUPTA AND ANOTHERv. RAM GOPAL SHAWLWALA, 37 E.L.R. I.
—SS. 123(2) & (3)—Corrupt practice—Religious symbols Islam Re-ligion—•"Kalma" if religious symbol.
The election of the first respondent to the Metropolitan Council ofDelhi was challenged on the following grounds : (1) the respondent andhis agents and others with the consent of the respondent distributed calenderslike annexure 'A' in a predominantly Muslim area of the constituency duringthe election campaign. The calender depicted (a) the Mecca Sherif and
142
the Minaret in Madina Sharif, (b) crescent, the religious symbol of themuslims, (c) the Holy Quoran with the words "Al Hasi Allai Haib", and(d) the words in Arabic "Allah" and another quotation from the HolyQuoran; these amounted to an appeal to the voters in the name of religionand religious symbols and were thus corrupt practices covered by S. 123(2)and (3) of the Act;
HELD : It is not correct to say that Islam does not recognise reli-gious symbols. A symbol stands for and represents something material orabstract and in order to be a religious symbol there must be a, visible rep-resentation of a thing or concept which is religious. The basic characteris-tics of a symbol are (a) its figurative quality, (b) its perceptibility, (c) itsinnate power, and (d) its acceptability. These characteristics of the sym-bol are applicable to religious symbols also.
Applying the above principles, out of the pictorial representations incalender annexure 'A' only Kalma constitutes a religious symbol.
But there was no evidence to prove the distribution of the calendersby the respondent or his agents or others with the consent of the respondent.
Jagdev Singh Sidlianti v. Pratap Singh Daulta, A.I.R. 1965 S.C. 183;Ramanbhai Ashabha Patel v. Dabhi A jit Kumar Fulsinji, A.I.R. 1965 S.C.669; relied on; SUBHASH CHANDRA v. RAM BABU MAHESHWARI,37 E.L.R. 45.
—Appeal in the name of national symbol—Photographs of Mahatmaand Jawaharlal Nehru—// national symbols.
HELD : It is implicit in S. 123(3) having regard to the terms of S.100 that the use of or appeal to the national or religious symbols must bemade by the candidate or his election agent or some other persons with hisconsent before it can be regarded as a ground for declaring the electionvoid.
Jagdev Singh Sidhanti v. Pratap Singh Daulta and Ors., A.I.R. 1965S.C. 183; referred to.
The use of portraits or pictures of Mahatma Gandhi and Jawahar LaiNehru for purposes of election propaganda does not amount to using thenational symbol or making an appeal in the name of the national symbol,normally the said photographs can only be held to be the symbols of thepersons whose photographs and portraits they are.
143
Ghayar Ali Khan v. Keshav Gupta, A.I.R. 1959 All. 264 and KaranSingh v. Jamuna Singh, A.I.R. 1959 All. 427; NARAYAN SHANKARTRIVEDI v. DALCHAND JAIN AND ANOTHER, 37 E.L.R. 107.
—S. 123, sub-section (2), (3) and 3(a)—corrupt practice—proof of—appeal on grounds of religion, caste and community—what constitutes—cow, whether a religious symbol.
The petitioner challenged the respondent's election to Parliament alleg-ing various corrupt practices under s. 123(1) to (5) of the Representationof the People Act, 1951.
HELD : Dismissing the petition,
(i) On the facts the petitioner had failed to prove any of the allega-tions made in the petition.
(ii) Tt is a well-established principle of law that the charges in anelection petition by a petitioner are in the nature of criminal charges and,therefore, the proof needed in support of these charges should be the sameas is required to prove a criminal charge.
The Cow is an object of reverence among the Hindus but not a symbolof Hindu religion. A speech during election that a certain candidate was a"rakshak" of cow would not amount to using the cow as a religious symbol.Even if it admitted that the respondent worshipped the cow before address-ing an election meeting it would not be proper to infer that he used the cowas a religious symbol. It cannot be denied that killing of a cow amongthe Hindus is a great sin and protecting the cow is regarded as a pious act;but on this ground also it would not be correct to hold that the cow is areligious symbol.
Lachhiram v. Jamuna Prasad Mukhariya and Ors., 1953-54 E.L.R.Vol. 9 p. 149 Jagdish v. Mathura Prasad, Appeal No. 357 of 1963; Viswa-nath Prasad v. Salamat Ullah and Ors., U-P. Gazette of 24th July 1965 p.516; referred to. MAURYIA B. P. v. PARKASH VIR SHASTRI, 37E.L.R. 137.
—Sections 123 (2), (3) and (6)—Appeal in the name of religion—-Undue influence—Cow slaughter issue—Cow if religious symbol—'His'religion meaning of.
The election of respondent No. 1 was challenged on the ground,inter alia, that he committed the corrupt practice of undue influence andappeal to religion . It was alleged that the respondent made cow slaugh-ter as the main plank of his election propaganda appealing to the voters
144
through leaflets to refrain from voting for Congress which was doing theirreligious act of slaughtering cows and to vote Jan Sangh, a championfor the cause of total ban on cow slaughter, which was a matter of reli-gion. The corrupt practice was also said to have been committed by anappeal in the name of Cow-mother, a religious symbol.
HELD : (i) The petition was maintainable. But the corrupt prac-tices contemplated under Section 123(2), (3) and (6) alleged to have beencommitted by the respondent No. 1 had not ben proved to have been com-mitted at the election.
(ii) The canvassing in the present case was done by way of an appealin the name of the cow which is held by the Hindus in great reverenceand has even been raised to the status of divinity. The nature of thepropaganda was that the cow was in danger and as such the Hindureligion was in danger. The appeal was not that the Congress candidatewas not a Hindu and that he should not be voted for, but the appeal wasto the effect that the congress should not be voted to power as the cowwhich was sacred among the Hindus and was even revered as a, divinitywas in danger of being slaughtered if the congress was voted to power.This appeal therefore cannot be said to be an appeal to refrain fromvoting on the ground of his religion. Under the present section 123(3)the appeal has to be made on the ground of 'his' religion, i.e., the religionof the candidate.
In order to be a religious symbol there must be a visible representa-tion of a thing or concept which is religious. Applying this test, the Cowis not a religious symbol.
The distribution of a leaflet complained of did not appear to beanything beyond legitimate canvassing. It does not in any case amountto undue influence, because, the persons who made the appeal in questionwere not in a position to dominate the will of those whom they approached.Babu Rao v. Dr. Zakir Hussain, A.I.R. 1968 S.C. 904 ; Jadev SinghSidhanti v. Pratap Singh, A.I.R. 1965 S.C. 183; referred to. BISHAM-BAR DAYAL v. RAJ RAJESHWAR AND ANOTHER, 39 E.L.R. 363.
—S. 123(2), (3)—Corrupt practice—Poster on cow slaughter—Cowif religious symbol. It was alleged in the Petition that the respondent affix-ed a poster in which a person, with a Gandhi Cap was depicted with a blood-stained sword taking a posture as if he had just then beheaded a cow. Itwas alleged that cow was a religious symbol and the exhibition of this posteramounted to corrupt practices mentioned in s. 123(2) and (3) of the Act.
145
HELD : Dismissing the petition, the cow is not a religious symbol.In the present case the petitioner as well as other candidates at electionwere all Hindus. It was not stated in the poster that anyone voting forthe petitioner or the Congress candidate would become the object of divinedispleasure. These are the distinguishing features on account of which theposter can neither be said to fall under proviso (ii) to Section 123(2) orunder S. 123(3).
Haji Abdul Wahid v. B. V. Keskar, 21 E.L.R. 409 (Allahabad);Narbada Prasad v. Chhaganlal, held inapplicable ; Lachhiram v. JamunaPrasad 9 E.L.R. 149; Mohan Singh v. Banwari Lai, A.l.R. 1964 M.P. 137;Ramanbhai v. Ajit Kumar, A.l.R. 1965 S-C 669; Shubnath Deogam v.Ram Narain Prasad, A.l.R. 1960 S.C. 148; referred to. DINESH RAIDANGI v. DAULATRAM 39 E.L.R. 463.
—S. 123—Corrupt practice—Use of National Flag and National Emb-lem.—Burden of proof.
In the appeal to the Supreme Court it was alleged that the respondentused the National Flag in his vehicle during the election and also allowedthe National Emblem to be used by the Parliamentary Candidate. Dis-missing the Petition. HELD : There was no evidence to prove that therespondent used the National Flag.
Assuming that the Parliamentary Candidate used the National Emblemin the post cards and in doing so he contravened the law, there was no evi-dence to show that it was done with consent of the respondent- MAR-DHA B. G. v. KISHANLAL RAMCHANDRA MARDHA ANDOTHERS, (S,C.) 40 E.L.R. 416.
Printing replica of national flag along with the appeal of a candidate—whether corrupt practice.—
It was alleged in the petition that the appellant used the NationalFlag for furthering his election prospects by publishing a replica of theflag with his appeal in the papers.
HELD : In the absence of reliable evidence that. the replica of theNational Flag was printed in the papers along with his appeal at the appel-lant's instance, it could not be held that the appellant used the nationalflag for furthering his election prospects. DALCHAND JAIN v. NARA-YAN SHANKAR TRIVEDI, 41 E.L.R. (S.C.) 163.
4 EC/74—13
146
CORRUPT PRACTICE—(11. MISCELLANEOUS)
—Miscellaneous matters-—Communist party, whether a class of citizenswithin the meaning of section 123(3A)—See corrupt practice—Publishingfalse statements—-MOHAN SINGH OBEROI v. ALHAJ-T-AHMAD, 38E.L.R. 160.
—S. 79(d)—"Electoral right", meaning of—
HELD : The wording of section 79 (d) of the Act defining "electoralright" mentions only the right to be a candidate and also the right to voteor to refrain from voting. It does not expressly mention the right lawfullyand peacefully to persuade other electors to vote in a particular manner;but on one view it would imply the right to persuade others to vote asone would like them to. Either the legislature left this to be implied orthere has been an omission. If it is implied it is clear that a threat givento somebody working for a candidate is an attempt to interfere with the freeexercise of the electoral right; on the other hand even on the assumptionthat this right to persuade others is not implied in the electoral right, sucha threat would all the same be a corrupt practice. KESHAVDEV v.KHUMAN SINGH AND OTHERS, 40 E.L.R. 242.
5. 123—Corrupt Practice—Speaker of the House—Propriety of tak-ing part in Election campaign.
HELD : The conduct of the Speaker in taking part in an electionin breach of the convention may be a matter for public condemnation butit is not a corrupt practice as defined in s. 123 of the Act which alone acourt can take note of in deciding an election petition. THIRUMALAIKUMAR, R. v. KATHIRAVAN ALIAS SHAMSHUDDIN. 42, E.LR.161.
—S. 123(2), (3), (3A), 4 and (7)—Corrupt Practice—Proof of—
HELD : The respondent came out with the particulars regardingcanvassing by a government officer several months after he filed the elec-tion petition and that too when the court ordered that the grounds whichwere not supported by particulars would be struck out. The trial Judgerelied on the evidence of interested witnesses and was worng in drawing anadverse inference against the appellant for the re-examination of the govern-ment officer. Further, the respondent has not proved that the appellant hadobtained or provided the services of the Government officer.
Shri Bam Ram v. Srimati Prasanni, 1958 S.C.R. 1403; referred to.
147
During election times when emotions are roused and party feelingsworked up, it is not uncommon to have minor incidents here and there butthat does not amount to undue influence under Section 123(2) of the Act.
In his speech the appellant opposed the proposal mooted by theCommunist M. L. As of Tripura as to the inclusion of certain areas inTripura in the fifth Schedule of the Constitution and stated that the pro-posal if carried into effect, would create a critical situation for the Bengalis.This cannot be considered as an appeal to vote or refrain from voting onthe ground of religion, race, caste or community.
In order that a statement may be considered as one relating to personalcharacter and conduct of a candidate, it must relate to his mental or moralnature and not about his political opinion or activities. The statement thatthe respondent propagated the partition of Tripura cannot be held to be astatement relating to the personal character and conduct of the respondent.
To say that the activities of a candidate run counter to the interest ofhis community is not the same thing as appealing to vote or refrain fromvoting on the ground of religion, race, caste or community. Nor can itbe said that a demand for Law Reform promotes feelings of enmity orhatred between landlords and tenants and therefore such a demand violateds. 123(3A). CHOUDHARY, J.K. v. BIRENDRA CHANDRA DUTTA,42 E.L.R. 66.
DISQUALIFICATION OF CANDIDATES—(1. QUALIFYING DATE)
[See—ELECTORAL ROLL AND NOMINATION OF CANDIBATES]
—Qualifying date—Entry in roll—Electoral roll—conclusiveness ofentry in—Election Petition.
In his petition challenging the election of respondent No. 1, the petitionersought to introduce a new para that respondent No. 1 had shifted his resi-dence from Uttar Pradesh to Madhya Pradesh and therefore lost the resi-dential qualification necessary to be an elector in U.P. at the relevant timeand in consequence thereof, was not qualified to stand for election to theU.P. Legislative Assembly.
HELD : The respondent did not lack any of the qualifications enume-rated in Article 173 or suffer from any of the disqualification setforth in Article 191 of the Constitution, or Section 16 of theRepresentation of the People Act, 1951. Since the name of the respon-dent found a place in the electoral roll of the constituency he would be anelector as defined under Section 2(e) of the Representation of the PeopleAct, 1951, and as such for the purpose of the present enquiry, this courtwould not go behind that entry, no objection to that entry having beentaken at the proper time.
P. Kunhiraman V. V. R. Krishna Iyer, A.I.R. 1962 Kerala 190 (F.B.);B.M. Ramaswamy v. B. M. Krishnamurthy, A.I.R. 1963 S.C. 458; GhulamMohiuddin v- Election Tribunal for Town Area Saket and Another, A.I.R.1959 All. 357; Brijendra Lai Gupta and another v. Jwalaprasad and others;22 E.L.R. 336; held inapplicable. MOHANLAL v. ZORAWAR VERMA& OTHERS, 36 E.L.R. 155.
Representation of the People Act, 1950—Section 20 sub-sections (4),(5) and (7)—Declaration as to residence—"Ordinarily resident",—mean-ing of—Electoral Roll—Finality—Courts, jurisdiction to go into correct-ness.
The petitioners who were electors of the Constituency, challenged thefirst respondent's election to the Mysore Legislative Assembly at the Gene-ral Elections held in 1967 from the Jamkhandi Constituency on the follow-ing grounds.
(i) The first respondent was not an elector in Jamkhandi constituencyduring the period relevant to the General Election of 1967 as he had
148
149
ceased to be a person ordinarily resident within the constituency and there-fore was not qualified for election to a seat in the Assembly;
HELD: (i) the first respondent was an elector in the JamkhandiConstituency during the period relevant to the General Elections of 1967and he was qualified to stand for election.
(a) Before a person can be said to be resident at a place it must beshown that he had the desire to reside or stay at that place and if he goesaway from that place on any purpose or business, he should also have thedesire to get back to the first named place. The provisions of sub-sections(4) and (5) of s. 20 do no more than prescribe or state in clear termsthat the place where the holder of a declared office would have been ordi-narily resident but for the fact that he holds such an office should be re-garded as his place of ordinary residence for the purpose of registrationas an elector. The declaration called for from him under sub-section (5)does not give him the liberty to choose any place as the place which maybe described as his place of ordinary residence but only to declare as hisplace of ordinary residence such place at which he would have been infact ordinarily resident had it not been for the fact that he is holding adeclared office.
The exercise of profession is without doubt a circumstance of greatimportance and when the profession is an independent profession in whichthe person exercising the profession retains the independence of choosingthe place where he would like to exercise that profession, a declaration ofintention by the said person, if it could be believed, would indeed be con-clusive on the point.
It is obvious from sub-section (5) of S. 20 of the Act of 1950 that inthe absence of evidence to the contrary the declaration has to be acceptedas correct. It is no doubt true that under sub-section (7) an examinationof all facts relating to ordinary residence of any person has to be made inany case where a question arises as to the same and not a dispute and thattherefore contrary evidence may exist even in a case where nobody hadappeared to object to the insertion of the name in a particular part ofthe electoral roll. But there is no statutory obligation cast on the Regis-tration Officer himself to go in search of evidence, if any, contrary to thedeclaration of a person holding a declared office. On the contrary amandate of the law to him is that he shall accept it as correct.
In the present case if value is placed on the nature of the first respon-dent's profession or business outside his political activities and his personalpredilections and reactions, there is scarcely any ground to doubt the
150
accuracy of his statement that but for the fact that he held the office of aminister, his place of ordinary residence would have been Jamkhandi.
(b) The jurisdiction of a court hearing the election petition, that isto say, a petition calling in question the election of a successful candidate,extends to examining not merely whether the said election is vitiated byany corrupt practice but also to examine whether the successful candidateis a person qualified to fill a seat in the relevant legislature. The finalityto the electoral roll is attached only by sub-section (7) of S. 36 of the Actin express terms, limiting it to the said sub-section alone. There is noprovision in the Act which invests the electoral roll with a finality for allpurposes in such a way as to debar a tribunal or a court from going intothe question whether a successful candidate has or has not the qualifica-tion prescribed'by the constitution.
Ramaswamy V. Krishnamurthy, A.I.R. 1965, S.C. 458; Sriramula v.Deviah, 1965 Mysore L- J- 676 referred to; Durga Shankar v. Raghu RajSingh, A.I.R. 1954 S-C. 520; relied on.
ISHVARAPPA SIDN1NIGAPPA GHATTARKI v. PAMPAKAVIRAYAPPA BELGALI, 39 E.L.R. 120.
—Representation of the People Act, 1950, Section 23(3)—Mandatoryor Directory—Inclusion of name in electoral roll after last date of filingnomination—if electoral registration officer acts without jurisdiction.
The petitioner challenged the election of Respondent 1 on the ground,inter alia, that one H was not entitled to cast his vote because his appli-cation for inclusion in the electoral roll was decided after the last datefor filing the nomination papers. It was contended that after the last datefor filing of the nomination papers the electoral Registration Officer hadno jurisdiction to correct the electoral roll and to include the name of aperson, who is otherwise qualified to be included therein, in spite of the factthat such an elector had applied within the time allowed by law and forno fault of his, the application had not been decided before the date speci-fied in S. 23(3) of the 1950 Act. The petitioner prayed that the electionof Respondent 1 be declared void and he be declared elected. The res-pondents argued that the impugned order at the most was an illegalityand could not be questioned in election proceedings being an order stillwithin the exercise of the jurisdiction of the Electoral Registration Officer.
HELD : Per Shamsher Bahadur and Harbans Singh JJ.
The Electoral Registration Officer in issuing the direction for inclusionof the name of H after the last date of nomination acted against the express
151
prohibition contained in sub-section (3) of Section 23 of the Act of 1950and as such his act was beyond the jurisdiction vested in him.
The rule embodied in sub-section (3) of Section 23 is mandatory.The breach of this mandatory requirement which Parliament had delibe-rately adopted to replace the undefined time-limit, could not be said tobe a mere breach of a directory rule whose non-compliance could be over-looked. Indeed, the acceptance of the position that the correctness ofthe electoral roll could be made right uptill the time of election would rein-troduce a confusion which Parliament in its wisdom thought fit to eliminateby replacing S. 23 and making a provision in sub-section (3) placing atime limit on the order which may have been passed by the Electoral Re-gistration officer. Not only is this conclusion supported by the clear andunambiguous language of sub-section (3) of S- 23 of the Act, but the inten-tion is made manifest by the report of the Election Commission on theThird General Elections in India on the basis of which amendments weremade.
Roop Lai Mehta, v. Dhan Singh, 1967 P.L.R. 618; Jagan Nath v. Jas-want Singh A.I.R. 1954 S.C. 120; Pratap Singh v. Sri Krishna Gupta,A.I.R. 1956 S.C. 140; Harcharan Singh v. Mohinder Singh, A.I.R. 1968S.C. 1500; Ghulam Mohiuddin v. Election Tribunal, A.I.R. 1959; AU 357;Ramswarup Prasad Yadav v. Jagat Kishore Prasad Narain Singh, 17 E.L.R.110; referred to.
Per Mahajan, J.
The inclusion of the name of H in the electoral roll against the provi-sion of S. 23(3) of the 1950 Act cannot be held to be without jurisdiction.
The passing of the order would not affect jurisdiction when the appli-cation on the basis of which the order had to be passed was made whenthe Electoral Registration Officer had the jurisdiction to entertain it. Se-condly, only those votes are void which fall within the ambit of S. 62 ofthe Representation of the People Act, 1951. Once the name of a personhas been brought on the electoral roll, he is entitled to vote in view of theprovisions of S. 62(1) of the 1951 Act. Thirdly if Section 23 had beenmandatory, the section would have found mention in Section 62 of the1951 Act. Ghulam Mohiuddin v. Election Tribunal, A.I.R. 1959 Allaha-bad 357; Roop Lai Mehta v. Dhan Singh, 1967 P.L.R. 618; followed. Pra-bhakar Yajnik v. District Magistrate 1953 All. LJ . 667; /. K. Gas PlantMfg. Co. v. Emperor, A.I.R. 1947 F.C. 38; Jagan Nath v. Jaswant Singh,A.I.R. 1954 S.C. 210; Pratap Singh v. Sri Krishna Gupta, A.I.R.1956 S.C. 140; B. M. Ramaswamy v. B. M. Krishnamurthy, A.I.R. 1963S.C. 458; referred to. Rejecting the vote of H and three other votes' which
152
were void in view of the Full Bench decision, the learned Single Judgefound that the petitioner obtained the highest number of first preferencevotes. Accordingly the election of the returned candidate was held voidand the petitioner declared elected.
KUNDAN SINGH v. KABUL SINGH AND OTHERS, 42 E.L.R. 1.
—Questions of citizenship and identity of candidate—if material whenname appears as a voter in the constituency. HELD : It is true that theReturning Officer rejected the petitioner's nomination papers on othergrounds than for the petitioner's failure to have produced the requisiteElectoral Roll, but rejection would be proper whatever may have beenthe reason given by the Returning Officer. The issue for the purpose ofthis case has to be decided only on the basis of the Electoral Roll, solong as it is not cancelled or set aside by the proper authority. The questionof citizenship (of the petitioner which was also challenged) is beside thepoint, when the petitioner's name appears as a voter in the Darhal Consti-tuency. The identity of the petitioner could not be decided with referenceto some mistake or some discrepancies in the name and the age of thepetitioner or the entries relating to his father or wife. The ReturningOfficer had, therefore, to confine himself only to the entry in the ElectoralRoll to decide whether the petitioner was duly recorded as a voter. GulzarAhmad v. Abdul Rashid, 38 E.L.R. 342.
—Electoral Roll—Amending electoral roll after the last date for makingnomination—amended roll should be ignored for the purpose of conductingelection. The petitioner alleged that the notification of the electoral rollwas made by the Electoral Registration Officer in contravention of sub-sec-tion (3) of Section 23 of the Act of 1950 just on the eve of the pollafter the last date for filing of nomination, in such a manner as to (i) deletethe names of some electors who were registered as such on the last datefor making nominations for the election in question; (ii) add the namesof several new persons who were not registered as electors in the unamendedelectoral roll. It was contended that the action of the Electoral Registra-tion Officer materially affected the result of the election.
HELD /The action of the Electoral Registration Officer was in con-travention of Section 23(3) of the Act of 1950.
There is no warrant for the view that it is competent to the ElectoralRegistration Officer to amend the Electoral Roll after the expiry of the lastdate for making nominations for a particular election in the constituency con-cerned and before the completion of that election. If however the ElectoralRegistration Officer amends the electoral roll during the aforesaid period,then that amendment must be ignored for the purpose of an election whichhas already begun in the constituency with the making of nominations and
153
is still in the process of completion. Therefore, the amended electoral rollshould have been ignored for the purpose of conducting the impugned elec-tion.
Sitaram Mahto v. Baidyanath Panjiar, 40 E.L.R. 354 (Patna); referredto.
In the present case the election of Respondent No. 1 had not been mate-rially affected by reason of illegal omission or illegal inclusion of names inthe electoral roll as amended after the expiry of last for making nominations.GAY A KRIHSORE SAMAL v. R. N. RAO AND OTHERS, 42 E.L.R.84.
—Representation of the People Act, 1950—Electoral Roll—Registra-tion of name in electoral roll is satisfaction of Electoral Registration Officer—Act provides machinery for correction—Jurisdiction of court limited tomatters indicated in Ss. 100 and 101.
In the elections to the Rajya Sabha from the Bihar Legislative Assemblyconstituency by means of single transferable vote the seven respondents weredeclared elected. The petitioner challenged the election of respondent No. 1on the grounds (i) that the nomination of respondent No. 1 was improperlyaccepted inasmuch as he was not qualified to be enrolled as an elector inthe electoral roll of West Patna Assembly Constituency on the ground thathe was not ordinarily resident in the said constituency, and (ii) that hewas guilty of corrupt practice within the meaning of sub-section (1) of S.123 of the Act of 1951 inasmuch as he had not only made offers but alsomade payments of money to various electors as motive or reward for votingin his favour.
HELD: The question as to whether a person is or is not entitled tobe registered in an electoral roll is a matter of the satisfaction of the Electo-ral Registration Officer. The Act of 1950 provides an independent form fordealing with all questions relating to the preparation and revision of electoralrolls and correctness or amendment of entries made therein. If the regis-tration of the first respondent's name in the electoral roll of Patna AssemblyWest Constituency was improperly or fraudulently done then the remedyof the petitioner lay before the Chief Electoral officer in an appeal underS. 24 of the Act of 1950- In the Election Petition the jurisdiction of thecourt is confined to the matters indicated in Sections 100 and 101 of theAct of 1951.
Kannailal Bhatiachrjee v. Nikhil Das, A. I. R. 1969 Cal. 267; referredto. JAG AT KISHORE PRASAD NARAIN SINGH v. RAJENDARKUMAR PODDAR, 42 E.L.R. 231.
154
DISQUALIFICATION OF CANDIDATES—(2. AGE)
—Age—Electoral Roll—-Disqualification—Entry in roll 68 when real ageis 38—Filling of three nomination papers showing both ages—If ReturningOfficer can reject nomination papers.
The name of petitioner No. 3 was entered in the relevant electoral rollbut his age was incorrectly noted therein as 68 in place of 38 years andhence the petitioner filed three nomination papers in two of which his agewas mentioned as 68 years in accordance with the entry in the electoral rolland in the remaining one as 38 years in accordance with his correct age. Atthe time of scrutiny the Returning Officer rejected all the three nominationpapers because the petitioner had insisted that he was 68 years old as men-tioned in the electoral roll and had kept silent when questioned about theage as given in the third nomination paper- The petitioner contended thatthe respondent's election was void because of this improper rejection of thenomination papers.
HELD: A wrong entry as to the age in the electoral roll does not dis-entitle a person from exercising his right of franchise nor does it debar himfrom standing as a candidate for the election. Under Article 133 of the Con-stitution of India the minimum age for being chosen to fill a seat in theLegislative Assembly is 25 years • and as the petitioner was 38 years therewas no bar to his election on account of his age. The Returning Officer alsodid not consider, him to be aged below 25 years. Further there is no provi-sion in the Act to the effect that the age as entered in the nomination papershould also tally with the corresponding entry in the electoral roll. The entryas to the age is nothing but an entry regarding the description, and in viewof the terms of the proviso to S. 33(4) it is quite apparent that any wrongentry in the age either in the nomination paper or in the electoral roll cannotaffect the validity of either the electoral roll or the nomination paper. Theright of relief in the present case as claimed by the three petitioners aroseout of the same act on transaction viz. the order of the Returning Officerrejecting the nomination papers. SIDHESWAR SHARMA AND ORS. v.CHANDRADEO PRASAD VARMA, 33 E.L.R. 234.
—Ss. 33, 37(1), 38—Indian Evidence Act 1872, Section 114, illustra-tion (g)—Record of date of birth in school register, certificate of—proof—validity of certificate—Evidence of birth register not produced—Inferenceunder illustration (g) under Section 114, of Evidence Act, whether canbe raised.
HELD : Dismissing the petition : Although it was established that thefourth respondent was above twenty-five years of age at the time of hisnomination, his nomination had been properly and effectively withdrawn by
155
him; the question of improper rejection of his nomination paper did nottherefore arise.
The record of date of birth in the school register and certificates whensupported by important facts and circumstances of the case was entitledto greater probative value than the entries in the electoral rolls. Noinference under Section 114, illustration (g) of the Indian Evidence Actcan be raised when the court is not satisfied as to whether the birth registeris in existence and when it has not been produced in evidence by the parties.
Manikchand v. Krishna, A.T.R. 1932 Nag. 117; Aga Jan Khan RahimKhan and another v. Kesheo Rao Nathuram Maratha, A.T.R. 1940 Nag.217; Gayaprasad v. Jamna Prasad, 1959 M.P.L.J. notes of cases No. 143;B. Kala Ram S. Bhag Singh v. Rayal Bari Khan and others, A.I.R. 1941Peshawar 38; Subha Rao v. Venkata Rama Rao, A.I.R. 1964 A.P. 53;Liladhar Bania v. Mabibi and others, A.I.R. 1934 Nag. 44; Hrishikesh Bancr-jee and others v. Sushil Chandra Moulik, A.I.R. 1957 Calcutta 211; Jaga-dananda v. Rabindra Nath, A.I.R. 1958 Calcutta 533; Anadi Mohon Ghosev. Rabindra Nath Dutta and others, A.I.R. 1962 Cal. 265; referred to.
The entry in the electoral roll as regards age is not final and conclusive.Sub-section (7) of Section 36 makes the electoral roll conclusive evidenceof the candidate's qualification in regard to his being an elector only andnot about his age.
Brijandralal Gupta and another v. Jwala Prasad and others, 11 E.L.R.366 S.C. Abdul Majeed V Bhargavan, A.I.R. 1963 Kerala 18; Raja JanakiNath Roy and others v. Jyotish Chandra Acharya, A.I.R. 1941 Calcutta41; Tata Iron and Steel Co. Ltd. Jamshedpur v. Abdul Watab A.I.R. 1966Patna 458; Shivram v. Shivcharan Singh, 1964 Doabia's Election cases 80;Mahabri Singh v. Rohin Ramandhwaj Prasad Singh, A.I.R. 1961 S.C. 1277;referred to. RAM BHAROSE v. JAGANNATH SINGH AND OTHERS,34 E.L.R. 135.
•—Article 173—Age—Entries in the School Admission Registers—Admis-sibility in evidence.
HELD : The entries regarding age in the school admission registersof the government schools are admissible under S. 35 of the Evidence Act asentries made by a public servant in a public or official register in the dis-charge of his official duty. Similarly, school leaving certificates of suchschools mentioning date of birth of a pupil are also admissible as proof ofage of the pupil concerned under the same section.
Manikchand V. Krishna, A.I.R. 1932 Nagpur 117; Aga Jan KhanRahim Khan and another v. Keshav Rao Nathu Ramm Maratha, A.I-R. 1940
156
Nagpur 217; Gayaprasad v. Jamnaprasad. First Appeal No. 115 of 1958decided by the Division Bench of the Madhya Pradesh High Court on22-4-1959; B. Kala Ram S. Bhag Singh v. Fazal Bari Khan and others,A.I.R. 1941 Peshwar 38; Subbarao v. Venkata Rama Rao, A.I.R. 1964A. P. 53; Latajar Hussain v. Onkar 1935 Oudh 41; Liladhar Bapia v.Mabibi and others, A.I.R. 1934 Nagpur 44; Hrishikesh Banerjee and othersV. Sushil Chandra Moulik, A.I.R. 1957 Calcutta 211; Jagadananda v.Rabindranath, A.I.R. 1958; Calcutta 533 and Anadi Mohon Ghose v.Rabindranath Dutta and others, A.I.R. 1962 Calcutta 265; referred to.
The second respondent was more than 25 years of age on the date ofscrutiny and therefore was qualified to be choosen to fill the Assembly seat.• KAMLA PRASAD VPADHYA v. SARJOO PRASAD TlWARl ANDORS., 35 E.L.R. I.
—Duty of Returning Officer to reject nomination if essential qualifica-tions prescribed not satisfied.
HELD: On the relevant materials on record and in the light of attend-ing circumstances it must be held that the respondent was less than 25 yearsof age and as such was not qualified to be chosen to fill a seat in the legis-lative Assembly. MAD AN SHUKLA v. KRISHNA PRATAP SINGH, 35E.L.R. 102.
—Age ss. 33(5), 35(3)—Filing of a copy of electoral Roll—Age andHouse Number not shown in copy —If defect of substantial character.Sub-section (5) of s. 33 provides that where a candidate is an elector of adifferent constituency, a copy of the electoral roll of that constituency or ofthe relevant part thereof or a certified copy of the relevant entries in suchroll shall, unless it has been filed along with the nomination papers, beproduced before the Returning Officer at the time of scrutiny. By sub-sec-tion (3) of s. 36 the Returning Officer is enjoined not to reject the nomina-tion paper unless the defect is of a substantial character. The appellant pro-duced with the nomination paper a certified extract from the electoral list.But the house number and age in the electoral list were not set out. Therespondent challenged the election of the appellant on the ground that theappellant's nomination was improperly accepted. The High Court upheldthe contention and declared the election void under s. 100(1) (d) (i) ofthe Act. Allowing the appeal to the Supreme Court.
HELD : On a review of the proceedings before the Returning Officer ithas to be held that the Returning Officer did not err in not rejecting thenomination paper. The details for identifying the appellant as an electorwere duly furnished. His age was mentioned in the nomination paper. No
157
objection was raised to the acceptance of the nomination paper at the scru-tiny. The Returning Officer satisfied himself by personal enquiry that theappellant was above the age of twenty five. Though he did not apply hismind to the absence of house number he did not come to the conclusionthat the defect was of a substantial character.
Bam Ram v. Shrimati Prassani and Ors. (1959) S.C.R. 1403 referred toS. HARCHARAN SINGH v. S. MOHINDER SINGH, 38 E.L.R. I.
—Age—ss. 100(1) (a) and s. 100(1) (d) (i) and 36(a)—Disqualifica-tion of Candidate—Age—Grounds for declaring election void—See NOMI-NATION OF CANDIDATES (AGE). AMRITLAL AMBALAL PATEL V. HI-MATBHAI GOMANBHAI PATEL (S.C.). 38 E.L.R. 32.]
—Article 173 (b)—Sections 100 (1) (a) and s. 100(1) (d) (i) and 36(2)—Disqualification—Candidate must attain the age of 25 years on thedate fixed for nomination and not when election takes place. The electionof the appelant was challenged on the ground that the appellant was notqualified to be chosen to fill the seat in the State Legislature on the date ofnomination because he was less than 25 years of age and his nominationpaper was wrongly accepted. The High Court set aside the election of theappellant under s. 100(1)—(a) of the Act. In the Supreme Court it wascontended that the High Court wrongly arrived at the finding regarding thedate of birth and in the alternative that the appellant was more than 25 yearsof age when the election took place and therefore it should be held that hewas qualified to be chosen as a member of the State Legislature in viewof the provisions contained in Article 173 (b) of the Constitution and Sec-tion 100(1) (a) of the Act. It was urged that all that was required wasthat he should have attained the age of 25 years prior to the declaration ofelection.
HELD : The order of the High Court setting aside the election of theappellant was in accordance with law. Apart from Article 173 and Section100(1) (a), effect has to be given to the additional provision contained inS. 36(2) of the Act. This provision makes a departure in as much as it laysdown that the nomination paper is to be rejected if the candidate is notqualified under Article 173 of the Constitution on the date fixed for thescrutiny of nomination. In the present case the appellant had not attainedthe age of 25 years on the date 'fixed for scrutiny of nominations. Conse-quently his nomination paper was liable to be rejected under s. 36(2) (a)of the Act-
On the face of it the consequence of the improper acceptance of thenomination of the appellant was that the result of the election was material-ly affected. The election of the appellant had to be declared void in these
158
circumstances by the High Court not under s. 100(1) (a) but under s.100(1) (d) (i) of the Act. AMRIT LAL AMBALAL PATEL v. HIMAT-BHAl GOMANBHAI PATEL (S.C.) 38 E.L.R 32.
—Rejection of nomination on ground of under-age—Evidence of age—Entry of age in Electoral Roll—Whether conclusive proof—Evidence Act,1872, Section 35, Scope of.
HELD : The age given in an electoral roll only proves that the indivi-dual referred to in that entry is registered as an "elector', but that is no pre-sumption that it must be accepted as conclusive proof of the age. Further,a medical test as to the age by a mere look at a person is only guess-work.An entry in the School Register is a public record and is admissible unders. 35 of the Evidence Act. In the face of the statement of "A" that hewas not of the requisite age of 25 years and that his date of birth was19-2-1944 as is in the School Admission Register and Matriculation Certi-ficate the Returning Officer had rightly rejected the nomination of "A"under section 51(4) of the State Constitution.
Brij Mohan Singh v. Priya Brat Narain Singh Sinha and others, A.I.R.1965, S.C- 282; Bansi Ram Naru Ram v. Jit Ram Gebru Ram, A.I.R. 1964,Pb. 231; Shiv Ram v. Shiva Charan Singh, A.I.R. 1964, Raj 126, referredto. MOHAMMAD AKBAR v. K. H. LASSA WANI—3S E.L.R. 221.
—Evidence Act, section 35—Age—entries by Head Moharrir of PoliceStation in register for births and deaths—A dmissibility.
HELD : (ii) The respondent was 25 years of age at the time of hisnomination in January 1969 and his election in February 1969.
The entries made by the Head Moharrir of a police station in the registerof births and deaths maintained in accordance with clauses (iii) and (vi)of Para 322 of the Police Regulations are clearly covered by s. 35 of theEvidence Act and are admissible in evidence.
Jiwan Baksh v. Khan Bahadur Khan, 19 I.G. 528; Brij Mohan Singhv. Priya Brat Narain Singh A.I.R. 1965 S.C. 282; distinguished.
Shiv Deo Misra v. Ram Prasad, A.I.R. 1925 Allahabad 19 and DasiRam v. Emperor, A.I.R. 1947 Allahabad 429; distinguished. RAJEN-DRA KUMAR v. CHANDRA NARAIN SINGH, 42 E.L.R. 385.
—Section 36(7)—Presumption under—Entry in the electoral roll isconclusive proof that person is more than 21 years—Consitution of India,Article 173-Qualification as to age—Rejection of nomination paper—There
159
must be prima facie evidence that that person does not possess the quali-fication.
The petitioner sought to have the election of the respondent declaredvoid on the ground that the nomination papers of the petitioner were im-properly rejected by the Returning Officer on the ground that he was lessthan 25 years on the date of filing of the nomination papers. He contendedthat on the face of the nomination his age was stated as 26 years; that theelectoral roll, which was prepared on the 1st of January 1965 in which hisage was recorded as 20 years could not be taken to be conclusive. Onlythat person could be an elector who is 21 years of age when he is entered inthe electoral roll that if a person is entered as an elector there is a conclu-sive presumption that he is not less than twenty one years of age; thereforethe Returning Officer should have proceeded on the basis that on the 1st ofJanuary 1965 the petitioner was 21 years of age and necessarily on the dateof the filing of the nomination paper, that is, 7th of January 1969, the peti-tioner was more than 25 years of age. The respondent contended that noattempt was made by the petitioner to show that his age recorded in theelection roll was wrong and that the order of the Returning Officer was finaland open to scrutiny.
HELD : The rejection of the petitioner's paper on the basis that hewas below the qualifying age was improper. The name of the petitionerexisted in the electoral roll prepared in the year 1965 which electoral rollis effective from 1st of January 1965. Therefore a clear conclusive pre-sumption arose that on the 1st January 1965, the petitioner was not lessthan 21 years of age. The Returning Officer, while rejecting the nomi-nation paper of the petitioner ignored the provisions of Section 36(7) ofthe 1951 Act and thus the rejection of the nomination paper was improper.There was no material before the Returning Officer on the basis of whichhe could hold that the age of the petitioner was below 25.
The true legal position is that the entry of a person in the electoral rollon the qualifying date is conclusive proof of the fact that he is more than21 years of Age. But a candidate has to possess the constitutional quali-fication that he is 25 years of age. In order that the nomination paper ofsuch a candidate is rejected for want of the constitutional qualification,there must be prima facie evidence that he does not possess the qualificationas to age; and even if a decision is reached on this matter by the ReturningOfficer that decision is not final.
Brijendra Lai Gupta v. Jawalaprasad, A.I.R. 1960 S.C. 1049; DurgaShankar Mehta V. Thakur Raghuraj Singh 9 E.L.R. 494; Roop Lai Mehtav. Dhan Singh, 1967 P.L.R. 618; S. M. Banerji v. Shri Krishna Agarwal,
160
22 E.L.R. 64; Veluswamy Theavar v. Raja Nainar A.I.R. 1959 S.C. 422referred to. BHAGWAN DASS SINGHA V. SHRI HARCHAND SINGH,42 E.L.R. 439.
—Article 173—Age—Disqualification—Proof of—Statement to reduceage with a view to secure advantage cannot operate as estoppel.
The petitioner alleged in his election petition that the nomination paperof respondent 1, the returned candidate, was improperly accepted since hewas less than 25 years of age on the date of filing his nomination paperor at the time of its scrutiny and that the statement made by him in aletter addressed to the principal of the school regarding his age must betaken as correct. Dismissing the petition.
HELD : On a consideration of the entire oral and documentary evi-dence it has to be held that respondent No. 1 fulfilled the qualification re-garding age.
The burden of proof that the age was below 25 years on the date of thefiling nomination paper is on the election petitioner.
In the instant case respondent No. 1 merely made an attempt to changehis date of birth for reducing his age to secure an advantage but was notsuccessful. This cannot operate as estoppel.
Brijmohan Singh v. Priyabrat Narain Singha, A.I.R. 1965 S.C. 282; refer-red to.NEMDHARI YADAV v. RAM BILAS PASWAN, 42 E.L.R. 453.
-. —Age of the candidate—proof of—for the purpose of scrutiny and ac-ceptance of the nomination papers the Returning Officer bound by the entryin the electoral roll—Conclusive proof required to set aside the electionon that score—evidendciary value of the entries in the school register regard-ing age—Failure to make objections regarding age at the time of scrutiny—whether a bar in raising the question later. The petitioner challenged thevalidity of the election of Respondent 1 and further sought an order dec-laring him elected instead of Respondent 1 on the following grounds :—
The result of the election was materially affected by the improperacceptance of the nomination paper of Respondent 2 for he was less than25 years of age at that time- The entire votes 'polled in favour of Respon-dent 2 would have been polled in favour of the petitioner, as both of themwere opposing Respondent 1 in the election and in that case the petitionerwould have got more votes than the elected candidate.
HELD : Under Section 36 of the Representation of the People Act,the Returning Officer was to look at the certined copy of the entry in the
161
electoral roll to find out as to whether the candidate, whose nominationpaper was being scrutinised was possessed of the requisite age at that timeand in the present case Returning Officer relied upon the age givenin the electoral roll as envisaged under the Act. In the circumstances, unlessit is established beyond doubt that Respondent 2 was less than 25 years atthat time, the petitioner cannot get the election set aside on that score.Entries in the school register without any positive proof regarding the authen-ticity of such entries cannot have any evidenciary value to prove theage of a person. The determination of the age of a candidate by the Return-ing Officer would not stand in the way of the Court determining the questionof the age of that candidate inspite of the fact that no objection was raisedin that respect before the Returning Officer. Under Section 100(1) (c) ofthe Representation of the People Act the burden is on the petitioner toshow that the result of the election has been materially affected by a breachor non-compliance of any provisions of the Act.
Brijmohan Singh v. Priya Brat Narain Singh, A.I.R. 1965. S.C. 282;Krishna Rao Maharao Patil v. Onkar Narayan Wagh, 14 E.I.R. 386; JangalNath v. Moti Ram and Other, A.I.R- 1951 Punjab' 377; Tata Iron andSteel Co., Ltd., Jamshedpur v. Abdul Wahad, A.I.R. 1966 Patna 458; AbdulMajeed (Meera Sahib) v. Bhargawan (Krishnan) M.L.A. and others; A.I.R.1963 Kerala 18; Bharai Bhas Ned and anoher v. Gopi Nath Naik, A.I.R.1951 Allahabad 385; Vashist Narain Sharma v- Dev Chandra & Others,A.I.R. 1954 S.C. 518; Paoka Haokin v. Rishang and Others, A.I.R. 1969S.C. 663; Mahadeo v. Babu Vdaya Pratap Singh and otherA.I.R. 1966 S.C. 824; Inayatulla Khan v. Diwan Chand Mahajan& Others; 15 E.L.R. 219; Brijendralal Gupta and another v. Jawalaprasadand other, A.I.R. 1960 S.C. 1049; Kunhiraman v. V. V. Krishna Iyer,A.I.R. 1962 Kerala 190; relied upon. JAGDAMBA PRASAD v. SHRIJAGANNATH PRASAD & OTHERS 42 E.L.R. 465.
DISQUALIFICATION OF CANDIDATES—(3. INTEREST IN
CONTRACT WITH GOVERNMENT)
—Interest in contract with Government—S. 9 A.—Respondent Manag-ing Trustee of Navjivan Trust—Subsisting contract between the Govern-ment and the Trust on the date of nomination of the respondent—whetherthe Respondent as Managing Trustee is disqualified under Section 9A.
HELD: Dismissing the Petition: A Trustee though an owner of theTrust for certain purposes in the eye of the law certainly does not have thesame interest in the trade or business the Trust may be carrying on. Ifhe does have any personal interest also as a beneficiary, then he will be4EC/74—14
162
dragged into the mischief of section 9A. There is a vital distinction bet-ween an owner in his individual capacity and the Trustee owner, under thefiction of law. In the concept of the ownership of the trustee the very vitalingredient of personal interest does not creep in at all. The contractentered into by the Respondent as the Managing Trustee of the NavjivanTrust with the Government for printing Government publications by thepress of the Trust assuming it is a contract within the contemplation ofsection 9A, cannot be held to be his contract, nor can it be held that thebusiness or trade of the Navjivan Press is his trade or business and thereforethe respondent was not disqualified from standing as a candidate undersection 9A of the Act.
Khairul Bashar v. Thannu Lai, A.I.R. 1957 Allahabad 553; W. O.Holdsworth v. State of U.P. 1957 S.C. 887; Satyanathan v. Subrairanxan,A.I.R. 1955 S.C. 459; Laliteshwar Prasad v. Bateshwar Prasad, A.I.R. 1966S.C. 580; C. V. K. Rao v. D. B. Rao, A.I.R. 1965 S.C. 93; BhagwcmSingh v. Rameshwar Prasad A.I.R. 1959 S.C. 876; Priyabrat Narain v.Brijmohan Singh A.I.R. 1964 Patna 2; referred to. MAISURIA NAREN-DRA JH1NABHAI v. THAKORBHA1 MANIBHAI DESAI. 33 E.L.R.50.
—S. 9 A—Contract with Government for collection of forest produce—Whether amounts to contract for the supply of goods to or execute any-work undertaken by the Government—whether contractor disqualifiedunder Section 9-A.
HELD : To incur disqualification under Section 9-A of the Act, acontract must have been entered in the course of trade or business by acandidate with the appropriate Government, and therefore a contract withGovernment to collect Dhawai flowers from the reserved and protectedforest did not fall within the mischief of Section 9-A of the Act.
Hirabai Gendalal v. Bhagirath Ramchandra, A.I.R. 1946 Bom. 174;M. P. Davis v. Commissioner of Agrl. I.T., A.I.R. 1959 S.C. 719;Satya Prakash v. Bhashir Ahmed Qureshi, 1963 M.P.L.J. 614; LaliteshwarPrasad Sahi v. Bateshwar Prasad, A.I.R. 1966 S.C. 580; Bholanath v.Krishna Chandra Gupta, 6 E.L.R. 104 and R. Deshpande v. MuttamReddy, Doabia's Election cases 1961 p. 88, referred to. NIRANJANSHARMA v. RAMKUMAR AGARWAL & ORS., 33 E.L.R. 244.
—Outright purchase of forest produce—-Whether a contract, whetherattracts the "works" in Section 9-A.
HELD : A contract which is clearly one of sale by the Governmentand outright purchase by the respondent of forest produce could not fall
163
within the meaning of the word "works" as employed in Section 9-A ofthe Act.
Rai Kokilabai v. Keshavalal Mangaldas & Co., A. I. R. 1942 Bom.18; Satya Parkash v. Bashir Ahmed Qureshi A.I.R. 1963 Madhya Pra-desh 316; Yugal Kishore Sinha v. Nagendra Prasad Yadow, 1965 Doa-bia's Election Cases, Case No. (30/236); referred to.
AMAR NATH v. SARDAR LACHMAN SINGH & OTHERS, 34E.L.R 103.
Contract entered into by Cooperative Society and if could be deemedto be contract for member of society.
HELD: A contract to which a Cooperative Society is a party cannotbe regarded as a contract to which any member thereof is individually aparty. A Cooperative Society is an incorporated body with a legal per-sonality quite different from that of the members holding shares therein.The fact that an office-bearer of a Corporation becomes entitled to a pay-ment by way of remuneration or otherwise by virtue of a provision con-tained in the articles or the bye-laws governing the administration of thecorporation does not bring about a contract between him and every oneof the members or shareholders of that corporation.
In the present case no contract which would bring about a disqualifi-cation under section 9A of the Act had been proved to exist or subsist onthe relevant date. S. S. INAMDAR v. AGADI SANGANNA ANDA-NAPPA, 34 E.L.R. I.
—Section 9A—Article 299(1)—Disqualification—subsisting contractswith Government—Arrangement to supply goods at specified rates—Whencontract comes into being and is concluded—Constitution of India, Article299(1)—Contract entered into by person who had no authority—Vali-dity.
The petitioner contended in his election petition that the election ofthe first respondent was void because the latter had a subsisting contract atthe relevant period with the Government of the Union Territory ofGoa, Daman and Diu for supply of goods to that Government. Therespondent urged that correspondence between the parties did not result inany agreement or contract; and that at best an arrangement had been madeunder which the Assistant Engineer could purchase from the respondent thegoods at the rates quoted in the letter. It was further submitted thatevery time an order was placed by the Assistant Engineer with the respon-dent, a distinct contract came into being and immediately the supply was
164
made by the respondent that contract was concluded though the price forthat particular supply may have been paid subsequently.
HELD : Dismissing the petition : The letters exchanged between res-pondent No. 1 and the Assistant Engineer did not culminate in a con-cluded contract. At best only an arrangement was arrived at betweenthem under which respondent No. 1 undertook to supply the goods atthe specified rates, and that if the respondent refused, or the AssistantEngineer exhibited reluctance to purchase at those rates, neither renderedhimself liable to compensation in the sense a breach of agreement implies.In terms of the arrangement made, a contract came into being only whenorder was placed by one Assistant Engineer with" respondent No. 1 andthe latter undertook to make the supply; but the contract concluded atthe very instant the articles were delivered irrespective of the fact whenthey were paid for; this by virtue of the explanation to s. 9A of theAct. The explanation accounts for the change in law after the SupremeCourt decided the case of Chaturbhuj v. Moreshwar Parashar, A.I.R. 1954S. C. 236.
Even assuming there was a contract, there has been a complete non-compliance with the provisions of Article 299(1) since the contract wasconcluded on behalf of the government by a person who had no autho-rity at all to enter into such contract.
Chaturbhuj v. Moreshwar, A.I.R. 1954 S.C. 236; distinguished.
Laliteshwar Prasad v. Bateshvmr Prasad, A.I.R. 1966 S.C. 580;referred to. ANJANI RAMJI HADMAT V. FURGO NARA-YAN SHRINIWAS & ORS. 35, E.L.R. 21.
—Art. 299 {I)—Contract entered into by person who had no autho-rity—Validity—See Disqualification of candidates—Interest in contractwith Government. ANJANI RAMJI HADMAT V. FURGO NARAYANSHRINIWAS & ORS. 35 E.L.R. 21.
—Sections 7(e), 8(fc)—Starting point of period of disqualification—Disqualification—Subsisting contract with Government—Section 9A—Section does not cease to apply merely because party contributes towardscost of the scheme—Contract can itself be start of business—Carryingon trade or business immaterial—Repudiation of contract by party andacquiesence by Government—Contract not subsisting one
The validity of the Election of the first respondent was challenged onthe grounds inter alia, (i) the respondent had been disqualified from stand-ing as a candidate for election as a result of an order passed by the Elec-tion Commission in 1964 in consequence of his having failed to lodge
165
his account of election expenses with the Election Officer within the pres-cribed time limit and in the manner prescribed by law and that the orderof disqualification was still operative at the time when the present electionwas held; and (ii) Respondent No. 2 had taken a contract from the Gov-ernment of Bihar for desilting a tank, that this work had not been com-pleted, that though he had applied for final measurement of the work doneby him in spite of his having failed to complete the work the final mea-surements had not been done and as such there was a subsisting contractbetween the respondent and the Government. The respondent contended(1) that the order of the Election Commission disqualifying him waspassed illegally without any notice to him before passing of the order, thatthe order was not served on him as required under the relevant rules andthat in any event the order had already spent its force prior to the datewhen the respondent filed his nomination; and (2) that respondent No.2 had already expressed his inability to perform any further work andhad prayed for final measurement and therefore must be deemed to havecompleted his part of the alleged contract and as such could not be con-sidered to be in any way disqualified in view of the provisions of the Ex-planation appended to Section 9A of the Act. It was further contendedthat the agreement was not a contract in course of trade or business as con-templated by Section 9A of the Act as it was a case of mere contributionof half the amount of expenses by the Government in a work which hadbeen undertaken by the respondent for his own benefit.
HELD : Dismissing the Petition,
(i) The Act as it stood prior to the amendment in 1966 did not con-tain any specific provision to the effect that the disqualification was tobe for a period of 3 years. All that it provided under clause (e) ofSection 7 was that the disqualification would terminate on the expiry ofthree years from the date on which the acccfunt of election expenses oughtto have been lodged while clause (b) of Section 8 merely postponed thestarting point of the disqualification by a period of two months from thedate of the decision of the Election Commission under sub-rule (4)of Rule *&9. Therefore, the contention that the disqualification operat-ed for a period of 3 years after the expiry of 2 months from the date ofthe decision by the Election Commission is quite untenable. In this case,the period of disqualification of the respondent must be held to have ex-pired on the lapse of a period of 3 years from the date by which the ac-count ought to have been lodged i.e. before the period fixed for filing ofnominations for this election.
(ii) Although the work in connection with the scheme had not beencompleted till the date on which respondent 2 filed his prayer for final
166
measurement of the work done by him, no further work had been donein this connection after that date. In these circumstances there cannotbe any question of the applicability of the explanation to Section 9A ofthe Act. In the present case, respondent No. 2 having failed to performfully his part of the contract, as the work undertaken by him was notcompleted by him, there could be no question of applying the provisionsof this explanation to this case. The contract does not fall outside thepurview of Section 9A merely because of the fact that respondent 2 himselfhad agreed to contribute towards the cost of this scheme to the extentof 50 per cent as his lands only were to be benefited by this scheme.
The question as to whether respondent No. 2 carries on trade or busi-ness of a contractor is immaterial, for, all that Section 9A provides isthat the contract in question should be entered into by a person in cqurseof his trade or business with the appropriate Government. It is imma-terial whether respondent 2 was a professional contractor or not or whe-ther he had undertaken any other contract business or not. The con-tract may itself be the start of the business and the words "in the courseof the business" would still be apt.
C. V. K. Rao v. Dantu Bhaskara Rao, 1965 I.S.CJ. 616, referredto.
But the contract in question was terminated by the breach thereof byrespondent 2 which was acquiesed in by the other party on the date whenthe prayer for final measurement was made i.e. several days before theriling of nomination papers by him. Even if under the terms of the con-tract respondent No. 2 may be found to be liable to refund any amountor to make good any losses, that would not operate to make the contracta subsisting contract.
Shankar Shastri v. Mayadhardas, A.I.R. 1959 M.P- 39, referred to-VINDYA BANSI DEVI V- BABULAL MANDAL AND ORS. 36E.L.R. 225.
—Contract not executed in terms of'Article 299(/) of the Constitu-tion but covered by Section 9A of the Act—Whether creates disqualifica-tion—subsisting contract—Whether the contract should be in the courseof trade or business to attract Section 9A.
HELD: The disqualification which results from Section 9A of the Act,is conditioned by a number of circumstances; for instance, there must bea subsisting contract, that is to say, in actual existence between the ap-propriate government and the candidate concerned; the contract must bein the course of the trade or business of the candidate; and finally it must
167
be inter-alia for the execution of any works undertaken by the said gov-ernment. In the present case the subsisting contract alleged was one whichcannot be said to have been a contract entered into in the course of thetrade and business of the respondent, and therefore, it did not attractsection 9A of the Act.
A contract otherwise covered by section 9A of the Act and made withthe Government will create a disqualification in spite of the fact that itis not executed in the manner prescribed by Article 299(1) of the Cons-titution.
It was open to the Petitioner to challenge the validity of the Respon-dent's election even though his nomination had not been rejected underSection 36(2). either because there was no objection or otherwise.
C. V. K. Rao v. Dantu Bhaskar Rao, A.I.R. 1965. S.C 93; L. P. Sahiv. Bateshwar Prasad, A.I.R. 1966, S.C. 580; C. Vithal Das v. MoreshwarP. Ram, 9 E.L.R. 301; S. M. Banerji v. Shri Krishna, A.I.R. 1960, S.C. 368;Durga Shankar Mehta v. Raghuraj Singh and others, A.I.R. 1954, S.C. 520;referred to. HARISH CHANDRA DEOGAM v. BAGUN SUMBRVI,38 E.L.R. 305.
—Section 7(d)—Disqualification under—only if there is a subsistingcontract on the date of filing of the nomination papers.
The appellant challenged the election of the first respondent as a Member of the Assembly on the ground inter alia that he had subsisting con-tracts on the relevant date for execution of works undertaken by the Gov-ernment of Pondicherry and other Local Bodies; and that before the elec-tion he had ingeniously manoeuvred to transfer these contracts in favourof hi* own son, a minor school student.
The Tribunal on evidence held that it had not been proved that thetransferee was a minor; and that on the date the nomination papers werefiled there was no subsisting contract between the first respondent andthe Government of Pondicherry or the other Local Bodies.
HE LA), dismissing the appeal,
The effect of acceptance by the concerned authority of the transfer ofthe contracts by the first respondent was to discharge the first respondentfrom all rights and obligations under the contracts. There was a novationand the contract with him got rescinded.
inIn the context of this case the omission, by the amendment of s. 7,1958, of the words "for his benefit or on his account1" and of s. 9(2)
168
which made every member of a joint Hindu famJy subject to the disqualifi-cation mentioned in s. 7(d) where the contract is enteied into by a memberon his behaif, is important.
Laliteswar Prasad v. Bateshwar Prasad, A.l.R. 1966 S.C 580; reliedupon.
Section 7(d) being a provision restricting the right to stand for electionis a disabling provision and must therefore be strictly construed V. NARA-YANASWAMI v. S. GOVINDASWAMI KOUNDAR AND N- DAMO-DARAN, 39 E.L.R. 87.
—s. 9A—Contract with Government—although candidate's tender forwork accepted, no contract entered into with Government—if candidatedisqualified—•
—S. 9-A—Contract with Government—Constitution of India, Art. 229—Scope of.
Although tenders submitted by the appellant to carry out certain con-tracts with the State of Orissa were accepted, final contracts were not exe-cuted on behalf of the Governor. The appellant completed a part of thework and thereafter requested the authorities to cancel the contract withoutany penalty. No acceptance of this offer was communicated to the appel-lant. Later, he wrote letters to the Superintending Engineer for extensionof time and for permission to resume the work and complete it. Shortlythereafter the appellant filed his nomination paper for election to the StateLegislative Assembly which was rejected. The appellant filed an electionpetition for setting aside the election of the respondent on the ground thathis nomination paper was improperly rejected. The High Court dismissedthe petition.
HELD:—Ihe appellant was rightly disqualified.
(i) The contract was not wholly performed by the appellant. Unless heproved that ho bad completed the contract or showed that there was deter-mination by mulual assent of the contract, the appellant could not claimthat there was no subsisting contract at the date of the filing of the nomina-tion paper. The conduct of the appellant in writing the two letters sug-gested that he did not treat the contract as cancelled, nor was there anyclear evidence to show that the authorities had treated the contract ascancelled.
(ii) The contract resulting from the acceptance of his tender thoughnot enforceable by suit against the State Government, because it did not
169
comply with Art. 299 of the Constitution, must still be regarded as suffi-cient to disqualify the appellant under the Representation of People Act,from standing as a candidate for election to the State Legislature.
Chattur'ohuj Vithaldas Jasani v. Moreshwar Par shram & Ors, (1954)S.C.R. 817; Laliteshwar Prasad Sahi v. Bateshwar Prashad & Ors. (1966)2 S.C.R. 63, followed. ABDUL RAH1MANKHAN v. SADASIVA TRI-PATHI (S.C.), 39 E.L.R. 92.
—s. 9A—construction agreements between respondent's firm and StateGovernment—contracts certified as completed—later certificates cancelled—construction work substantially complete—Agreements containing clausesrequiring contractor to repair faulty work—// contracts subsisting on dateof nomination—Respondent's partnership firm dissolved before nominationwithout notice to Government—effect of.
The appellant challenged the first respondent's election on the groundthat a firm in which he was a partner had two contracts with the StateGovernment, one for the construction of a road and another for the cons-truction of a dispensary building, which were subsisting on the day whennominations were filed; he was therefore disqualified from being a candi-date under s. 9A of the Act and his election was void. The appellantalso claimed that he was himself entitled to be declared elected as thevotes cast in favour of the first respondent must be regarded as thrownaway. From the evidence led before the High Court it was clear that thefirst respondent had obtained certificates from officers of the State Govern-ment to the effect that the contracts were complete but that these certificateswere subsequently cancelled as it was considered that the work was notcompleted. After appraising the evidence, the High Court held that thecontracts as a whole were substantially performed and there was thereforeno bar to the candidature of the first respondent. It also held that althoughthe agreements contained clauses for maintenance and repairs over a periodof time after the completion of the work, these did not have the effectof making them subsisting contracts. The High Court therefore dismissedthe election petition.
On appeal to the Supreme Court—•
HELD : The High Court was in error in holding that the contractshad been fully performed and s. 9A did not apply. The appeal musttherefore be allowed and the election of the first respondent declaredvoid. Furthermore, the votes cast in favour of the first respondent must
170
be treated as thrown away and in the absence of any other contesting candi-date, the appellant declared elected.
(i) Taking the fact that some portion of the original contracts remain-ed to be performed with the fact that under the contracts the contractorwas required not only to complete the original work but to repair defectsor re-do something which he had not properly done, the matter must beregarded as falling within s. 9A of the Act. In the context of construc-tion of buildings and road, it is obvious that if some part is found defectiveand has to be done again, the contract of execution as such is still to befully performed. It is possible to describe the action taken as one torepair the defect, but in essence it is a part of the contract of executionbecause no execution can be said to be proper or complete till it is pro-perly executed.
(ii) There was no force in the contention that under Article 299 thecontract in question had to be signed by the Secretary to the Governmentwhereas in the present case it was signed by the Executive Engineer.
Chatufbhuj Vithaldas Jasani v. Moreshwar Parashram and others(1954) S.C.R. 817 applied;
(iii) The law requires that a candidate should not have any interestin any contract with Government and therefore even a partner in a firmhas an interest sufficient to attract the provisions of s. 9A. The fact thatthe partnership itself had been dissolved in the present case would haveno effect upon the relation between the first respondent and the Govern-ment.
The first respondent could not by a private dissolution of the partner-ship escape his liability under the contract to the Government, and therewas here no novation, because notice of the dissolution was not given toGovernment and the Government had not accepted the person to whomthe business was transferred in place of the respondent's firm.
KONNAPPA RUDRAPPA NADGOWDA v. VISWANATH REDDYAND ANOTHER, (S.C.) 39 E.L.R. 182.
—ss. 53, 84 and 101—Only two candidates contesting one seat—success-ful candidate held to be under statutory disqualification under S. 9A—whether the candidate can be declared elected.
The respondent in the present Review Petition challenged the peti-tioner's nomination before the Returning Officer on the ground that thefirm in which the latter was a partner had subsisting contracts with theState Government and he was therefore disqualified under s. 9A of the
171
Act. No general notice was given to the electorate about the disqualifica-tion. The Returning Officer overruled the objection and accepted thepetitioner's nomination. After the petitioner was elected, the respondentin the present review petition filed an election petition in the High Court,urging the same ground, but the petition was rejected.
On appeal, the Supreme Court held the respondent was entitled tosucceed and that the election was void. The court also declared the res-pondent elected instead. On a review petition filed by the petitioner.
HELD : The decision in Keshav Laxnian Borkar v. Dr. Devrao Lax-man Anande, (1960) 1 S.C.R. 902 that votes cast in favour of the dis-qualified candidate would be deemed to be thrown away only when thevoters had notice of the disqualification, and that in the absence of suchnotice, there can only be fresh election, is wrong. That rule was adoptedfrom English decisions but it is not consistent with the Indian statute lawand is inappropriate for Indian conditions.
(a) Section 53 of the Act renders a poll necessary only if there arcmore candidates contesting the election than the number of seats contested.If the number of candidates is equal to the number of seats to be filed,the Returning Officer shall forthwith declare all such candidates to be dulyelected to fill those seats. •
(b) In cases falling under s. 101(b), the Act requires merely proofof corrupt practice and obtaining votes by the corrupt practice; it does notrequire proof that voters had notice of the corrupt practice. Therefore,in cases falling under cl. (a) when there are only two candidates for oneseat and the returned candidate is found to be under a statutory disquali-fication, the other may be declared elected under s. 84 read with s. 10(a),even though the voters had no notice of the disqualification of the success-ful candidate.
(c) It would be almost impossible to give notice of the disqualificationto the electorate in view of the immense cost involved and the general illi-teracy of a large section of voters.
(d) There is no logic in the assumption that votes cast in favour of aperson whose nomination was accepted by the Returning Officer but whowas really disqualified, could still be treated as valid votes for determiningwhether a fresh election should be held. While notice to voters may havesignificance when there are more than two candidates in the field for asingle seat, where there are only two contesting candidates and one ofthem is under a statutory disqualification, votes cast in his favour may beregarded as thrown away irrespective of whether the voters were aware ofthe disqualification.
172
Therefore, where by an erroneous order of the Returning Officer pollis held which, but for that order, was not necessary, the Court would bejustified in declaring the contesting candidate elected, who, but for theorder of the Returning Officer would have been declared elected. VISWA-NATH REDDY v. KONNAPPA NADGOUDA AND ANOTHER (S.C.)39 E.L.R. 192.
—Jammu and Kashmir Representation of the People Act, 1957, s. 24{d)—Contract with State Government taken by petitioner as Sarpanch—Whether disqualifies—another contract with State Government with part-nership in which petitioner partner—Petitioner dissolved partnership busi-ness on 4-1-61—First date of filling nomination papers 13-1-67—Rightsand liabilities of petitioner as partner alleged to continue even after dis-solution—Whether partnership contract with Government disqualifies.
The petitioner's nomination papers were rejected by the ReturningOfficer on an objection that on the relevant date he held subsisting contractsfor execution of work with the State Government of Jammu and Kashmir.
HELD: Allowing the petition and setting aside the first respondent'selection,
The petitioner's nomination papers could not be rejected because :
(i) The contract complained of was not held by the petitioner forand on his behalf but by and for the Gram Panchayat concerned thoughin the petitioner's name as Sarpanch.
(ii) It cannot be said that the petitioner had any interest in the part-nership contracts with the State after the dissolution of the partnership,merely because he owned some money to the other partner on account,of the contract. The interest was of the other partner, and it was beforehe made any earning on the contract that the petitioner went out of it.He cannot, therefore, be said to have held any interest in the contract withinthe meaning of s. 24(d) of the J. and K. Representation of the PeopleAct.
GHULAM MOHD PARAY v SHRI ABDUL GHANI NAMTHALIAND ANOTHER, 39 E.L.R. 199.
—S. 9A—Disqualification—subsisting contract held to be with indivi-dual not with dissolved partnership—/'/ disqualifies.
HELD: Since the partnership which the appellant had entered intohad been previously dissolved and the contracts of the government werenot with the partnership but with an individual by name, there was noprivity between the partnership as such and the government.
173
Rudrappa Nadgowda v. Vishwanath Reddy, C.A. 17505 of 1967 decidedon 19-7-1968 (S.C.); distinguished.
D. GOPALA REDDY v. 5. BAI TALPALIKAR AND OTHERS.(S.C.), 39 E.L.R. 305.
—Jammu & Kashmir Representation of the People Act, 1957,s. 24(d)—Contract—subsisting contract—contract conceited years before—No evidence of any outstanding account—whether amounts to "subsistingcontract". The petitioner alleged that the respondent No. 2 had a workscontract under the P.W.D. But it stood cancelled sometime in 1962.There was no evidence to show that any dues were recoverable from him.The petitioner sought to set aside the election of respondent No. 1 on theground that his nomination paper as well as those of other respondentswere improperly rejected by the Returning Officer.
HELD : If the accounts of respondent No. 2 had not, in fact, beenfinalised and some dues were still recoverable from him, the contract wouldindeed be deemed to have been subsisting. Here, admittedly, the contractof respondent No. 2 stood cancelled sometime in 1962. The necessaryrecords had not been produced to show whether any dues were, in fact,recoverable from him. It could not, therefore, be definitely held that res-oondent No. 2 at the relevant time, had any subsisting contract with theP.W.D. His nomination papers, therefore, were not liable to be rejectedon this ground under Section 24(d) of the Act.
GULAM QADIR MASALA v. ABDUL GHAN1 LONE ANDOTHERS, 40 E.L.R. 53.
—Jammu and Kashmir Representation of the People Act, 1957, Sec-'ion 24(c)—whether the contract subsists where the Government failed toperform its part—Whether the amending Act of 1967 of the Jammu andKashmir Representation of People Act is retrospective in effect.
The respondent No. 1 raised a contention that the petitioner had asubsisting contract with the Forest Department on the date of filing hisnomination papers and on this ground his nomination paper was liable tobe rejected. Dismissing the Petition.
HELD : For the purposes of disqualification under Section 24 (c) of theJammu and Kashmir Representation of the People Act, 1957, as it stoodamended by the Amending Act of 1967, where a contract has been fullyperformed by the person by whom it has been entered into with the Gov-ernment, the contract shall be deemed not to subsist by reason only of thefact that the Government has not performed its part of the contract either
174
wholly or in part. It is not clear whether the section can be given retros-pective effect; but if it can be given such effect, petitioner would be outof the qualification clause. (In the circumstances of the present casethe court found it not necessary to adjudicate on this point as respondentNo. 1 had not established that there was a contract which debarred thepetitioner).
Chattur Bhuj v. Vithal Das Jasani, Moreshwar Parshram and others9 E.L.R. 301; referred to.
GHULAM AHMED DAR v. MOHD SULTAN TANTARAY & AN-OTHER, 40 E.L.R. 91.
Jammu and Kashmir Representation of People Act, 1957, section 24(d).
Contract—Subsisting contract—agreements to supply grains—advancesobtained—failure to supply within time—balance money due to the Gov-ernment—whether contract terminated.
HELD : Respondent No. 2 under agreements with the Kashmir ValleyFood Control Department had secured certain advances, and agreed tosupply paddy grains to the Department. One of the conditions in all theseagreements was that on failure to supply within the time stipulated, paddyof the value of the advance taken, the balance would be realisable as arrearsof land revenue at the instance of the Department. Respondent No. 2failed to make supplies in accordance with the contract. The argumentsthat these agreements lapsed by their breach by respondent 2 when he fail-ed to supply the paddy grains within the stipulated time, and that these wereno more existing so as to be cognisable under section 24(d) of the Act,was not tenable. In the instant case, respondent 2 having had to pay cer-tain dues to the State Government, could well try to defeat that object,if he was elected. He was thus disqualified to be chosen as a memberof the Legislative Assembly.
Gouri Shankar Shastri v. Mayadhardas and ors. 16 E.L.R. 441; GianChand V. Sri Ram Bansal and others; Banarsi Dass V. Lekh Ram and Ors.,2 E.L.R. 136; distinguished.
Chatturbhuj Vithaldas Jasani v. Moreshwar Parashram and others; A.l.R.1954—Page 236; Laliteshwar Prasad v. Baleshwar Prasad, A.l.R. 1966S.C. 580. followed.
GHULAM RASOOL MANTOO v. SYED MIR QASIM AND AN-OTHER, 40 E.L.R. 101.
175
—Contract—"subsisting contract"—Agreement and "contract" diffe-rence between—See—Disqualification of candidates—-Interest in contractwith Government. ABDUL GANI MALIK v. GULAM NABI MIRCHAAND OTHERS, 40 E.L.R. 424.
—section 9 A—Contract with Government for construction work—cir-cumstances from which inference of abandonment of contract can be drawn.
The appellant was carrying on business as a building contractor andhad in 1954 entered into a contract for the execution of works undertakenby the government of India. The contract was not completed within thestipulated period. The authorities were dissatisfied with the work done byhim. In August 1958 he was informed by letter that he was not to proceedwith the work anymore. He was asked to rectify the construction workexecuted by him and to reimburse the value of the materials supplied to him.The appellant signified his willingness to rectify the defects. But nothingconcrete happened afterwards. The respondent challenged the election ofthe appellant on the ground that the latter was not qualified to stand as acandidate for election in that contract was subsisting on January 19,1967, when the appellant filed his nomination. The High Court held thatthere was no evidence that the contract which was not completed by the ap-pellant was abandoned by implied arrangement or was discharged by anyaction on the part of the Government and set aside the election. Allowingthe appeal,
HELD: (i) The fact that the contract was not completed within thestipulated time by itself is not sufficient to give rise to the inference thatthere subsisted a contract on the date of filing the nomination.
(ii) The letters written by the authorities evidenced an intention on thepart of the government to determine the contract and the demand for recti-fication of the defects did not evidence an intention either to keep the origi-nal contract outstanding or to enter into a fresh contract for carrying out therepairs in the work already executed. Even if insistence upon rectificationof the defects be treated as an offer, and the willingness of the appellant tocarry out the repairs be treated as acceptance of the offer, studied inaction fornearly six years by the appellant as well as by the Government leads to aninference of abandonment of the contract.
(iii) Failure to settle the respective claims does not evidence an inten-tion to keep the original contract subsisting.
AT AM DAS v. SURIYA PRASAD, 41 E.L.R. (S.C.) 359.
—Disqualification—Study loan taken by the candidate executing a bondto accept service under the Government—whether amounts to a share of
176
interest in a contract—See Disqualification of candidates—Holding of officeof Profit. CHANDAN LAL v. RAM DASS AND ANOTHER (S.C.), 41E.L.R. 214.
—Jammu & Kashmir Representation of the People Act—Section 24(d)—Subsisting contract—Constitution of Jammu & Kashmir—Section 122—Contract not signed by Contractors—Validity in election proceedings—Pleadings—Respondent setting up new contract revealed in evidence butnot pleaded—new grounds can be pleaded to support or disprove of theOrder of Returning Officer rejecting nomination.
The petitioner's nomination papers were rejected by the ReturningOfficer on the ground that he had an interest in an existing contract. Duringthe trial of the election petition challenging the rejection of the nominationcertain documents were got proved some of which related to another cont-ract not raised in the written statement of Respondent No. 1, nor in theorder of the Returning Officer rejecting the nomination papers of the peti-tioner. Taking advantage of this, Respondent No. 1 filed a petition toamend his written statement by including therein the discovery of the newcontract relating to the repair of the Panchayat House said to have beenjointly held by the petitioner along with his brother. The prayer for amend-ment of the written statement was allowed. The petitioner contended thatthe second contract was never pleaded by the Returning Officer and thatin any event it could not be treated as a contract within the meaning ofs. 24(d) of the Jammu & Kashmir Representation of the People Act, sinceit did not conform to the requirements of Section 122 of the Constitutionof Jammu & Kashmir.
HELD : The order of the Returning Officer rejecting the nominationpapers of the petitioner on account of the first contract was improper but thenomination papers were liable to be rejected because of the second contract..
(i) The work order to take up on contract the constructions in questionwas expressed by the Block Development Officer to have been executed inthe name of the "Jammu & Kashmir Government". It was not disputedthat the Block Development Officer could validly enter into the contract onbehalf of the Sadar-i-Riyasat. It is true that this work order of the contractwas not signed by the contractors, nevertheless the petitioner accepted it byconsent. It may be that in the absence of any formal agreement neitherparty could sue or could be sued for breach of contract, but for the purposesof election law, the position is different.
177
Abdul Rahiman Khan v. Sadasiva Tripathi, C.A. 1725 of 1967 dated15-7-66 (S.C.); referred to.
(ii) It is true that the second contract was not pleaded by the ReturningOfficer, but it is the settled principle of election law that either party to anelection proceeding can plead new grounds to support or disprove of theorder of the Returning Officer rejecting or accepting the nomination papersof any candidate. The respondent was therefore entitled to plead the newground in the case.
HABIBULLAH v. GULAM RASOOL KAR AND OTHERS, 41E.L.R. I.
—Jammu and Kashmir Representation of the People Act, 1957—Sec-tion 24—Disqualification—Subsisting contract.
Practice and Procedure—Raising new grounds and adducing evidencewithout supplementary written statement—Propriety of.
When the respondent filed his nomination papers the appellant raisedan objection that the respondent held a subsisting contract with the Govern-ment of Jammu and Kashmir at the relevant time and this disqualified himfrom standing as a candidate under s. 24(d) of the Jammu and KashmirRepresentation of the People Act. The Returning Officer rejected the nomi-nation papers of the respondent. The respondent filed an election petitionchallenging the order of the Returning Officer and for setting aside the elec-tion of the appellant. In the course of the trial of the petition the appellantmoved an application with four documents as annexures and prayed for per-mission to prove them in order to establish that there was a contract withthe Government in which the respondent was interested but which had notbeen mentioned earlier either before the Returning Officer or in his writtenstatement. At the hearing the respondent raised a preliminary objection tothe admissibility of the evidence adduced by the appellant in regard to thenew ground. The objection was that the appellant should have filed a sup-plementary written statement and raised a new issue thereon. The trialjudge over-ruled the objection holding that no prejudice was caused to therespondent. On the evidence it was held that the respondent did not haveany interest in a government contract and therefore his nomination was notliable to be rejected. In the result, the High Court allowed the petition.Allowing the appeal to the Supreme Court.
HELD :
(i) The trial judge did not e'xeeed his jurisdiction in granting the appli-cation although he should have insisted upon the appellant formulating his4EC/74—15
178
new objection in an additional written statement. The procedure adopted,though irregular was not illegal.
(ii) The circumstances of the case point to the conclusion that the res-pondent had an interest in a contract for the execution of work for the StateGovernment. The trial judge went wrong in accepting a document whichwas evidently a fabricated one.
ABDUL GHANI NAMTIHALI v. GVLAM MOHAMMAD PAR AYAND ANOTHER (S.C.) 42 E.L.R. 100.
—Jammu & Kashmir Representation of the People Act, Section 24(d)—-Subsisting contract—what is—Forest lease if contract to do work or forsupply of goods. HELD : (i) A contract for the execution of work or forsupply of goods to government must be treated as subsisting till the finalpayments are made even though the works have already been executedand goods have been supplied. But if the final payments are not made,the interest in the contract, in such circumstances, would be deemed to besubsisting and that this would be a disqualification for the candidate to bechosen as member in election. In the instant case it is in evidence thatthe petitioner had stage contracts such as causeway work, premix workand his obligation to do these works were for a financial year 1966-67.Even though these works were physically completed by him, neverthelesshis bills on account of these works were finally paid to him in the year1965. His liabilities remained unsettled even after the date of nomination.Therefore the case of the petitioner is hit by clause (d) of s. 24 of the Actand the same would operate as a disqualification. C. G. Janardhanan v.Joseph, A.I.R. 1958 Kerala 169; Gurbanta Singh v. Piara Ram Jaggu Ramand Ors., A.I.R. 1960 Pun). 614; Narasimha Reddy v. Bheemaji and anr.,A.I.R. 1959 A.P. l l l ( b ) ; Chatturbhuj Vithaldass Jasani v. MoreshwarParashram Ors., 9 E.L.R. 301 (S.C.); (e) referred to.
The forest lease cannot be termed as a contract for the execution ofany work or for the supply of goods to the Government as the agreementenvisages the mere sale of the compartment for coup 1960; nor can itbe held that on the date of the nomination respondent No. I had any sub-sisting contract as the same had long since terminated.
C. V. K. Rao v. Dantu Bhaskar Rao, A.I.R. 1965 S.C. 93 relied on.GULAM NABI MAGREY v. MIAN BASHIR AHMED, 42 E.L.R.
263.
Jammu and Kashmir Representation of the People Act—Section 24{d)—"Subsisting contract"-—-Agreement and "contract"—difference between—Res Judicata—Applicability. In the 1967 election to the Legislative As-sembly of Jammu and Kashmir, the petitioner's nomination papers were
179
rejected on the ground that there was a subsisting contract with the StateGovernment and therefore the petitioner was disqualified within the mean-ing of s. 24(d) of the Jammu and Kashmir Representation of the PeopleAct. The agreement entered into in 1951 was for executing certain itemsof work in phases as and when orders were issued to the contractors bythe Department. The petitioner's case was that no work order was at allissued to him and there were no dues either from him to the Departmentor to the Department from him. The respondent through the Public WorksDepartment alleged that after the execution of the agreement the1 petitionerhad borrowed some tools and plants valued at Rs. 29.15 annas for whichhe did not pay and for this reason alone the contract was still subsisting.The petitioner was elected in 1957 and the 1962 elections. After his elec-tion in 1957 at the instance of one R a reference was made under s. 70of the Constitution of Jammu and Kashmir by the Speaker of the Assemblyfor a decision whether the petitioner was disqualified from being chosen asa number for the reason that at the time of his election he was holding acontract under the State Government. On the basis of a compromise decreecatered into between the petitioner and his other partners a Division Benchof the High Court held that there was no evidence to show that the presentpetitioner who was the respondent then held any contract under the Govern-ment at the relevant time. Respondent No. 1 was not party to the Reference.The petitioner pleaded the bar of constructive res judicata.
HELD : Allowing the petition—
(i) The petitioner cannot be said to have held any existing 'contract'at the election of 1967. Even if it were to be assumed that the petitionerhad borrowed some tools and plants from the Public Works Department itwas ancillary to the contract and it was no part of the contract. An agree-ment is different from "contract" within the meaning of s. 24(d) of theAct. The Public Works Department had done nothing to recover theamount from the petitioner. It was never the intention of the Legislaturein enacting s. 24(d) of the Act to disqualify any candidate on such a deadclaim Laliteshwar Prasad v. Bateshwar Prasad, A.I.R. 1966 S.C. 580; re-ferred to.
(ii) Explanation (vi) to S. 11 of the Code of Civil Procedure refers topublic right, and if such right was canvassed in a competent court in abona fide manner, the judgement will be judgement in rein. But if the pre-vious litigation was not fought in a bona fide manner, in vindication of sucha public right, the previous decision in such a circumstance may not operateas res judicata. In the present case the compromise decree was not a bonafide one and the Reference was also not fought in a bona fide manner.Therefore the bar of res judicata could not be invoked against Respondeat
ISO
No. 1. ABDUL GANI MALIK v. GULAM NABI MIRCHA ANDOTHERS, 40 E.L.R. 424.
—Section 9-A and Explanation—Subsisting Contract—Tests for deter-mining if contract is subsisting—Full performance, meaning of.
HELD : The respondent was not disqualified under s. 9-A of the Act.
(i) In view of the express terms of the contract entitling the respondentto cease work at any time and in view of the clear intention of the govern-ment not to have any further work done by the respondent, it cannot beheld that the contract in question is subsisting because the respondent has notcompleted the additional work.
(ii) In the face of the explanations to s. 9-A of the Act it cannot beheld that by the mere fact that accounts have not been settled the contractis subsisting within the meaning of s. 9-A.
(iii) The argument of the petitioner that the work actually done by therespondent was not according to specifications and was substandard andtherefore the respondent could not claim to have been released from theobligations of the contract could not be raised since there was no such pleain the pleadings.
(iv) The contention that once it is found that the contract has notbeen fully performed, it must be held to be subsisting because at leastsome payment for the work done by the respondent is still admittedly dueto him and the Explanation will not be attracted, except in a case where thecontract has already been fully performed, is fallacious. Full performancein the explanation to section 9-A merely means that the contractor hasperformed the work and the appropriate government has either no right toask for rectification of any part of work done or has by consent relinquishedor given up its right to insist on any better performance of the contract orhas otherwise agreed not to have any further work performed in connec-tion with the contract. All that "full performance" appears to convey isthat it should be established that nothing more remains to be done by thecontractor in connection with the "execution of the contract." It is notnecessary for the respondent to prove full performance of the contract soas to seek the shelter of the 'Explanation', if it is proved that the contracthad otherwise come to an end. What must subsist for the purpose ofs. 9-A is the contract "for the execution of the work" and not merely claimsor counter claims arising out of the contract.
In ultimate analysis it would depend on the terms of a contract, the inten-tion and conduct of the contracting parties and the facts and circumstances ofeach case whether at a particular point of time the contract between them
181
subsisted or not. In the present case since 1964 both sides had taken it foigranted that the respondent had abandoned the contract for execution ofthe works in question.
Chathurbhuj Vithaldas Jasani v. Moreshwar Parashram, 1954 S.C.R.81 Inayatullah Khan v. Diwan Chand Mahajan, 15 E.L.R. 219; Atam Dasv. Suriya Parshad, 41 E.L.R. 359(S.C); Gauri Shankar Sastri v. Mava-dhardas; 16 E.L.R. 441; Brij Mohan Singh v. Priy Brat Narain Singh, 19653 S. C. R. 861; Laliteshwar Prasad v. Bateshwar Prasad 1966 2 S.C.R. 63;Abdul Rahiman Khan v. Sadasiva Tripathi, A.I.R. 1969 S.C. 302; KonappaRudrappa Nadgouda v. Vishwanath Reddy, A.I.R. 1969 S.C. 447; referredto. ANOKH SINGH v. SURINDER SINGH AND OTHERS. 42 E.L.R.485.
DISQUALIFICATION OF CANDIDATES—(4. HOLDING OFFICE OF
PROFIT)
—S. 10,—Holding office of Profit—Article 191 (a)—Superintendent, Safe-ty Engineering Department in the Mysore Iron & Steel Ltd.—Whether anoffice of profit under Government.
The Petitioner, a defeated candidate, challenged the first Respondent'selection to the Mysore Legislative Assembly on the grounds inter alia thatthe first Respondent held on the date of his election, the office of Superin-tendent, Safety Engineering Department in the Mysore Iron & Steel Ltd.rBhadravathi, a Government Company; that office was an office of profitunder the Government and he was therefore disqualified under Article191(1) (a) of the Constitution. It was further stated that the first Res-pondent was currently holding the office of the Manager of the said Com-pany and was consequently disqualified under Section 10 of the Act.
HELD : Dismissing the petition : The Mysore Iron and Steel Ltd. isa Company carrying on commercial and not governmental functions; theproperty of the Company is not the property of the Governments. Itsdebts are not the debts of the Government. The Company can be woundup by order of the Court; the Company is not entitled to any of the pri-vileges and immunities of the State. Therefore, the office of Superinten-dent, Safety Engineering Department held by the first respondent was notan office of profit under the State Government; the Government had nopower of appointment to and removal from the post of Superintendent; thefirst Respondent was therefore not disqualified from being chosen as and forbeing a member of the Mysore Legislative Assembly.
Abdul Shakur v. Rikhab Chand, A.I.R. 1958 S.C. 52; Govinda Basu v.Sankari Prasad, A.I.R. 1964, S.C. 254, Metropolitan Meat Industry Boardv. Shudy and others, (1927) A.C. 899; Subodh Ranjan v. Sindri Fertilisers& Chemicals Ltd., A.I.R. 1957 Patna 10; State Trading Corporation ofIndia v. Commercial Tax Officer, A.I.R. 1963 S.C. 1811, referred.
The duties ascribed to the office of Superintendent, Safety EngineeringDepartment of the Mysore Iron and Steel Co. Ltd. did not invest the indi-vidual holding that office with a power of management of the whole orsubstantially the whole of the affairs of the Company; the first Respondentnot being a manager of the Company, was not disqualified under Section 10of the Act.
182
183
Inder Lai V. Lai Singh, A.I.R. 1962 S.C. 1156; Jagjit Singh v. KartarSingh, A.I.R. 1966 S.C. 773; followed. D. R. GURUSHANTHPPA v.ABDUL KHUDDEES ANWAR AND OTHERS, 33 E.L.R. 162.
—Ss. 9A, Arts. 102 & 191—Chairmanship of Janpad Sabha—Whetheran office of profit.
HELD : Dismissing the petition.
(i) The Chairman of the Janpad Sabha constituted under the M. P.Panchayats Act, 1962, is not appointed by the State, his functions are notcontrolled by the State Government, and there being no emoluments or re-muneration paid by the State Government, the Chairmanship is not anoffice of profit as contemplated in Articles 191 and 102 of the Constitution.
Abdul Shakur v. Rikhab Chand, A.I.R. 1958 S.C. 52; RavannaSubanna v. G. S. Kaggeerappa, A.I.R. 1954 S.C. 653; Guru Gobinda Basuv. Sankari Prasad Ghosal, A.I.R. 1964 S.C. 254 and Shivarama Karanth v.Venkataramana gowda, 3 E.L.R. 187; referred to. NJRANJAN SHARMAv. RAMKUMAR AGARWAL & ORS., 3 E.L.R. 244.
—"Post under the government", meaning of : HELD : An appointmentby the government is an essential condition for a post said to be under thegovernment. The word "under" need not necessarily indicate or give theidea of total subordination as in the case of persons in actual service ofthe government. The word, therefore, in the context of the election lawand the objects or the purpose with which the disqualification is declaredby the Constitution itself, must be held to indicate that the good grace of theexecutive government is the thing that is considered to disqualify the personfrom being a member of the legislative body. The profits of the officeare a subsequent consideration or a consequential benefit.
Ravanna Subanna v. Kaggeerappa A.I.R. 1954 S.C. 653; Abdul Shakur v.Rikhab Chand A.LR. 1958 S.C. 52; Ramappa v. Sangappa A.I.R. 1958S.C. 937; Gobinda Basu v. Sankari Prasad A.I.R. 1964 S.C. 254; HansaJeevaraj Mehta v. Indubhai Amin 1 E.L.R. 171, referred to.
The position of the Chairman of a Cooperative Society, under theMysore Cooperative Societies Act, is not a post under the government.S. S. INAMDAR v. AGADI SANGANNA ANDANAPPA, 35 E.L.R. 1.
Section 123(1) (3) (7)—Corrupt Practice—Office of Profit—Patwaris—// excluded from the operation of Section 123(7).
HELD : (i) Patwaris are revenue officers excluded from the operationof section 123(7) of the Represntation of the People Act. The ultimate
184
policy adopted by Parliament through two amendments to the section is todeclare that the Village Officers who should not be permitted to influenceelections should be those who discharge police functions. The languageemployed in the clause also takes into account the possibility of sameofficer discharging both the police functions and the revenue functions.If he discharges functions of both the categories then he comes within themischief of the section : if however, he discharges revenue functions butdoes not discharge any police functions he will be excluded from the pro-hibition of the section whether or not he does any other type of work, solong as such other type of work does not in any manner come within thescope of the expression police functions.
K.C. Deo Bhary v. Raghunath Misra A.I.R. 1959 S.C. 589; GurmerjSingh v. Pratap Singh A.I.R. 1960 S.C. 122; referred to. SHIVAMURTHI-SWAMY S. INAMDAR v. A. S. ANDANAPPA, 34 E.L.R. /.,
State of Orissa v. Ramachandra A.I.R. 1964 S.C. 685 ; Collector of SouthSatara v. Laxman Mahadev Deshpande A.I.R. 1964 S.C. 326 ; referred to.SHIVAMURTHISWAMY S1DDAPPAYASWAMY INAMDAR v.AGADl SANGANNA ANDANAPPA, 34 E.L.R. /.
—Mysore Village Office Abolition Act, 1961— Watandar if office ofprofit. HELD.
By operation of the Mysore Village Officers Abolition Act, 1961, what-ever be the right 'P' might have had as a member of the family to eitherMulki Patilki or the Police Patilki of Halkeri village and whatever may bethe incidents or the nature of the title under which the properties cameinto his possession, all those rights and liabilities in respect of the officestood abolished on the coming into force of the Mysore Village OfficesAbolition Act, 1961 and the land ceased to be watan land on the same date.'P' is therefore, neither a person in the service of the government within themeaning of section 123(7) of the Representation of the People Act, nordoes he hold any office of profit under the government for the purpose ofArticle 191 of the Constitution.
State of Orissa v. Ramachandra A.I.R. 1964 S.C. 685; Collector ofSouth Satara v. Laxman Mahadev Deshpande A.I.R. 1964 S.C. 326;referred to. {SHIVAMURTHISWAMY SIDDAPPAYASWAMY INAM-DAR v. AGADI SANGANNA ANDANAPPA, 34 E.L.R. I.]
—Art. 191(1) (a)—Government servant—Mere resignation withoutacceptance does not remove disqualification—Retrospective acceptance doesnot remove disqualification.
185
HELD : The petitioner alleged that respondent No. 2 held an office ofprofit as he was appointed a teacher in the government primary schoolsince 1966 and that he suffered from the said disqualification on the dateof filing his nomination paper as also the date of the scrutiny. It was ac-cordingly alleged that his nomination paper was improperly accepted andit was asserted that the result of the election in so far as it concerns thereturned candidate, respondent No. 1, had been materially affected by suchimproper acceptance.
The mere fact that a government servant has tendered his resignationbefore filing his nomination paper without waiting for the acceptance ofhis resignation will not bring about the termination of his service andwill not save his disqualification.
The second respondent suffered from the disqualificaton till his resigna-tion was accepted. This Is a constitutional disability and therefore, couldnot be removed by accepting the resignation retrospectively by the schoolauthorities. Accordingly it must be held that the second respondent wasdisqualified from being chosen as a member of the Legislative Assemblyfrom the constituency in question.
Ram Murti v. Sumba Sadar, 2 E.L.R. 330; Lehri Singh v. Attar Singh, 3E.L.R. 403; Thakur Deo Singh v. Ramakrishna Rathor, 4E.L.R. 34; Beni Madho Rai v. Bhola and Ors., 6 E.L.R. 308; Chathur-bhnj Vithaldas v. Moreshwar Prasashram, 9 E.L.R. 301; referred to.KAMTA PRASAD UPADHYA v. SARJOO PRASAD TIWARI & ORS.35 E.L.R. I.
—Office of Profit—appointment by Government essential condition—ex-officio membership not office of profit.
HELD : The first respondent was not disqualified from being chosen as amember of the Assembly by reason of his having been a member of theMysore State Development Council, Bijapur District Development Council,and Jamkhandi Taluk Development Board.
An appointment by the Government is an essential condition for apost to be regarded as a post under the Government. An ex-officiomembership by a member of the legislature is not an office of profitunder the Government operating as a disqualification.
Election Petition No. 3 of 1967 (Mysore) referred to. ISHVARAP-PA SIDNINGAPPA GHATARKI v. PAMPAKAVI ROYAPPA BEL-GALI 39 E.L.R. 120.
—Art. 191—Chairman of Panchayat Samiti—paid allowances to coverexpenses on panchayat work under rules framed by State Government—ifholding an office of profit under the Government.
186
The appellant who was defeated by the first respondent in the GeneralElection of 1967 to the Punjab Vidhan, Sabha, challenged the latter's elec-tion on the ground that he was disqualified from being chosen as a mem-ber of the Assembly because he was holding an office of profit under theState Government at the relevant time. It was admitted that the respon-dent was the Chairman of a Panchayat Samiti and it was contended by theappellant that the allowances paid to the Chairman under Rules 3 to 7 ofthe Punjab Panchayat Samitis and Zila Parishads, Non-Official Members(Payment of Allowances) Rules, 1965, made that office an office of profit.The High Court dismissed the election petition. On appeal to the Sup-reme Court,
HELD: The High Court had rightly held that the allowances paid underRules 3 to 7 did not convert the office of Chairman of PanchayatSamiti into an office of profit.
The payment to a Chairman under r. 3 is described in the rule as amonthly consolidated allowance in lieu of all other allowances for perform-ing all official duties - and journeys concerning the Panchayat Samitiwithin the district. This provision clearly shows that the allowance paidis not salary, remuneration or honorarium but an allowance paid for thepurpose of ensuring that the Chairman of a Panchayat Samiti does nothave to spend money out of his own pocket for the discharge of his duties.The burden which lay on the appellant to show that the allowance ofRs. 100/- per month was excessive and was not required to compensatethe Chairman for his actual expenses had not been discharged.
Rules 4 to 7 only provide for payment of travelling allowance anddaily allowance when a Chairman performs a journey in connection withhis official duties outside the district. There is again no evidence fromwhich it could be inferred that the amount received by a Chairman wasin excess of his actual expenditure.
There was no force in the contention that the payment of travellingallowance under Rules 3 to 7 was in addition to the payment of theconsolidated monthly allowance under Rule 3 and payment of two setsof allowances must necessarily result in profit to the payee. Rule 3 onlycovers payment to compensate a Chairman for journeys performed byhim for his official duties within the district in which the Panchayatis situated, while rules 4 to 7 govern cases where the journey is performedoutside the district.
Ravanna Subanna v. Kageerappa, A.I.R. 1954 S.C. 653 at p. 656:distinguished. UMRAO SINGH v. DARBARA SINGH AND OTHERS,(S.C.), 39 E.L.R. 240.
187
—Article 191—Disqualification—Office of profit—Appointment asSpecial Government Pleader to conduct an Arbitration case on daily fee—// office of profit under the Government.
The respondent was appointed by the State Government as SpecialGovernment Pleader to represent the Government in an Arbitration caseon a daily fee. The petitioner challenged the election of the respondenton the ground that she was disqualified for being chosen as a member ofthe Legislative Assembly under Article 191 of the Constitution as she washolding an office of profit under the Government. The respondentcontended that she did not hold an office of profit because (i) she was inreceipt of a retainer ; (ii) she was not prohibited from appearing in othercases against the Government; and (in) she was only engaged in one case.Allowing the petition and setting aside the election of the respondent,
HELD: The respondent was holding an 'office of profit' within themeaning of Article 191(1) (a) of the Constitution.
The criteria for determining whether there is an office in existenceor not are (i) that the office should be independent of the person holdingit; (ii) the office cannot be assignable or heritable and (iii) that it mustbe for a specified period.
In the present case the office held by the respondent existedindependently of the holder. The office was not created for the respon-dent. The office was not heritable or assignable. It was for the purposeof a particular case and therefore it was for a specified period.
It is not necessary that the holder of an office should be in receipt ofa regular salary. A part-time employee is always permitted to do otherwork and he holds an office under the government so far as his assignmentwith the government is concerned. A person holds an office if he holdsa position imposing certain duty.
Deorao v. Keshav, A.I.R. 1958 Bombay 314; In the matter of Vindh-ya Pradesh Legislative Assembly, 4 E.L.R. 422 ; Nel v. Longbottem, 1 KB767; In R.V. Charetie, 13 Q.B. 447; Bansi Lai and others v. MohamedHafiz, A.I.R. 1959 Patna 77; Hod Lai v. Raj Bahadur A.I.R. 1959 Raj227; Govinda Basu v. Sankari, A.I.R. 1961 S.C. 254; Balak RamVaish v. Badri Pradesh Awasthi, Election Petition 1/67 ; Govind Mala-viya v. Murli Manohar, 8 E.L.R. 84; Great Western Railway v. Batra,(1922) 2A.C.L; G.A. Monterio v. The State of Ajmer, A.I.R. 1957 S.C.13; Reg v. Ramajirao Jivbaji, 12 Bom. H.C.R.I; Nazamuddin v. QueenBabress, I.L.R. 28 Calcutta 344 ; Harold I Cammar v. United States of
188
America, 100 Lawyers Edition 474 ; Leonaru Meichalf v. Naria E. Mit-chell, 70 Lawyers Edition 384 ; Louisville Evansuelle and St. Louis Rail-road Co. v. Elueford Hilson, United States S.C. 34 Lawyers Edition;United States v. Julius F. Sartwell, U.S.A. S.C. 18 Lawyers Edition 830;referred to. NANAK CHAND SURANA v. SMT. KANT A KHATURIA,39 E.L.R. 390;
—Constitution of Jammu & Kashmir—Ss. 69, 125, 126—Jammu andKashmir Representation of the People Act, 1957—Section 24 F—Govern-ment servant—Resignation when effective.
The petitioner, a permanent teacher in a Government High School, putin his resignation letter before the officiating Headmaster and the letter wasaddressed to the Director of Education. The resignation letter mentionedthat the petitioner was tendering resignation with effect from the date of theletter because he was going to contest for election to the LegislativeAssembly. After putting in his resignation, he absented from the schoolfrom the date of his resignation though it was not accepted by the compe-tent authority. The Headmaster of the School issued a certificate in favourof the petitioner to the effect that on his resignation he had "made over hischarge completely". The petitioner's nomination paper was rejected onthe ground that he was still in Government service his resignation having notbeen accepted by the competent authority and that the same was a dis-qualification under s. 69 of the Constitution of Jammu and Kashmir as alsounder s. 24(f) of the Jammu and Kashmir Representation of the PeopleAct, 1957. The petitioner challenged the election of the respondent onthe ground, inter alia that the petitioner's nomination was improperly re-jected. He contended that there was no rule made by the State either inJammu & Kashmir Civil Service Regulations or anywhere else prescribingany condition for acceptance or rejection of any resignation letter by anypublic servant, and, therefore, no formal acceptance of the resignation wasat all necessary and that on the facts of the case is should be held that thepetitioner had duly vacated his office and no longer continued to be a teacherof the school when he filed his nomination papers.
HELD : On the facts of the case the petitioner must be held to havecontinued in service as a teacher of a government school at the relevanttime.
As sections 125 and 126 of the State Constitution stand, the service of acivil servant can be validly terminated only by a proceeding if his resigna-tion is not accepted. No public officer can be deemed to have validlyresigned his office simply by putting in his resignation letter. In the pre-sent case the resignation letter was rejected by the competent authority.
189
State of Uttar Pradesh v. Babu Ram Upadhyay, A.I.R. 1961 S.C. 751;referred to. GHULAM HASSAN v. GHULAM NABI WAN! AND AN-OTHER, 40 E.L.R. I.
—Office of Profit—Membership of State Sports Council, whether anoffice of profit under s. 69 of the J & K State constitution.
HELD : The petitioner was not holding an office of profit under theState Government on account of his membership of the State Sports Councilas defined in Section 69(a) of the State Constitution [HAJI SAFI-UD-DINv. MOHD. v. ASHRAF KHAN, 40 E.L.R. 35.]
—Office of profit—Elected candidate appointed on panel of Lawyersby Railway Administration—Duty bound to watch any cases against Rail-way—Not free to take briefs against Railways— Railways not bound to en-trust any particular case to him—// appointment involving rights and du-ties—Whether candidate holding an "Office of profit"
The applicant's election to the M.P. Legislative Assembly in February1967 was challenged by an election petition mainly on the allegation thathe was disqualified from being a candidate as he held certain offices of profitunder the Government. The trial judge allowed the election petition holdingthat the appellant held an office of profit under the Government being onthe panel of lawyers prepared by the Central and Western Railway Adminis-tration and having been at the material time^a Professor of Law in a Govern-ment College on a regular salary of Rs. 250/- per month ; it was also heldthat on the material before the court it could not be said that the appellantheld the post of President-Member of a Tribunal constituted under s. 73of the Madhya Pradesh Improvement Trust Act, 1960. On appeal to theSupreme Court,
HELD : Dismissing the appeal: (i) By "Office" is meant the rightand duty to exercise an employment or a position to which certain dutiesare attached. The appellant held such an office by his engagement on thebasis of a letter of appointment dated February 6, 1962 addressed to him bythe Chief Commercial Superintendent of the Railway and his reply theretowhereby he accepted certain obligations and was required to dischargecertain duties. He was not free to take a brief against the Railway Adminis-tration. Whether or not the Railway Administration thought it properto entrust any particular case to him it was his duty to watch all cases comingup for hearing against the Railway Administration and to give timely inti-mation of the same to the office of the Chief Commercial Superintendent.Even if no instructions regarding any particular case were given to him,he was expected to appear in court and obtain adjournment. In effectthis cast a continuing duty on him to protect the interests of the Railway as;
190
long as his engagement continued. The fact that the appellant would bepaid only if he appeared in a case and the possibility of the Railway notengaging him was a matter of no moment. An office of profit really meansan office in respect of which a profit may accrue. It is not necessary thatit should be possible to predicate of a holder of an office or profit that he wasbound to get a certain amount of profit irrespective of the duties dischargedby him.
The Statesman (Private) Ltd. v. H. R, Beb and others (1968) 3 S.C.R.614; McMillan v. Guest (1942) Appeal cases 561; referred to.
(ii) Although it was not necessary for the purpose of the present caseto express any final opinion on the point, on the facts, there was great forcein the appellant's contention that he did not hold an office of profit by beinga Professor of Law in a Government College on a salary of Rs. 250/- p.m.The Management of the College in question had been handed over to theUniversity. The appellant was only a temporary Government servant.He had never become permanent nor had he a lien on the post. He wassent on deputation to the University in 1959 and in the ordinary course ofthings such deputation would have come to an end in 1964 when he attainedthe age of superannuation. No order was passed in respect of him at anytime either by the Government or by the University until after the filingof the election petition.
(iii) On the facts, it was difficult to hold that the appellant held theoffice of profit as the President of a Tribunal constituted under s. 73 of theMadhya Pradesh Town Improvement Trust Act, 1960. He had never beenapproached for the purpose nor had he ever signified his willingness to actunder the terms of the notification. He had never taken charge of anyoffice nor had he ever discharged any function with regard to the office.[MAHADEV v. SHANTIBHAI AND OTHERS (S.C.), 40 E.L.R. 81.]
Jammu & Kashmir Representation of the People Act, 1957, .?.69(a) Office of profit—resignation before the date of filing nominationpapers—acceptance after nomination date but with retrospective effect—-whether holding office of profit at the time of filing nomination papers.
HELD : Although no order of acceptance of the resignation from anoffice of profit was passed at the time the petitioner had filed his nomina-tion papers, his resignation was subsequently accepted with retrospectiveeffect, when the resignation letter was submitted. This was prior to the datefixed for filing of nomination papers. The petitioner, therefore, could not besaid to have held any office of profit at the time he had filed the nominationpapers, when his resignation was accepted from an earlier date. [ABDULHAMID RANGERU v. M. N. KAUL AND OTHERS, 40 E.L.R. 130]
191
S. 10—elected candidate employed at the relevant time in a companyowned by Government—If disqualified—Constitution of India, Arts.102(1) and 191(1)—Scope of.
The appellant who was an unsuccessful candidate, challenged the firstrespondent's election to the Mysore Legislative Assembly.
The first respondent was appointed in an undertaking for the manufac-ture of steel started and managed by the State Government, as its own con-cern. Later a company, the Mysore Iron & Steel Works Ltd., was regis-tered and it took over the undertaking. All the shares in the companywere held by the Government though some were held in the name of itsofficers. The Directors of the Company were appointed by the Government.With regard to the general working of the company, Government had thepower to issue directions to the Directors which were to be carried out bythem. When the concern was taken over from the Government by theCompany, the services of the first respondent were continued by the com-pany and on the date of scrutiny of nomination papers, he was employed asa Superintendent in the Steel Works. It was contended for the appellantpetitioner that the first respondent was thus a government servant on thematerial date or, alternatively, was holding an office of profit under theGovernment. The High Court rejected the petition. Dismissing an appealto the Supreme Court.
HELD: The first respondent was not holding an office of profit underthe State Government.
(i) When the undertaking was taken over by the company as a goingconcern, the employees working in the undertaking were also taken overand since, in law, the company had to be treated as an entity distinct andseparate from the Government, the employees, as a result of the transferof the undertaking, became employees of the company and ceased to beemployees of the Government. Furthermore, after the undertaking wastaken over by the Company, the employees, who were workmen, wereno longer governed by the State's Civil Service Regulations. Their condi-tions of service were determined by the Standing Orders of the Companywhich were certified under the Industrial Employment (Standing Order)Act, 1946.
(ii) The fact that the Government had control over the ManagingDirectors and other Directors as well as the power of issuing directionsrelating to the working of the company could not lead to the inferencethat every employee of the company was under the control of the Govern-ment. The power to appoint and dismiss the first respondent or to fix hisremuneration or to give directions as to the manner of performance of his
192
duties did not vest in the Government or in any Government servant butin the officers of the Company. In the case of election as President orVice-President his disqualification arises even if the candidate is holding anoffice of profit under the local or any other authority under the controlof the Central Government or the State Government, whereas, in the case of acandidate for election as a Member of any of the Legislatures, no such dis-qualification is laid down by the Constitution if the Office of profit is heldunder the local or any other authority under the control of the Govern-ment and not directly under any of the Governments. The mere controlof the Government over the authority having the power to appoint, dis-miss, or control the working of the officer employed by such authority doesnot disqualify the officer from being a candidate for election as a Memberof the Legislature in the manner in which such disqualification comes intoexistence for being elected as the President or Vice-President.
By s. 10 of the Representation of the People Act, the disqualification islimited to person holding the office of a managing agent, manager or secretaryof a Company if in the capital of which the Government has not less than 25per cent share, and the disqualification does not apply to other employeesof the company. This gives two indications as to the scope of the disquali-fication laid down in Arts. 102(1) (a) and 191(1) (a) of the Constitution.One is that the holding of an office in a Company, in the capital of whichthe Government has not less than 25 per cent shares, is not covered by thedisqualifications laid down in Arts. 102(1) (a) and 191(1) (a), as other-wise, this provision would be redundant. The second is that even Parlia-ment, when passing the Act, did not consider it necessary to disqualifyevery person holding an office of profit under a Government company, butlimited the disqualification to persons holding the office of managing agent,manager or secretary of the company. The fact that the entire share capitalin the company in this case is owned by the Government, does not makeany difference.
Gurugobinda Basu v. Sankari Prasad Ghosal & Or's. (1964) 4 S.C.R.311 and Maulana Abdul Shakur v. Rikhab Chand (1958) S.C.R. 387;referred to. [D. R. GURVSHANTAPPA v. ABDUL KHUDDUS ANWARAND OTHERS (S.C.) 41 E.L.R. 153.]
Jammu and Kashmir Representation of the People Act, 1957—Sec-tion 24(8); Constitution of Jammu and Kashmir-—Section 69; Nomina-tion—Rejection of—appointment order not served on the candidate on thedate of scrutiny—whether holding office of profit—a conditional order ofappointment—when takes effect.
Nomination : rejection of—facts in existence on the date of scrutinyonly relevant—whether facts coming into existence subsequently affect thepropriety of the order of rejection of nomination.
193
Contract : Study loan taken by the candidate executing a bond to acceptservice under the Government—whether amounts to a share of interest ina contract.
The election of the appellant was set aside by the trial court on theground that his election was vitiated because of the improper rejection ofthe nomination of one Salooh, by the returning officer as he was foundholding an office of profit under the Government on 23rd January, 1967,the day fixed for scrutiny of the nominations. In 1962, Salooh had takena study loan from the Government on condition that he would serve theGovernment for 7 years after the completion of his studies. In pursuanceof this, an order appointing him as Agricultural Assistant was signed on19th January 1967 with a direction to report to the Director of Agricultureat Jammu. Salooh got the order of appointment after the 23rd January1967. The trial court held that on 23rd January 1967, the day fixed forscrutiny of nominations, Salooh was not holding any office of profit and hisnomination was improperly rejected. Dismissing an appeal to the SupremeCourt.
HELD : A person cannot occupy an office until he enters upon theoffice and the entry upon that office is not necessarily simultaneous with theappointment to the office. In the peresent case though Salooh was ap-pointed as an Agricultural Assistant at the Government Agricultural FarmTalab Tale, Jammu, he was asked to report immediately to the Directorof Agriculture. Therefore the appointment of Salooh was a conditionalorder which would only become effective if he first complied with the con-dition of reporting to the Director of Agriculture. There was no evidenceon record to show that before the scrutiny Salooh reported to the Director ofAgriculture as required.
The contention that Salooh anyhow became disqualified after 3rd Feb-ruary 1967 cannot hold good. A rejection of the nomination paper bythe Returning Officer on the date of scrutiny could only be justified if itwas based on facts existing at the time of the scrutiny. Facts which didnot at all exist on that date and came into existence subsequently cannotbe taken into account in order to consider the propriety of the rejection ofnomination.
The agreement of 1962 under which Salooh was under an obligation toaccept service in the Government is not a case where it can be said thathe had any share or interest in a contract for the performance of any ser-vices undertaken by the Government as envisaged in s. 24(d) of the Jammuand Kashmir Representation of the People Act, 1957. [CHANDAN LALv. RAM DASS AND OTHER (S.C.) 41 E.L.R. 214.]4EC/74—16
194
123(1)—Constitution of India Articles 101, 191, 327—Parliament{Prevention of Disqualification) Act, 1959, (10 of 1959), section 3—Mysore{Prevention of Disqualification) Act, 1956, Preamble, Sections 2(a)(b),(c) 3, (d), Scope of—Whether Central Act overrides the State Act—-Whether State Act ultra vires of Article 327 of the Constitution—'"Compen-satory Allowance" as defined in Section 2{b) of the Mysore Act, payable toChairman or Member of Committee, as defined in section 2(a) of theMysore Act, whether constitutes "Office of Profit" within the meaning ofArticle 191(1) (a) of the Constitution—
The petitioner challenged the election of the first respondent to theState Assembly on the grounds that on the date of election the first res-pondent was disqualified to be chosen as a Member of the Assembly ashe was holding the Office of Directorship of the Mysore State Food advisoryCommittee and the Chairmanship of the Marketing Committee of BasawaKalyan, which were offices of profit. It was further alleged in the petitionthat the second respondent was also similarly disqualified. Both the firstand the second respondents were drawing certain allowances and sittingfees, the receipt of which, constituted such Membership or Chairmanshipor Directorship, offices of profit under the Government of Mysore, and con-sequently disqualified both the first and the second respondents for beingchosen as members of the Assembly. The petitioner, therefore, pleadedthat the election of the first respondent should be held void and that thepetitioner should be declared as duly elected. The petitioner during thetrial also raised the question of the vires of the Mysore Legislature (Pre-vention of Disqualification) Act, 1956 (Mysore Act 4 of 1967) and thecontention that the Central Act on the subject prevails over the State Actin view of the provisions of Article 327 of the Constitution.
The first respondent contested the allegations while the second and thirdrespondents did not contest the petition.
HELD : Dismissing the petition : (i) The object of the Parliament(Prevention of Disqualification) Act, 1959, is not to declare that certainoffices are offices of profit and impose any disqualification. Article 102of the Constitution contemplates legislation by Parliament regarding preven-tion of disqualification for Membership of Parliament, while Article 191contemplates legislation by the State Legislature for prevention of disquali-fication for membership of the State Legislature. Thus the scope of theCentral Act and that of the State Act are entirely different and there can beno conflict between them and Central Act cannot override the Mysore Le-gislature (Prevention of Disqualification) Act, 1956. The State Act isvalid. The provisions of Article 327 of the Constitution do not cover thefield of prevention of disqualification for membership to State Legislature.
195
The term "Compensatory Allowance" defined in the Central Act as wellas in the State Act, is for the purpose of the respective Acts, since the scopeof each of these two Acts, is not the same." What the definition of "Com-pensatory Allowance" in section 2(b) of the State Act provides is that theaDowance of sitting fee should be for the purpose of enabling the respondentto recoup any expenditure specified in that Clause. So far as the allowancesatisfies the test of being for the purpose of such recoupment it is not neces-sary to establish in each individual case whether any expenditure was, infact, incurred, if so, what expenditure was incurred and whether the sittingfee and or daily allowance was no more than what was required to recoupsuch expenditure. The sitting fee payable to the first respondent for attend-ing each meeting of the Agricultural Market Committee or the daily allow-ance or sitting fee payable to either of the respondents for attending themeeting of the Food Advisory Committee or District Development Councilor Mysore State Social Welfare Advisory Board or the Land DevelopmentBank cannot be said to constitute profit and hence neither the first respon-dent nor the second respondent can be held to be disqualified for beingchosen as members of the Assembly by reason of his or her being a member•or a Director of any of the said Committee, Board or Bank.
Govinda Basu v. Sankari Prasad, A.I.R. 1964 S.C. 254; Ravanna v.G. S. Kaggerappa A.I.R. 1954 S.C. 653; In the matter of Vindhya PradeshLegislative Assembly Members {Election Commission) (1953) 4 E.L.R.422; referred to Bapurao v. Sidramappa and others, 41 E.L.R. 83.
—Mysore {Prevention of Disqualification) Act, 1956, Preamble, sections2{a), {b), {c), 3{d), Scope of—See Disqualification of Candidate—Officeof Profit. BAPURAO v. SIDARAMAPPA AND OTHERS, 41 E.L.R. 83.
—Rajasthan Panchayat Samitis & Zila Parishad Act, 1959—Officeof Profit—Zila Pramukh if holder of office of Profit.
The main grounds of challenge against the election of Respondent No.1 as a member of the Legislative Assembly were (i) that the respondentbeing a Pramukh was a holder of an office of profit under the Governmentand was consequently disqualified under Article 191(1) (a) of the Consti-tution from seeking election to the State Assembly; (ii) that the respondentcommitted various corrupt practices such as, (a) giving or offering bribesto various persons for obtaining votes (b) he or his agents exercising un-due influence on the Government servants for obtaining or procuring their
196
assistance for the election campaign and generally the utilisation of the statemachinery at the behest of certain ministers to brighten the prospects of therespondent's election; (c) the respondent himself abusing his position as aPramukh and obtaining funds during the election campaign for the faminerelief works; and (iii) that the ballot papers were tampered with and thesanctity of the ballot boxes was thereby affected so as to call for settingaside the election.
HELD : (By the Court) The petition must be dismissed. The peti-tioner had failed to prove the allegation of corrupt practices made in thepetition.
Per Chhangani, J. : The factors that ought to be taken into considera-tion in determining the question whether a person holds an office of profitunder the government (i) whether government makes the appointment to theoffice;(ii) whether government has the right to remove or dismiss the holderof office; (iii) whether government pays the remuneration; (iv) what arethe functions which the holders of the office performs and does he performthem for government; and (v) does government exercise any control over theperformance of those functions. All the factors need not co-exist and eachneed not show subordination to the government. The fact that the sourceof the remuneration is not the public revenue is a neutral factor not decisiveof the question. Whether stress should be laid on one fact or the otherwould depend on the facts of each case. Applying these tests and consider-ing the features relating to Zila Parishad and Zila pramukh under theRajasthan Panchayat Samitis and Zila Parishad Act, 1959, it has to beheld that the office of the Zila Pramukh is not an office of profit under the,state.
Shekhar V. Rikkab Chand. A.I.R. 1968 S.C. 52; Guru Gobind Bam V.Sankari Prasad Ghosal, A.I.R. 1964 S.C. 254; Ram Lai V. VishveshwarNath A.I.R. 1968 Raj. 249; Umrao Singh V. Darbara Singh, A.I.R. 1968Punjab and Haryana 450; Moti Singh V. Bhaiyyalal, A.I.R. 1968 Bom.370; referred to.
Per Kan Singh, J. : Whatever powers are exercisable by the governmentregarding the Zila Parishad are on institutional basis. From the Act itcannot be spelt out that the government have the power to dictate how apramukh should exercise his functions. The main function of the pramukh,besides being the executive head of the Zila Parishad is to coordinate thevarious activities of the Panchayat Samitis in the district. Ram Lai V. Vish-veshwar Nath A.I.R. 1968 Raj. 249; Guru Gov'mda V. Shankar Prasad,A.I.R. 1964 S.C. 254; referred to. UMRAO SINGH DHABARIYA v.YASHWANT SINGH NAHAR & Others, 42 E.L.R. 126.
197
ELECTION COMMISSION
—Election Commission—Conduct of Elections Rules 1961, Rule 49—Duty to notify change of polling station—Election Commission cannot giveex-post facto sanction—See "PoW'—RISHANG v. PAOKAl HOAKIP &.Ors., 35 E.L.R. 110.
—R. 93(d)—Power of inspection given to Election Commission byamendment of Rule 93(d), whether ultra vires of the constitution.—HELD:So-long as the rule making power in Section 169 of the Act remains in tact,any amendment of Rule 93 (d) of Conduct of Elections Rules, conferringthe power of inspection of records on the Election Commission would notbe ultra vires the Constitution. The provision contained in Article 324(1)of the Constitution is not co-terminus with the declaration of results, butalso includes appointment of Election Tribunal. Under Section 92 of theAct, the Tribunal has the powers of a Civil Court and the power of inspec-tion derived by the Tribunal from Order II of the Civil Procedure Code,would not create any conflict of jurisdiction between the Tribunal and theElection Commission RAM MILAN SINGH v. HARI SHANKAR PAR-SAD GUPTA AND OTHERS, 38 E.L.R. 95.
—Election—"election" meaning of—notification to conduct elections byElection Commission—// could be challenged in Writ Proceedings—SeeConstitution. RAT AN SINGH v. THE ELECTION COMMISSION OFINDIA AND OTHERS, 42 E.L.R. 49.
—Election Commission, Power to issue directions—Sections 36, 58 (1)(b), 100(1) (c)—Art. 324—Polling station was not found at the close ofthe poll—-The Election Commission issued directions under Section 58(ft)of the Act—Whether the Section is wide enough to include an error relatingto the loss of electrol rolls—Power of the Election Commission to issuedirections.—The electrol roll of the Polling Station B.S., where therewere about 1110 voters was not found at the close of the poll, andwhen this was brought to its notice, the Election Commission directed thatif there was difference of more than 1110 votes between the winning candi-date and the next following candidate, then the ballot box of the said Poll-ing Station may not be opened and the votes concerning the said PollingStation may not be taken into account. The Returning Officer acted on thatdirection and in doing so, it was alleged, he acted illegally in conductingthe counting proceedings, Dismissing the petition. HELD : As the elec-toral roll was not found at the close of the poll, the error in thepresent case was committed at a polling station or at a "place fixed for thepolling" as contemplated by section 58(1) (b) of the Representationof the People Act, 1951. It cannot be said that Section 58 of the Act dealsonly with the "destruction etc., of the ballot boxes". It is true that the
198
heading of the said section makes a mention of ballot boxes only, but theprovision embodied in clause (b) of Section 58(1) is comprehensive enoughto include an error relating to the loss of electoral rolls as well, therefore,the Election Commission could act under Section 58(2) (b) to issue neces-sary directions to the Returning Officer concerning the error in question. Be-sides this specific provision in the Representation of the People Act, underArticle 324 of the Constitution also, the Election Commissioner is em-powered to issue the said directions. Even if it is assumed that the directionof the Election Commission was violative of Section 58 of the Act, thepetitioner could not succeed unless it is established that the said directionhad materially affected the final result of the election. Nazir Ahmad v.King Emperor, A.I.R. 1936 P.C. 253(2); State of Vttar Pradesh v.Singham Singh and Others, A.I.R. 1964 S.C. 358; referred to.
Motilal v. Mangla Prasad and Others, A.I.R. 1958 Allahabad 794; A.Ponnuswami v. The Returning Officer Namakhal Constituency, Namakhal,A.I.R. 1952 S.C. 64; followed. JAGDAMBA PRASAD v. SHRI JAGAN-NATH PRASAD AND OTHERS, 42 E.L.R. 465.
—Election Commission—Principles which govern grant of Permission ofInspection of Ballot paper by Election Commission—Conduct of ElectionsRules, 1961, Rule 93—See Ballot paper—Inspection of—S. G. DUTTAv. KRISHNA BAJPAI, 42 E.L.R. 353.
ELECTION EXPENSES[SEE ALSO CORRUPT PRACTICES—INCURRING OF UNAUTHORISED
EXPENSES'].
—SS. 77, 123(6)—Failure to maintain separate account of election ex-penses—Whether a corrupt practice under Section 123(6).
HELD : Even if no separate account book has been maintained forelection expenses that will not make it a corrupt practice within the meaningof Section 123(6) of the Act. Where a candidate has paid a deposit tothe Congress Committee for getting the Congress ticket and where heagreed to the condition that in the event of his not being given a tickethe would not be entitled to the refund of amount in case he contestedthe election against the Congress candidate, and if the forfeiture of thisamount of deposit took place during the material dates, this expense iscovered by Section 77 of the Act and the amount should have been includedas an election expense by the first respondent. However, even after inclusionof the amount, the total expenditure was within the prescribed limit;
Khader Sheriff v. Munnuswami Gounder and Others, II G. L. R. 208;Salig Ram Jaiswal v. Sheo Kumar and Others, 9 E.L.R. 67; referred to;AMAR NATH v. SARDAR LACHMAN SINGH & OTHERS, 34 E.L.R.103.
199
—SS. 53, 78—Unopposed candidate if contesting candidate—Therefore ifbound to file account of election expenses within 30 days.
HELD : In the present case there was no contest and no expenseswere actually incurred. Section 53 of the Act clearly makes a distinctionbetween contested and uncontested elections. To a candidate who has beenreturned unopposed the term contest cannot at all apply. Therefore therespondent on plain reading of s. 78 of the Act was not bound to lodgethe account of his election expenses before the district election officerwithin 30 days of the election ; and his failure to do so would not resultin any disqualification for him or in setting aside his election. KACHOMOHD. A LI KHAN v. SHRI KUSHOK BAKULA, 34 E.L.R. 323.
—SS. 77(3) and I23(b)—Scope of :
HELD : It is only Section 77(3) which deals with incurring or autho-rising of expenditure. A plain reading of Section 77 in conjunction withsub-section (6) of S. 123 makes it clear that what is hit by the latter provi-sion is the contravention of S. 77(3) and not the contravention of sub-sections (1) and (2) of Section 77. D. Venkataramiah v. Narayan Gowda,20 E.L.R. 101; referred to.
If any expenditure is incurred in connection with the election but thesame has not been incurred or authorised by the respondent or his electionagent, an account of the same is not to be kept under the section. Aparticular political party may spend some money to advance the interestof the party and not for the candidate. Such expenses are neitherincurred nor authorised by the candidate. An account of such expensesis not to be kept under S. 77(1). In the present case there was no plead-ing that certain items of expenses were authorised either by the respondentor by his election agent. A distinction must be made between "omissionto state material facts" and "omission to give full particulars". If materialfacts are omitted, a party should not be allowed to raise a contention ona particular point even if some materials are available in the evidence.If on the other hand material facts have been pleaded, but full particularshave not been given, the court may permit the points to be raised on thebasis of evidence unless thereby the respondent is materially prejudiced.Bhagaban v. Ramratan, A.I.R. 1960, S.C. 200, Balwan v. Luxminarayan,A.I.R. 1960, S.C. 770; referred to GHASI RAM MAJHI v. OMKARSINGH, 35 E.L.R. 80.
—Section 77—Accounts not maintained in regular course not properaccounts. HELD : Accounts not maintained in regular course is not thesort of accounts which are contemplated by s. 77 of the Act. But mere non-maintenance of the accounts as required by the said section and as pres-cribed by the Rules does not have any effect in so far as the electionis concerned. B AS ANT RAM v. NALU RAM, 35 E.L.R. 151.
• 200
The petitioner alleged in his election petition that the respondent didnot by himself or through his election agent keep correct and separateaccount of the expenditure incurred by him in connection with his election ;that the non-maintenance of accounts as required by Section 77 of the Actin the manner prescribed by Rule 86 of the Conduct of Elections Rules,1961 and their non-production raises a presumption against the respondentof exceeding the prescribed limit of election expenses which in the case ofHimachal Pradesh is Rs. 2000/-. The return of expenses filed by the res-pondent showed a total expense of Rs. 1467.91 while the Return of ex-penses filed by his election agent showed a total expense of Rs. 2012.96.It was contended that the respondent was bound by the return of expensesfiled by his election agent.
—Section 77—Candidate if bound by return of expenses filed by agent.
HELD : Dismissing the Petition, (i) The respondent did not by himselfor through his election agent keep correct and separate account of the expen-diture. The burden of proving corrupt practice is and remains on the peti-tioner throughout. It cannot be urged that merely because the accounts re-quired by S. 77 of the Act have not been produced or, if produced, they havenot been maintained in the manner prescribed by the said section andRule. 86 of the Rules that the burden is discharged. All that can be saidis that if the onus of proving or disproving a specific item of expense is onthe respondent, then the non-production or non-maintenance of accountswill raise a presumption against the respondent, (ii) There is no provisionin the Act which supports the contention -that the candidate is bound bythe Return of expenses that may be filed by his election agent. The functionsof an election agent are to be found in the provisions of the Act and it isonly when he performs those functions that the candidate will be boundby the acts of his election agent. The duty which was cast upon the elec-tion agent alone by Section 44 of the Act prior to its amendment of keepingaccounts was imposed upon a candidate or his election agent by Section 77of the Act as it stood after amendment. Sankara Gowda v. Mariappa, IXE.L.R. 101; referred to. HIRU RAM v. ARJVN SINGH, 35 E.I.R. 226.
—S. 77.—"authorising"—meaning of.
HELD : The first respondent, merely because he was a candidate underthe aegis of the Swatantra Party cannot be said to have authorised incurringof expenditure for the electrical installation works, for displaying thesymbol "star". "Incurring" and "authorizing" are two different concepts eachstanding by itself and the legislature must not be credited with the intentionof using tantologous expressions when they used the two words "incurring"and "authorizing". Authorizing imparts a concept of something which
201
is done at the request of or with the consent and knowledge of the candi-date concerned though the candidate himself may not be incurring liabilityin connection with that expenditure. Rananjaya Singh v. Bajinath Singh,A.I.R. 1954 S.C. 749; Sheopat Singh v. Harish Chandra, A.I.R. 1958Raj 324; Muthiah Chettiar v. Ganesan, 21 E.L.R. 215; Vasantha Pai v.Srinivasan, 22 E.L.R. 221; Narasimhan v. Natesan Chettiar, 20 E.L.R. 1,referred to. KARIMJI REHMANJl CHIPA v. ABDURAHIM TA.IU.ll,36 E.L.R. 283.
—S. 11—Money paid by candidate to the Party—whether electionexpenditure. HELD : It is now settled that where a candidate pays a sumof money to his party for accepting him as a candidate of that party, thepayment of such a sum has to be regarded as part of the election expen-diture of the candidate. However such a sum must be incurred by thecandidate during the period specified in Sec. 77 of the Act, namely,between the date of publication of the notification calling the electionand the date of declaration and the result thereof. S. Khadar v. Munu-swami, A.I.R. 1955 S.C. 775, referred to; V. RAMCHANDRA RAO v.(1) M. CHENNA REDDY (2) SIDDARAMAPPA 37 E.L.R. 269.
—S. 77—Expenditure incurred by political party which incidentallysupported the returned candidate—whether that expenditure could bedebited to the returned candidate. HELD : On the evidence, the peti-tioner had failed to establish by positive, reliable and conclusive evidencethat the expenditure on the helicopters and the cars used by the Maharajaand his mother was incurred or authorised by the first respondent orthe said expenditure was incurred or authorised by his election agentand that the same was incurred or authorised in connection with thefirst respondent's election. Simply adducing evidence which does noth-ing more than creating suspicion would not be sufficient to establish thecorrupt practice, because suspicion is not the same thing as proof of thecorrupt practice with which the respondent was charged. The expendi-ture incurred by a political organisation or a political party, even thoughin some of the meetings the first respondent was present and even thoughknowledge may be imputed to him that the election propaganda carriedon by the party would incidentally benefit him, cannot be debited tohim.
Jamna Prasad Singh v. Amnivas and others, A.IR. 1959, M.P. 226;N. L. Verma v. Munilal and others, 15 E.L.R. 495; Sheopatsingh v. Harish-chandra, 16 E-L.R. 103; Shivram Sawant Bhonsale v. Pratap Rao DeoraoBhonsale, 17 E.L.R. 37; Ram Abhilakh Tiwari v. Election Tribunal Gondaand others, 15 E.L.R. 375; S. Kandaswami v- S. B. Adityan and others, 21E.L.R. 435; Savitri Devi v. Prabhawati Mishra and another, 15 E.L.R. 358;
202 '
Pandit K. C. Sharma v- Krishi Pandit Rishabkumar and others, 20 E.L.R.401; C. R. Narasimha v. M. G. Nalesan Chettiar, 20 E.L.R. 1; Biresh Misrav. Ram Nath Sanna and others, 17 E.L-R. 243; Saw Ganesan v. M. A.Buthiah Chettiar, 19 E.L.R. 16; Jagdev Singh Sidhanti v. PratapsinghDaulta and others; A.I.R. 1965, S.C. 183; Dr. Jagjit Singh v. Giani KartarSingh and others, A.I.R. 1965 S.C. 775; M. A. Muthiah Chattiar v. SawGanesan, 21 E.L.R. 215; Rarianjaya Singh v. Baijnath Singh and others,10 E.L.R. 129; G. Vasantha Pai v. A. Srinivasan and others, 22 E.L.R.221; Lencasters case, 5 O'M and H 39, 44; Elgin case, O'M and H. 2;Hegston case 5 O'M & H. 70; Biresh Misra v. Ram Nath Sarma and Ors,17 E.L.R. 423; Mubarak Mazdoor v. Lai Bahadur, 20 E.L.R. 176;V. B. Raju v. V. Ramchandra Rao and Ors. 21 E.L.R. 1; Mastram v.Harnam Singh Sethi and Ors. 7 E.L.R. 301; referred to RAM DAYAL v.BIRJ RAJ SINGH AND OTHERS, 38 E.L.R. 53.
-—5.77—Election expenditure by party organisation—whether a limitis prescribed—whether such expenditure can be charged to the respondent.
HELD : There is no limit prescribed for the expenditure which a poli-tical party may incur for the election campaign of candidates sponsored byit. There is a distinction in law between an election campaign carried onby a candidate or his election agent and that carried on by the party spon-soring him. The candidate is not liable for the expenditure incurred by theparty sponsoring him. BHANU KUMAR SHASTRI v. MOHAN LALSUKHADIA AND OTHERS, 38 E.L.R. 119.
—S. 77—Failure to maintain correct account of election expenses,whether renders election void'.
HELD : The return filed by the first respondent was not in contraven-tion of Section 77 of the Act; even if the return is not correct in one or tworespects that cannot justify a declaration that the election of the first res-pondent is void under Clauses (b) and (d) (iv) of Section 100(1) of theAct. DASU STNHA v. RAM LAKH AN SINGH YADAV AND OTHERS,38 E.L.R. 177.
—Allegations on grounds of suspicion of expenditure in excess of theprescribed limit—whether attracts Section 77.
HELD : The respondent cannot be held guilty of having committedthe corrupt practice under section 77 of the Act, on the mere suspicion thatthe respondent might have spent more than what he had shown in his re-turn, unless the allegations were affirmatively proved by the petitioner.
203
Rananjaya Singh v. Baijnath Singh and others, 10 E.L.R. 129; M. A,Muthiah Chettiar v. Saw Ganesan, 21 E.L.R. 215, referred to.
SHEODAN SINGH v. MOHAN LAL GAUTAM, 38 E.L.R. 242.
—Ss. 77(3), 123(6)—Hiring of vehicle by Congress Committee—Candidate also using vehicle—Amount spent by Congress Committee can-not be taken as amount spent by candidate.
The election of the first respondent was challenged on the main groundthat he hired a vehicle for election purposes but failed to show the hirecharges and expenses incurred for petrol etc. in the return of expenses;and if this amount was shown in the return it would exceed the permissiblelimit and therefore the election was liable to be set aside under s. 77(3)read with s. 123(6) of the Representation of People Act, 1951. The HighCourt came to the conclusion that the vehicle was engaged by the CongressCommittee though it was 'used also' by the respondent in connection withhis election and dismissed the election petition. Dismissing the appeal tothe Supreme Court,
HELD : The expenditure must be by the candidate himself and anyexpenditure in his interest by others (not his agents within the meaning ofthe term in the election law) is not to be taken note of. Here, the hiringwas by the. Congress Committee which was not such an agent and thereforethe amount spent by the Congress Committee cannot be taken as an amountwhich must compulsorily be included in the expenditure over the electionby the candidate.
On the evidence it was impossible to decide how much of the use wentfor the benefit of the returned candidate and how much for the use of thecandidates in other constituencies put up by the Congress Committee. Sincethe law requires the setting aside of an election only on proof that the maxi-mum amount allowed by law as the expenditure has been exceeded, it wasdifficult to give a finding which would go to establish that this limit was ex-ceeded in the present case.
Rananjaya Singh v. Baijnath Singh and Ors. (1955) 1 S.C.R. 671,referred to.
(The practice of supplying jeep through use of party funds deprecated).HANS RAJ v. PT. HARI RAM AND OTHERS (S.C.), 40 E.L.R. 125.
—S. 123(6)—Particulars of corruption not mentioned in the petition—•interested witnesses giving evidence—how far reliable.
204
HELD : In the absence of any mention in the election petition regard-ing the payment for a petromax lamp, it was unsafe to rely solely upon theuncorroborated testimony of interested witnesses. PT. SHREE KRISHNASELOT v. SHRI RAM CHARAN PUJARl (S. C.) 41 E.L.R. 50.
—Corrupt practice—Election Law—Burden of proof—failure of thereturned candidate to maintain his election accounts as required under sec-tion 77(1) and (2), whether can lead to inference that he lias incurred ex-penditure in contravention of subsection (3) of section 77(1)—Scope.
HELD : On facts and evidence, the petitioner had failed to prove hisallegations against the first respondent of corrupt practices under section123(4) that the lorry in which it is alleged that voters to the polling stationwere conveyed belonged to the respondent; nor was there any evidence as towho had engaged that lorry on the polling day and there was no avermentthat electors were conveyed free in that lorry. Further, there was absolute-ly no evidence that the respondent or any of his agents purchased petrolfor the jeep shown under Exts P. 53 (a) P-54(a) P-54(b) and the amountspent on such purchase of petrol cannot be regarded as a part of electionexpenses of respondent. The expenses incurred by first respondent, priorto the date of the publication of the Notification calling the election, cannotbe attributed to the respondent's election expenses, under section 77(1) ofthe Act.
Joshbhai Chunnibhai Patel v. Anwar Beg A Bhiza, 39 ELR (S.C.) 438;Hansraj v. Pt. Hari Ram and others, 40 E.L.R. (S.C.) 125.
Rananjaya Singh v. Baijnath Singh and others (1955) I, S-C.R. 671—10 E.L.R. 129; Vidya Sagar Joshi v. Surinder Nath Gautam 40 E.L.R.(S.C.) 29; referred to. BAPURAO v. SIDRAMAPPA AND OTHERS,41 E.L.R. 83.
—Voluntary expenses to help candidate's election—-whether falls withinlimit under s. 77(1).
HELD : The High Court had rightly held on the evidence that noneof the corrupt practices alleged was proved.
Unless it is established that expenditure was incurred in connectionwith the election by the candidate or by his election agent or was authorisedby him it is liable to be included under s. 77. Expenses incurred by anyother agent or person without anything more need not be included in theaccount or return. In the present case expenditure was incurred by the Maha-raja and the Rajmata of Gwalior for the purpose of canvassing votes againstthe principal candidate opposing the first respondent, but in the absence
205
of any evidence to show that the Maharaja and the Rajmata of Gwalioracted as election agents of the first Respondent or the expenditure wasauthorised by him, it was not liable to be included in his account of electionexpenses.
RAM DAY Ah v. BRURAJ SINGH AND OTHERS, (S.C.), 42 E.L.R149,
—Representation of the People Act, 1951—Sections 123(6) and 77—Expenses incurred by political party do not come within the mischief ofthe Sections.
The appellant challenged the election of the first respondent on theground that (i) the respondent was guilty of corrupt practice within themeaning of sub. ss. (2) and (3) of S. 123 of the Act and (ii) the expensesincurred by the first respondent, exceeded the prescribed limit and there-fore he was guilty of the corrupt practice under s. 123(6) read with S. 77of the Act. It was contended that the expenses said to have been incurredby the Respondent's party were really incurred by the respondent. TheTrial Judge dismissed the election petition. Dismissing the Appeal.
HEhD :
(i) The charges under Sub-ss- (2) and (3) of S. 123 of the Act hadnot been proved.
(ii) Expenses incurred by a political party in support of its candidatedo not come within the mischief of s. 123 (6) read with s. 77 of the Act.There is no evidence to prove that the expenses said to have been incurredby the party were really incurred by the respondent.
Hans Raj v. Pt. Hari Ram and Others, 40 E.L.R. 125 (S.C.); Ranan-jaya Singh v. Baijnath Singh and ors. (1955) 1 S.C.R. 671; referred toCivil Appeal No. 1563 (NCE) of 1968; referred to :
SHAH JAYANTILAL AMBALAL v. KASTVRILAL NAGINDASDOSHI AND OTHERS, (S.C.), 42 E.L.R. 307.
—S. 77—Election expenses—scope of s. 77 —
HELD : S. 77 of the Act makes it obligatory on the candidate to keepa correct account and his failure to do so may amount to a contraventionof s. 77 of the Act- But from the language of s. 123(6) of the Act, it is clearthat every contravention of S- 77 has not been made a corrupt practice. S.123(6) only makes the incurring or authorising of expenditure in contraven-tion of s. 77, a corrupt practice. The failure to keep a correct account can-not be said to be incurring or authorising any expenditure and thus all that S.
206
123(6) of the Act contemplates is that incurring of expenditure shouldnot exceed the limit prescribed under s. 77 of the Act.
—Sheopat Singh v. Harish Chandra, A.I.R. 1958 Rj. 324 and RamAbhilakh Tewari v. The Election Tribunal, Gonda, A.I.R. 1958 All. 663:referred to NARAYAN SHANKAR TRIVEDl v. DALCHAND JAINAND ANOTHER, 37 E.L.R. 107.
ELECTION PETITION—(1. GENERAL PRINCIPLES)
—General Principles—Election proceedings whether accustonal or in-quistorial—When a court can embark on suo moto enquiry.
HELD : In election cases while the court should have the greatest con-cern for the purity of elections, they have also to remember that the electionproceedings are substantially in the nature of accustorial and not inquisito-rial proceedings and that they are primarily to hold the balance betweenthe contending parties; they should embark upon suo moto enquiry only inexceptional cases particularly as the (1) rights to be adjudicated in an elec-tion petition are of a political nature, (2) right of an elected representativeto hold office is for a temporary period, and (3) the cases of election con-test are to be adjudicated as expeditiously as possible. DR. POHU MALv. BHAGWANDAS SHASTRI, 33 E.L.R. 264.
- —Ss. 87 and 90—Code of Civil Procedure (1908), Order 9, rule 8-Election Petition—non-examination of witness by Petitioner's Counsel byreason of 'absence of instructions—// amounts to non-appearance—Defaultin prosecuting election petition—Power of court to dismiss.
Non-applicant No- 2 was elected to the Lok Sabha at the 1957 generalelections on the Swatantra Party ticket. The election was challenged bynon-applicant No. 1 on the ground that the decision of the Election Com-mission ex parte granting non-applicant No. 2 the symbol of the SwantantraParty, reversing the earlier decision of the Returning Officer allotting afree symbol, was arbitrary and ultra vires the powers of the Commission.On the date fixed for the trial of the petition, the petitioner did not appearand two witnesses who were present were not examined by the petitioner'scounsel on the ground of absence of instructions. Arguments were heardand eventually the petition was dismissed. Thereafter, the applicant filed thepresent application to restore the petition and to allow the applicants to besubstituted in place of the petitioner and prosecute the petitioner. In sup-port, it was contended that the decision of the court dismissing the petitionwas not a decision on merits as to bring it within section 98 of the Repre-sentation of People Act. Further, the Court could not have dismissed the
207
petition in default of non-appearance of the petitioner as such a dismissalis contrary to law and justice.
HELD : (i) The applicants' contention that it was a case of non-ap-pearance of non-applicant No. 1 in Court and that the petition could nothave been consequently disposed of on merits was wholly unacceptable.On the other hand the petitioner was fully represented by Counsel whopermitted the election petition to be concluded and the case disposed of onmerits.
Although Counsel for the petitioner did not examine the two witnesses"in the absence of instructions from the petitioner", but from this, it wouldnot be legally justifiable to conclude that counsel had no instruction to appear.The proper interpretation of Counsel's conduct was that although there wasno withdrawal of his authority and instructions to appear and act, he wasdisabled from examining the witness on account of absence of necessary andreasonable assistance from the client in properly examining the witnesses.Smt. Rup Rani Devi v. Christopher Southern Lewis & Ors., A.I.R. 1949East Punjab, 86, referred to.
(ii) The decision dismissing the election petition was clearly on merits.That being so, an application to set aside the decision with the help of Order9, rule 8 read with s. 151 of the C.P.C. was not maintainable. In the pre-sent case, the petitioner's counsel did not examine the two witnesses andclosed his evidence. The respondent also closed his evidence. They thenaddressed the Court and eventually it was held that the allegations in thepetition remained unsubstantiated and the petition was dismissed. It was adecision clearly on merits.
Sunderlal Mannalal v. Nandram Dwarkadas A.I.R. 1958, M.P. 260;Dina Nath Kaul v. Election Tribunal, J. & K. A.LR. 1960 J & K 25;Mallappa Basappa v. Basavaraj Ayyappa, A.I.R- 1958, S.C. 698; JaganNath v. Jaswant Singh, A.I.R., 1954 S-C. 210; Kamaraja Nadar v. KunjuThevar, A.I.R. 1958 S-C. 687; Vishwanath Prasad v. Malkhan Singh SharmaA.L.R. 1964. All 181; Beeorilol Vertna v. Tribikram Devo Narain Singh,A.I.R. 1965 Patna 378; Election Petition No. 9 of 1967 decided on 9-8-1967 by Punjab High Court referred to. KESARILAL KAVI AND AN-OTHERS v. NARAIN PRAKASH A1$D ANOTHER 37 E.L.R. 198.
—Words in explanation to s. 86(4) "the date fixed for the respondentto appear before the High Court and answer to claim"—Meaning of-
HELD : Under the explanation to sub-section (4) of Section 86 ofthe Act, the words "The date fixed for the respondent to appear before the
208
High Court and answer the claim", must mean the date on which the res-pondent came to know of the claim, that is, the election petition, or whenhe shall be deemed to know the same in the eye of the law. This is so be-cause a summons may not be personally served and when it is servedunder Order V, Rule 20 of the Code of Civil Procedure, the respondentshall be deemed in the eye of the law to have received the notice of theclaim and therefore the recrimination petition was filed within limitation.MAHANT MAHADEVANANDGIRl v. AMBIKA SHARAN SINGHAND OTHERS, 39 E.L.R. 23.
—General Clauses Act, 1897 sections 9(1) and 19(1)—Applicability of—Election Petition—See Election Petition—Limitation. BISHAMBARDAYAL v. RAJ RAJESHWAR AND ANOTHER, 39 E.L.R. 363
—Non-prosecution.—Sections 109, 110—Sections if can be invoked incases of conduct of petitioner amounting to non-prosecution.
When evidence in an election petition was closed, one O submitted anapplication under Section 151 Code of Civil Procedure and Sections 109 and110 of the Representation of the People Act stating that the action of thepetitioner in not examining himself and in not adducing evidence is equi-valent to the withdrawal or non-prosecution of the election petition andconsequently, the court had to act under the provisions of Sections 109 and110.
HELD : Where a petitioner does not present an application for with-drawal but merely omits to produce evidence, the provisions of Sections 109and 110 of the Act cannot be invoked. Therefore in the absence of anapplication for withdrawal a request for taking action under these sectionson the basis of the conduct of the election petitioner amounting to an actof non-prosecution of the election petition cannot be considered valid andpermissible.
Heer Singh v. Veerka; I.L.R. (1958) 8 Raj. 380; Ganpal Singh v.Brii Mohan Lai Sharma, A.I.R. 1959 Raj 114; Kesharilal Kavi, v. NarainParkash, Civil Misc. Restoration Application No. 93 of 1967 decided byRajasthan High Court on April 19 1968; referred to. KARAN SINGH v.NAND KUMAR SOMANI, 39 E.L.R. 384.
—Essential elements of evidence—Oral evidence, appreciation of.
HELD : If a witness is going to make allegations which he knows to befalse, then the test is not whether there has been a trick of memory butwhether he is likely to speak falsehood with an ulterior purpose. Whenpolitical passions run high a court has to be on guard against partisanwitnesses on either side exaggerating and super adding to the statements
209
that might have been made. KESHAVDEV v. KHUMAN SINGH, ANDOTHERS., 40 E.L.R. 242.
—Election petition—Presentation by Advocate's clerk in petitionerspresence—// proper presentation.
HELD :—The High Court was right in holding that the requirementsof law as to the presentation of a petition were fully satisfied as the electionpetition was presented to the Registry by an Advocate's Clerk in the presenceof the petitioner. The petitioner, in substance though not in form, himselfpresented the petition. SHEODHAN SINGH v. MOHAN LAL GAUTAM(S.C.), 41 E.L.R. 146.
—Practice and Procedure—Raising new grounds and adducing evidencewithout supplementary written statement—propriety of—See Disqualifica-tion of Candidates—Interest in Contract with Government. ABDUL GHAN1NAMTIHAL v. GULAM MOHAMMAD PARAY AND ANOTHER(S.C.) 42 E.L.R. 100
—Rule 39(1) (b) not Mandatory—Conduct of Elections Rules—-Rule39(1) (b), 56(2) See—Ballot papers. PRABHATGIRI GULABIGIR1GONSAI v. SHIVRAJKUMAR ALABHAI KHACHAR AND OTHERS,36 E.L.R. 131.
Validity of Rule 40 of the Conduct of Elections Rules, 1961—// ultravires the Constitution and the Act—Representation of the People Act, 1951.
HELD : It is clear from clause (b) of Article 329 that the only mannerin which an election to either House of the Legislative Assembly of a Statecan be called in question is by an election petition and not by any othermeans. Evidently it cannot be challenged by a written statement which doesnot amount to a petition. The result of reading Article 329 (b) of theConstitution and Section 81(1) of the Act together is that the election peti-tion can be called in question only if an election is presented to the HighCourt within a period of 45 days. In order that the respondent may be ableto challenge an election he should satisfy the provisions regarding the pre-sentation of the petition to the specified authority within the time fixed bylaw. The written statement of respondent No. 2 is not a petition presentedin accordance with the law made by the Legislature under Art. 329 of theConstitution.
There is no provision in the Constitution regarding secrecy of votes. Itcannot therefore be said that Rule 40A which enables even a blind orinfirm person or one who is unable to read the ballot paper to vote withthe help of a companion is ultra vires the Constitution. Nor is the rule ultravires the Act.
4EC/74—17
210
Raj Krishna Bose v. Binod Kanungo, A.I.R. 1954 S.C. 202 Bobray RainGopal v. D. Ladi Prasad Tandon, F.A. No. 6 of 1961 decided 16-2-1962(Allahabad) ; Edward Mills v. State of Ajmer A.I.R. 1955 S.C. 25; referredto RAJ PAL SINGH v. OM PRAKASH GARG AND OTHERS, 41E.L.R. 221.
—Admissions of allegation—Election Petition—Code of Civil Procedure,1908, order 8, Rule 5—Scope of
HELD : There was no force in the contention of the petitioner thatif a fact alleged in the plaint is within the personal knowledge of the defen-dant, it is not sufficient for him to state that he does not admit that allegation,and that unless he denies that allegation it must be taken to have been ad-mitted. There is nothing in the language of Rule 5 of Order 8 of the CivilProcedure Code which will justify such a contention. It is sufficient for thedefendant to state that he does not admit the allegation, and if he states so,the plaintiff is not relieved of the necessity of proving the allegations.
Tikani Bai. v. Punjab State, A.I.R. 1964, Punjab 15; referred to.BAPURAO v. SIDRAMAPPA AND OTHERS 41 E.L.R. 83.
—Law Reform—disqualification of persons leading false and fabricatedevidence—See—Election petition—Burden of Proof. DAL SINGH v.NARAYAN SINGH AND ANOTHER, 42 E.L.R. 192.
Jammu and Kashmir Representation of People Act, 1957 Sections 91,94(5), 132 (3), 3(a), 98.
Election Petition—failure to give full particulars as to time, place andperson regarding corrupt practices—whether there is a cause of action todecide.
Amendment—scope—no details regarding corrupt practices in thepetition—whether subsequent amendment of the petition can be allowed.
The election petition only contained the allegation that the respondentNo. 1 had committed certain corrupt practices without mentioning whereand when such practices were committed and by which named personsDuring the trial of the petition the petitioner sought leave to amend the peti-tion.
HELD : The allegation regarding corrupt practices must be struck off,and the petition dismissed.
It has to be kept in mind that the whole of the election law is statutoryand election petitions are not enforcements of common law or personal law
211
rights; a resonable attempt at compliance with statutory requirements is clear-ly necessary. So far as a corrupt practice is concerned, section 91 (b) of theJammu and Kashmir Representation of People Act clearly shows that theLegislature willed that full particulars of a corrupt practice, including as fulla statement as possible of the names of the parties alleged as having commit-ted the practice and also specifically the date and place of the commissionof each such practice had to be given. Whatever particularisation and detailscan be given should be given in the petition in view of section 91 (b) and theright to further particularisation and amendment should be a controlledright and a proper case should be made out for the grant of that right. Hav-ing regard to the whole position the petitioner deliberately left all his chargesof corrupt practice including those of the nature set out in section 123 sub-clauses (3) and 3(A) in a vague and indefinite position. As the cause ofaction relating to the corrupt practice had not been disclosed in the petition,the petition must fail. MOHAMMED ABDULLA SHAYIR v. SYEDABDULLA AND OTHERS 40 E.L.R. 113.
—S. 83—Pleadings—Corrupt practices—lack of particulars—If partiesgo to trial in spite of absence of particulars defect is one of procedure only.
HELD : It was proved that electors were conveyed to some of thepolling stations; but it was not proved that any vehicle was hired or pro-cured for this purpose with the respondent's consent.
An election petition must furnish the names of the persons who hired orprocured and such other particulars as the petitioner ca,n possibly give. Inthe particulars supplied by the petitioner names of the "agents and workers"of the respondent who hired or procured vehicles were not specified. Theparticulars are not therefore sufficient to meet the requirement of law. Thatbeing so the respondent ought to have moved the tribunal to strike off theallegations set out in paragraph 6 (a) and (b). But if the parties go totrial inspite of the absence of full particulars and evidence is led by themon the plea raised in the petition the defect is one of procedure and not oneof jurisdiction.
Balwan Singh v. Laxminarayan 22 E.L.R. 273 Bhikaji Keshav Joshi v.Brijlal Manilal Biyyani 1955, S.C.R. 428; Bhagwan Datta v. Ram RatanjiA.I.R. 1960 S.C. 200; referred to. KAMAL NARAYAN SHARMA v.D. P. MISHRA, 41 E.L.R. 369.
—S. 83—-Election Petition—Verification and Affidavit—Minor defect—Whether petition liable to be dismissed.
HELD: When there has been substantial compliance with the provisionsof Section 83 of the Act relating to the verification and Affidavit, the petitionis not liable to be dismissed.
212
Ch. Subbarao v. Member, Election Tribunal, Hyderabad, A.I.R. 1964S.C. 1027; referred to. LAKHI PRASAD AGARWAL v. NATHMALDOKANTA, 33 E.L.R. 300.
—Ss. 82, 83, Sub-Section (/)—Affidavit—Omission of some items inthe petition which do not deal with facts of corrupt practice—Whetherfatal.
HELD : Dismissing the petition :
In the copy of the affidavit supplied to the respondent, non-men-tioning of some paras of the petition, which do not deal with the facts ofany corrupt practice, does not attract Section 83 (a) and (b) of the Act andsuch omission is not fatal to the petition.
Dwarkaprasad Mishra {Pandit) v. Kamalnarain Sharma, 1964 M-P.L.1682; Murarka Radhey Sham Ram Kumar v. Roop Singh Rathore andothers, A.I.R, 1964 S.C. 1545, Ch. Subbarao v; Member Election TribunalHyderabad and others, A.I.R. 1964 S.C. 1027 and Dr. Anup Singh v. ShriAbdul Ghani and others, A.I.R. 1965 S.C. 815: referred to LAXMANPRASAD VAIDYA v. GANGADHAR YADAORAO TAMASKARAND OTHERS, 34 E.L.R. 292.
—Section 83—Pleadings Affidavit—if part of petition—Filing Affi-davit—to support allegation of corrupt practice—// mandatory.
The first respondent contended that the affidavit filed by the petitionerin respect of the corrupt practices alleged in the petition did not contain anymention of para 162 (a) and (b) and as the provision of s. 82(1) (c) ismandatory, the omission to comply with the said provision is fatal to thatpart of the petition.
HELD: The election petition must be dismissed.
Section 83 makes it clear that the filing of the affidavit is not intend-ed to be made a part of the petition. The word "accompanied" in the pro-viso is significant to indicate that the affidavit is not a part of the petitionbut is something which stands apart from the petition itself which has toaccompany it. The proviso as to supporting the allegation of corrupt prac-tice by filing an affidavit is not a mandatory provision and non-compliancethereof does not result in the consequence of nullifying the allegation ofcorrupt practice from the petition.
Jagan Nath v. Jaswant Singh, A.I.R. 1954 S.C. 210; Morarka RadheyShyam v. Roop Singh, A.I.R. 1954 S.C. 1545; Bhaskar Rao v. C.V.K. Rao,
213
A.I.R. 1964 Andhra Pradesh 77, referred to. PRABHATGIRI GULABI-GIRI GONSAI v. SHIVRAJKVMAR ALABHAI ALABHAI KHA-CHAR AND OTHERS, 36 E.L.R. 131.
—Election Petition—Verification and affidavit filed on subsequent datebut within limitation—Requirements of Section 83(1).
HELD: (i) Even though the verification and affidavit were not filedalong with the election petition, they were filed on a subsequent date withinthe limitation period of 45 days, mentioned in Section 81(1) of the Act;there was therefore substantial compliance with the provisions of Section83 of the Act.
(ii) The burden of proving charges of corrupt practices against the re-turned candidate lies heavily on the petitioner. Further, the election petitionmust fail if it does not contain a statement of material facts with full parti-culars as required under the provisions of Sub-Section (1) of Section 83 ofthe Act-
Janak Singh v. Mahanath Ram Kishore Das, E.P. No. 4 of 1967(Patna), dated 12th April, 1968; Jagdev Singh Sidhanti v. Pratap SinghDaulta and others, A.I.R. 1965, S.C. 181; Ghasi Ram v. Dal Singh andothers, Civil Appeal No. 1632 of 1967, S.C. dated 7th Feb. 1968; Chan-deshwar Narain v. Basu Prasad, M.J.C. No. 36 of 1954; Chandra SekhatSingh v. Sarjoo Prasad Singh and another, A.I.R. 1961, Patna 189; re-ferred to. DASU SINHA v- RAM LAKH AN SINGH YADAV ANDOTHERS, 38 E.L.R. 177.
—Affidavit—Conduct of Elections Rules, 1961, Rule 94— A, from 25—Affidavit vague and laconic and not in the prescribed form—Whether freshaffidavit can be filed.
HELD: Where an affidavit is filed with the original petition which wasvague and laconic and not in accordance with Form No. 25 read with Rule94A of the Rules, 1961, the Court can direct the petitioner to file it afreshin accordance with the rules so long as the contents of the affidavit are con-fined to the particulars mentioned in the petition.
Satis Kumar v. Election Tribunal (Dist. Judge) Alwar and another,A.I.R. 1963, Rajasthan 157; Kamalnarain Sharma v. Pt. Dwarka PrasadMishra and others, A.I.R. 1965, M.P. 15, and A.I.R. 1966, S.C. 436. re-ferred to. BIRENDRA CHANDRA DUTTA v. /. K. CHOUDHURY, 38E.L.R. 381.
—Verification of affidavit in accordance with law but lacking preciseness-whether defect is fatal to the petition.
214
HELD: In an election petition in which verification of annexures isin accordance with the law and rules, but shows lack of preciseness, sucha defect is not fatal to the election petition, as there is a substantial com-pliance with section 83 of the Act.
Election Appeal No. 6 of 1963 (Patna) of 8th October, 1963; refer-red to.
MAHANT MAHADEVANAND GIRI v. AMBIKA SHARAN SINGHAND OTHERS, 39, E.L.R. 23.
—SS. 83(7) (b) (c), 123—Conduct of Elections Rules, 1961, Rule94-A,—Corrupt practice—with law—Affidavit not specifying the itemsof the petition affirmed to be true to his knowledge and items which weretrue to his belief—Whether fatal under Sections 83{b) and 83(c).
HELD: (i) On the evidence, none of the allegations were proved.
(ii) Under the election law a returned candidate should not be un-seated unless the allegations of misconduct or corrupt practices are prov-ed beyond any shadow of doubt. An affidavit which did not specify asto which of the items of corrupt practices alleged in the petition by thedeponent-petitioner were true to his knowledge and which of the itemswere true to his belief, is strictly speaking not in accordance with the pro-visions of Section 83 (I) (c) proviso read with Rule 94-A of the Rules.However, the court can take a liberal view and consider the allegationsin the petition which are stated to be true to the deponent's personalknowledge.
ALI MOHAMAD TARIQ v. BAKSHl GHULAM MOHAMMADAND OTHERS, 39 E.L.R. 287.
—S. 83 Proviso—Affidavit—not in proper form—Court if can strike offallegations of corrupt practice.
HELD : (i) The court has no jurisdiction or power to strike off theallegations of corrupt practices or refuse to investigate into those allega-tions merely on the ground that the affidavit filed in support thereof isnot in proper form or is defective. The correct and proper course thatthe Court should take in the circumstances is to call for a fresh affidavit,and when such an affidavit is produced, to proceed with the investigationof corrupt practices. The proviso to section 83 although couched in alanguage which can be called mandatory, does not say that non-compliancewith the proviso ipso facto results in the dismissal of the allegation of cor-rupt practices made in the application without investigation.
215
Murarka Radhey Shyam v. Roop Singh Rathore, A.I.R. 1964 S.C. 1545;Atar Rahman v. Tajuddin Ahmed, Civil Rule 321 of 1962; relied on.
Dwaraka Prasad Misra v. Kamal Narain Sharrria, A.I.R. 1964 M.P.273; Distinguished from.
GIRINDRA NATH GOGOI v. PROMODE CHANDRA GAGOIAND OTHERS, 39 E.L.R. 319.
—Practice and procedure—affidavit—not shown as true to knowledge orinjormation—If defective—Code of Civil Procedure, O, 19, r. 3—if peti-tion liable to be dismissed—See corrupt practice—Appeal on grounds ofreligion etc.—/. & K. Representation of the people Act, S. 123.
GHULAM HASSAN KHAN v. SHAMIM AHMAD SHAMIM ANDOTHERS, 40 E.L.R. 318.
—Practice and procedure—affidavit—affidavit not sworn as true to know-ledge or information—// defective.—See Corrupt Practice—Appeal ongrounds of religion etc.—Jammu & Kashmir Representation ol (he PeopleAct, S. 123.
GHULAM HASSAN KHAN v. SHAMIM AHMAD SHAMIM ANDOTHERS, 40 E.L.R. 318. -
—Annexures to Election Petition.—S. 86(1) Applicability of.
HELD: The petitioner had nowhere mentioned in his petition that Ex-hibits P-l, P-3 and P-4 form a part of his petition; what the petitioner hadmentioned in his petition wa? that uthe documents to the petition are alsofiled by the petitioner". This does not in any way apply tc the documentswhich are merely in evidence in the case and are filed with the electionpetition and, therefore, the question of applicability of s. 86(1) of the Actdid not arise.
MOHAN v. ARJUN SINGH, 36, E.L.R. 267.
—Annexure to Election Petition—when forms part of the petition—whe-ther service on respondent essential.
The appellant filed an election petition with a pamphlet as annexurethereto. An English translation of the pamphlet was incorporated in thebody of the election petition, and it was stated in the petition that it formedpart of the petition. The first respondent raised an objection that a copyof the pamphlet had not been annexed to the copy of the election petition
216
served on him and threfore, the election petition was liable to be dismiss-ed under s. 86 of the Representation of the People Act. The High Court•upheld the objection and dismissed the election petition. On appeal tothe Supreme Court—
HELD: The order of the High Court must be set aside and the wordsused in s. 81(3) are only "the election petition". There is no mention ofany document accompanying the election petition. Since the electionpetition itself reproduced the whole of the pamphlet in a translation inEnglish, it could be said that the averments with regard to the pamphletwere themselves a part of the petition, and therefore the pamphlet wasserved upon the respondents although in a translation and not in original.
Even if this be not the case, it is >|iiite cleat that s. 83(2) has referencenot to a document which is produced is evidence of the averments of theelection petition but to averments of the election petition which are put,not in the election petition but in the accompanying schedules and annexures.Details of averments too conjuncious for being included in theelection petition may be set out in the schedules or annexures of the elec-tion petition. The law then requires that even though they are outsidethe election petition, they must be signed and verified. The annexures orschedules are then treated as integrated with, the election petition and copiesof them must be served on the respondent if the requirement regardingservice of election petition is to be wholly complied with- But this doesnot apply to documents which are merely evidence in the case but for rea-sons of clarity and to lend force to the petition are not kept back but pro-duced or filed with election petitions. They are in no sense an integralpart of the averments of the petition but arc only evidence of those aver-ments and in proof thereof.
In the present case the pamphlet must be treated as a document andnot as a part of the election petition in so far as averments are concerned.When the election petitioner said that it was to be treated as a part of thepetition she was merely indicating that it was not to be thought that shehad not produced the document in time.
SAHODRABAI RAT v. RAM SINGH AHARWAR (S.C.), 36 E.L.R.52.
—Court witnesses—Names of witness not included in the petitioner'slist—Whether such witnesses can be summoned as a court witness—Rules 11,12 and 14 of the C.P.C.—High Court Rules in regard to election petitionsunder the Representation of the People Act 1951—persons other than parti-es to the petition, whether can be directed to produce the documents intheir possession and to make discovery of the documents.
217
HELD: Rules 11, 12 and 14 of Order II Civil P.C. and rules framedby the High Court of Judicature of Rajasthan in regard to election petitionsunder the Representation of the People Act, 1951, do not contemplate or-ders directing the persons other than parties to the Election petition to pro-duce the documents lying in their possession and to make discovery of thedocuments. Jagannath v. Jaswant Singh & Others, 9 E.L.R. 231; A. Shree-nivasan v. Election Tribunal, Madras and another and Dr. V. K. John v.Vasantha Pai & Others, 11 E.L.R. 278; and Pandit Ramnath Kalia v. PaulSingh, 17 E.L.R. 282: referred to.
The petitioner having not included a witness in his list of witnessescannot be allowed to circumvent Rule 13 of the Election Rules to havethe witness examined indirectly as a Court witness, to build up his case,Kanhucharan Saraf and another v. Radhamohan Padhi, A.I.R. 1965 Orissa219; Dattatraya Narain Patil v. Dattatrya Krishanji Khanvilkar, A.I.R. 1964Bombay 344; In re B. K. Narayan Reddi, A.I.R. 1957 Allahabad 809Kashmira Singh v. State, A.I.R. 1965 J. K. 37; Gilliram v. Kedarnath,1956 Raj. Law Weekly 95, and Baru Ram v. Prasanni and Others, 16E.L.R. 127 and 450; referred to.
The petitioner must succeed or fail on the strength or weakness ofthe whole case and the controversy between the parties can be and shouldbe adjudicated on the existing material and record and the respondent willbe prejudiced if new materials are brought on record and can legitimatelyclaim further opportunity of leading rebuttal evidence.
DR. POHU MAL v. BHAGWANDAS SHASTRI, 33 E.L.R. 264.
—Jurisdiction—Any act forming part of election process cannot hechallenged by writ proceedings.—See Constitution of India, Article 226—
...SAKTI KUMAR SARKAR v. THE ELECTION COMMISSION, 41E.L.R. 206.
ELECTION PETITION—2 AMENDMENT OF PETITION
—Election Petition—Amendment for amplification of particulars—Scopeof Sub-section (5) of s. 86.
An amendment to the election petition cannot be allowed beyond thestatutory period of limitation of 45 days under Section 86(5) of the Act.But the Court is bound to give an opportunity to the election petitionerto amplify the particulars already given.
218
Bhikaji Keshao Joshi and another v. Brijlal Nandlal Biyani and others,A.I.R. 1955, S.C. 610; S. Kandaswami v. S. B. Adityan, A.I.R. 1959,Mad. 288; Balwan Singh v. Lakshmi Narain and others, A.I.R. 1960,S.C. 770; Chandrasekhar Singh v. Sarjoo Prasad Singh and another, A.I.R.1961, Patna 189; Tribeni Ram v. Satyadeo Singh and others, A.I.R.1966, All 20; referred to. BIRENDRA CHANDRA DUTTA v. /. & K.CHOUDHURY—38 E.L.R. 381.
—Election petition—Amendment—scope—no details regarding corruptpractices in the petition—whether subsequent amendment of the petitioncan be allowed. See Election Petition—General Principles. MOHAMMADABDULLA SHAYIR v. SYED ABDULLA AND OTHERS, 40 E.LR.113.
—Representation of the People Act, 1951, Ss. 83 (/) (b), 86(5), 116,4123(2)—Amendment of petition—when should be allowed—when Sup-reme Court interferes,
HELD :—(By the Court) : The appeal must be dismissed.Per Sikri and Bachawat, JJ.—Where a corrupt practice is* charged
against the returned candidate, the election petition, as envisaged underSection 83(1) (b) of the Act, must set forth full particulars of the corruptpractice, so as to give the charge a definite character (and to enable thecourt to understand what the charge is. The charge must be substantial-ly proved as laid and evidence cannot be allowed to be given in respectof a charge not disclosed in the particulars. On a charge of telling theelectors that by giving their votes to the Congress candidate, they wouldcommit the sin of gow-hatya, evidence cannot be led to prove a charge oftelling them that they would commit sins of Brahma-hatya and sadhu-hatya or the sin of disobeying their religious Guru. Under Section 86(5)of the Act the High Court may allow amendment to amplify the particularsmentioned in the. petition but shall not allow amendment which will havethe effect of introducing particulars of a corrupt practice not previouslyalleged in the petition.
Normally an application for amendment under Section 86(5) of theAct should be made within reasonable time, before the commencement ofthe trial. The Court has power to allow an amendment even after thecommencement of the trial, but as a rule leave to amend at a late stageshould be given in exceptional cases where the petitioner could not withreasonable dilligence have discovered the new facts earlier. Leave to amendthe petition in the instant case, after the commencement of the trial hasresulted in gross injustice to the appellant.
Harish Chandra Bajpai v. Triloki Singh, 1957 S.C.R. 371; referredto.
219
All the provisions of the Code of Civil Procedure apply to an appealto the Supreme Court, under Section 116A of the Act; the whole caseis within the jurisdiction of the Supreme Court. Normally the SupremeCourt would not interfere with the trial Judge's discretion in grantingamendments except on grounds of law, but where, as in the present casethe order has resulted in manifest injustice the Court has the power andduty to correct the error.
Evans v. Hartlem 1937 A.C. 374-480; followed.
Per Hegde, J. :—It cannot be said that the amendment complained ofwas not properly allowed.
MANUBHAI NANDLAL AMERSEY v. POPATILAL MAN1LALJOSHI AND OTHERS (S.C.), 41 E.L.R. 26.
—S. 86(5)—Election petition—Amendment of the petition—Plea ofpublication of pamphlets raised in the original petition—amendment soughtto add the plea that the appellant and his agents distributed them—amend-ment alowed—whether proper.
HELD: In the original petition the plea of publication was in facttaken and publication must necessarily include and mean distribution also.Permitting the inclusion of a plea, by amending the petition, that the ap-pellant and with his consent his agents distributed the publications cannot be said to be illegal.
Me Farlan v. Hutton 1899(1) Ch. 884 at 888; referred to. LALROU-KVNG v. HAOKHOLAL THANGJOM AND ANOTHER, (S.C.) 41E.L.R. 35.
—Election Petition—Nature of amendments permissible after the periodof limitation.
The first respondent's election to Parliament in February 1967 fromBombay South Constituency was challenged by the appellant, an electorin the constituency on the ground that various corrupt practices were com-mitted. The principal allegation concerned corrupt practices under s.123(4) of the Act. It was alleged that agents of the first respondent,with the consent and for the benefit of the first respondent, made falsestatements, casting aspersions on the character and conduct of the secondrespondent, and that those and other false statements were published asnews item in the daily news-paper "Maratha". Extracts from the news-papers were annexed. It was also stated that similar false statementswere published in some other issues of the newspaper. There was no
220
averment that the first respondent believed the statements to be false ordid not believe them to be true. After the period of limitation, a num-ber of applications for amendment were made. The High Court allowedvarious amendments in the petition whereby: (a) speeches attributed tothe first respondent and a speech at a meeting where the first respondentpresided, casting aspersions on the second respondent, were includedamong the corrupt practices; (b) an allegation in respect of an Article inthe "Blitz" written by the first respondent defamatory of the second respon-dent was allowed to be included in the list of corrupt practices, (c) an aver-ment that the editor of the newspaper "Maratha" and the first respondentbelieved the impugned statements to be false or that they did not believe themto be true and (d) an averment that the editor of the newspaper and twoothers were the agents of the first respondent, were also included. Thesecond respondent who was the unsuccessful candidate, supported the peti-tioner. The High Court, however, rejected the election petition. Dismis-sing appeals to the Supreme Court by the petitioner and the second res-pondent,
HELD : The amendments relating to the speeches of the firstrespondent and his article in the "Blitz" could not be allowed; but theamendment relating to the agency of the editor of the "Maratha" and twoothers, and the one seeking to incorporate the averments about the lackof belief of the editor of the "Maratha" and the first respondent could beallowed.
In the petition as originally filed, the- agency of the editor of "Maratha"and two others was the basis of the charge and the first respondent wasleft out. If it was intended that the first respondent should be held respon-sible then the allegation should have been what statement he made and howit offended the election law. There was, however, no reference to anystatement by the first respondent himself throughout the petition as it wasoriginally filed. Therefore the amendments which have the effect of in-troducing new corrupt practices relating to the candidate himself which hadnot been pleaded earlier could not be allowed as that kind of amendmentsought after the period of limitation, is prohibited under the law. But theallegation that in publishing the statements, in the "Maratha" its editoracted as the agent of the first respondent, that the statements were falseor were believed to be false by the first respondent and the editor, andthat they were calculated to prejudice the second respondent's chance anddid so prejudice could be allowed. They were merely particulars to toadded for completing the cause of action relating to a corrupt practice al-ready alleged.
Section 83 required that the petition must contain a concise statementof the material facts on which the petitioner relies and the fullest possible
221
particulars of the corrupt practice alleged. "Material facts" and "particu-lars" may overlap but the word "material" shows that the ground of cor-rupt practice and the facts necessary to formulate a complete cause ofaction must be stated. The function of the particulars is to present as fuDa picture of the cause of action as to make the opposite party understandthe cause he will have to meet.
Jagan Nath v. Jaswant Singh; (1954) S.C.R. 892-895-9 E.L.R. 231;—Bhimsen v. Gopali (1960) 22 E.L.R. 288 (S.C.) ;—Chandi Prasad Chokeniv. State of Bihar, (1962) 2 S.C.R. 289—-Sheopat Singh v. Ram Pratap(1965) 1 S.C.R. 175—and Kumara Nand v. Brij Mohan (1967) 2 S.C.R.127 followed.
Harish Chandra Bajpai v. Triloki Singh (1957) S.C.R. 370 explained.
Din Dayal v. Beni Prasad 15 E.L.R. 131—Balwant Singh v. ElectionTribunal 15 E.L.R. 199—Sasivarna Thevar v. Arunagiri 17 E.L.R. 313—Hari Vishnu Kamath v. Election Tribunal, 14 E.L.R. 147—Deviah v.Nagappa, A.l.R. 1965 Mys.—102—Babulal Sharma v. Brijnarain Brajesh,A.I.R. 1958 M.P. 175 (F.B.)—Beal v. Smith (1869) L.R. 4 G.P. 115—Bruce v. Odhams Press Ltd. (1936) 1 K.B. 697 and Phillips v. Phillips(1878) 4 Q.B.D. 127 referred to. SAMANT N. BALKRISHNA ETC. v.GEORGE FERNANDEZ & OTHERS (S.C.) 41 E.L.R. 260.
—Representation of the People Act, 1951, Ss. 31 (/), 77(7), SI (I)—ifmaterial amendment of election petition can be allowed after expiry ofperiod of limitation in s. 81(1).
HELD : (i) The High Court had rightly held that it could not exer-cise its power to permit amendment of a petiton so as to allow new groundsor charges to be raised or the character of the petition, to be so alteredas to make it in sustance a new petition, if a fresh petitionon those allegations would be barred by limitation on the date of the pro-posed amendment.
Harishchandra Bajpai v. Triloki Singh (1957) S.C.R. 370; foUowed.RAM DAYAL v. BRIJRAJ SINGH AND OTHERS (S.C.), 42 E.L.R.149.
—Amendment of particulars—circumstances in which it can be allowed,
HELD: The court has power to allow an amendment of the particularsof corrupt practice even after the commencement of trial, but as a rule,leave to amend at a later stage should be given only in exceptional caseswhere the petitioner could not with reasonable diligence have discovered the
222
new facts earlier, and leave to amend will not be given if the petitioneris not acting in good faith or has kept back the facts known to him beforethe trial commenced.
In the present case there was nothing to show that the petitioner keptback the facts known to him or that he lacked good faith. The particularsof corrupt practice given by him could not be ignored at that stage on theground that he knew them even before he filed the election petition.
Bhikaki jeshao Joshi v. Brijlal Nandlal Biyani, 10 E.L.R. 357; Manu-bhai Nandlal Amersey v. Popatlal Manilal Joshi, 41 E.L.R. 26(S.C); re-lied on. R. THIRUMAIAL KUMAR v. KATHIRAVAN ALIAS SHAM-SHUDDIN, 42 E.L.R. 161.
Section 77—what constitutes corrupt practice—amendment of particu-lars—circumstances in which it can be allowed.
In the election petition challenging the election of the respondent themain grounds alleged were, (i) the then Speaker of the Legislative Assemb-ly took most active part in the election and in fact with consent and ap-proval of the respondent was in overall charge of the election on his be-half and on behalf of the D.M.K. Party and indulged in various corruptpractices; (ii) some of the Ministers addressed election meetings supportingthe candidature of the respondent and promised to implement public sche-mes of works as a bargain to secure votes for the respondent and (iii) therespondent incurred or authorised the incurring of expenditure exceedingthe prescribed limit in contravention of section 77 of the Act thus commit-ting a corrupt practice within the meeting of section 123(6). Dismissingthe petition.
The contravention of sub-section (I) or sub-section (2) of Section 77or the failure to maintain a correct account with the prescribed particularsdoes not fall within s. 123(6) of the Act. It is only the incurring or theauthorising of the expenditure in contravention of s. 77 of the Act thatamounts to corrupt practice. In the instant case the petitioner had failedto prove that the respondent incurred or authorised expenditure in excessof the prescribed limit.
Dalchand Jain v. Narayan Shankar Trivedi, 41 E.L.R. 163 (S.C.),referred to.
In examining the evidence relating to corrupt practice it has to beborne in mind that the charge of corrupt practice is something very similarto a criminal charge and must be established by cogent and reliable evidence.
223
Somchand Manubhai Solanki v. Karsondas Ukabhai Parmar, 39 E.L.R.344(S.C.) ; referred to THIRUMALAI KUMAR v. KATHIRAVANALIAS SHAMSHUDDIN, 42 E.L.R. 161.
ELECTION PETITION—(3. DEPOSIT OF SECURITY)
—Ss. 18, 34—Security Deposit—Candidate tendering correct amount—Returning Officer mistakenly asking candidate to deposit lesser amount—// substatial compliance with s. 34 of the Representation of the PeopleAct, 1951, Section 18.
The petitioner challenged the election of the respondent who was re-turned unopposed from the Parliamentary constituency of Ladakh in theState of Jammu and Kashmir. It was alleged in the petition that (i) unders. 34 of the Representation of the People Act, 1951, the respondent wasbound to deposit Rs. 5000/- as security deposit but he deposited only Rs.250/- and therefore his nomination was improperly accepted by the Re-turning Officer;
HELD : The nomination paper of the respondent had been pro-perly accepted. The respondent was the only candidate who had putin his nomination paper. In the circumstances there was no disqualifica-tion apparent on the nomination form nor was any discovered much lesswas any objection taken by any body to the nomination. Besides, in thiscase, the Returning Officer under a mistaken notion of law and in his ig-norance impressed upon the respondent inspite of the latter's resistancethat only Rs. 250/- was the security money necessary to be deposited.The respondent had substantially complied with the terms of s. 34 of theAct.
Durga Shankar Mehta v. Thakur Raghuraj Singh and Others, 9E.L.R. 494; S. M. Banerji v. Sri Krishna Agarwal, 22. E.L.R. 64; follow-ed.
Soowalal v. P. K. Choudhry and Ors. 21 E.L.R. 137; Udainath Singhv. Jagat Bahadur Singh and Ors., 5 E.L.R. 199; Jagdish Singh v. RudraDeolal and Ors. 8 E.L.R. 311 ; Raghunath Mishra v. Kishore Chandra DeoBhanj and Ors., 17 E. L. R. 321; Lakhan Lai Mishar v. Tribeni Kumarand Ors. 3 E.L.R. 423; Mahadeo v. Babu Udai Partap Singh and Others,A. I. R. 1966 S. C. 824; Lai Shyam Shah v. V. N. Swami 16 E. L. R. 74;Devasharan Sinha v. Sheo Mahadev Prasad and Ors., 10 E. L. R. 461;Dr. Narayan Bhaskar Khare v. Election Commission of India, 13 E. L. R.112; referred to.
224
Rhedoy v. Koylash, 13 W.R. (F. 13) 3; Barri Madhub Mitter v. Mat-ungini Dassi, 13 Calcutta 104 (F. 13); referred to.
KACHO MOHD. ALI KHAN v. SHRI KUSHOK BAKULA, 34E.L.R. 323.
—S. 117—Security deposit receipt in different form—Whether fatal.
HELD: When a receipt of security deposit has been filed which wasnot in accordance with the amended form made by the High Court Rules,the wrong form of the receipt is not fatal to the petition since it compliessubstantially with provisions of Section 117 of the Act.
Chandrika Prasad Tripathi v. Shiv Prasad Chanpuria, 21, E.L.R. 172and Kamaraja Nadar v. Kunju Thevar and others, 14 E.L.R. 270; refer-red to.
LAXMAN PRASAD VAIDYA v. GANGADHAR YADAORAOTAMASKAR AND OTHERS, 34 E.L.R. 292.
ELECTION PETITION—(4. LIMITATION)
Filing of copies of election petition—Ss. 81(3), 86—Failure to file copyof the election petition in accordance with the provisions of Section 81(3)read with Section 86—"shall" in Sub-section (3) of Section 81, whethermandatory—Whether the petition is liable to be dismissed,.
HELD : The failure of the petitioner to file the copies of the electionpetition or file it within the prescribed time limit in accordance with theprovisions of Section 81(3) read with Section 86, is a vital defect to themaintainability of the petition and it is liable to be dismissed as the word"shall" in Sub-Section (3) of Section 81 is really intended to be mandatoryand not directory.
Ch. Subbarao V. Member, Election Tribunal, Hyderabad, A.I.R. 1964S.C. 1027; Khub Chand v. State of Rajasthan, A.I.R. 1967 S.C. 1074; re-ferred to.
LAKHl PRASAD AGARWAL v. NATHMAL DOKANIA, 33 E.L.R.300.
Limitation Act, Section 5 is not applicable—Representation of thePeople Act, 1951, Ss. 82(b), 86(1)—Non-Joining of candidate whom cor-rupt practice is alleged—Dismissal of Petition—Mandatory nature of s. 86(1)
225
—Civil Procedure Code, O.I.R. 10—See Election Petition—Parties to thepetition.
P., SATYANARAYANA i>. SA1DAYYA & OTHERS, 36 E.L.R. 298.
—Limitation for filing written statement—Amendment to Petition—Janunu and Kashmir Representation of the People Act, 1957, s. 24(d) —New ground raised at the time of recording of evidence—maintainability of.
HELD : There is no period of limitation prescribed for filing of awritten statement or a supplementary written statement by a defendant or arespondent in an election petition. As a matter of fact, an amendment evenfor a suitor can be allowed at any stage provided no prejudice is caused totlie other side, and no barred claim is pleaded under the garb of an amend-ment.
SRI GHULAM MOHD PARAY v. SHRI ABDUL GAN1 NAM-Til A LI AND ANOTHER, 39 E.L.R. 199.
—Limitation Act, 1877, Sections 4 to 12—applicability of—Limitation--Presentation of Election Petition—-Date of declaration of election to heexcluded—General clauses Act, 1897, Sections 9(1) and (10) (1) .
HELD : The respondent was declared elected by the Returning Officeron February 22, 1967. Since the 8th and 9th of April, 1967 were holi-days, sub-section (1) of Section 10 of the General Clauses Act, 1897 wouldapply and if the date on which the result was declared has to be excluded,the election petition was within time. The provisions contained of Sections4 to 24 of the Limitation Act would apply to a petition under the Represen-tation of the People Act; under Section 12 of the Limitation Act the 22ndof February, 1967 had to be excluded and the presentation of the petitionon the 10th of April 1967 would be within time in view of the provisionsof Section 4 of the Limitation Act.
Kashinath Pandy v. Shibban Lai Saxena, A.I.R. 1959 AH. 54; VidyaCharan Shukla v. Kfitfb Chand Baghel, A.I.R. 1964 S.C. 1099: referred to.
BISHAMBAR DAYAL v. RAJ RAJESHWAR AND ANOTHER, 39E.L.R. 363.
—Limitation—allegations of corrupt practice against person who hadwithdrawn as candidate—not impleaded during period of limitation of elec-tion petition—// petition liable to be dismissed—condonation of delay—whether permissible—applicability of s. 29(2) and s. 5 of Limitation Act,1963—See Election Petition—Parties to the Petition.41-.C/74—18
226
... K. VENKATESWARA RAO AND ANOTHER v. BEKKAM NARA-S1MHA REDDY AND OTHERS, 39 E.L.R. 445.
—Limitation—Election Petition—Nature oj amendments permissible afterthe period of limitation—See Election Petition—Amendments—
SAMANT N. BALAKR1SHNA v. GEORGE FERNANDEU ANDOTHERS, 41 E.L.R. 260 (S.C.).
Election Petition—// material amendmqfit of election petition can beallowed after expiry of period of limitation in s. 81(1) of Act Alt of 1951 —See Election Petition—Amendment to Petition.
RAM DAYAL v. BRIJRAJ SINGH AND OTHERS (S.C.), 42 E.L.R.149.
ELECTION PETITION—(5. PARTIES TO THE PETITION)
—s. 123—Corrupt practice—Candidate made to withdraw by paymentof money as gratification—Such candidate whether guilty of corrupt practice—Person who after filing nomination papers withdraws from contest whe-ther remains a candidate as defined in s. 79 (b) of Act—Such candidate whe-ther a necesdary party to an election petition in which election is challenged—Application for impleadment of such candidate when should be allowed-Long belated application not to be allowed—Petitioner cannot be allowedto delete allegations of corrupt practice against such candidate—Dismissalof petition for non-impleadment of necessary party mandatory under s.82(b) of Act. '
The petitioner was a voter in the Kerala Vidhan Sabha Constituencyin the State of Madhya Pradesh. In an election petition under s. 81 readwith s. 100 of the Representation of the People Act, 1951, he challenged theelection of the respondent to the Vidhan Sabha in the 1967 general election.Various allegations of corrupt practice were made by the petitioner againstthe respondent. In para 17(a) of the petition the allegation was that therespondent's agent had paid money to H, who had filed his nomination papersfor the election, and thereby secured his withdrawal from the election". Therespondent in an application contended that the said allegation was an alle-gation of corrupt practice against H. The latter was therefore a necessaryparty to the petition, and since he was not impleaded the petition wasliable to be dismissed.
HELD: (a) The definition of 'bribery' as it now stands is that the bribegiver as well as the bribe taker, the offerer of the bribe and its acceptor bothcommit the corrupt practice of bribery under section 123(1) (A) and (B),if the act is done with dne of the objects mentioned therein.
227
The allegation made by the petitioner in para 17(a) of his petitionchat H withdrew from the contest after acceptance of money amounted toan allegation of corrupt practice against H within the meaning of sub-clause(a) and clause (B) of s. 123(1) of the Act.
(ii) H who had filed his nomination papers and held himself outas a candidate, but later withdrew his nomination, was a 'candidate' asdenned in s. 79(b) of the Act. He fell within the expression 'any othercandidate' used in s. 82(b) of the Act and was a necessary party to thepetition. His not being made a party to the petition constituted non-com-pliance with s. 82 of the Act, and therefore the petition was liable to bedismissed in liniine as provided in s. 86(1) of the Act. The word "shall"in s. 86 indicates that the said provision is mandatory.
(iii) The objection raised by the respondent against the maintainabilityof the petition was a question of law which went to the root of the caseand therefore it could be entertained even though it was not raised in thewritten statement by an application subsequently filed.
(iv) The petitioner could not be allowed to implead H after the expiry-of the period of limitation for filing the petition, or to withdraw the alle-gations made against H in para 17(a) of the petition as this would defeatthe mandatory provisions of s. 86(1).
Generally speaking the provisions of Order 23 rule 1 do not applyto election petitions, but assuming that they do, amendment of pleadingscannot be allowed when a long time has elapsed after the filing of thepetition.
S. B. Adityan v. S. Kandaswami and others (AIR 1958 S.C. 857);Ahmedmiya Sherumiya Shaikh v. Chhippa Ibrahim Nuraji and others(XVII ELR 218); Mohansingh v. Bhanwarlal and others (AIR 1964 S.C.1366); Amin Lai v. Hunna Mai (AIR 1965 S.C. 1243); Bar Swamp andanother v. Brij Bhushan Saran and others (A.I.R. 1967 S.C. 836); Chatur-bhuj Chunilal v. Election Tribunal Kanpur and others (AIR 1958 All 809);Kapildeo Singh v. Suraj Narayan Singh (AIR 1959 Patna 250); K. Kama-raja Nadar v. Kunju Thevar and others (AIR 1958 S.C. 687); lagan Nathv. Jaswant Singh and others (AIR 1954 S.C. 210); Mallappa Basappa v.Basavaraj Ayyappa (AIR 1958 S.C. 698); referred to.
HAM GOPAL DUBE v. SMT. VIJAYA RAJE SCINDIA, 33 E.L.R.119.
—Election petion—Misjoinder of petitioners—// petition should befiled by a single person. The respondent raised a preliminary objection thatthe petition was not maintainable as it was filed jointly on behalf of threepetitioners. SETTING ASIDE THE ELECTION.
228
HELD : Though there are no express provisions in the Act on thepoint as to whether an election petition can be filed only by a single personor by more than one person, there are however certain sections as forexample, sections 110 and 112(1) which clearly indicate that in framingthe Act the legislature contemplated that such petition can be filed by morethan one person jointly. The words "any candidate" or "any elector" in-clude the plural. Although the provisions of the Code of Civil Procedureare not expressly applicable to an election petition the same principle maybe reasonably applied in case of an election petition also in determiningwhether a joint petition at the instance of more than one person is main-tainable.
S/DHESWAR SHARMA & ORS. v. CHANDRADEO PRASADVARMA, 33 E.L.R. 234.
•—ss. 82, 86(1)—Returning Officer made a party on allegations of badjaith, negligence and propriety—Whether petition liable for dismissal formisjoinder of parties.
HELD : When a Returning Officer has been made a party and thereare allegations of bad faith, negligence and lack of propriety, the petition isnot liable to be dismissed under Section 86(1) and for non-complianceof Section 82 of the Act on the ground of his being an unnecessary partyto an election petition.
Dwijendra Lai Sen Gupta v. Hare Krishna Konar, A.I.R. 1963 Cal-cutta, 1218, followed.
—Vidya Charan Shukla v. G, P. Tiwari, Distt. Judge, Member ElectionTribunal and others, 1963, M.P.L.J. 688; Murarka Radhey Shy am RamKumar v. Roop Singh Rathore and others, A.T.R. 1964 S.C. 1545;and Har Swamp and another v. Brij Bhushan Saran and others, A.T.R.1967, S.C, 836; referred to.
LAXMAN PRASAD VAIDYA v. GANGADHAR YADAORAOTAMASKAR AND OTHERS, 34 E.L.R. 292.
—S. 82(b)—Candidate to be impleaded must be candidate for the elec-tion sought to be challenged.
[An objection was taken to the maintainability of the petition on theground that the petition was liable to be dismissed since one J, who wasa candidate to the Legislative Assembly, from a different constituency,against whom there was an allegation of corrupt practice, was not joinedas a party in the petition thereby contravening s. 82(b) of the Act].
HELD : The petition was maintainable. The provisions of s. 82(b) arcnot to be read in isolation and they must be read in the context of sub-section(a) of that section and when the two sub-sections are read together, it is
229
clear that the candidates who are required to be joined must be candidateseither contesting or non-contesting, who are candidates for the election,which is sought to be challenged. Though J was a candidate within themeaning of S. 79 (b) of the Act he was a candidate for the Legislative As-sembly and therefore he was not a necessary party.
Kamaraja Nadar v. Kunju Thevar, A.I-R. 1958 S.C. 687; referred to.
CABUBHAI VALLABHDAS GANDHI v. FILOO HOMI MODI. 36E.L.R. 108.
—Ss. 82(b), 86(1)—Non-joining of candidate against whom corruptpractice is alleged—Dismissal of Petition—Mandatory nature of S. 86(1) —Civil Procedure Code, 1908 O.I. r. 10—-Limitation Act, Section 5 notapplicable.
The respondent's election was sought to be set aside on the groundthat he made B, one of the candidates who had filed his nomination buthad later withdrawn from the contest, withdraw from the contest by makinga gift to him of Rs. 3,000 as illegal gratification. The respondent contend-ed the Election Petitioner ought to have joined B as a respondent underS. 82(b) of the Representation of the People Act, 1951 and that thefailure to implead him was fatal to the maintainability of the petition.
HELD : Dismissing the election petition.
It is well settled that a candidate whose nomination has been acceptedbut wHo withdraws from the election and does not contest the election isa candidate within the meaning of S. 79(b) of the Act and under S. 86(b)it is incumbent on the election petitioner to join him as a respondent, Inthe present case there was an allegation that the respondent had paid abribe and that B had accepted the bribe; therefore B would be a necessaryparty and in view of the failure to make him a party, the High Court hadno other alternative but to dismiss the petition.
Since S. 86(1) of the Act is mandatory and leaves no option to theCourt, no question of hnpleading a party or excusing the delay in impieadinga party would arise because in such a case there would be no electionpetition pending before the Court. Neither O. 1 r. 10 of the Code oiCivil Procedure nor Section 5 of the Limitation Act can be called in aidin a situation like that.
Sub-section (4) of S. 86 permits a candidate not already a respondent tocome on record; but this sub-section would come into play only in caseswhere sub-section (1) of S. 86 docs not operate.
230
R. SATYANARAYANANA v. SAIDAYYA AND OTHERS, 36 E.L.R.298.
—Sections 81(2), 82(b)—Parlies—Impleading of Party respondentafter 45 days of the election of the returned candidate—High Court cannotexercise power after expiry of 45 days—Code of Civil Procedure, 1908.Order 1 Rule 10.
1 was one of the persons who had filed his nomination for election buthe bad later withdrawn his candidature. The appellant did not implcadJ as party respondent in his election petition even though specific alle-gations of corrupt practices were made against him in the election petition.The appellant applied for an order under O.I Rule 10 of the Code ofCivil Procedure, nearly 4 months after the date of election of the returnedcandidate, impleading J as a party respondent. The High Court reject-ed the application and dismissed the election petition for want of compli-ance with S. 82(b) of the Act.
HELD : Dismissing the appeal.
(i) A person who had been nominated as a candidate for an election andhas since withdrawn his candidature is for the purpose of S. S2 a candidateand he must be impleaded in a petition if any allegations of corrupt prac-tice are made against him whether committed before or after his withdrawalin the election petition.
Mar Swamp v. Brij Bhushan Saran (1967) 1 S.C.R. 342; Mohan Singhv. Bhanwar Lai and Ors. 1964 S C R . 12 Aminlal Hunna Lai, (1965)1 S.C.R. 393; referred to.
(ii) There is no provision in the Act which enables the period men-tioned in S. 82(b) to be extended. Any attempt to join, i would amountto lodging an election petition against him on the day on which the appli-cation for impleading him was made and could not on the plain terms ofS. 81(2) read with S. 82(b) be entertained after the expiry of 45 daysfrom the date of election of the returned candidate. Assuming that theHigh Court may in an appropriate case pass an order under O.I Rule 10Code of Civil Procedure notwithstanding the provisions of S. 86 of theAct, the power can never be exercised after the expiry of the period forfiling a substantive election petition.
NATHU RAM INDRA SINGH v. TRIKAMAL JAM AN DAS PAT ELAND OTHERS (S.C.) 37 E.L.R. 267.
—"Any other candidate" in Section 82(b)—meaning of—
HELD : in the context of the provisions of Part IV of the Act,the words "any other candidate" occurring in Section 82(b) of the Act
231
only refer to any other candidate for the particular constituency and notto any other constituency, and the petition was, therefore, not bad fornon-joindef of parties.
Jagan Nath v. Jaswant Singh and others, A.I.R. 1954, S.C. 210; TriveniRam v. Satadeo Singh and others, A.I.R. 1966, All. 20; Neel Chand v.Ralia Ram Panna Lai and another, A.I.R. 1963, Punjab 516; Gulab ChandPalltwal v. Govind Sahai and others, A.I.R. 1964, Rajasthan 155; Har Sarupand another v. Brij Bhushan Saran and another, A.I.R. 1964, Allahabad340; Mohan Singh v. Banwarlal, A.I.R. 1964. S.C. 1366; Amin Lai v.Hunna Mai, A.I.R. 1965, S.C. 1243; Nardev v. Joti Saroop and others,A.I.R. 1964, Allahabad 83; referred to.
BIRENDRA CHANDRA DUTTA v. / . K. CHOVDHURY 38 EL.R.381
—Parties—Ss. 123(1) (B) (2) , 123(2)—Corrupt practice—Securing theservices of Government servants, for canvassing of votes—Details of partiesto corrupt practice, whether necessary in election petition—Bribery—"Grati-fication" in clause (B) (b) of Section 123(1)—-Meaning of "Undue in-fluence" in Section 123(B)(2)—Scope of—•.
HELD : In regard to allegations that appeals to voters were made byGovernment servants on the basis of caste in meetings and by canvassing,it cannot be reasonably expected that the other side should take note ofthe names of persons who attended such meetings or those persons to whomsuch appeal was made and give names of such persons in the petition.These two categories of persons are not parties to the corrupt practice,unlike in cases of persons who receive a bribe, get fed or get carried inconveyance. Bribery does not mean only cash payment, but includes otherforms of "gratifications" also, as mentioned in the explanation to Clause(B) (2) of Section 123(1) of the Act.
'Bhagwan Dalla Shastri v. Ram Ratanji Gupta and others A.I.R. 1960S.C 200; Samat Prasad Singh v. Dasu Sinha, Doabia's Election cases, 1964p. 205 at 212 and 213; referred to.
MAHANT MAHADEVANAND GIRI v. AMBKA SHARAN SINGHAND OTHERS, 39 E.L.R. 23.
—-Sv, 79,82 (b) and 86(1)—person who has withdrawn—-// candidate'—Code of Civil Procedure 1908 OA.r. 10 and O.6. r. 17—Non-joinder ofnecessary party to election petition—Whether petition can be .saved bvamendment or striking out parties.
232
Seven candidates were nominated for election to Parliament from thePali constituency in Rajasthan, but two of them withdrew. After the firstrespondent was declared elected, his election was challenged on variousgrounds by the appellant who was an elector. Only the first respondentand the other four contesting candidates were made parties to the electionpetition. On the first respondent's objection that the allegations were vague,the appellant amended his petition to include an allegation that bribes wereoffered by the returned candidate through his election agents and others.One of the two election agents referred to was one of the candidates whohad withdrawn and who was not made a party to the election petition. Thefirst respondent contended that the petition should be dismissed under S.86(1) of the Representation of the People Act, 1951, as the candidateagainst whom corrupt practices were alleged was a necessary party underS. S2(b) and was not made such party to the election petition. The appel-lant then filed an application for amendment of his petition wherein hestated that by 'election agent' he never meant the candidate who had with-drawn, that there was never any intention to make any allegations againstthe candidate and that his name may be deleted from the petition, as hewas not the first respondent's election agent and reference to him wasmade by inadvertence. The High Court dismissed the election petitionunder S. 86(1). On appeal to the Supreme Court.
HELD: (i) A candidate who is duly nominated continues to be a can-didate for purposes of S. 82(b) in spite of withdrawal, and if he is not joinedas a party when allegations of corrupt practice arc made against him, theelection petition must be dismissed under S. 86(1).
Aminlal v. Hunna Mai, (1965) 1 S.C.R. 393 and Har Swaruv v. BrijBluishan Saran, (1967) 1 S.C.R. 342; followed.
Chatturbhui v. Election Tribunal, Kanpur, (1958) 15 E.L.R. 301;approved.
(ii) The record showed that allegations of corrupt practice were madeagainst the candidate who had withdrawn. It could not be contended bythe appellant that the allegations were made against him not as a candi-date but in the character of an election agent, because, the appellant hadhimself stated in his application for amendment that the candidate whohad withdrawn was not the election agent of the first respondent. There-fore, the allegations were made against an individual who was a candidatewithin the meaning of S. 82(b) and who had to be joined as a necessaryparty to the election petition.
(iii) The Court cannot use O. VI, r. 17 or O.I., r. 10 of the CivilProcedure Code to avoid the consequences of non-joinder for which a
233
special provision, namely s. 86, is found in the Act. The Code appliesto the trial of election petitions only subject to the provisions of the Re-presentation of the People Act and the rules made thereunder. When theAct makes a person a necessary party and provides that the petition shallbe dismissed if he is not joined, the po«ver in the Cede, of amendmentor to strike out parties, cannot be used at all. If the deletion prayed forby the appellant was granted, every election petition can be saved by amend-ment and the provisions of s. 86(1) and the policy of the law would bedefeated.
MOHAN RAJ v. SURENDRA KUMAR TAP ARIA AND ORS., 39E.L.R. 423 (S.C.).
—$s. 79(b), 82(b) & 86(1)—-Allegations of corrupt practice againstperson who had withdrawn as candidate—not impleaded during period ojlimitation of election petition—// petition liable to be dismissed—•Condona-tion of delay—whether permissible—Applicability of s. 29(2) and S. 5 ofLimitation Act, 1963—Procedure under s. 99 of Act whether applicableto candidate not made party when corrupt practice alleged against him.
The first respondent's election in 1967 to the Andhra Pradesh Legisla-tive Assembly was challenged by the appellants in an election petitionalleging various corrupt practices. Tt was alleged, inter alia, that the firstrespondent paid a bribe to one R who had also filed nomination papers,in order to secure his withdrawal as a candidate. After the issues wereframed the appellants made an application to the Court for impleadingR but it was dismissed. The first respondent then filed an applicationunder S. 86(T) praying for (he dismissal of the election petition on theground that there had been non-compliance with s. 82(b) of the Represen-tation of the People Act, 1951 inasmuch as R against whom a corruptpractice was alleged had not been made a party. The appellants soughtto withdraw the allegation against R by a further application and, in thealternative, to implead him as a respondent. They also prayed for condo-nation of delay in making the application. The Hifih Court dismissed theaforesaid application and refused to condone the delay. In the appealto the Supreme Court it was contended (i) that the allegation against Rdid not amount to an allegation of corrupt practice; (ii) that s. 5 ands. 29(2) of the Limitation Act, 1963 were applicable to the case and theCourt had power to condone the delay in impleading a necessary party;(iii) that R, having withdrawn from the contest was not a 'candidate" and(iv) that the procedure under s. 99 ought to have been followed in respectof R.
234
HELD :
(i) The taint of illegal gratification attaches not only to the payerbut also the payee. It could not therefore be accepted that the allegationagainst R that he had received illegal gratification did not amount to acorrupt practice.
(ii) The Plea for condonation of delay in impleading R was rightly re-jected.
Tt is well settled that amendments to a petition in a civil proceedingand the addition of parties to such a proceeding are generally possiblesubject to the law of limitation. But an election petition stands on adifferent footing. The trial of such a petition and the powers of thecourt in respect thereof are all circumscribed by the Representation of thePeople Act. The Indian Limitation Act of 1963 is an Act to consolidateand amend the law of limitation of suits and other proceedings and forpurposes connected therewith. The provisions of this Act will apply toall civil proceedings and some special criminal proceedings which can betaken in a Court of law unless the application thereof has been excludedby some enactment; the extent of such application is governed by s. 23(2)of the Limitation Act. However, the Limitation Act cannot apply to pro-ceedings like an election petition inasmuch as the Representation of thePeople Act is a complete and self-contained code which does not admit of"he introduction of the principles or the provision of the law contained inthe Indian Limitation Act.
Kamaraj Nadar v. Kunju Thevar (1959) S.C.R. 583 and Bassappa v.Ayappa, (1959) S.C.R. 611;
A. Sreenivi^an v. Election Tribunal, Madias, 11. E.L.R. 278 andTipperary case (1875) 5 OM&H 19; rc":;:-;d to.
After the amendment of the Representation of the People Act in 1966there is now no section in the Act which equates an order made by theHigh Court under s. 98 or s. 99 to a decree passed by a civil court sub-ordinate to the High Court. An appeal being a creature of statute, therights conferred on the appellant must be found within the four cornersoi" the Act. Sub-s. (2) of the present s. 1 16-A expressly gives the SupremeCourt the discretion and authority to entertain an appeal after the expiryof she period of 30 days. No right is however given to the High Courtto entertain a petition which does not comply with the provisions of s. 81,s. 82 or s. 117. Any hardship resulting from this situation is a matterwhich can be set right only by the Legislature.
235
Vidyacharan Sluikla v. Khubchand Baghel, (1964) 6 S.C.R. 129; Dis-tinguished.
Even though the Indian Limitation Act, 1963 does not apply to anelection petition, provisions like s. 9 and s. 10 of the General Clauses Act,1897 providing for computation of time which are in par! materia withss. 12(1) and 4 of the Limitation Act, would apply to such a petition.
(in) A candidate who has withdrawn from Lhc election remains n'candidate' within the meaning of s. 79(b) and s. 82(b) of the Act.
Bar Swamp v. Brij Bhushan, (1967) 1 S.C.R. 342; Mohan Singh v.Bhanwarlal, (1964) 5 S.C.R. 12; Amin Lalw. Huima Mai, (1965) 1 S.C.R.393; referred to.
(iv I Section 99 only enjoins upon the High Court to give an oppor-tunity to a person sought to be held guilty of a corrupt practice if he wasnot a party to the petition, but docs not apply to a person who is a neces-sary party.
A. VENKATESWARA RAO AND ANK. v. BEKKAM NARASIMHAREDDI & ORS. 39 E.L.R. 445 (S.C.).
—Appeal—person jound guilty of corrupt practices along with theappellant—whether necessary parties in appeal to the Supreme Court.
HELD : The persons declared guilty of corrupt practices along withthe appellant under sections 98 and 99 of the Act need not necessarily beparties in an appeal to the Supreme Court under Section 116-A of theAct. As the person aggrieved by the order the appellant alone can filean appeal against that order.
DALCHAND JAIN v. N A RAY AN SHANK A R TRIVEDJ AND AN-OTHER (S.C.) 4! H.L.R. 163.
-—S. 82—Petition challenging the election of only one of the .successfulcandidates to Council of States, whether maintainable.
HELD : The election petition could not be dismissed as not main-tainable on the ground that it sought to challenge the election of one ofthe seven returned candidates.
It. B. Sure-uira Narayan Sinha v. Atnbuladhaone Roy and 43 Ora.,Sen and. Poddar's Indian Election Cases, 1935—1951, at pp. 188—201.referred to.
.•AGAT KISHORE PRASAD NA RAIN SINGH v. RA.IENDRAKUMAR PODDAR, 42 E.L.R. 231.
236
—Plendings—Parties-—Retiring Officer against whom allegations aremade is not a necessary or proper party.
HELD : There was no necessity for the petitioner to have impleadedthe Returning Officer or the District Election Officer as parties to the peti-tion in as much as the law of election does not require that ReturningOfficers or the Election Officers against whom allegations have been madein the petition be made parties to these proceedings.
SHRI SYED NIZAM-UD-DIN v. SHRl HISSAM-UD-DIN AND ORS,.42 E.L.R. 274
ELECTION PETITION—-(6. NAMING OF GUILTY PARTIES)
—Naming of guilty parties—Election Petition—corrupt practice—"names o{ the parties alleged to have committed such corrupt practice"—S. 83(i)(b)—See Corrupt Practice—General Principles—MAHAN'TMAHADEVANAND GIRI v. AMBIKA SHARAN SINGH AND ORS.,39 E.L.R. 23.
—S. 99.—Proceedings against a person not a party to the petition—Corrupt Practice—When notice should he issued.—
On the question whether proceedings should be drawn up under s. 99of the Act and notice should not be given to S. why he should not benamed for having committed corrupt practice.
HELD : When the appeal came up for hearing in April 1968 therespondent raised certain preliminary objections. It was the duty of theappellant on that occasion to satisfy the court prima facie that S. hadcommitted corrupt practice so that a notice could be issued to him and anopportunity given to him under s. 99 of the Act. This was not done, andavoiding further delay was an outweighing factor. KAMAL NARAYANSHARMA v. D. P. MISHRA, 41, E.L.R. 369.
ELECTION PETITION—(7. ABATEMENT OF PETITION)
—Election Petition—whether abates on dissolution of legislature.
HELD : There was no force in the contention that the petitionhad become infructuous in view of the dissolution of the LegislativeAssembly.
237
The question for consideration was not only the validity of theelection but also the allegations of corrupt practices which if established,would involve the respondent incurring certain electoral disqualifications.
It is clear from the provisions of Chapters III and IV of Part VI of theRepresentation of the People Act, 195.1, that the contest in an electionpetition is really between the constituency and the person or persons com-plained of. Once the machinery of the Act is moved by a candidate oran elector, the carriage of the case does not entirely rest with the petitioner.The reason for these provisions is to ensure to the extent possible that thepersons who offend the election law, are not allowed to avoid th'^ conse-quences of their misdeeds.
The law relating to withdrawal and abatement of election petitions isexhaustively dealt with in Chapter IV of Part VI of the Act. In decidingwhether a petition has abated or not it was not possible to travel outsidethe provisions contained in that Chapter. The Act does not provide forthe abatement of an election petition either when the returned candidatewhose election is challenged resigns or when the assembly is dissolved.
Carter and Another v. Mills, 9, Common Pleas p. 117; distinguished.
Ghasi Ram v. Dal Singh and another (1968) 3 S.C R. 102; followed.SHEODHAN SINGH v. MOHAN LAL GAUTAM : 41 E.L.R (S.C.).
- -Election Petition—Dissolution of Assembly by Presidential orderduring trial of election petition—Effect of.
During the course of the trial, by means of a Presidential Proclamationunder Article 356(1) (a) of the Constitution, the U.P. State Assembly wasdissolved. It was contended by the Respondent that the election petitionhad become infructuous and no effective relief could be granted bv thecourt on the petition and that the election petition be dropped
HEED : Dismissing the petition:
In view of the various allegations of corrupt practice having beenmade against the respondent, if these allegations were established thiswould lead to certain results (irrespective of the dessolution of the Assembly)like disqualification and, therefore, the election petition could not bedropped following a Presidential Proclamation dissolving the Assembly.
W. L. Rose v. Regional Transport Authority, Luck now, A.I.R. 1962,Allahabad 574; AC. N. Guruswamy v. The State of Mysore and others,A.I.R. 1954, S.C. 592; Nand Kishore Saraf v. The State of Rafasthan andanother, A.T.R. 1965, S.C. 1992; Mohammad Raza and others v. Mst.
238 .
Abbas Daiidi Bibi, A.I.R. 1932, P.C. l5S,Waghela Rajasaji v. SheikhMashiddin, 14 Indian Cases 89 (P.C); Charter v. Mills (1874), L.R. 9,C.R. 117; Marshal v. James (1874), L.R. 9, C.P. 702; Raj Krushna Bosev. Binod Kanungo and others, A.I.R. 1954, S.C. 202; Jnamati MallappaBassappa v. Desai Basavari Ayyappa and others, A.I.R. 1958, S.C. 698;referred to. SHEODHAN SINGH v. MOHAN LAL GAUTAM, 38 E.L.R.242.
ELECTION PETITION—(8. GROUNDS I OR SETTING ASIDE ELECTION)
—Grounds for setting aside election—Section 100(l)(d)—"Resultof the election has been materially affected"—Proof of.
HELD : But the result of the election can be held to have beenmaterially affected only if there is definite, positive and reliable evidence toprove that the wasted votes would have been cast or distributed in biich amanner between the contesting candidates as would have brought aboutthe defeat of the returned candidate. In the instant case the electionpetitioncer had failed to discharge this burden. Vashist Narain Sharma v.Dev Chandra and Others, A.I.R. 1954 S.C. 515; Tnayatullah Khan v. DiwanChand Mahaian and Ors., A.I.R. 1959 M.P. 58; referred to. KAMTAPRASAD UPADHYA v. SARJOO PR AS AD HIWARJ AND ORS. 35E.L.R. I.
—S. 101(b)—Ingredients of—Corrupt Practice-—grounds when thepetitioner or such other candidate declared to have been duly elected—Seecorrupt Practice—Bribery—GHA SI RAM MAJHI v. ONKAR SINGH,35 E.L.R. 80.
—Section 100(1) (d) (iv)—"the result of the election has beenmaterially affected", meaning—Burden of proof.
HELD : The words "the result of the election has been materiallyaffected" indicate that the result should not be judged by the mere increaseor decrease in the total number of votes secured by the returned candidate,but by proof of the fact that the wasted votes would have been distributedin such a manner between the contesting candidates as would have broughtabout the defeat of the returned candidate.
The evidence adduced in the case shows sufficiently that a largenumber of voters intended to vote in favour of the petitioner but that theycould not do so.
239
Vasisht Narain S liar ma v. Dev Chandra, A.I.R. 1954 S.C. 513;Harivishnu Kamath v. Ahmed Ishaque, A.T.R. 1955 S.C, 233; TazuddinAhmad v. Dhaniram, A.I.R. 1959 Assam 128; and Maulana Abdul Jalilv. Rabindra; XII E.L.R. 290: referred to RISHANG v. PAOKAI HAOKfPAND ORS., 35 E.L.R. 110.
—Sec/ion 100—"the result of the election has been materially affected'',meaning of.
HELD : As to the expression "the result of the election has beenmaterially affected" the general trends of decisions is: (1) the onus is onthe petitioner to prove that the result has been materially affected; (2) thepetitioner can establish by direct evidence that the result has been materiallyaffected; (3) where direct evidence would not be available the petitionermust place before the court or tribunal, as the case may be, facts andcircumstances justifying the probability or inference that the result has beenmaterially affected.
Sudhan Shekhar v. Salyendra Nath, 4 E.L.R. 73; Chand Basak v.Chairman Dacca Municipality, 24 C.W.N. 189; Subramanian Goundar v.Election Tribunal Vellore, 8 E.L.R. 66; Mahadev v. Babu Udai Pratap,A.I.R. 1966 SC. 824; referred to. NARENDRA NATH SEN v. MANJSANYAL AND ANOTHER, 36 E.L.R. 69.
—-Section 100(1) (c)—"Materially affected" meaning of.
The petitioner challenged the election of the first respondent on thefollowing grounds: (i) the second respondent impersonated another personand the Returning Officer improperly accepted the nomination of the secondrespondent under the proviso to sub-section (4) of s. 33 of the Act of1951; (ii) there was duplication of 67 voters' names in the voters' list andthese votes should have been rejected; (iii) there were no distinguishingmarks on the ballot papers issued to the electors; (iv) the Returning Officerdid not give any opportunity to the petitioner to inspect certain ballot papersbefore rejecting them; (v) the first respondent and his agents caused certainobstructions which prevented the electors from voting;
HELD : (i) It is not necessary that the description of the candidateas given in the nomination paper should literally tally with that mentionedin the electoral roll. What is required is that the nomination paper shouldcontain such description of the candidate which is sufficient to identify him.Further, it is a general principle of evidence that failure to assert a fact,when it would have been natural to assert it amounts, in effect, to anassertion of the non-existence of the fact. In the present case no objectionwas raised to the nomination paper of the 2nd respondent. Even assumingthat such objection could be raised for the first time before the court still
240
under s. 100(1) (4) (i) it has to be shown that the result of the election hasbeen materially affected.
The expression "materially affected" in s. 100(1) (c) means that theresult should not be judged by the mere increase or decrease in the totalnumber of votes secured by the returned candidate but by proof of the factthat the wasted votes should have been distributed in such manner betweenthe contesting candidates as would have brought about the defeat of thereturned candidate. In the instant case even if it be assumed that thepetitioner would have secured all the 306 votes which were polled by thesecond respondent he would not succeed.
Palaman's case (D.C.E. Vol. II Case No. 131): Bhandara District(D.C.E. Vol. I Case No. 40); P. N. Balasubramaniam v. G. R. Narasimhanand Ors., 1 E.L.R. 461; Vijaya Mohan Reddy v. Page Pulla Reddy andOrs., 2 E.L.R. 414; Ranchhodlal Liladhar Vavada v. Sanjalia MohanlalVirjibhai and Ors., 4 E.L.R. 493; Rattan Shukla v. Dr. Brijindra Swamp andOrs., II E.L.R. 332; Inayatullah Khan v. Diwanrhand Mahajan & Ors.,15 E.L.R. 219; Rulia Ram v. Chaudhri Multan Singh, A.I.R. 1960 Punjab45; Kandaswami Kandar v. Subramaniam Gunder and Ors. 5 E.L.R. 156;Dao Cliand and Ors. v. Vashist Narain and Ors., 6 E.L.R. 136; VashistNarain Sharma v. Dey Chandra and Ors., A.T.R. 1954 S.C. 513; DipallaSuri Dora v. V. V. Giri & Ors. A.R. 1958 An. Pr. 724; referred to.
(ii) Even assuming that there was duplication of 67 votes and therewas improper reception of these votes, the election of the first respondentcould not be, on that count, said to have been materially affected.
(iii) There were only 12 ballot papers without any distinguishingmarks. Even if under s. 100(1) (d) (iv) these 12 papers are taken intoconsideration, the result of the election of the first respondent could not besaid to have been materially affected
(iv) The evidence on record showed that the petitioner's countingagents attended the countings and that the Returning Officer showed themthe rejected ballot papers.
(v) (a) Tn an allegation of corrupt practice high standard of proofis necessary.
Jayatakshmidevama v. Janardhan Reddy, A.I.R 1959 272; S. Kanda-swami v. S. B. Adityan & Ors., A.I.R. 1960 Madras 170; Badri Narainand Ors. v. Kamdee Prasad Singh and Ors., A.I.R. 1961 Patna 41;S. Mehar Singh v. Umrao Singh & another; A.I.R. 1961 Punjab 244;Senappa Andannappa v. Shivamurthiswami Siddappalyaswami, A.I.R. 1961Mysore 106; Dr. Jagjii Singh v. Giani Kartar Singh and Ors., A.I.R. 1966
241
Supreme Court, 773; referred to. HAOKHOLAL THANGOM v. LAL-ROUKUNG AND ANOTHER, 37 E.L.R. 19.
—Section 100(1) (d)—Non-compliance—Results materially affected-Election void.—Corrupt practices—s. 123—.
The petitioner, an elector, challenged the first respondent's electionto the U.P. Legislative Assembly in 1967, on the ground that he. eitherby himself or through his agents and workers had committed corruptpractices within the meaning of s. 123, sub-sections (1), (2), (3), (5),(6) and (7).
HELD : Any alleged non-compliance with section 100(1) (d) in orderto render the election of the returned candidate void, must be shown tohave materially affected the result of his election. In the present casealthough the petitioner had stated in his petition that all the corrupt prac-tices alleged by him in his petition had materially affected the results ofthe election in so far as it concerned the first respondent, he had nowheremade a grievance on the score of non-compliance by the nrst respondentwith any of the provisions of the Act or of any rules or orders madethereunder. It was unnecessary to consider the effect of such an omissionfrom an election petition in the present case, because even if the omissionhad not been there, the petitioner could not have succeeded on this groundas he has failed to show that the result of the election as far as the firstrespondent was concerned was materially affected. SHRI DURGA PRA-SAD v. SRI JAYENDRA SINGH AND ORs., 39 E.L.R. I.
—-Votes—improper rejection and acceptance—"result materiallyaffected"—meaning and intention of s. 100(1) (d) (Hi).—See Ballot papers.PR1YA GUPTA v. ABRAR AHMAD AND OTHERS, 39 E.L.R. 249.
-^—Evidence—Election petitioner to prove the election "result materiallyaffected"—evidence of witness—evaluation—SEE ELECTION PETITION—BURDEN OF PROOF—PAOKAI HAOKlP v. RISHANG AND OTHERS,(S.C.), 39 E.L.R. 431.
—Election—"Results materially affected"—burden of proof—differencebetween English and Indian Law.
HELD : Under English Law, if there is non-compliance with theprovisions of the election law, the returned candidate has to show that theresult has not been materially affected. But, under the Indian law, as itstands at the present moment, the petitioner has to show that by suchpractices or non-observance of rules etc., the result of the election of thereturned candidate has been materially affected.4EC/74—19
242
Durga Shankar v. Thakur Raghu Raj 9 E.L.R. 494; Madheo DeoJoshi v. Raj Baoz Pandrung Nathoji, 13 E.L.R. 430; Champa Devi v.Jamna Prasad & others; 15 E.L.R. 443; Vashist Narain Sharma v. DevChand and others 10 E.L.R. 30; Rikhab Das v. Radhi Chand Paliwal, 9E.L.R. 115; Niharendu Dutt Mazumdar v. Sudhir Chandra 6 E.L.R. 197—Referred to : ABDUL GANI MALIK v. SYED AHMED AGA ANDANOTHER, 40 E.L.R. 148.
—Sub-section . (3)Section 23(3)—Amendment of electoral roll afterlast date for nomination—Validity—Section 62(1), Section 2(1) (<?)—"Election"., meaning—"for the time being entered", meaning—section27(2) (c) Power of Electoral Registration Officer.
The petitioner, an elector in the electoral roll of the Local AuthoritiesConstituency, sought to set aside the election of Respondent No. 1 to theLegislative Council from the said constituency and for a declaration thatRespondent No. 2 was duly elected. It appeared that the electoral rollwas amended on the day prior to the polling of votes and certain personsnewly appointed members of the notified area committee were included inthe electoral roll for the first time who took part in the impugned election.The petitioner alleged that the amendment of the electoral roll on the dayprior to the polling was illegal and without jurisdiction. He submitted (i)the electoral registration officer had no application before him from or onbehalf of any of the newly appointed members of the notified area committeefor registration of their names in the electoral roll; (ii) the persons mentionedin the gazette Notification had not become members of the Notified AreaCommittee by the mere fact of the publication of the Notification in question,since, under s. 29(2) of the Bihar and Orissa Municipal Act, 1922, theirtenure of office was to begin from the date of the first meeting of the newcommittee and (iii) the amendment of the electoral roll was made by theElectoral Registration Officer in utter disregard of the limitation put uponhis power under sub-section (3) of s. 23 of the Act of 1950.
HELD : The election of the first respondent must be set aside andthe second respondent declared to have been duly elected.
(i) The power of the Electoral Registration Officer under clause (c)of sub-section (2) of section 27 of the Act of 1950 is wholly independentof any power which he may exercise upon application or applications forregistration of names in the electoral roll made to him under s. 23 of theAct of 1950. In the present case the Electoral Registration Officer hadacted under clause (d) of s. 27(2) of the Act of 1950 and as such he waswell within his powers to make the requisite changes in the electoral roll.
243
(ii) In a Notified Area Committee the entire Committee can assumeoffice immediately upon the appointment of its members which has to bemade by the State Government by a notification under cl. (c) of s. 389of the Municipal Act. There is nothing in s. 389 to postpone their appoint-ment until the date of the first meeting of the Coriimittee.
(iii) By virtue of cl. (e) of s. 27 (2) of the Act of 1950, the provisionsof s. 23 of the same Act have been made applicable in relation to localauthorities constituencies in the same manner as they apply in relation toAssembly constituencies. As a consequence, it must follow that it is notopen to the Electoral Registration Officer to make amendment, transpositionor deletion of entries in the electoral roll of a local authorities constituencyafter the expiry of the last date for making nominations for election in thatconstituency and before the completion of that election.
Election is not limited to casting of votes on the day of poll. Electionmeans the entire process of poll. The expression "for the time being inforce" which occurs in s. 2(1) (e) and the expression "for the time beingentered" in s. 62(1) of the Act of 1951 must obviously have reference tothe time when the election in question has begun and is in the process ofbeing complete. Therefore the scheme of the election law is that the wholeprocess of election must be conducted on the basis of the electoral rollwhich is in force at the initial stage of the election process, that is to say,the stage when nominations for the elections have been made.
Ponnuswamy v. Returning Officer, Namakkal. A.I.R. 1952 S.C. 64,referred to:
In the present case the impugned election conducted on the basis oithe amended electoral roll was not conducted in accordance with the pro-visions of the Act. The result of the election so far as respondent No. 1was concerned was materially affected by reason of non-compliance withthe provisions of the Act and the Conduct of Elections Rules, 1961, resultingin the inclusion of 31 invalid votes in favour of the different candidates.Since Respondent No. 2 secured the majority of valid votes he had to bedeclared elected.
SIT ARAM MAHATO v. B. PANJIAR AND ORS. 40 E.L.R- 354.
—S. 100(1) (d)—Constitution of India, Article 19(1)—Nomina-tion—improper acceptance of—whether election liable to be set aside onthat count alone—result materially affected—onus of proof—whether anychange after amendment in 1956.
The appellant, the defeated candidate, sought to have the election ofrespondent No. 1 set aside on the ground that the election was materially
244
affected by the improper acceptance of the nomination of respondent No, 2,who was holding an office of profit under the Government at the materialtime. Although the trial court found that the respondent was holding anoffice of profit as alleged, that by itself was not enough to declare theelection of respondent void. Upholding the findings of the trial court theSupreme Court,
HELD : It could not be said that by the arrangement of the provisionsrelating to setting aside of the election by the Amending Act of 1956 incases where there has been improper acceptance of nomination, anysubstantial modification in the law declared by the Supreme Court inVashisht Narayan Sarmcts case was intended. The onus of proof beforethe Amending Act of 1956, as well as after the amendment, lay upon theelection petitioner to establish in case of improper acceptance of any nomi-nation, that the result of the election was materially affected thereby. Inthe present case there was no reliable evidence which supported the casethat if the nomination of the respondent had not been accepted themajority of the voters of the Kachhi community who voted for him wouldhave voted for the appellant. How voters at an election will vote in agiven situation cannot be determined with any degree of certainty. TTieevidence on the record in the case on that point that the "wasted votes"would have been distributed in such a manner that it would have broughtabout the defeat of the returned candidate was scanty and unrealiable, andeven that scanty evidence was only of a speculative or conjectural nature.
Vashist Narayan Sarma v. Dev Chandra and others, 1955(1) S.C.R.509; Paokai Haokip v. Rishang and others (1969) 1 S.C.R. 637; 39E.L.R. 431; followed. KAMALA PRASAD UPADHYAYA v. SARJOOPRASAD TIWARI AND OTHERS (S.C) 41 E.L.R. 44.
—S. 100(1) (d) (iv)—Non-compliance with the provisions of the Act—change of polling booth—when result materially affected—proof of-
HELD : According to section 100(1) (d) (iv) of the Act if there hadbeen any non-compliance with the provisions of the Constitution or the Actor any other rules or orders made under the Act, the appellant must showthat the result of the election, in so far as it concerned the returned candidate,had been materially affected, in order to get the election of the returnedcandidate declared void. In the instant case there was no allegation in thepetition that by the change of the polling booth by the presiding officer, theresult of the election had been materially affected. PT. SHREE KRISH-NA SELOT v. SHRI RAM CHARAN PUJAR1 (S.C.), 41 E.L.R. 50.
—S. 81(3)—Election Petition—Supply of "true copies"—substantialdiscrepancies in copies—petition liable to be dismissed—"Copy" meaning
245
of—See Election Petition—General Principles—JAG AT K1SHORE PRA-SAD NARAIN SINGH \. RAJENDRA KUMAR PODDAR, 42 E.LR.231.
ELECTION PETITION—(9. BURDEN OF PROOF)
ISee also Corrupt Pratice—Standard of Proof]
—Evidence Act, 1872—Section 78(6)—Requirements of section—Non-compliance would render document inadmissible.
To prove that the respondent who was the returned candidate, wasdisqualified from contesting the election since he had not attained the ageof 25 years, the petitioner produced a copy of the birth register of thePolice station. District Montgomery, signed by the District Health Officerin Pakistan. According to the respondent the copy was merely signed bysomeone purporting to be the District Health Officer without his appendinga certificate that it was a true copy; and further, no certificate as requiredby sub-section (6) of section 78 of the Evidence Act was appended bythe person signing on behalf of the Indian High Commissioner, Karachi,but only some attache to the High Commissioner had signed the documentputting the word "attested". On the question whether there was sufficientcompliance with section 78(6) of the Evidence Act.
HELD : Dismissing the petition, under sub-section 6 of section 78,the following conditions are to be fulfilled:
(0 the copy must be certified by the legal keeper of the document;
(ii) there must be a certificate by a Notary Public or an IndianConsul or diplomatic agent;
(ui) this certificate must be to the effect that the copy is duly certifiedby the legal keeper of the original.
In the present case, on the face of it, the copy is not certified as thetrue copy, although signatures of some one purporting to be the legal keeperof the original are appended. Again, above the signatures of the attachethe word "attested" only is written and it is not certified that the copy iscertified by the officer having the legal custody of the original. Difficultyin obtaining a proper certified copy is no ground for condoning the non-compliance with the requirements of the section.
Badat & Co. v. East India Trading Co., A.I.R. 1964 S.C. 538;Referredto : SHAFQAT RAI v. PHUMAN SINGH & OTHERS, 34 E.L.R. 187.
246
—S. 123(4)—Press and Registration of Books Act, s. 7—effect of.Election proceedings—Strict proof necessary—Presumption permissibleunder other enactments cannot be drawn—
HELD : Even assuming that Section 7 of the Press and Registrationof Books Act, 1867, is applicable to election proceedings, still the petitionerhas to establish whether the respondent believed the statement to be fafseor did not believe it to be true and it related to his personal character andconduct, etc. It cannot therefore be contended that since respondent wasthe printer and publisher at the relevant time according to the provisionsof the Press and Registration of Books Act, he was responsible for suchstatements.
Ramesh Chander v. State, A.I.R- 1966 Punjab 93; Sudhir Laxman v.S. A. Dange, 17 E.L.R. 373; referred to :
The petitioner had not proved that the respondent was guilty of acorrupt practice under s. 123(4) of the Act.
DEVI PRASAD v. MALURAM SINGHANIA AND ORS., 35 E.L.R.59.
—S. 123—Corrupt practice-—Burden of Proof.
HELD : The principles laid down by the Supreme Court in JagdevSingh Sidhanti v. Paratap Singh Daulta, (A.I.R. 1966 S.C. 773), andBhagwan Datta Shastri v. Ram Ratanji Gupta and others (A.I.R. 1960S.C. 200) have to be borne in mind in determining whether or not corruptpractices alleged against the successful candidate have been proved or not.HIRA RAM v. ARJUN SINGH, 35 E.L.R. 226.
—Section 123—Corrupt Practice—Burden of proof—Statements aboutpersonal character and conduct—
Dismissing the Petition,
HELD : The petitioner had not proved any of the allegations madeagainst respondent No. 1.
(i) The charges of corrupt practice are quasi-criminal in character andthe allegations relating thereto must be sufficiently clear and precise tobring home the charge to the candidate.
Jagannath v. Jaswant Singh, 9 E.L.R. 231; Harish Chandra v. TritokiSingh, 12 E.L.R. 461; referred to:
(ii) Adverse criticism however severe, however undignified or illmannered, however regrettable it might be in the interest of purity and
247
decency of public life in relation to political views, position, reputationconduct and character of a candidate, would not bring it within the mischiefof the statute.
The onus to prove all the essential ingredients is on him who allegespublication of false statements of facts.
Kumara Nand v. Brij Mohan, 1957 M.P.L.J. 329; referred to : RAM-DHANI MISHRA v. JAGDISH PRASAD & ORs., 35 E.L.R. 241.
—Evidence Act, 1872, Section 8, illustration (e) of Sec. 8.
HELD : The conduct of a party or his agent in inducing a witness togive evidence in a particular manner is relevant and evidence to prove suchconduct is, therefore, admissible under illustration (e) of Section 8 of theEvidence Act. However, it is open to the opposite party to rebut suchevidence.
Attorney General v. Hitchcock (1847) I Exchequer 91, referred to:SAMANT NILKANT BALKRISHNA v- GEORGE FERNANDES &ORS. 35, E.L.R. 259.
—S. 123(4), Corrupt Practice under—Burden of proof—Whether onuson the returned candidate to disprove the allegations—
HELD : Dissemination of false statements about the private andpersonal character of a candidate constitutes a corrupt practice underSection 123(4) of the Act. Sometimes a statement may appear to touchthe candidate's personal as well as his public character and if the statementreflects on the mental or moral character of a person it is a reflection onhis personal character. It is a question of fact in each case under whatcategory a particular statement falls.
Under Section 123(4) the statement of fact must be "a statementreasonably calculated to prejudice the prospects of that candidate's election".Absence of denial by the returned candidate of the allegation of corruptpractice under Section 123(4) of the Act will not absolve the petitionerfrom the burden of proof cast on him to establish all the ingredients of acorrupt practice under the Section which are alleged to have been committedby the first respondent or his agents. The law does not cast any onus®n the first respondent to examine any witness to disprove the petitioner'scase.
Gangi Reddy v. M. C. Anjanaya Reddy (1960). 22 E.L.R. S.C.261 ;
Inder Lai v. Lai Singh and others, A.I.R. 1962 S.C. 1156 ;
248
Cockermouth Division Case (1901) 5 O'M & H 155;Dr. Jagjit Singh v. Giani Kartar Singh and others, A.I.R. 1966 S.C.
773; referred to.
SAMANT NILKANT BALKRkSHNA v. GEORGE FERNANDES &ORs., 35, E.L.R. 259.
—Evidence—General plea of conveying voters both from and to thepolling station—// adducing evidence in respect of specific instances amountsto variance in plea—burden of proof.
The petitioner challenged the election of the first respondent alleging thatthe latter committed various corrupt practices. During the trial of thepetition the respondent took an objection that since the allegation in thepetition in respect of one of the corrupt pracice? was that of conveying votersto the polling station, the petitioner could not be allowed to adduce evi-dence to establish a case that the vehicles were used for the conveyanceof voters from the polling station to their villages.
HELD : Dismissing the Petition :
(i) The general plea of the petitioner is with regard to conveyance ofvoters both from and to the polling station. The specific instance is givenonly as one instance of the general allegations relating to the corrupt practice.It is not a case of variance in plea but only a case of variation in theparticulars of one incident.
Siddik Mohamed Shah v. Mt. Saran and others, A.I.R. 1930 P.C. 57.Gurbanta Singh v. Piara Ram Jaggu, A.I.R. I960 Punjab 614; Tr'dochanSingh v. Karnail Singh, E.P. No. 33 of 1967 decided November 12, 1967;Ram Pal Raghu Nath Sahai v. Brahma Prakash, A.I.R. 1962 Punj. 129; heldinapplicable.
(ii) The standard of proof in connection with a charge of corrupt prac-tice although considered to be different than in a civil proceeding, is still notan absolute one. The expression "proved" in s. 3 of the Evidence Act whichin the absence of any contrary provision in the Act should govern proceed-ings under the Act, has been defined with reference to a prudent man anddoes not insist upon absolute certainty as to the existence of a fact butrequires a degree of probability. Naturally, therefore, the test cannot beabsolute but is bound to be relative. The facts and the circumstances of theindividual cases as also the nature of the proceedings must also be takeninto account in arriving at the conclusion whether a particular case shouldbe held proved or not.
The burden of proof as a matter of law and as a matter of adducingevidence is, in the first instance, upon the petitioner who seeks to get the
249
election set aside, but if he adduces sufficient evidence the burden of adduc-ing evidence shifts on to the respondent. Further, when the entire evidencehas been adduced in the case, the question of burden of proof becomesmerely academical.
T. K. Gangi Reddy v. M. C. Anjaneya Reddy, 22 E.L.R. 261 ; SheopatSingh v. Ram Pratap, A.I.R. 1965 S.C. 677; Dr. Jagit Singh v. Giani KartarSingh, A.I.R. 1966 S.C. 773; Kumar Nandv. Brijmohan Lai Sharma, A.I.R.1967 S.C. 808; referred to.
(iii) There is no evidence to prove any of the corrupt practices alleged.MANGAL SINGH v. BANWARI LAL, 36 E.L.R. 307.
Representation of the People Act, 1951—s. 123—Corrupt practice—burden of proof—sub-section (3) —
The petitioner challenged the election of the respondent to the Lok Sabhaon the ground of corrupt practices. It was alleged that the respondentpaid Rs. 500 to another candidate to enable the latter to deposit his security.
HELD : Dismissing the petition. A charge of corrupt practice beingin the nature of a criminal charge, the petitioners must prove the samebeyond reasonable doubt. The burden may. in certain circumstances shifton certain matters in the sense that if the petitioner has led cogent evidenceto prove those matters, the respondent may be expected to dislodge thesame but primarily and in the first instance the proof of corrupt practice mustdepend on the evidence of the petitioner. In the present case the petitionerfailed to prove that the respondent paid Rs. 500 to another candidateto enable the latter to deposit his security.
Gangi Reddy v. M. C. Anjaneya Reddy and Ors., 22 E.L.R. 261:Sheopat Singh v. Ram Pratap, A.I.R. 1965 S.C. 677 and Kundan Lai v.Custodian Evacuee Property, A.I.R. 1961 S.C. 1316; referred to. AMARNATH GUPTA AND ANOTHER v. RAM GOPAL SHAWLWALA, 37E.L.R. 1.
—Evidence—witnesses—testimony of interested witnesses—reliability.
HELD : The testimony of a witness, even if he is an interested one,such as an election agent or polling agent cannot be rejected only for thatreason. At the most the court in such a case would scrutinise his testimonyclosely and demand corroboration before acting upon it. In the case of awitness, part of whose testimony has not been accepted, it does not followthat his entire testimony must be discarded.
250
Umar Abir v. State of Bihar, A.I.R. 1965 S.C. 277; Nisar Ali v. Stateof Uttar Pradesh 1967, S.C.R. 651, 657; referred to; AMB1CA SARANSINGH v. MAHANT MAHADEV NAND GIRI (S.C.) 41 E.L.R. 183.
—Section 101, 123—Corrupt Practice—Non-refutation of allegations ojrespondent, whether can lead to inference of implied consent—Onus ofProof—Circumstances when the onus shifts to the opposite party—In-ference of implied or tacit consent when established—See Corrupt Practice—General Principles. RAM PIARA v. RAM LAL & ANR., 33 E.L.R. 94.
—Burden of Proof—Corrupt practices—printer, publisher and editor ojimpugned publication—presumption of liability—Press and registration ojBooks Act, 1867, Scope of—Whether can over-ride the general law oj evi-dence for the determination of the rights and liabilities of the public ingeneral.
HELD : The provisions of the Press and the Registration of Books Act,1867, as the preamble shows, are intended to provide for the regulation ofthe printing presses and of newspapers and for the preservation of copiesof books and for registration of books and newspapers. The Act is pri-marily directed against the person connected with the newspaper and is notintended to over-ride the general law of evidence for the determination ofthe rights and liabilities of the public in general. In an election case thepetitioner in order to succeed will have to prove (1) the commission ofcorrupt practices by somebody and (2) the respondent's consent to thecommission of the said corrupt practices. These two links are integral andinseparable and both must be established by evidence which can legally beused against the respondent. While as against the printer, publisher andeditor, the production of the attested copies of a declaration under theAct of 1867 may be presumptive proof in connection with determinationof their liability in a case where they are a party, such a copy cannot bepresumed to be proof for fastening the liability upon a stranger even byhaving recourse to an intermediate finding against the printer, publisherand editor.
Banka Behari Singh v. C. M. Thomas and others, A.I.R. 1960 Orissa126; Ramesh Chander v. The State, A.I.R. 1966 Punjab 93; PottokkalKrishnan Sukumaran v. Kunjuvarred Josheph Mundasseri, A.I.R. 1959Kerala 120 ; and Sardar Diwan Singh Maftoon v. Emperor, A.I.R. 1935Nag. 90; referred to. DR. POHV MAL v. BHAGWANDAS SHASHTRI,33 E. L. R. 264.
—Evidence—-Persons alleged to have committed corrupt practice—//can be compelled to give evidence.
251
HELD : Whereas the respondents in an election petition or other personschargetl with the commission of corrupt practice have the normal liberty ofall persons so charged of giving evidence on oath to exculpate themselves,they cannot be compelled to give evidence by the petitioners themselvesciting them as witnesses. S. S. hNAMDAR v. AGADI SANGANNAANDANAPPA, 34 E.L.R. 1.
—Evidence Act s. 56(a)—''Person legally bound," meaning of—
HELD : A witness summoned to produce a document is not a personlegally bound to produce it within the meaning of clause (a) of s. 65 of theEvidence Act. Regarding the party himself tendering evidence referred toin clause (c) the document in question need not necessarily be a documentin his custody. It may either be in the custody of somebody else and withinhis power, or not within power, to produce without the assistance ofthe Court. When the existence of an original is made out but the partytendering evidence is not in a position to produce the same it need not beinsisted upon that the proof of the circumstances entitling him to producesecondary evidence should be absolutely strict or on the basis of strictlylegal evidence.
Gaya Prasad v. Jaswant Rai A.I.R. 1930 All. 550; Venkataramaniqav. Appalacharyulu A.I.R. 1926 Mad. 1003; Queen v. The Inhabitants ofMenil Worth 125 E.R. 631; referred to.
Before a person can be held to an admission the whole of the admissionas well as the circumstances which might explain its meaning should alsobe taken into account, especially when on the strength of such admissionhe is proposed to be held guilty of a corrupt practice.
Raghunath Singh v. Rampta Prasad 8 E.L.R. 424; Narasimhan v. Natesan Chettiar 20 E.L.R.; referred to. S. S. INAMDAR v. AGADI SAN-GANNA ANDANAPPA, 34 E.L.R. I.
—Election meetings—Notes recorded by Police Constables—recordedat meetings—recorded after meetings—Evidence—admissibility of—IndianEvidence Act, 1872, ss. 159 and 160.
HELD : Under Sections 159 and 160 of the Evidence Act, the notesrecorded by the Police Constables, while the election speech was made andsome notes which were made very soon after as to what was said at themeeting while still fresh in the memory of the Police Constables concernedcan be treated as substantive evidence.
In re. Krishna Naicker and another, I.L.R. 54—Madras 678; PratapSingh v. Crown, I.L.R. 7 Lahore 91; referred to. PURSHOTTAMDAS
252
RANCHHODDAS PATEL v. KANTIPRASAD JAYSHANKAR YAGNIKAND OTHERS, 34 E.L.R. 160.
—Section 123, 123(1)—Corrupt practice—Evidence of accomplicewhether requires corroboration—Abettor—See Corrupt Practice—BriberyTRILOCHAN SINGH v. KARNAIL SINGH AND ANOTHER, 34 E.L.R234.
—Corrupt practice—Burden of proof—Requirements of Election Law—Respondent's failure to specifically or by implication deny the allegations—Effect of.
HELD : The statutory requirements of Election Law must be strictlyobserved since it is a purely statutory proceeding unknown to the commonlaw and the court possesses no common law powers. The petitioner has toprove the corrupt practices alleged by him against the respondent. Thepetitioner cannot claim his allegation as proved on the ground that therespondent has not specifically or by necessary implication denied anypoint or his denial simpliciter and the burden of proof is on the petitionerto prove his allegations.
Jagannath v. Jaswant Sir.gh, 9 E.L.R. 231; Harish Chandra v. TrilokSingh, 12 E.L.R. 461 ; Smt. Sarla Devi v. Birendar Singh, A.l.R. 1961, M.P.127 ; Dr. Jagjit Singh v. Gyani Kartar Singh, A.l.R. 1966, S.C. 773 ; BhagatSingh v. Jaswant Singh, A.l.R. 1966. S.C. 1861; Didar Singh Chhada v.Sohan Singh, A.l.R. 1966 Punjab 282; Govindram v. Gulab Rao. A.l.R.1949, Nag. 394; Kishan Singh v. Bhanwarlal. 1966. E.P.L. J. 563; TheUnion of India v. Pandurang Kashninath More, A.l.R. 1962, SC. 630;Jagdev Singh v. Pratap Singh, A.l.R. 1965 S.C. 183; Abdul Majeed v.Bhargavan, A.LR. 1965, Kerala 18 and Lalsing v. Vallabhdas, A.l.R. 1976,Gujarat 62; referred to. LAXMAN PRASAD VAIDYA v. GANGADHARYADAORA TAMASKAR AND OTHERS, 34 E.L.R. 292.
Conduct of Elections Rules, 1961, Rule 92(2)—Recount allegationof tempering with ballot papers after declaration of results while in custodyof the Returning Officer—Burden of proof—recount of ballot papers—SEE BALLOT PAPERS—2V/1THU RAM MIRDHA v. GORDHAN SONIAND ANOTHER, 40 E.L.R. 62.
—full particulars of the allegation not given—Election petition—Evi-dence in support of the allegation—Effect of-—
HELD : If an election petitton does not set out the full material parti-culars of the allegations but the petitioner has proved by evidence that theFirst Respondent has committed corrupt practice of distributing copies of
253
impugned articles amongst the voters, the evidence led by the Petitionercannot be discarded because the particulars in that behalf have not beenset out in the petition. It is open to the First Respondent to lead rebuttingevidence against the witnesses who have deposed in support of the Peti-tioner's allegations.
Bhikhaji Keshao Joshi v. P. N. Biyani, 10 E.L.R. 357; Balwant Singh v.Lakshmi Narain, A-l.R. 1960 S.C. 770; referred to. KARASANDASUKABHAI PARMAR v. SOMCHAND MANUBHAI SOLANKI ANDANR., 33 E.L.R. 74.
—Evidence—Respondent's document—Petitioner can use only to sup-port his case alleged in the petition.
HELD : For whatever purpose the respondent may have brought adocument on record, the whole of it has become a part of the evidenceon the record and the petitioner can make only legitimate use of everypart thereof to support his case already alleged in the petition. SHAHJAYANTHILAL AMBAl.AL v. KASTURLAL NAGINDAS DOSHI, 36E.L.R. 188.
S. 25—Conduct of Elections Rules, 1961—Change of Polling Station—duty to give prior intimation—result of election must be materially affectedby non-intimation—Burden of Proof—
The petitioner challenged the election of the respondent on the groundsinter alia that the change of polling station without prior intimation to thevoters or the candidates amounted to a violation of the rules andmaterially affected the result of election.
HELD : Dismissing the petition : It was necessary to give prior intima-tion of the change of polling station. But this had not materially affectedresult of the election so far as the respondent was concerned, and it hadnot been proved that the voters were put to disadvantage. The burdenis on the petitioner to establish that the result has been materially affectedby the irregularity and because the burden is heavy and difficult to dischargeit will not justify in any way making it less heavy and less difficult.
Tazuddin Ahmad v. Dhanbam Talukdar A.I.R. 1959 Assam 128; . . . .Vashist Narain Sharma v. Dev Chandra, 1954 A.L.J. 525; Suresh NathKhosla v. Dalip Singh, 1957 Supreme Court Notes 179; referred to. SHY AMLAL v. MANSA DAV AND OTHERS, 37 E.L.R. 67.
—OATH—Indian Oaths Act, 1873 Section 13—irregularity of oathsof witness—whether evidence is admissible.
254 _,
HELD : Under Section 13 of the Indian Oaths Act, the irregularity ofoath affects the credibility of the witness and not the Admissibility of hisevidence.
Rameshar v. The State of Rajasthan, A.I.R. 1952, S.C. 54; referred to.BhRENDRA CHANDRA DUTTA v. / . K. CHOUDHURY, 38 E.L.R.381.
—Corrupt Practice—Burden of Proof—Whether Section 106 of the Evi-dence Act, 1872 applies.
HELD : Section 106 of the Evidence Act is not applicable in so faras the proof of corrupt practices under the election law is concerned. Theburden of proof cannot be thrown on the successful candidate on theground that the facts are specially within his knowledge. Circumstantialevidence should be of a conclusive nature.
Hanumant Govind v. Stale of Madhya Pradesh, A.I.R. 1952, S.C. 343;Chadalavada Subba Rao v. Kasu Brahmananda Reddy and others, A.I.R.1967, A.P. 155; referred to. BIRENDRA CHANDRA DUTTA v. / . K.CHOWDHURY, 38 E.L.R. 381.
—S. 154, Evidence Act—Evidence—cross-axamination, right of—Peti-tioner citing as witness persons against whom allegations made in the peti-tion—right to cross-examine such witnesses—Evidence Act. s, 154.
HELD : When in an election petition the petitioner cites as a witnessa person, who, he knows, cannot be expected to support his case, or deposefully in favour of his case, he must be regarded as taking a chance ofsecuring some favourable answers from the witness. The mere fact thatsuch a witness makes an answer adverse to the case of the petitioner whohas cited him is not sufficient ground to grant permission, nnder s. 154 ofthe Evidence Act to the petitioner to cross-examine such a witness.ISHVARAPPA SIDNIGAPPA GHATTARKI v. PAMPAKAVI ROYYAP-PA VELGALI 39 E.L.R. 120.
—Burden of proof—Election Petition—Corrupt Practice under section123(4)—SEE CORRUPT PRACTICE—PUBLISHING FALSE STATEMENTS—GIRINDRA NATH GOGOI v. PROMODE CHANDRA GOGGOI ANDOTHERS, 39 E.L.R. 319.
Evidence Act, s. 165— of witnesses in the nature of accomplices—valueof—SEE CORRUPT PRACTICE—BRIBERY—ANANT RAM MAJHI v.KOLAKA NILA KANTHAM (S.C.), 39 E.L.R. 359.
—S.100(I) (d)(iv)—Election petitioner to prove that election resultmaterially affected—Evidence of witnesses, evaluation.
255
In the election to Parliament from the Outer Manipur Constituencywhich had 2,19,554 voters, 1,20,008 votes were polled, of which 4,168votes were declared invalid. The appellant won the election by securinga majority of 1,541 votes over the next candidate—the first respondent.The latter challenged the appellant's election by a petition on the groundthat the polling was disturbed as the polling centres were in some caseschanged without due notification, at some polling stations almost novotes were cast because of firing at rioters and at some polling stations thepolling hours were reduced; only 1.894 votes were polled at these pollingbooths, in which the total number of voters attached were 8,620; accord-ingly, some 6,726 voters could not vote. The Judicial Commissionerordered a fresh poll in these polling stations. Allowing an appeal to theSupreme Court by the returned candidate,
HELD : The decision of the Judicial Commissioner that the electionwas in contravention of the Act and the Rules was correct in the circum-stances of this case but that did not alter the position with regard to s.100(1) (d) (iv) of the Representation of the People Act. That sectionrequires that the election petitioner must go a little further and prove thatthe result of the election had been materially affected. In the presentcase this burden had not been discharged.
The evidence which had been brought by the election petitioner wasthe kind of evidence which was criticised by this Court. Witnesses werebrought forward to state that a number of voters did not vote because ofthe change of venue or because of firing and that they had already decidedto vote en bloc for the election petitioner. This kind of evidence wasmerely an asertion on the part of a witness, who could not speak for 500voters for the simple reason that as this Court said the casting of votes atan election depends upon a variety of factors and it is not possible foranyone to predict how many or which proportion of votes will go toone or the other candidates. This conclusion is further fortified if oneexamines the polling pattern in this election. Not more than 55% of thevoters cast their votes. This immediately cuts down the figure of 6,726to a little over half and the margin from which the election petitionercould claim additional votes therefore becomes exceedingly small. Fromthe pattern of voting as was disclosed at the various polling booths towhich the voters had gone, it was clear, that 1,541 votes could not, by anyreasonable guess, have been taken off from the lead of the returnedcandidate so as to make the election petitioner successful. In so far as theother contesting candidates were concerned, they had received so few votesthat even if they had received all the votes that had not been cast, it wouldhave mattered little to the result of the election. The Judicial Commis-
256
sioner reached his conclusion by committing the same error which was cri-ticised in Vashist Narain Skarma's case. He took the statement of wit-ness at their word and held on the basis of these statements that all thevotes that had not been cast would have gone to the election petitioner.
Vashist Narain Sharma v. Dev Chandra and Ors., (1955) 1 S.C.R.509; referred to. PAKOAI HAOKIP v. RISHANG AND OTHERS, 39E.L.R. 431 (S.C.).
—Election petition—trial of Trial calling witnesses and examiningdocuments suo moto—// empowered to do so—See Corrupt Practice—Hiring or procuring vehicles. R. M. SESHADARI v. G. VASANTA PAl(S.C.), 40E.L.R. 303.
—Evidence—Sufficiency of—to establish corrupt practice. SEE—COR-RUPT PRACTICE—GENERAL PRINCIPLES—SECTION 123—CHUNILAL
SINGH UKKAD SINGH RAGHUVANSHI v. GAJADHAR AND OTH-ERS, (S.C.), 40 E.L.R. 339.
S. 123—Corrupt practice—Evidence—Sufficiency of—to establishcorrupt practice.
The High Court allowed the election petition filed by the respondentchallenging the election of the appellant, holding the appellant guilty of thecommission of three corrupt practices, namely ( l ) ' o f bribery (2) publish-ing a pamphlet attacking the personal character and conduct of the electionpetitioner and (3) exercising undue influence on Muslim voters by holdingout threats to certain leaders of the community. In the Supreme Courtthe respondent attacked the judgement of the High Court on three otherpoints decided in favour of the appellant, namely (1) Commission ofcorrupt practice by conveyance of voters in motor cars on the date ofelection; (2) incurring expenses exceeding Rs. 8,000, the limit fixed inrespect of the constituency and (3) promoting feeling of enmity and hatredbetween the Bangra community to which the petitioner belonged and votersbelonging to other castes. Allowing the appeal,
HELD: (i) On the evidence, the finding of the High Court that theappellant committed the corrupt practice of bribery cannot be upheld.
Hi) The pamphlet on the fact of it bears no reference of the electionpetitioner and could not be described as derogatory to the petitioner'scharacter. The subject of criticism and ridicule in immoderate terms wasthe Congress Organisation and not an individual.
(iii) The election was held on the 15th February when votes werecast. It is impossible to believe that the leaders of the Muslim community
257
of about 5,000 would be summoned only a few hours before the com-mencement of the election and given a threat in the way suggested.
(iv) The evidence establishes that vehicles were used for conveyanceof voters but there was no pleading in the petition nor was there any evi-dence to show that voters had been carried to polling booths free of anycharge or cost to them. Therefore it is not possible to hold that thecommission of a corrupt practice within the meaning of s. 123(5) hasbeen established.
(v) Taking into account all the evidence adduced it cannot be heldthat the appellant exceeded the limit of Rs. 8,000. Consequently he cannotbe held to have committed a corrupt practice in terms of s. 77(3) readwith s. 123(6) of the Act.
(vi) There is no reason to disagree with the finding of the trial Judgethat there was no evidence to prove that the appellant promoted feelingsof enmity between the Bangra Community and voters belonging to othercastes. CHUNILAL SINGH UKHAD SINGH RAGVANSHI v. GAJA-DHAR AND OTHERS (S.C.), 40 E.L.R. 339.
—Evidence—oral—appreciation of—
HELD : When political passions run high, a Court has to be on guardagainst partisan witnesses on either side exaggerating and super-adding tothe statements that might have been made. It does not mean that evi-dence of a witness belonging to a political party opposed to the one de-posed against should be rejected; but caution is necessary, more or lessof it depending upon the low or high status of the witness, and his charac-ter as indicated in the evidence- CHIRANJIV LAL HARSOLA v. MOHANLAL SETHIA, 40 E.L.R. 373.
Ss. 123(2) (a)(ii) (3) (3-A), (7)—Corrupt practice—Burden ofProof—Assessment of evidence in election trials—Failure of a candidateto lead evidence which was available to rebut the allegations—Effect of—Whether adverse inference can be drawn against the candidate.
The respondent filed an election petition challenging the election ofthe appellant to the Andhra Pradesh Legislative Assembly alleging thatvarious corrupt practices had been committed by the appellant and that hiselection should be held void. The High Court set aside the election of theappellant on the ground that it had been proved that the appellant hadcommitted corrupt practices under s. 123(2) (a) (ii), (3), (3-A) and (7),of appealing to Muslim voters on grounds of religion at a dinner party anddistribution of an impugned pamphlet and seeking the assistance of Govt.servants to canvass votes for him at a free medical aid Camp at Tandur
4 EC 74—20
258
on 5-2-1967. Aggrieved by this decision, the appellant filed this appealin the Supreme Court.
The appellant contended that the High Court had not appreciatedproperly the evidence adduced by him denying the allegations of corruptpractices alleged in the election petition. He further contended that hedid not inaugurate the free medical camp at Tandur and no canvassingfor votes on his behalf was done by the officers of the camp. Itwas also averred by the appellant that his alleged appeal to Muslim voterson the basis of religion at a dinner party was false.
HELD: Dismissing the appeal: The trial of an election petition on thecharge of a corrupt practice partakes of the nature of a criminal trial andthe finding must not be based on balance of probabilities but on direct andcogent evidence to support it. Further, the candidate charged witth corruptpractice invariably leads evidence to prove his denial and it becomes theduty of the court to weigh the two versions and come to a conclusion. Inthe instant case the respondent-petitioner had proved that a dinner washosted by a supporter of the appellant on 19th January, 1967, which wasattended by a large number of invitees and mostly by Muslim "GaoKhasabs", the Chief Guests being the appellant and his supporters. Afterthe dinner the host addressed the gathering saying that the electioa peti-tioner was a viper and an arch enemy of Tslam and Muslims and if theMuslims voted for him they would incur the displeasure of Allah and hisProphet. Furher, that the petitioner was an Arya Samajist and a leaderof anti-cow-slaughter. Thereafter the appellant also spoke to the gather-ing, thanking the host for arranging the dinner and supported his speechand appealed for votes. Further, that the evidence led by the respondentpetitioner was a consistent version of what took place at the dinner follow-ed by the meeting and speeches and the distribution of the impugned pam-phlet. There is a substantial ring of truth in the evidence given by thepetitioner's witnesses, and no cogent reason or ground has been shownby the appellant to reject their testimony. Further, the failure of theappellant to examine the host and other important persons who attendedthe party given in the list of witnesses furnished by the appellant, and todeny the allegations against him, was a serious infirmity in the plea of theappellant The only reasonable inference to draw, therefore, was that ifthese witness had come to give evidence, they would not have supportedthe appellant. Such an inference can be drawn against a party who doesnot call evidence which should be available in support of his version. Inthe circumstances the High Court had rightly held that appellant wasliable for corrupt practice under s. 123(2) (a) (ii), (3) and (3-A) of theAct.
259
HELD further, that the allegation that the appellant procured or obtain-ed the services of Govt. Medical Officer to canvass votes for him by orga-nising a tree medical aid camp on 5-3-1967 at Tandur and that he inaugu-rated the Camp had not been proved, even though there was a medicalcamp on that day to give free medical aid to the public at Tandur. Fur-ther, strangely, both the appellant and the respondent had failed to adduceevidence of prominent persons of the town to give their versions of theinauguration of the Camp and what took place thereafter. The evidenceof the appellant also did not create a favourable impression of his plea.It had also not been proved that the doctors who attended the Camp wereunder such an unholy influence of the appellant that they would speak inavour of his candidature and tell each and everyone of the participantswho attended that they should vote for the appellant. On the basis ofevidence on record it had not been proved that the appellant was liable forcorrupt practice within the meaning of s. 123(7) of the Act- M. CHENNAREDDY v. V. JRAMACHANDRA RAO AND ANOTHER, (S.C.), 40E. L. R. 390.
—Section 123(1)—Corrupt practice—Bribery—Burden of proof—evi-dence to pass the normal tests to bring home charge of corrupt practiceagainst a returned candidate, SEE CORRUPT PRACTICE—BRIBERY—HUN AMAL AND ANOTHER v. BALWANT RAI TAYAL, 40 E.L.R. 444.
—Evidence—condition to be satisfied when circumstantial evidence is re-lied upon to prove corrupt practice.
Dismissing an appeal to the Supreme Court, HELD: A charge ofcorrupt practice is in the nature of a criminal charge and its consequence isnot only to render the election of the returned candidate void but in somecases to impose upon him a disqualification. The evidence in support ofsuch practices must therefore, be cogent and definite and if the electionpetitioner, has to succeed be must establish definitely to the satisfaction ofthe limit the charge be levels against the returned candidate. Where, how-ever, the charge is one of complicity in such corrupt practices, directevidence cannot always be expected and in such cases circumstantial evi-dence can also furnish legitimate proof. In such cases, however, thecircumstances relied on must be definitely proved and the inferences soughtto be drawn from them must point definitely to the complicity of the per-son against whom the charge is levelled.
Mohan Singh v. Bhanwarlal, 1964(5) S.C.R. 12; Jagdeo Singh Sin-dhanti v. Pratap Singh Daulta 1964(6) S.C.R. 750; D. Gopala Reddy v.Bai Talpalikar, 39 E.L.R. (S.C.) 305; 1968; Rama Kishan v. Jai Singh37 E.L.R. S.C. 217; decided on April 23, 1968; referred to. LALROUKUNGv. HAOKHOLAL THANGJOM & ANOTHER (S.C.), <H E.L.R. 35.
?> 260
—Ss, 123 (2)(a)(ii), 100(1) (d) (iv)—Corrupt practice—Proof of—participants in the illegal act give evidence—no independent corroboration—effect of.
HELD : The witnesses who spoke regarding the payment of moneyto the voter were manifestly participants in that illegal act and therefore un-less there was some independent corroboration of their evidence, it was notpossible to place reliance thereon. PT. SHREE KRISHANA SELOT v.SHRI RAM CHARAN PUJARl (S.C.), 41 E.L.R. 50.
—Evidence Act, 1872 s. 160—Reports of Police officers made fromnotes taken down at meetings—// admissible—weight to be attached to suchreports.
HELD : (1) The reports of the Police Officers were properly used unders. 160 of the Evidence Act, 1872, and were admissible in evidence. Beforethe written reports could be used under s. 160 of the Evidence Act, two con-ditions had to be satisfied :
(a) that the witness has no specific recollection of the facts them-selves; and (b) the witness says that he is sure that the factswere correctly recorded in the document. It is not necessarythat the witness should specifically state that he has no specificrecollection of the facts and that he is sure that the facts werecorrectly recorded in the document before the document canbe used under s. 160. It is enough if it appears from the evidence of the witness that those conditions are established.
In the present case the witnesses were giving their testimony in Courtafter the lapse of 9 months after the speeches were made and it is implicitthat they could have no specific recollection of the speeches, especially whenthey attended and reported many similar meetings as part of their dutyduring the election campaign. It could therefore be implied from the cir-cumstances that the conditions of s. 160 were satisfied. The second require-ment is also satisfied because, the witnesses made notes on the spot and madeout reports from those notes when the speeches were fresh in their memory.The reports are, strictly, not substantive evidence as such and could only beused as part of the oral evidence on oath. The reports should thereforehave been read out in court and not marked as exhibits. But the practiceof making such a report as an exhibit is well established and avoids theuseless formal ceremony of reading it out as part of the oral evidence.
Wigmore on Evidence (Third Edition), Vol. Ill, PP. 97-98;
Mylapore Krishnaswami v. Emperor, 32 Mad. 384. 395;and
261
Mohan Singh Laxman Singh v. Bhanwarlal Rajmal Nahata, A.I.R. 1964M.P. 137, 146, referred to.
Public Prosecutor v. Venkatarama Naidu, I.L.R. (1944) Mad. 113;approved.
Jagannath v. Emporer A.I.R. 1932 Lahore 7; & Sodhi Pindi Das v.Emperor, A.I.R. 1938 Lahore 629; disapproved-
(2) While it is true that the exact words spoken by Shambhu Maha-raj were not taken down by the various police constables, the reports hada remarkable similarity of approach, appeal and attack on the Congressparty; and in those circumstances it must be held that the police constablescorrectly reproduced the substance of the speeches. It is not necessarythat the exact words must be reproduced before a speech can be held toamount to corrupt practice.
KANTI PRASAD JAYASHANKAR YAGNIK v. PURSHOTTAM-DASS RANCHODDAS AND OTHERS (S.C.) 41 E.L.R. 132.
—Ss. 123(3), (4), (5) and 100—Corrupt practice—Proof—-Similar tocriminal charges—No conclusive proof of corrupt practice—whether elec-tion can be set aside on probabilities.
The first respondent was declared elected to the Haryana LegislativeAssembly in the mid-term election held in 1968. The petitioner sought tohave his election declared void and prayed that the first respondent shouldbe disqualified from contesting elections having committed corrupt prac-tices Viz. (1) that his agent with his consent and connivance had printedand published posters before the polling day derogatory of the person ofthe petitioner and appealing for votes on the basis of caste; and (2) thatthe electors were carried from the village to the polling stations and backin trucks and made to vote for him. Dismissing the petition,
HELD: The charges of corrupt practices in an election petition arecharges similar to criminal charges and cogent evidence is needed tosustain them. It is not possible to decide election cases on mere prepon-derance of probabilities. As the evidence in the present case falls short ofproving that the posters in question were really issued before the pollingdate the election cannot be set aside for corrupt practice on grounds envis-aged under Section 123(3) and (4) of the Act.
NIHAL SINGH v. RAO BIRENDRA SINGH AND OTHER, 41E.L.R. 199.
262
—Proof—statements in newspapers weight of—requirement of proofthat remit of election was materially affected—Burden of proof—SeeCorrupt practice—Publication of false statements—
SAMANT N. BALANKRISHNA ETC. v. GEORGE FERNANDEZ &OTHERS, (S.C.) 41 E.L.R. 260.
—Evidence—Authorship of documents—proof of s. 123(6)—A gen?.
HELD: "The authorship" of a document can be proved by direct andindirect evidence and in appropriate cases even without proving the sig-natures. In considering the authorship of a document on mere proof ofsignatures on the document a proper conclusion can be arrived at havingregard to the facts and the circumstances, such as (a) the nature and con-tents of the document; (b) existence or otherwise of a controversy as tothe particular parties of a document being in the nature of interpolationsand (c) total denial or qualified denial on the part oi' the poison allegedto have signed the document.
The contents of the documents being generally hearsay evidence shouldnot ordinarily be admitted in evidence, but when it becomes substantiveevidence, having regard to the various provisions of the Evidence Act, itmay be admitted in evidence.
l a the present case the various letters and documents containing thestatements of persons may be in the nature of their declarations or verbalacts explaining the election campaign on behalf of the respondent whichcan be taken as one transaction. These previous statements may be re-levant to explain the various events in connection with the transaction, andthe statements of either the respondent or the persons acting as his agentshaving some bearing on facts in issue and relevant facts, may be admissiblein evidence.
Madho Lai Sindhu V. Asian Assurance, A.I.R. 1954 Bombay 305;—Laxmapat Choraria v. State of Maharashtra; A-I.R. 1968 S.C. 938;—Mohd. Yusuf v. D and another; A.I.R. 1968 Bom. 112;—Union ofIndia v. H. C. Goel, A.I.R. 1964 S.C. 364;--Nalhulal v. Durga Prasad,A.I.R. 1954 S.C. 355; referred to.
MAGRAJ v. RADHA KRISHAN BIRLA AND OTHERS, 41 E.L.R.296.
Representation of the People Act, 1951, Ss- 77, 123 (1) , (4) , (5)and (6)—Corrupt practice—Burden of proof—Election Procedure—natureof trial.
263
HELD: The trial of an election petition on the charge of commissionof corrupt practice is different from a criminal trial. The essential Civilnature of the trial and the applicability of relevent provisions of the Evi-dence Act including the rules relating to presumptions cannot be lost sightof.
Dr. M. Chenna Reddi v. Ramachandra Rao, C.A. 4449 of 1968 dt.17-2-1968 (S.C.); R. M. Seshadri v. G. Vasantha Pai, C.A. 1519 of 1968(S.C.); referred to.
MAGRAJ v. RADHA KRISHAN BIRLA AND OTHERS, 41 E.L.R.296.
—Relationship of Candidate and Agent not common law relation ofPrincipal and agent—see Agency.
MAGRAJ v. RADHA KRISHAN BIRLA AND OTHERS, 41 E.L.R.296.
—"Consent" requirements of.
HELD: On the evidence the corrupt practices alleged against the res-pondent and others were not proved. Also, there was no evidence toshow that the respondent had anythingg to do with the alleged unlawfulacts. "Consent" cannot be inferred from knowledge alone. The law re-quires concrete proof, direct or circumstantial, of consent, and not merelyto "knowledge and connivance". Samant N. Balakrishna v. GeorgeFernandez, 41 E.L.R. 260 (S.C.).
R. THIRUMALAI KUMAR v. KATHIRAVAN ALIAS SHEMSHU-DDIN, 42 E.L.R. 161.
-^-Representation of the People Act, 1951, Ss. 123, 127, Corrupt Prac-tice—proof of.
FIELD : The proceedings involving corrupt practices are quasi-criminalin nature and it is for the appellant to prove beyond doubt all the necessaryfacts which would establish the commission of corrupt practices that havebeen alleged in the election petition. The fact that a candidate functionedas the Chief Editor of a paper printed in a Press would barely be sufficientto establish that he was the owner of the Press as well. In the absence ofany other evidence the fact that the pamphlets and hand bills amounting tocorrupt practices were printed in such a press alone would not be enoughto hold that they were printed and distributed with the consent of the candi-date or his election agents. Absence of a copy in the file of the Collector,
264
kept under Section 127 of the Act, would not go to show that the candi-date in whose favour the pamphlets were issued was responsible for theirpublication and thereby committed corrupt practice under the Act..
DEVIPRASAD v. MALURAM, 41 E.L.R. 335 (S.C.).
—Corrupt practice—Burden of proof—Law Reform—Disqualificationof persons leading false and fabricated evidence.—HELD : Onthe evidence the allegations of corrupt practice had not beenproved. The burden of proving that the election of a successful candidateis liable to be set aside on the plea that he was responsible directly orthrough his agents for corrupt practices lies heavily upon the applicant andunless it is established in both its branches, i.e. the commission of actswhich the law regards as corrupt, and the responsibility of the successfulcandidate directly or through his agents or with his consent for their Com-mission not by mere preponderence of probability but by cogent and reliableevidence beyond any reasonable doubt, the petition must fail. Jagdev SinghSidhanti v. Pratap Singh Daulta, A.I.R. 1965 S.C 183; referred to. (Thecourt suggested that a party to an election petition who, whether successfulor unsuccessful, leads false and fabricated evidence in the case should bedisqualified in the same manner as a person who is guilty of corrupt practice.The court recommended that a provision to this effect should be made inthe Representation of the People Act.) DAL SINGH v. NARAIN SINGHAND ANR. 42, E.L.R. 192.
Jammu and Kashmir Representation of the People Act, Ss. 9l(b), 108,132(7)—Allegations of corrupt practice—vagueness—corrupt practice—Burden of Proof—
HELD : The court undoubtedly has power to permit amendment of theSchedule of corrupt practices by permitting the furnishing of better particu-lars but there was no duty cast upon it to direct suo motu the furnishing ofbetter particulars. The primary responsibility is on the petitioners. In thepresent case the petitioner did not avail himself of the opportunity to supplybetter particulars of the alleged corrupt practices. But on this score alonethe petition is not to be dismissed. Bhikaji Keshav Joshi v. Brijlal NandlalBiyani, A.I.R. 1965 S.C. 610; referred to. SATYA PAUL v. SHRI PARMA-NAND, 42 E.L.R. 298.
—Evidence Act s. 45—Expert evidence—Court must assess and formits own conclusion—HELD : It is rare for two experts to agree in cases ofdisputed signature. The Court has to arrive at its conclusion in the lightof the entire evidence. The signature of respondent no. 1 on the manuscriptof Exhibit P.W. 1/1 was sufficiently proved by the evidence of witnesson record. OM PRAKASH v. LALCHAND AND ANOTHER, (S.C.),42 E.L.R. 336.
265
- —Corrupt Practice—Nature and burden of proof—
HELD : There is no truth in the allegation that Respondent No. 1 andhis agents used vehicles for" the purpose of transporting the voters. There isno evidence to show that Respondent No. 1 used undue influence on anyvoter or was guilty of the corrupt practice of bribery. The burden of proofof an allegation of corrupt practice is always on the petitioner and it nevershifts, but if he adduces sufficient evidence the onus of adducing evidenceof rebuttal shifts on the other side. The standard of proof for decidingwhether the petitioner has led sufficient evidence or not must be one re-quired in criminal cases, that is, the allegations must be proved beyondreasonable doubt.
A. Raghavamma and another v. Chenchamma and another, A.I.R.1964 Supreme Court 136, Brij Mohan Singh v- Priya Brat Narain Sinha,and others, A.l.R. 1965 S.C. 282; Sheopal Singh v. Ram Pratap, A.LR.1965 S.C. 677; and T. K. Gangi Reddi v. N. C. Anjanaya Reddy, 22 E.L.R.261; referred to. PHANINDRA NATH SUR v. PURNENDU NARAINSINGH AND OTHERS, 42 E.L.R. 429.
ELECTION PETITION—(10. SUPPLY OF COPIES)
—Supply of copies—Annexures to Election Petition, Supply of, to the
respondent—Section 81(3)—What amounts to non-complinance with.
The respondent raised preliminary objections (i) that although in thepetition as amended the petition referred to a telegram and also averred thatcopies of the same were being filed, no such copy of the telegram was sup-plied to the respondent and (ii) that the copies of the alleged faked ballotpaper to which reference was made by the petitioner were not supplied tothe respondent and these amounted to violation of Section 81(3) of theRepresentation of the People Act, 1951 ; consequently the petition was notproperly presented and ought to be dismissed on that account.
HELD : The petitioner had failed to establish the corrupt practicesalleged by him.
There was no non-compliance with Section 81(3) because of the peti-tioner's failure to file copies of telegrams- Even if no mention had beenmade in the petition that the copies of the telegrams were being filed thepetition would not have been rendered materially defective or incomplete.Nor can it be said that copies of telegrams constituted annexure or scheduleto the petition so that the petition as well as copies thereof if unaccompaniedby such copies of the telegram would be materialy incomplete. In the pre-sent case the material contents of the telegram were mentioned in the aver-ment. Similarly, the petitioner clearly indicated in the petition what thefaked ballot paper contained and it cannot be said that those allegations
266
were so materially incomplete as to prevent the respondent from meetingthose allegations.
Amin Lai v. Hunna Mai, A.l.R. 1965 S.C. 1245; Ramashankar v. JugalKishore, Election Petition 36 of 1967 dated 26-7-1967 (M.P.); MurarkaRadhey Shy am v. Roop Singh, A.l.R. 1964 S.C. 1545; referred to. HARIVISHNU KAMATH v. CHAUDHARY NITkRAJ SINGH, 36 E.L.R. 356.
—Presumption under—Evidence Act, Section 81.
HELD : A plain reading of s. 81 of the Evidence Act indicates that pre-sumption has to be drawn about the genuineness of a newspaper meaningthereby that it is the copy of a newspaper of a particular name and that itwas issued from that newspaper or journal. No presumption under s. 81 canbe made about the correctness of a particular news item unless the personwho sent the news item to the press was examined to prove the source fromwhich he got it and unless it was established that the source was such whichcould be relied upon. B- P. MAURIYA v. PRAKASH VIR SHASTRI,37 E.L.R. 137.
—Copy of Petition to respondent not endorsed as "true copy"—-Whetherinfringes section 81(3).
HELD: As the petitioner signed the copy of the petition served uponthe respondent, the petition was not liable to be dismissed, though therewas no endorsement of "True Copy" on the petition, under Section 81(3)of the Act.
Murarka Radhey Shy am Ram Kumar v. Rup Singh Rathore and others,AIM. 1964, S.C. 1027; Dr. Anup Singh v. Abdul Gani and Shri LachmanSingh, A.l.R. 1965, S.C. 815; Ch Subbarao v. Member, Election TribunalHyderabad and others, A.l.R. 1964, S.C. referred to. BIRENDRACHANDRA DUTTA v. /. K. CHOWDHURY, 38 E.L.R. 381.
—Copies for the respondent not attested, by petitioner—Attested copiesnot filed before the period of limitation—Whether defect fatal—Whethersection 81(3) mandatory.
HELD : When the election petition was filed, the copies of the petitionmeant tor the respondent were not duly attested by the petitioner to betrue copies and the defect was noted when the period of limitation hadalready expired. This was a fatal defect in the election petition onaccount of non-compliance with the mandatory provision of section 81(3)of the Act.
267
Ch. Subbarai v. Member, Election Tribunal, Hyderabad, A.I.R. 1964,S.C. 1027;
Murarka Radhey Shyam Kumar v. Roop Singh Rathor and others,A.I.R. 1964, S.C. 1545 ;
C. P. Sinha v. /. P. Mahton, I.L.R. 30 Patna 1237 ;
Raja Ram Sahu v. Brijraj Bahadur, I.L.R. 38, Patna 59 ; referred to.PRIYA GUPTA v. ABRAR AHMAD AND OTHERS, 39 E.L.R. 248.
S. 81(3) — Election Petition—attested copies—substantial compliancesufficient.
The respondent raised the preliminary objections that, (i) the electionpetition was not accompanied by as many copies as there were respondents,duly attested'by the petitioner as required by Section 81(3) and therefore,was liable to be dismissed under Section 86(1) ; and (it) the petition wastime-barred.
HELD : There was substantial compliance with the provisions of sub-section (3) of Section 81. Although the words "attested as true copy"were not to be found on any page or even at the end of the petition,the purpose of putting the signature on every page of the copy, whichwas a carbon copy, was by way of attestation. Such provisions of laware noi very strictly construed, but what has to be seen is whether thereis substantial compliance with the provision.
Ch. Subba Rao. v. Election Tribunal, A.I.R. 1964 S.C. 1027; MurarkaRadhey Shyam v. Roop Singh Rattore, A.I.R. 1964 S.C. 1545 ; AnupSingh v. Abdul Ghani, A.I.R. 1965 S.C. 815; referred to. BISHAMBARDAY Ah v. RAJ RAJESHWAR AND ANOTHER, 39 E.L.R. 363.
—Section 81(3), $6(1)—Election petition—Supply of true copies—Substantial discrepancies in copies—Petition liable to be dismissed—Section mandatory—"Copy" meaning of.
The respondent took a preliminary objection that there had been non-compliance with the provisions of S. 81(3) of a substantial character, andas-such the petition had to be summarily dismissed under S. 86(1) of theAct of 1951. Tt was stated that the copy which was served upon the res-pondent was not a true copy of the election petition as contemplated bySection 81(3) though attested as such by the petitioner under his ownsignature.
268
HELD : (i) The election petition was liable to be dismissed underS. 86(1) as it did not comply with mandatory provisions of S. 81 of the Actof 1951.
A "copy within the meaning of S. 81(3) need not necessarily be anexact copy and may be accepted as true copy so long as any error oromission therein is merely clerical and of such a nature that nobody wouldbe misled thereby.
In the present case the two discrepancies pertaining to Annexure C.of the Election Petition were on vital matters and going by the copy onlyan ordinary person was bound to be misled with regard to both these parti-culars of the alleged corrupt practice.
The purpose of the amendment in 1961 is that if the copies of the elec-tion petition served upon the respondents are not true copies of the origi-nal, then the responsibility for this defect lay squarely upon the electionpetitioner, there being no duty on the respondents to make enquiries inorder to satisfy themselves whether the copies supplied to them are truecopies or not; Reading the provisions of S. 86(1) in this light, it is mani-fest that a substantial non-compliance of the requirements of S. 81(3) isa fatal defect which has to be visited with the penalty indicated in S. 86(1)of the Act of 1951. The word "shall" used in sub-section (3) of S. 81 isreally intended to be mandatory and not directory. And any considerationof the question of prejudice is out of place in view of the peremptory provi-sions of S. 81(3) and S. 86(1) of the Act of 1961.
Murarka Radhey Shy am v. Roop Singh Rathore, A.I.R. 1964 S.C.1545; Dr. Lakhi Pradesh Agarwal v. Shri Nathmal Dokania, 33 E.L.R.300; Priya Gupta v. Abrar Ahmad, 39 E.L.R. 249 Mohan Raj v. SurendraKumar, 39 E.L.R. 423 (S.C.); Chaudhury Subba Rao v. Member ElectionTribunal, A.I.R. 1964 S.C. 1087; 26 E.L.R. 1(S.C.) distinguished.JAGAT KRISHORE PRASAD NARAIN SINGH v. RAJENDRA KUMARPODDAR, 42 E.L.R. 231
ELECTION PETITION—[11. MISCELLANEOUS MATTERS—(COSTS)]
S. 119—Election petition—Costs, Award of,—
HELD : An unsuccessful candidate at the election who supported thepetitioner at the trial is liable to pay the costs along with the petitioner,in case the petition is dismissed, if on the facts and evidence of the case,it has been proved that it was the second respondent who decided toadopt legal proceedings for challenging the election of the first respondent.Therefore, both the petitioner and the second respondent were liable to
269
pay the costs of the first respondent. SAMANT NILKANT BALKRISHNAv. GEORGE FERNANDES AND ORS., 35 E.L.R. 259.
—Ss. 98 and 119—Election Petition—Subsequent Presidential proclama-tion dissolving Legislative Assembly—Whether petition becomes infruc-tuous—// respondent entitled to costs.
The petitioner was prosecuting the election petition diligently. Mean-while a new situation was created by a Presidential proclamation underArticle 356(1) (a) of the Constitution dissolving the U.P. Assembly, (nview of that situation the petitioner contended that the petition had becomeinfructuous. He accordingly prayed that the petition might be dropped andthe parties left to bear their own costs. The respondent contended thatunder S. 98 (a) of the Act, 1951 the Court should make an orderdismissing the election petition and under the proviso to S. 119 of the Actaward costs in favour of the contesting respondent.
HELD : That in the circumstances no order under S. 98 (a) purportingto dismiss the election petition could be passed in this case. An orderdropping the election petition as having become infructuous will thereforehave to be passed by the Court in exercise of its inherent powers. Bearingin mind provisions of S. 119 of the Act it would be only fair if partieswere left to bear their respective costs.
Carter v. Mills (1874) L.R. 9 C.P. 117; Marshall v. James (1974)L. R. 9 C.P. 702; referred to. NATHOO RAM v. SIYA RAM ANDOTHERS, 37 E.L.R. 210.
ELECTION TRIBUNAL
—Election petition—Applicability of Order 9, r. 9. Code of Civil Proce-dure 1908—Election Tribunal—// had power to dismiss election petitionfor default of petitioner's appearance.
On the question whether the Election Tribunal, while hearing an elec-tion petition, had the power to dismiss the election petition under Order 9,Rule 8, of the Civil Procedure Code for default of appearance of the elec-tion petitioner and also to restore it in a proper case under Order 9, Rule 9of the same Code.
HELD : Per Bishambhar Dayal, J. : It is necessary to go into thequestion of law raised particularly as the Tribunals have now been abolishedand such a question will not crop up in future.
27@
Per Satish Chandra, J. ;
Order IX and XVII of the Code of Civil Procedure are applicable tothe trial of an election petition both under Section 90(1) as well as Sec-tion 92(e) of the Representation of the People Act. Sections 109 to 115of the Act apply only in the case of withdrawal or abatement. They donot apply to a dismissal for default. The Election Tribunal had the powerto dismiss the petition for default of appearance of the election petitioner.It could in its discretion adjourn the hearing or dismiss the petition fordefault of appearance.
Harish Chandra Bajpai v. Triloki Singh, A.I.R. 1957 S.C. 444; Jagnathv. Jaswant Singh, A.I.R. 1954 S.C. 210; Chandrika Prasad Tripathi v. ShivPrasad Champuria, A.I.R. 1959 S.C. 827; Om Prahha Jain v. Gian ChandA.I.R. 1959 S.C. 837; Sundralal v. Nandramdas, A.I.R. 1958 M.P. 192:referred to.
Per Lokur, J.;
The better view is that the election petition ought to be dismissed ifthe petitioner remains absent on the date of its hearing. If however thetribunal dismisses the petition on merits the dismissal would remain in lawa dismissal for default of the petitioner's appearance. The petitioner willthen be at liberty either to approach the tribunal to get the order of dis-missal set aside or to go in appeal to the High Court. If he chooses thelatter course, he must, to get relief, satisfy the High Court that he hadsufficient cause to be absent on the date of hearing.
Harish Chandra v- Triloki Singh, A.I.R. 1957 S.C. 444; Ino.matiMallappa v. Desai Basavraj, A.I.R. 1958 S.C. 698; referred to. DURYO-DHAN v. SITA RAM, 40 E.L.R. 215.
ELECTORAL ROLL
—Nomination—Presumption—Electoral Roll—Evidence Act, 1867—-s.114 Illustration—(e)—Representation of the People Act, 1951 s, 33(5) —Returning Officer accepting document without objection.
HELD : Under S. 114 illustration (e) of the Evidence Act, there isa presumption that official acts have been regularly performed. The actof the Returning Officer in accepting the respondent's nomination withoutany objection either from him or from the contesting candidates leads to
271 ••*
an irresistible conclusion that the respondent had produced at the time ofscrutiny of the documents required to be produced under S. 33(5).
Ranjit Singh v. Pritam Singh & Ors., A.I.R. 1966 S.C. 1626; referredto. HARBHAJAN SINGH v. SAGAH SINGH SISODIYA, 34 E.L.R, 221.
—Electoral roll—Section 33(5)—."Produced" if synonymous with"filed".
HELD : (1) While it was conclusively established that the nominationpapers filed by the respondent were not accompanied by such a documentas mentioned in sub-section (5) of S. 33, considering the oral, documentaryand circumstantial evidence, it had to be held that a copy of the documentas required by S. 33(5) was duly produced by the respondent before theReturning Officer at the time of scrutiny; and after verification and check-ing his nomination was duly accepted by the Returning Officer.
(ii) The word "produced" in sub-sec. (5) does not necessarily mean"filed". "Produced" means offered for inspection or consideration orshown. In the present case a document as required by sub-section (5)was actually produced before the Returning Officer and thus there was duecompliance with the requirements of the sub-section. Assuming it wasnecessary for the Returning Officer to have placed this document on recordafter the same was produced by tlio >\ ;.._.. J..,.t l>~iWe him but he did cotdo so, it cannot be said that on account of such a lapse the provisions ofsub-section (5) had not been complied with.
Bant Ram v. Smt. Prasanni A.I.R. 1959 S.C. 93 and Chand Singh v.Shankarlal, XX E.L.R. 63; Vashist Narma v. Dev Chandra and Others,A.I.R. 1954 S.C. 513 and Mahadeo v. Balm Partap Singh and Others,A.I.R. 1966 S.C. 824; referred to. HARBHAJAN SINGH v. SAGARSINGH SISODIYA, 34 E.L.R. 221.
—Non-inclusion of a person in electoral roll, whether can be raised inelection petition,
HELD : The question whether a person has or has not been properlyincluded in the Electoral Roll cannot be agitated in an election petition.DASU SINHA v. RAM LAKH AN S1>NGH YADAV AND OTHERS, 38E.L.R. 177.
—Electoral Roll-Electoral roll in Telugu and Oriya languages—Those inTelugu Roll not in the Oriya Roll—Polling officers relying on Oriya Rolland preventing those in Telegu Roll from voting—propriety of.
272
The respondent was declared elected to the State Legislative Assemblywith a margin of 949 votes. The petitioner challenged the election of therespondent on the grounds that the names of a large number of electorsregistered in the electoral roll published in the Telugu language were notregistered as electors in the Oriya Electoral Roll, that the presiding andpolling officers of all the booths were using only the Oriya Electoral Rolland refused to allow electors registered in the Telugu Electoral roll to casttheir votes, and that this refusal materially affected the result of the election.
HELD : Where electoral rolls are published in two different languagesunder the authority of the Election Commissioner, both the Electoral rollsmust be identical. The electors whose names are registered in the Telugulanguage cannot be refused the right to cast their votes merely becausetheir names did not occur in the corresponding electoral roll in the Oriyalanguage. Before refusing the ballot papers to an elector, it is the duty ofthe Presiding and Polling Officers to overlook mere clerical and printingerrors in an entry in the electoral roll, if he is satisfied that such person isidentical with the elector to whom such entry relates.
In the present case it could not be taken that about 970 voters wouldhave cast their votes if the defects had not occurred in the electoral rolls.From the total votes cast in favour of the petitioner and the respondentthe latter got more than 50 per cent. Even assuming that out of these 970votes the petitioner would have polled 97 per cent he could not have pro-cured 949 votes. Therefore the result of the election could not be saidto have been materially affected.
Vasishtha Narayan v. Devchandra, A.I.R. 1954 S.C. 513; and Mohadeov. Babu Udaya Partap Singh, A.I.R. 1966 S.C. 824; referred to. KOLAKANILAKANTHAM v. ANANTA RAM MAJHI, 34 E.L.R. 212.
—-S. 100(7)—Irregularity in the preparation of electoral roll, if groundfor declaring election void.
The petitioner sought to declare the election of the first respondent voidon the allegations that the electoral registers had not been prepared incompliance with the provisions of the law; that petitions made to the elec-toral registration officer for amending the rolls were rejected on untenablegrounds;
HELD : Section 100(1) of the Act of 1951 does not mention anyirregularity or illegality in the matter of preparation of electoral rolls asconstituting a ground for declaring the election of the returned candidatevoid. MADHAV UPENDRA TALAUL1CAR v. YASH WANT SITA-RAM DESSAI & ORS., 33 E.L.R. 224.
273
—Representation of the People Act, 1950.—Section 30—DelimitationCommission Act, 1962, Section 10—Plea of non-inclusion in voters listand wrong delimitation of constituency—Whether can be raised in an elec-tion Petition.
HELD : A plea of non-inclusion in the voters list nor the question ofdelimitation of a constituency under section 10 of the Delimitation Com-mission Act can be raised in an election petition.
Meghamal Kothari v. Delimitation commission and others, A.I.R.1967, S.C. 669; referred to. BIRENDRA CHANDRA DVTTA v. /. K.CHOUDHURY, 38 E.L.R. 381.
—Ss. 100(1) {d)(iv), 123(2)—Article 14 of the Constitution-Non-Supply of Supplementary list of voter's list to petitioner but the same listsupplied to respondent & his party—Whether attract, Article 14 of theConstitution—Whether election of the respondent materially affected withinthe meaning of Section 100(1) (d) (iv) of the Act. HELD : By the non-supply of the supplementary list of about 32,000 voters to the petitioner andhis party in time by the authorities the petitioner's electoral right of canvas-sing these votes was prejudiced within the meaning of Section 123(2) ofthe Act. As the same list had been supplied to the respondent and hisCongress Party sufficiently before the election, there had,been an invidiousdiscritiiination between the petitioner and the respondent, in contravention ofArticle 14 of the Constitution. Thus the purity of the election was im-perilled and the election of the respondent was materially affected, as themargin of 32822 votes obtaining between the petitioner and respondentpales into insignificance and the respondent's election is void under Section100(1) (d)(iv) of the Act.
M. A. Muthiah Chettiar v. S. Ganesan and another, A.I.R. 1958, Mad.553; referred to. BIRENDRA CHANDRA DVTTA v. /. K. CHOW-DHURY, 38 E.L.R. 381.
Electoral Roll-- S. 33(5)—Compliance with Section 33(5)—Necessityof—Electoral Roll—Nomination. HELD : As the candidate whose nomina-tion paper was rejected was not registered as a voter in the Electoral Rollrelating to Khategaon Constituency, but in a different constituency, under s-33(5) of the Act, he had to produce before the Returning Officer at thetime of scrutiny, a copy of the Electoral Roll of that constituency, or of therelevant part thereof, or a certified cupy of the relevant entry in such Roll,or should have filed any of those documents earlier with his nominationpapers. He did not do any of these things but instead, filed with his nomi-nation paper a certificate giving only a gist of an entry from the ElectoralRoll of the other constituency, and that too from an officer who was not4EC/74—21
274
proved to have the authority to issue a certified copy of the Electoral Roll.The provisions of the section were thus not complied with and the Courthad no power to dispense with the requirement. The rejection of thenomination paper of the candidate was, therefore, justified and the HighCourt erred in holding that it was wrongly rejected : NARBADA PRASADv. CHAGANLAL AND OTHERS, 39 E.L.R. (S.d) 277.
—Representation of the People Act, 1950 s. 23(3) and 27(2)—Electo-ral roll—Inclusion of names in after last date of filing nomination—Validityof votes cast—Section 22(3) // mandatory.
The appellant's election to the Bihar Legislative Council was challengedon the ground that some of the votes cast in his favour were not valid be-cause the names of the voters were included in the electoral roll after thelast date for filing nomination. The High Court set aside the appellant's elec-tion and after counting the valid votes, declared the second respondentelected. Dismissing an appeal to the Supreme Court.
HELD : The legislative mandate like the one embodied in s. 23 sub-s.(3) must be considered as mandatory not merely because of the languageemployed in that sub-section but also in view of the purpose behind theprovision. The sub-section does not deal with any mode or procedure inthe matter of registering the voters. It interdicts the concerned officersfrom interfering with the electoral rolls under the prescribed circumstances.It puts a stop to the power conferred on them. Therefore it is not a ques-tion of irregular exercise of power but a lack of power.
There is no conflict between sub-s. (2) of s. 23 and sub-s. (2) of s. 27because of a fair reading of the various clauses in s. 27(2) will make itclear that it is the electoral roll of a constituency as it stood on the last datefor making the nominations for an election in that constituency that is tobe considered final for the purpose of that election. BAIDYANATH PAN-JIAR v. SITARAM MAHTO AND OTHERS (S.C.) 42 E.L.R. 330.
—Representation of the People Act, 1950 s. 23(3)—Electoral roll—finally of—inclusion of name in—if permissible after date for filing nomina-tions—Section 23(3) if mandatory.
The appellant was elected to the Punjab Legislative Council from thelocal authorities constituency having secured one vote more than the firstrespondent. The first respondent challenged his election on the groundthat a vote caste by one H was void as his name was included in the electo-ral roll after the last date for the filing of nomination in violation of theprovisions of s. 23(3) of the Act. The appellant filed a recriminatory
275
petition contending that the votes of two other persons B and S were simi-larly void as their names were also included in the electoral roll after thelast date for filing nominations. He further alleged that the vote cast byanother voter T, was void as he had become a government servant by thetime the polling took place and therefore was disqualified to be a memberof any local board. The High Court held that the votes of H, B and Swere void and counting the validly cast votes declared the first respondentelected. As on scrutiny it was found that of B and S one of them hadactually cast his first preference vote for the appellant, he contented thatwhen the first respondent had not challenged the validity of those votes thetrial court could not have excluded from consideration the vote cast inhis favour by one of those persons.
HELD : Section 23(3) takes away the power of the electoral regisrta-tion officer or the chief electoral officer to correct the entries in the electoralrolls or to include new names in the electoral rolls of a constituency afterthe last date for making the nominations for election in that constituency.It prohibits inclusion of any name in the electoral roll after the prescribeddate whether application for inclusion was made before or after that date.
Baidyanath Panjiar v. Sita Ram Mahto (1970) 1 S.C.R. 839; 42 E.L.R.330 (S.C.) followed.
(ii) The election petition and the recriminatory petition are parts ofone enquiry. As the validity of the three votes had come up for considerationand it was held that those votes were void it necessarily followed that thevotes had to be excluded in determining the result of the election. Thefact that the first respondent did not challenge the validity of those voteswas immaterial in the circumstances of the case.
(iii) The question whether a particular vote was a valid vote or nothas to be decided solely on the basis of the provisions of the Act. In viewof s. 30 of the 1950 Act the entries found in the electoral roll are finaland civil courts have no jurisdiction to entertain or adjudicate upon anyquestion whether any person is or is not entitled to register himself in theelectoral roll. KABUL SINGH v. KUNDAN SINGH AND OTHERS(S.C.), 42 E.L.R. 325.
—Electoral Roll—presumption—entry in the electoral roll is conclusiveproof that person is more than 21 years. SEE DISQUALIFICATIONS OF CAN-DIDATE—AGE BHAGWAN DASS SINGHA v. SHRI HARCHANDSINGH, 42 E.L.R. 439.
276
ESTOPPEL
—Estoppel—Improper acceptance of nomination—Scope of Section36(3)—Petitioner's objection to the nomination of a P.S.P. candidate—ob-jection upheld by returning officer—Whether the petitioner can raise theissue of improper rejection of the candidate in the election petition againstthe respondent—Rule of estoppel, whether applicable. HELD : Theprinciple is well settled that no man is allowed to benefit by his wrong.The petitioner who raised an objection against the nomination of theP.S.P. candidate and the objection being upheld by the Returning Officer,could not now be allowed to raise the issue again in the present electionpetition that the rejection of the nomination of that candidate was improper;the petitioner was under a personal disability in the nature of estoppel.
Subramania Iyer v. United India Life Insurance Co. Ltd. A.I.R. 1928,Madras 1215; Vanges Manufacturing Company v. Suraj Mall, 5 Calcutta669; Alamgir v. Kamrunissa, 4 C.L.J. 442; referred to. HARISHCHANDRA DEOGAM v. BEGUM SUMBRUL 38 E.L.R. 305.
—Estoppel—S. 81(1)—No objection raised at the time of nomination—whether the petitioner is estopped from filing the petition. HELD : Thelaw gives every voter the right to challenge the election in his own rightunder section 81(1) of the Act and the petitioner could not be held tobe estopped from enforcing his own right merely because he filed thepetition at the instance of the third respondent, who did not raise anyobjection to the nomination of the second respondent at the time of scru-tiny. GAJO v. RAM CHAND AND ORS., 39 E.L.R. 99.
—Estoppel—Statement to reduce age with a view to secure advantagecannot operate as estoppel. SEE DISQUALIFICATION OF CANDIDATES—AGE—NEMDHARI YADAV v. RAM BILAS PASWAN, 42 E.L.R. 453.
HIGH COURT
—{High Court)—Code of Civil Procedure (1908), Order 9, Rule 8—Election Petition—non-examination of witness by petitioner's counsel byreason of absence of instructions—// amounts to non-appearance. SEEELECTION PETITION—GENERAL PRINCIPLES. KESARILL KAVI ANDANOTHER v. (1) NARAIN PRAKASH (2) JAMNA LAL ANDOTHERS, 37 E.L.R. 198.
—High Court—Decision of the High Court whether operates as resjudi-cata if the same issue is raised again in the election petition on 1967election—Ss. 51(4), 69, 70, 142(6)—Powers of the Speaker of Assemblyunder sections 69 and 70 of the State Constitution (/. & K.). [SEE CONSTI-
277
TUTION OF (/. & K.)l MOHAMMAD AKBAR v. K. H. LASSA WANI38 E.L.R. 221.
—Section 87 read with order XLVII of Civil Procedure Code—Review—powers of High Court to review its own orders during pendency of appealin the Supreme Court.
After the disposal of the election petition by the High Court and beforethe respondent filed an appeal in the Supreme Court, the petitioner filed areview application in the High Court for modification of its judgment. Thefirst respondent contended that during the pendency of the appeal in theSupreme Court, the High Court had no power of review.
Under Section 87 read with Order XLVII of Civil Procedure Code, theHigh Court can review its own judgment in an election matter. Thispower can also be exercised during the pendency and before the final dis-posal of an appeal in the Supreme Court.
Brijmohan Lai v. Election Tribunal, A.I.R. 1965, All. 450; referred to.G. VASANTHA PAI v. R. M. SESHADRI and others, 38 E.L.R. 267.
NOMINATION OF CANDIDATES—(I FILING OF NOMINATION)
[See also Corrupt Practice-General Principles—Candidates']
—Petitioner's nomination filed on the last date at 15.01 hours—onusof proof—Whether provisions of section 33 are mandatory.
HELD : Dismissing the petition : On facts and evidence, the petitionerhad failed to prove that his nomination papers were filed withm the timelimit prescribed by law.
The provisions of section 33(1) of the Act are mandatory and the timeprescribed for filing nomination papers has to be strictly complied with.No discretion has been given to any authority whatsoever to condone thedelay however infinitesimal it may be.
Rattan Anmol Singh v. Ch. Atma Ram, A.I.R. 1954 S.C. 510; RanjitSingh v. Pritam Singh, A.I.R. 1966 S.C. 1626; Lakshmi Narain v. Bal-want Singh, 20 E.L.R. 76; referred to. MAISURIA NARENDRA JHINA-BHAI v. THAKORBHAI MANIBHAI DESAI 33 E.L.R. 50
—Presentation of nomination papers beyond time—Statutory duty toreject; HELD : Section 47 of the Act unequivocally prescribed consequ-ences for non-compliance with the provisions relating to procedural require-ments as provided by s. 44. When a statute requires that a particular
278
thing must be done in a particular manner and at a particular time then itmust be done in that manner and at the time. In the instant case sincethe nomination papers were presented after the prescribed time, it cannot besaid that they were improperly rejected. Section 47(2) casts a statutoryduty on the Returning Officer to examine the nomination papers and decideall objections whether raised by the adverse party or on his own motionand reject the nomination paper for breach of the rules laid down ins-44.
GHULAM NABI MAGREY v. MIAN BASIR AHMED, 42 E.L.R.263.
-—Nomination—Filing of—Omission to name constituency—// deject ofsubstantial character.
The petitioner sought a declaration that the election of the respon-dent was void on the ground of improper acceptance of the latter's nomi-nation. He alleged that in none of the three nomination papers it wasshown that the respondent was being nominated for Bhadohi reservedconstituency and even its number was not mentioned. The ReturningOfficer had rejected the objection made by the petitioner and in doing soobserved that from a perusal of the receipts Exs. D7, D8 and D9 grantedto the three proposers it was apparent that the respondent had been propo-sed for constituency No. 254, i.e. Bhadohi constituency and that theomission to name the constituency or its number was not a substantialdefect. The petitioner contended that the defect was of a substantialcharacter and consequently it was incumbent on the Returning Officer toreject the nominations under Section 36(2) (b) of the Act. The respon-dent relied on the following circumstances to show that despite the omis-sions on the nomination papers it was amply clear that he was being pro-posed for reserved constituency No. 254, Bhadohi :
(i) A statement in the election petition that the contesting respondenthad assented to his nomination as a candidate for Bhadohi constutuency;(ii) since the three proposers were electors registered in the electoral rollof constituency No. 254 it must be assumed that they nominated him forthe constituency in which they were registered electors; (iii) inasmuch asall the three nomination papers contained a declaration that the respondentbelonged to a Scheduled Caste, such a declaration being required in thecase of reserved constituencies only and since the Returning Officer func-tioned as such for only one general constituency and at one reserved consti-tuency, it should be inferred that the nomination was in respect of thereserved constituency Bhadohi; and (iv) the treasury receipt, and the threereceipts Exs. D7, D8 and D9 issued by the Returning Officer after the
279
nomination papers had been filed, mentioned the number of the constitu-ency (No. 254).
It was further urged by the respondent that in any event the respondentshould not suffer on account of the mistake of the official concerned in notbringing to his notice any defect in the filing of nomination papers.
Allowing the petition and setting aside the election of the respondent,
HELD :
(i) No discrimination can be made as to the principles to be appliedfor deciding whether a particular nomination was valid or otherwise beforeand after the election takes place. The law nowhere states that once anelection takes place a lenient view should be taken of the matter.
(ii) The three nomination papers on the basis of which the respondentcontested the election suffer from a defect of a substantial character in asmuch as they do not disclose the constituency for which he was being nomi-nated. As such his nomination is liable to be rejected under s. 36(2) (b)of the Act.
(iii) None of the circumstances relied upon by the respondent showthat he was being nominated as a candidate from Bhadohi Reserved consti-tuency No. 254. _ '
(iv) By issuing receipts D7 to D9 the Returning Officer cannot be saidto have misled the candidate and his proposers. No duty is cast by the Acton the Returning Officer to give advice to the prospective candidates orproposers as to how forms should be filled in. Under s. 33(4) of theAct, the Returning Officer is enjoined to permit the correction of anymisnomer or inaccurate description or clerical, technical or printing error.Complete omission to name the constituency cannot be called any of these.
Ramakrishna Reddy v. Kamala Devi, 5 E.L.R. 173; disapproved;
Jagan Nath v. Jaswant Singh, A.I.R. 1954 S.C. 210; relied on.
Shanti Swamp Sharma v. Abdul Rehman Farooqui, A.I.R. 1965 M.P.65; Dev Kanta Barooah v. Kushram Nath, A.I.R. 1961 SC. 1125; BangilalChowdhitry v. Dahu, A.I.R. 1962 S.C. 1248; Jabar Singh v. Genda Lai,A.I.R. 1964 S.C. 1200; Sham Prasad v. Bnlwan Singh, 4 E.L.R. 301;Ramakrishna Reddy v. Kamala Devi. 5 E.L.R. 173; Kesho Ram v. HazuraSingh, 8 E.L.R. 320; Jaswant Singh, v. Mangal Dass 9 E.L.R. 385;Rosamma Punnose v. Balakrishnan Nair 14. E.L.R. 210; K.B. Abdul Hayat
280
Khan v. Maulvi Ahmad Chowdhury Dhobia, p. 10; held inapplicable.KASHI PRASAD v. HARIGEN RAM ANR. 35 E.L.R. 194.
Nomination—Failure to file with copy of electoral roll—Jammii &Kashmir Representation of the People Act, 1957, S. 44(5)—Failure tocomply with the Provisions of S. 44(5) of the Act, effect of—
HELD : On the facts and evidence the petitioner has failed to provethat the action of the Returning Officer was malafide and that the rejectionof his nomination on the ground that he failed to file the copy of the ElectoralRoll of the Bagh Maghar Mai Constituency in which he was an elector, asrequired under s. 44(5) of the Act was against law. HAJI SAIF-UD-DIVv. MOHAMMED ASHRAF KHAN, 40 E.L.R. 35.
—Electoral roll, only a draft, filed along with the nomination paper—whether rejection proper—whether finalised electoral roll of an Assemblyconstituency would be sufficient when filing nomination for election to Par-liament, HELD : Merely because the State of Jammu & Kashmir has aseparate Representation of People Act, it cannot be said that the rolls for theAssembly constituencies in this State are different from the rolls of theAssembly constituencies in the rest of India. Therefore, if a candidate fileda copy of the electoral roll of the Assembly constituency, that copy wassufficient to show that he was an elector in a Parliamentary constituency inwhich that Assembly constituency was included. But, in the instant case,as respondent No. 2 filed only a draft of the electoral roll of the Assemblyconstituency and not the finalised roll as envisaged under Section 33(5) ofthe Representation of the People Act, the rejection of his nomination paperby the Returning Officer cannot be said to be improper.
Rattan Anmol Singh and another v. Ch. Atma Ram and others A.I.R.1954 S.C. 410; Bam Ram v. Prasanni and others 16 E.L.R. 450; RanjitSingh v. Pritam Singh and Others A.I.R. 1966 S.C. 1626; Narbada Prasadv. Chagan Lai and others 39 E.L.R. 277 (S.C.) replied upon; ABDULGANl MALIK v. SYED AHMED AGA AND ANR. :, 40 E.L.R. 148.
—S. 36(4)—electoral roll—Non-production of at the time of scrutiny—whether defect of substantial character—Whether nomination invalid undersub-Section (4) of Section 36. HELD : Where a copy of the electoral rollhas been produced and verified by the Returning Officer at the time of thepresentation of the nomination paper, the non-production of the originalroll or any certified copy of the relevant entry in that roll at the time ofthe scrutiny is hardly of any importance and cannot be considered to bea defect of substantial character for which a nomination paper could be
281
rejected under Sub-section (4) of Section 36 of the Act. LAKHI PRASADAGARWAL v. NATHMAL DOKANIA, 33 E.L.R. 300.
—Jammu and Kashmir Representation of the People Act, 1957, .«.44(5), 47(7)—Non-compilance with s. 44(5)—Electoral Roll—Failure tofile with nomination Paper—// renders nomination paper liable to rejection—// provision mandatory. HELD : The requirements of s. 45(5) are man-datory and if not complied with the nomination paper of the candidate mustbe rejected.
Section 44(5) of the Act makes no exception that in a case like thepresent one, when the Returning Officer is in possession of the relevantElectoral Roll other than the one filed by a candidate from another consti-tuency, (in the present case of copies filed by the objectors) the filing of thenecessary Electoral Roll by the candidate can be dispensed with or ignored.The provision is obligatory, prescribing, as it does, the mode, how and whatdocument a candidate from another constituency should file with his nomi-nation paper and when he should do so. If he fails to comply with this re-quirement which is obligatory, his nomination paper is not a nominationpaper in the eye of law.
Baru Ram v. Smt. Prasanni & ors., A.I.R. 1959, S.C. 93; Ranjit Singh v.Pritam Singh and others, A.I.R. 1966, S.C. 1626; Rattan Anmol Singh andanother v. Chaudhury Atma Ram and others, A.I.R. 1954, S.C. 510;Mohammad Ayub Khan v. Beli Ram & others, A.LR. 1962, J. & K. 24;lagan Naih v. Jaswani Singh, A.I.R. 1954, S.C- 210 at 212 and 213; RattorAnmal Singh in 1954, S.C. 510 at 513; referred to. GULUAR AHMAD v.ABDUL RASHID, 38 E.L.R. 342.
—Nomination—Objection to—On ground that candidate did not belongto scheduled caste—Need not be taken at the time of scrutiny—See—Caste—Scheduled Castes & Tribes : RAMPHAL ARYA v. YADU NANDANPRASAD, 35 E.L.R. 94.
—Proposer—ss. 33, 36—Whether one elector can propose two candi-dates in a single constituency—
The appellant's election to the Madhya Pradesh election was challengedby the respondent, his rival candidate, on the ground that the nominationpapers of two other candidates were wrongly rejected as they had bothbeen proposed by the same elector. The High Court allowed the petitionand held the appellant's election to be void. On appeal to the SupremeCourt,
HELD : The High Court had rightly allowed the election petition andset aside the appellant's election.
282
After the amendment made by Act 27 of 1956, there is no longerany express ban or prohibition under ss. 33 and 36 of the Representationof the People Act against an elector proposing more than one candidatein a single seat constituency; nor is there such a necessary implication inany other provision of the Act. On the other hand the amendmentindicates it was the intention of Parliament that there should be no ban onthe number of candidates to be proposed by an elector for a single seatconstituency. AMOLAK CHAND v. RAGHVEER SINGH, 36, E.L.R.185.
—Thumb impression of Proposer Not Properly attested under Rule 2(2)—whether jata.1—S. 100(1) (c)—whether the election of the returned Candi-date void.
HELD : The rejection of the nomination papers of one of the candi-dates on the ground that his proposer's thumb impression was not properlyattested as required by Rule 2(2) of the Conduct of Elections Rules, 1961,will not render the election of the returned candidate void under Section100(1) (c) of the Act.
Rattan Anmol Singh and another v. Ch. Atma Ram and others, A.I.R.1954 S.C. 510; Madan Singh v. Kalyan Singh, 6 E.L.R. 405; Dharamvirv. Bhalrama and other's 7 E.L.R. 64; Ratansingh and another v. PadamChand Jain and others, 7 E.L.R. 189; Mulai and another v. Lai DanBahadur Singh and others, 9 E.L.R. 8; referred to. RAM DAYAL v. BRl.TRAJ SINGH AND OTHERS, 38 E.L.R. 53.
—Signature of the proposers found not genuine—Whether rejectionproper—proof required to rebut the finding of the Returning Officer.
HELD : In a case where the Returning Officer rejected the nominationpapers of a candidate on the ground that the signatures of his proposerscould not be established as genuine, that order of the Returning Officerstands unless the person concerned establishes that the order passed inthis regard was totally wrong. ABDUL HAMID RANGAREZ v. M. N.KOUL AND ORS., 40 E.L.R. 130.
—Authentication of proposer of nomination under s. 33(1)—If canbe done subsequent to presentation of nomination—
HELD : The mark made by the proposer on D's nomination naperwas not authenticated or attested by one of the designated officers as re-quired under s. 33(1) read with the definition of the expression "sign"in s. 2(1) of the Representation of the People Act, 1951, and the provisionsof r- 2(2) of the Conduct of Elections Rules, 1961. It was thereforerightly rejected by the Returning Officer.
283
The requirement of s. 33(1) of the Act that the nomination shall besigned by the candidate and by the proposer is mandatory. Signing when-ever signature is necessary, must be m strict accordance with the require-ments of the Act and where the signature cannot be made it, must beauthorised in the manner prescribed by the Rules. Attestation is not amere technical or unsubstantial requirement within the meaning of s. 36(4)of the Act and cannot be dispensed with. The attestation and the satisfac-tion must exist at the stage of presentation and omission of such an essentialfeature may not be subsequently validated at the stage of scrutiny any morethan the omission of a candidate to sign at all could have been.
Rattan Anmol Singh and anr, v. Atma Ram and ors. (1955) 1. S.C.R.;referred to. RAM DAYAL v. BRIJ RAJ SINGH AND OTHERS (S.C.)T
42 E.L.R. 149.
Scrutiny Nomination, withdrawal of—Requirements under ElectionLaw—
HELD : When a candidate delivers the notice of withdrawal contain-ing all the particulars as required by Section 37, the duty of the ReturningOfficer is confined only to thp fact that he should be satisfied as to genuine-ness of the notice of withdrawal and the identity of the person deliveringit. When this has been done, nothing survives thereafter. The ReturningOfficer has no powers to consider the merits and demerits of that nomina-tion paper. After the due notice of withdrawal of the candidate hisnomination papers shall be deemed to have no existence in the eye of law.The last date of withdrawal would clearly imply that the withdrawal can bemade earlier than the last date fixed for the same; but how early, that hasnot been given though the last limit of time for such withdrawal has beenspecifically mentioned in Section 37(1). The words "any candidate" inSection 37(1) mean any other candidate in addition to the validly nominatedcandidates, including a candidate who had duly filed his nomination paperunder Section 33 and subsequently withdrawn his candidature at any timeafter he has filed his nomination but before the time for the date fixed forsuch withdrawal in accordance with the provisions of Section 37. RAMBHAROSE v. JAGANNATH SINGH AND OTHERS, 34 E.L.R. 135.
—Nomination paper filed with the Certified copy of extracts of electo-ral roll, by Tehsildar whether valid—It was contended in the petition thatthe nomination of the sixth respondent was improperly rejected by the Re-turning Officer.
HELD : The rejection of the nomination paper of Respondent No. 6was improper.
284
When a Tehsildar who is a public servant and who in the course ofhis official duties has access to the electoral roll, issues a certificate containingall the details of the relevant entries in the electoral roll in a continuousnarration and not in the form of the relevant particulars as tabulated in theelectoral roll, the certificate is a valid certificate and it complies with therequirements of section 33(5) of the Act. The certificate cannot be rejectedunder Section 36(4) on the ground of difference in the form of the certifi-cate, since the defect is of a non-substantial character.
Vinaya Kumar Diwan v. Raghunath Singh Kfledar, 22 E.L.R. 425;dissented from. CHAGANLAL v. NARBADA PRASAD AND OTHERS,33 E.L.R. 286.
—Scrutiny of nomination papers—Requirements under Election Law.
HELD : An enquiry before the court on a question of improperrejection of the nomination paper is not restricted to the material placedbefore the Returning Officer relating to the ground taken before it: allevidence bearing on that ground could be adduced before the court andthe court had to come to its independent conclusion on the basis of evidenceproduced before it and then determine whether the nomination was impro-perly rejected or not.
Pt. Chiranjit Lai Ram Sarup v. Lahiri Singh Ram Narain, A.I.R. 1958Punjab 433; Durga Shankar Mehta v. Raghuraj Singh and others A.I.R.1954 S.C. 520; S. N. Banerji v. Sri Krishna Agarwal, A.I.R. 1960 S.C.368; N. K. Veluswami Thevar v. Raja Nainar and others, A.I.R. 1959S.C. 422; Referred to; RAM BHAROSE v. JAGANNATH SINGH ANDORS., 34 E.L.R, 135.
—S. 36—Scrutiny—Petitioner's objections at the time of scrutiny ofnomination of the first respondent—Recording of decision of the ReturningOfficer—Requirements of section 36.
HELD : Under Section 36 of the Act, all that the Returning Officerneed do is to record his decision and where he rejects a nomination he hasto record in writing a brief statement dealing with the objection. He hasno power to adjourn the proceedings and give the petitioner an opportunityto adduce better evidence in support of his objection. Shanta Bai Talpallikarv. D. Gopalareddy and others, 34 E.L.R. 195.
Nomination—Filing of—Duty of Returning Officer to correct clericalerrors—Duty not to reject nomination on account of minor mistakes—Re-presentation of the People Act, Section 36.
285
Two nomination papers were filed for the respondent. In the firstthe proposer was shown as elector at serial No. 380 of Part 13 of theElectoral Roll of Arki Assembly Constituency but his name was really tobe found at serial No. 380 of Part 23. In the second nomination paperthe candidate was shown as the elector at serial No. 504 of Part 2 of 9Arki Assembly Constituency but really his name was found at No. 504of Part 12 of the Constituency. On these grounds the Returning Officerrejected the nomination of the respondent. Oa the question whether thegrounds on which the Returning Officer rejected the nomination papers ofthe respondent were substantial grounds as contemplated by s. 36 of theRepresentation of the People Act, 1951.
, HELD : The respondent's nomination papers were improperly rejected.Such a rejection was impermissible under s. 36 and the same is a groundfor setting aside the election under s. 100 of the Act.
The errors found in the nomination papers are purely clerical errors.The Returning Officer had a duty to scrutinise the nomination paperswhen they were presented for finding out whether there were any clericalmistakes in the same. Under that provision he was required to find outwhether the names of the candidates as well as their proposers and seconderswere correctly mentioned in the nomination papers. Further, when hescrutinised the nomination papers, the Returning Officer had before himall the information. HIRA SINGH PAL v. MADAN LAL (S.C.), 35E.L.R. 123.
—S. 33(2)—Candidate unnecessarily filling caste column in nominationpaper—Nomination paper whether liable to be rejected.
HELD : The two candidates whose nomination papers were rejected,unnecessarily filled the column indicating their caste. Such a requirementis there only for reserved seats. However, there is nothing in s. 33(2) orin the rules forbidding the candidate from mentioning his caste. AMOLAKCHAND v. RAGHUVEER SINGH, 36 E.L.R. 185.
—Deposit—Jammu and Kashmir Representation of the People Act,1957—Section 45(2)—// deposit must be paid simultaneously with thedelivery of nomination paper—Deposit cash receipt—No irregularity orillegality if receipt not attached with nomination paper.
The Returning Officer rejected the nomination papers of the petitionerand two other candidates on the ground, among others, that the depositof Rs. 250/- was not made. strictly in accordance with the provisions ofsection 45 of the Jammu and Kashmir Representation of the People Act>1957, in so far as it was made after the time of delivery of the nomination
286
paper. The petitioner challenged the election of respondent 1 on the pleathat the nomination papers were improperly rejected.
HELD : Allowing the petition,
On the facts, the rejection of the nominations was improper.
The materials and circumstances were overwhelming to come to adefinite conclusion that the story regarding the delayed deposit of theelection money after the presentation of the nomination papers by all thesecandidates was distortion of the truth. The petitioner's case that thedeposits were made sometime before presenting the respective nominationpapers was substantially correct.
Section 45(2) cannot be interpreted to mean that when the deposit ispaid in cash to the Returning Officer it must be paid simultaneously withthe clock delivery of the nomination papers, neither before nor after it.Such an interpretation would not be reading the provision correctly. Theclause in sub-section (2) "the candidate has either deposited or caused tobe deposited that sum with the Returning Officer in cash" has been usedin present perfect tense and it obviously means that the candidate hasalready paid it in cash to the Returning Officer. In terms of this provisionhe can well deliver his nomination paper after he has made the deposit.
Som Nath Dogra v. Trilochan Dutt (J & K) dated May 7, 1968;distinguished.
It could not be an irregularity, much less an illegality in the senseof any non-compliance with the provisions of the section, when, the receiptfor cash deposit made to the Returning Officer was not attached along withthe nomination papers. GHULAM QUADIR MIR v. GHULAM MOHD.RAJPURI AND OTHERS, MOHD. SHAFI SIMANANI v. GHULAMMOHD. RAJPURI AND OTHERS, 39 E.L.R. 485.
—Sections 8A, 98, 99—Nomination paper—rejection of—debarred bycorrupt practices under s. 98—whether a bar under s. 99 also.
The petitioner was elected for the Haryana Assembly during the Gene-ral Election held in 1967. His election was challenged by Respondent No. 1on the ground that he had incurred expenses over and above the maximumexpenditure prescribed under s. 77(3) of the Representation of People Act,1951. This petition was allowed by the High Court and in appeal by theSupreme Court and consequently the petitioner was debarred for 6 yearsfrom contesting any elections in the country. Thereafter the petitionerfiled nomination papers for the mid-term poll but his nomination paperswere rejected by the Returning Officer. The petitioner challenged the
287
order of the Returning Officer on the ground that although the order of theHigh Court as well as that of the Supreme Court is an order under s. 98declaring the election void on the ground given in clause (b) of sub-section(1) of s. 100, namely, the commission of corrupt practice by the returnedcandidate, yet neither of the two orders is an order under s. 99, either givinga finding that a corrupt practice has been committed or the nature of thesame or naming the person who has been proved to be guilty of corruptpractice and the nature of the corrupt practice; and that in as much asunder s. 8A a person can be disqualified only if a finding has been givenunder s. 99, the order passed by the Election Commission declaring thepetitioner as disqualified was null and void.
HELD : It is true that the specific words "that a corrupt practice hasbeen committed" have not been used in the order of the High Court. Butthe clear finding in the judgment that the petitioner, the returned candidatein the General Election, had incurred expenses exceeding the permissiblelimit, as provided under s. 77 obviously is a finding that a corrupt practiceas defined in s. 123(6) has been committed and that this corrupt practicehas been committed by the returned candidate. This finding may also bethe basis for declaring Jhe election void, but it cannot be said that it is nota finding under s. 99 of the Act. SRI KRISHNA VAID v. SAT NARAINAND OTHERS, 40 E.L.R. 76.
—Nomination Papers—Scrutiny of—Petitioner and proposer need notbe present—Jammu and Kashmir Representation of the People Act—Section 47.
The petitioner challenged the respondent's election on the ground thathis own nomination paper was improperly rejected by the Returning Officerfor the reason that he was not present at the time of scrutiny. Allowingthe petition,
HELD : It is not necessary that at the time of scrutiny the petitioneror his proposer must himself be present. The few requires that a candidate,his election agent, proposer and one other person duly authorised in writingby such candidate, may attend. This is precisely provided by section 47of the Representation of the People Act. It is therefore not mandatorythat the petitioner and the proposer must be present at the time of scrutiny.
In the present case inspite of the absence of the petitioner at the timeof scrutiny the Returning Officer who satisfied himself about the genuinenessof the signature of the nomination paper after comparing the same with theOath Form could have accepted it as there was no legal flaw in its accep-tance. The Returning Officer could only reject the nomination paper onthe grounds mentioned in s. 47 of the Jammu & Kashmir Representation of
288
the People Act which includes spurious signature of the candidate, butthat was not the case here. MOHD. SADIQ v. MOHD. HUSSAIN, 41E.L.R. 170.
—Rejection of Nomination—facts in existence on the date of scrutinyonly relevant—whether facts coming into existence subsequently affect thepropriety of the order of rejection of nomination—See Disqualification ofCandidates—Holding of office of Profit—CHANDAN LAL v. RAM DASSAND ANOTHER (S.C.), 41 E.L.R. 214.
—S. 100(1) (d) (i)—Improper acceptance of nomination paper—Objections if should be raised at the time of scrutiny.
The petitioner challenged the election of the respondent on the groundsthat the nomination paper of the second respondent had been improperlyaccepted because there was no person by that name in the electoral rollsand that by reason of such improper acceptance, the result of the electionin so far as the petitioner was concerned had been materially affected.
HELD : If a nomination paper has been accepted by the ReturningOfficer in the absence of any objection and if the candidate appears to beproperly qualified on the face of the electoral roll and the nomination paper,the acceptance of the said nomination by the Returning Officer must bedeemed to be proper acceptance. In the present case the challenge is tothe improper acceptance of a nomination paper and not to its improperrejection. Therefore, in the absence of any objection raised to the nomina-tion paper of the second respondent the acceptance of his nomination papercannot be said to be improper acceptance within the meaning of s. 100(1)(d) (i) of the Act.
N. T. Veluswami Thevar v. Raja Nainar, A.I.R. 1959 S.C. 422: 17ELR 181; distinguished.
S. N. Banerjee v. Shri Krishna Agarwal, 22 E.L.R. 64: followed.BRU MOHAN v. HARDAYAL DEVGUN AND ANOTHER, 36 E.L.R.384.
—Pleadings—Respondent setting up new contract revealed in evidencebut not pleaded—new grounds can be pleaded to support or disprove ofthe order of Returning Officer rejecting nomination—SEE DISQUALIFICATION
OF CANDIDATES INTEREST IN CONTRACT WITH GOVERNMENT. HABIBU-
LAH v. GULAM RASOOL KAR AND OTHERS, 41 E.L.R. 1.
NOMINATION OF CANDIDATES—(2 OATH)
Nomination of Candidates—ss. 36(2), 36(5), Proviso—Nominationpaper rejection was on ground that oath as required by Constitution of
289
India Art. 173 was not made before scrutiny—// Returning Officer haspower to give time to rectify defect.
The petitioner, an elector, challenged the election of the respondenton the ground that when the scrutiny of the nomination papers was takenup by the Returning Officer, a representation was made to him that oneN had not taken the oath of allegiance as required under the Constitutionof India; that he was prepared to take the Oath of allegiance and some timewas allowed to him and that instead of allowing some time to N on hisrepresentation, the Returning Officer rejected N's nomination papers on theground that oath or affirmation as required under Art. 173 of the Constitu-tion had not been made before the scrutiny. It was contended that undersub-section (5) of s. 36 of the Act, Returning Officer should have exercisedhis discretion as clearly he took a wrong view of the law and for that reasonthe rejection of the nomination papers was illegal and improper.
HELD : (i) On the evidence of the Returning Officer and the orderspassed by him, he was right in rejecting the nomination papers of N. Fromhis evidence it was clear that the Returning Officer had pointed outthe requirement of oath or affirmation to N two days before the scrutiny.The evidence of the Returning Officer also showed that N had not made anyrequest to him before rejection.
(ii) The Returning Officer has no power to allow time suo motu andonly such power is given to him as is provided in sub-section (2) of s. 34of the Act. Under the proviso to sub-section (5) of Section 36, timecould only be allowed for rebuttal and not for remedy of any defect. TheReturning Officer could not have permitted N to rectify the defect which wasundoubtedly substantial unless he had postponed the scrutiny of the nomina-tion papers of N. Such postponement would be in contravention of sub-section (5) of s. 36 of the Act.
Shiv Shankar Kanodia v. Kapildeo Narain Singh, Election AppealNo. 4 of 1965; distinguished. Rattan Anmol Singh v. Atma Ram, A.I.R.1954 S.C. 510; and Hariram Singh v. Kamtaprasad Sharma, A.I.R. 1966M.P. 253; referred to. DURGA SINGH v. JAWAR HUSSAIN, 34 E.L.R.281.
—Oath—Constitution of India, Art. 173(1)—Omission to take oathnot formal or technical defect. Duty of Returning Officer to reject nomina-tion, if essential qualifications prescribed not satisfied.
The petitioner challenged the election of the respondent that the nomi-nation of J one of the candidates was improperly rejected and it was allegedthat when the scrutiny of nominations was taken up, J offered to take the4EC/74—22
290
requisite oath before the Returning Officer but the Returning Officer didnot permit him to take the oath on the ground that it should have beentaken before the scrutiny was taken up.
Setting aside the election of the respondent,
HELD : Once the Returning Officer has found that the candidate doesnot possess any of the essential qualifications of membership of theState Legislature, he has no option but to conclude the scrutiny by record-ing an order of rejection of the nomination of that candidate. An omissionto make and subscribe the requisite oath or affirmation on the part of acandidate nominated for the election cannot fall in the category of formalor technical defect in the nomination because in view of clause (1) ofArticle 173 of the Constitution the making and subscribing of the requisiteoath is as essential a qualification that a candidate must be a citizen ofIndia. The duty of the Returning Officer is to decide upon scrutiny whetherthe candidate is or is not qualified and this duty has to be performed whe-ther any objection to the nomination is raised before him or not. MADANSHUKLA v. KRISHNA PRATAP SINGH, 35 E.L.R. 102.
—Oath—Constitution of India, Article 173—Form VII—Substantialcompliance with form of oath if sufficient—Mandatory and Directory por-tions of Form.
The petitioner challenged the election of the first respondent to the StateLegislative Assembly on the grounds (i) the form of oath taken by res-pondents Nos. 1, 2 and 4 was not in accordance with law and so there wasnon-compliance with Article 173 of the Constitution. Respondent No. 1contended that the Forms for taking oath were supplied by the ReturningOfficer in English as well as with the Gujarati version thereof. He havingchosen to take the oath in Gujarati the Returning Officer administered theoath in Gujarati version as given in the Form. In the Gujarati Form theproper Guiarati word for "Legislative Assembly" was not given ; "to fill aseat" was translated as "for the seat" ; and "nominated" was translated tomean "appointed".
HELD : Dismissing the petition :
In dealing with mandatory provisions of law technicalities are to beavoided and the substance and not the form must be looked at by the Court;and if there is substantial compliance or sufficient compliance with the sec-tion, it should be deemed to be compliance with the provisions of the lawand drastic consequences of non-compliance with these provisions shouldnot be visited on the party who has failed to comply literally with suchprovisions of law.
291
Pratap Singh v. Shri Krishna Gupta, A.I.R. 1956 S. C. 140 ; Ch. SubbaRao v. Member. Election Tribunal A.I.R. 1964 S. C. 1027 ; MurarkaRadhey Shy am v. Roop Singh, A.I.R. 1964 S- C. 1545; Kamaraj Nadar v.Kunju Thevar, A.I.R. 1958 S. C. 687; Punjab Cooperative Bank Ltd. v.Commissioner of Income Tax. Lahore, 67 I. A. 464 ; relied on.
The earlier part of Form VII is only directory and is part of the descrip-tion of the candidate : it does not go to the root of the matter so long asthere is enough material in the paper to enable him to be identified beyonddoubt.
In the instant case that portion of the oath which starts with the words"swear in the name of God" till the end of the oath as shown in the Gujarativersion, correctly translates the wording of the form as laid down in theThird Schedule to the Constitution ; and the earlier portion which containssome error by mentioning "Rajya Sabha" instead of Rajya Vidhan Sabha"appointed" instead of nominated are all words of description and do notform part of the substantial portion of the oath. The test of substantialcompliance has to be applied in the light of the surrounding circumstancesand in the present case the circumstances clearly showed there was substan-tial compliance VIRJI RAM SVTARIA v. NATHULAL PREMJl BHAN-VADIA, 35 E.L.R. 181.
—Sections 30 to 35, and 36—Candidate not having made or subscribedoath or affirmation under Art. 173(a)—Whether entitled to do so ondate fixed jor scrutiny of nomination papers.
—Constitution oj India Article 173 (a) and third schedule—When oath oraffirmation to be made or subscribed by candidate.
The appellant challenged the election of the respondent to the BiharLegislative Assembly by an election petition on the ground that his ownnomination paper had been improperly rejected by the Returning Officer.On January 21, 1967 the date fixed for scrutiny of nomination papersunder s. 36 of the Representation of the People Act, 1951, the ReturningOfficer rejected the nomination paper of the appellant on the ground thathe was not qualified to be chosen to fill a seat in the State Legislature sincehe had not made and subscribed the requisite oath or affirmation as requir-ed by clause (a) of Art. 173 of the Constitution. The High Court reject-ed the appellant's election petition.
It was contended for the appellant that on objection being taken unders. 36(2) that the petitioner had not made and subscribed an oath or affir-mation, he was entitled to make and subscribe the oath or affirmation im-mediately before the objection was considered by the Returning Officer. As
292
soon as a candidate makes or subscribes the oath or affirmation, he wouldbecome qualified under Art. 173 of the Constitution, and this qualificationwould exist 'on the date fixed lot the Scrutiny' of nomination papers.
HELD : dismissing the appeal,
The expression "on the date fixed for scrutiny" in s. 36(2) means "onthe whole of the day on which the scrutiny of nomination has to take place".In other words, the qualification must exist from the earliest moment of theday of scrutiny. On this dats the Returning Officer has to decide theobjections and the objections have to be made by the other candidates atterexamining the nomination papers and in the light of s. 36(2) of the Act andother provisions. On the date of the scrutiny the other candidates shouldbe in a position to raise all possible objections before the scrutiny of aparticular nomination paper starts.
Paynter v. James (1866-67) L. R. 2 C. P. 348 and Reg. v. Humphrey,10 Ad. & E. 335 ; referred to.
The fact that there was no place in form 2B prescribed under the Con-duct of Elections Rules, 1961 where it could be stated by the candidates thathe had taken the requisite oath or affirmation does not mean that the oathor affirmation can be taken and subscribed on the date fixed for scrutiny.The nomination paper does not provide for the statement about the oathbecause the oath or affirmation has to be taken after a candidate has beennominated. It cannot be said that a person can be regarded as nominatedonly when, after scrutiny of the nomination papers, the Returning Officerfinds him to be validity, nominated. The form of oath does not say"having been validly nominated" but only "having been nominated".
Shiva Shankar Kanodia v. Kapiideo Narain Singh, Election Appeal No.4 of 1965; Judgment dated September 22, 1965, of the Patna High Court;disapproved.
None of the sections from S. 30 to S. 36 require that the oath shouldaccompany the nomination paper. No reference has been made to theform of oath in s. 33 or s. 35 although in s. 33 it is provided that incertain cases the nomination paper should be accompanied by a declarationor by a certificate issued by the Election Commission. PASHUPATI NATHSINGH v. HARIHAR PRASAD SINGH (S.C.) 35 E.L.R. 220.
—Constitution of Jammu and Kashmir s. 51 (a)—Jammu and KashmirRepresentation of the People Act, s. 47—Making and subscribing of oathor affirmation—Point of time within which to be made—// could be subs-cribed on day of scrutiny.
293
A candidate seeking election to the Jammu and Kashmir Legislature cansubscribe to the oath or affirmation prescribed under section 51 (a) of theState Constitution at any time on any of the dates fixed for filing of nomina-tion papers. It can be made even after its filing, for there is no provisionin the J & K Representation of the People Act or in the State Constitutionrequiring an oath form duly sworn to accompany the nomination paper.The point however, is not clear whether an oath can be made and subs-cribed after the last day of filing of the nomination paper and up to thedate of scrutiny and including that date.
Pashupathy Nath Singh v. Harihar Parshad Singh 35 E.L.R. 220 (S.C.)Hussen Khan & Anr. v. Nijalingappa A.I.R. 1968 Mys. 18, Hariram Singhv. Kamta Prasad Sharma, A.I.R. 1966 M.P. 255 ; referred to.
In the present case the petitioner had failed to prove that the requisiteoath had been made and subscribed before the Returning Officer, asalleged. The non-making and non-subscribing of oath was a serious dis-qualification and the nomination papers were therefore rightly rejected bythe Returing Officer. SHEIKH ABDUL RAHMAN v. SHRI JAG ATRAM ARYAN, 37 E.L.R. 349.
—Jammu and Kashmir Representation of the People Act, s. 47—mak-ing and subscribing of oath or affirmation—Point of time within which to bemade—// could be subscribed on day of scrutiny—SEE NOMINATION OFTHE CANDIDATES GENERAL PRINCIPLES—OATH. SHEIKH ABDUL REH-MAN v. SHRI JAG AT RAM ARYAN, 37 E.L.R. 349.
—Oath,—S. 22(2),—Constitution of India, Article 84(a). Handbook ofReturning Officers, 1966 (General Election, 1967) —Instructions containedtherein, whether have force of law—making and subscribing an oath, whenit should be made.
Under the provisions of the Act, if a candidate fails to make andsubscribe to the oath before the day of scrutiny, then his nomination paperhas to be rejected for non-compliance with the provisions of Article 84(a)of the Constitution. Further, when the nomination paper of a candidatesuffers from an inherent defect, its rejection by the Returning Officer or theAssistant Returning Officer is not improper. Therefore, the question of thepetitioner or his proposer seeking permission to make or subscribe to theoath at the time of scrutiny did not arise, The instructions issued by theElection Commission in the Handbook for Returning Officers, 1966 (Gene-ral Elections 1967), permitting the candidate to take the oath before theReturning Officer upto the time of scrutiny, can only be taken as a sort ofadministrative guide, but the instructions do not have the force of law.
294
Rajinder Singh v. Manga Ram and others, Dabia's Election Cases, 1966P. 192; Pearey Lai v. Amba Prasad and another, Dabia's Election Cases,Vol. I (1864-1935) P. 45 T. Gulab Singh v, Rai Bahadur Kharajit SinghMisra, Manipuri Case N.M.R. No. XXII, Reports of Indian Election Peti-tions, 1927 by Hammond, Vol. Ill, P. 178 ; referred to.
Pashupati Nath Singh v. Hari Har Prasad Singh, A.I.R. 1968 S.C. 1064relied on ; Khaje Khanawar and another v. S. Nijlingappa, A.I.R. 1968,Mysore 18 ; dissented from. S. L. SARAF v. M. 5. QURESHI AND AN-OTHER, 38 E.L.R. 353.
—Representation of the People Act (/ & K) s. 51 (a)—Failure to makeand subscribe oath—Oath when to be made—Before whom.
HELD : Since the two candidates had failed to make and subscribeany oath before the Returning Officer as required under the law, theirnomination papers were rightly rejected.
It may be observed here that any offer by any one of them after thescrutiny had started to make and subscribe the oath could have been ofno avail.
Pashupathi Nath Singh v. Harihar Singh, A.I.R. 1968 S.C. 1064; 35E.L.R. 220(S.C.); relied upon.
It may be that the candidate may file his nomination papers beforeone competent officer like the Returning Officer or the Assistant ReturningOfficer and make and subscribe the requisite oath before another on adifferent date. It is for the candidate to comply with this mandatory provi-sion of the taking of the oath, and not for the Returning Officer or theAssistant Returning Officer, who were authorised to receive the nominationpapers of the candidate to search for him, and deliver the oath. RAJAMOHD. AFZAL KHAN v. MOHD. MUZAFAR KHAN AND ANOTHER,39 E.L.R. 211.
—Constitution of Jammu and Kashmir, 1957, section 51—Jammu andKashmir Representation of People Act—Sections 24(d), 47.
Nomination papers—rejection of—failure to subscribe oath—offer tomake oath on the date of currency refused—Whether rejection proper—When the date of scrutiny commences.
At the time of filing nomination papers the candidates, except respon-dent No. 1, the returned candidate, did not subscribe the prescribed oathbefore any authorised officer. Subsequently, on the date of scrutiny, they
295
went to the Returning Officer and offered to subscribe the oath. The Re-turning Officer refused the offer and rejected the nomination papers.Further—
HELD : Dismissing the petition.
(i) The petitioner and respondents 2 and 3, although they had offeredto make and subscribe the oath on the date of scrutiny, were not entitledto do so under the law.
The provisions of section 47 of the Jammu and Kashmir Representationof the People Act, 1957 are similar to section 36 of the Central Act, andso are the provisions of section 51 of the State Constitution in regard tothe making and subscribing of the oath or affirmation to the relevant pro-visions of the Indian Constitution. The decision of the Supreme Court inPashupati Naih Sing v. Hari Har Parsad Singh A.I.R. 1968 S.C. 1064,debarred a candidate from making and subscribing the requisite oath at anytime on the date of the scrutiny commencing from the preceding midnight.In the present case there could be no doubt that, as required under s. 51of the State Constitution, the petitioner and respondents Nos. 2 and 3 failedto make and subscribe any oath or affirmation before any authorised officer.This was a defect of substantial nature, and therefore, the nominationpapers of these candidates were rightly rejected by the Returning Officer.GULAM QADIR MASALA v. ABDUL GHANI LONE AND OTHERS,40 E.L.R. 53.
—Constitution of Jammu and Kashmir, section 51—Nomination paper—rejection of—failure to take oath at the time of filing of nominationpapers—offer to subscribe oath on the date of scrutiny refused—whetherrejection proper.
The petitioner and respondents 1 and 2 filed nomination papers forelection from the Kupwara Assembly Constituency. The Returning Officerrejected the nomination papers of the petitioner and respondent 2 on theground that they failed to subscribe the oath as envisaged under section 51of the State Constitution, when they filed their nomination papers. In apetition to have the election of the first respondent set aside, it was allegedthat this rejection was improper and, furthermore, the subsequent requestof the petitioner to permit him to make the necessary oath on the datefixed for scrutiny was improperly refused.
HELD : The petitioner failed to prove that he had subscribed thenecessary oath on the date of filing the nomination papers and the Return-ing Officer was perfectly within law in refusing permission to make theoath on the date fixed for scrutiny. GHULAM AHMAD DAR v. MOHD.SULTAN TANTARAY AND ANOTHER, 40 E.L.R. 91.
296
—Constitution of Jammu and Kashmir, section 51—Nomination paper•—rejection of—failure to make oath when nomination paper filed—offerto make oath on the date of scrutiny refused—whether rejection proper.
HELD : There is no statutory obligation on the part of the ReturningOfficer to ask a candidate to make the oath when a nomination paper isfiled. Failure to subscribe the oath under section 51 of the Constitution ofJammu and Kashmir before scrutiny is a defect of substantial character.It is perfectly legal if the Returning Officer refuses the offer by the candi-date to subscribe the oath on the date of scrutiny and rejects the nomina-tion paper on that score.
rashupati Nath Sing v. Hari Har Prasad Singh 35 E.L.R. 220 (S.C.)followed. GHULAM RASOOL MANTOO v. SYED MIR QASIM ANDANOTHER, 40 E.L.R. 101.
—Constitution of Jammu and Kashmir—Section 51 (a)—rejection ofnomination papers for failure to subscribe oath.
The appellant challenged the election of the respondent on the groundthat the Returning Officer had improperly and wrongly rejected thenomination papers of the appellant and two others by holding that theyhad not subscribed to the oath prescribed under s. 51 (a) of the Consti-tution of Jammu & Kashmir. The trial judge dismissed the petition. Dis-missing the appeal.
HELD : After carefully considering the evidence the trial judge heldthat the evidence of the Returning Officer should be accepted in preferenceto that of the petitioner and his witnesses and nothing had been shown whya different view should be taken. Therefore the nomination papers of thethree persons were not wrongly rejected and the election cannot be setaside on that ground. JIA LAL v. GHVLAM MUSTAFA (S.C.), 42E.L.R. 122.
— -Constitution of Jammu and Kashmir, section 51—Nomination papers—Rejection of—Failure to make oath—Offer to subscribe oath on the dateof scrutiny—rejection of nomination papers—
HELD : There was no evidence that the petitioner or respondentNo. 3 had actually made and subscribed any oath. The petitioner couldnot be permitted to make and subscribe the oath or affirmation at any timeon the date of scrutiny, even if any one of them tried to do so. The failureto take the oath being a defect of substantial character the rejection ofthe nomination papers of the petitioner and respondent No. 3 on thatground was perfectly legal.
297
Pashupati Nath Singh v. Harihar Prasad Singh, A.I.R. 1968 S. C. 1064.followed. ABDUL HAMM) RANGREZ v. M. N. KOUL AND OTHERS.40 E.L.R. 130.
—Art. 173—Oath to be taken by candidate for election—-Form ofoath prescribed in Third Schedule—Oath taken in Gujarati Language—Useof expression "Rajya Sab ha" for "Legislative Assembly"—Oath whethertaken in proper form—Effect on election—Requirement whether direc-tory or mandatory.
In an election petition challenging the election of the returned candidateto the Gujarat Legislative Assembly in February, 1967 it was stated thathe had taken his oath as prescribed by Article 173 of the Constitution inthe Gujarati Version of the relevant form set out in the Third Schedule tothe Constitution. In the said version the term "Legislative Assembly" wastranslated as "Rajya Sabha". It was contended that the term "RajyaSabha" was equivalent not to "Legislative Assembly" but to "LegislativeCouncil" and, therefore, the oath was not taken by the returned candidatein the proper form and his election was liable to be set aside. The HighCourt rejected the petition. Dismissing the appeal to the Supreme Court,
HELD : (1) The word "sabha" means a gathering or a meeting or anassembly of persons for a definite purpose. Giving the word "sabha" thesaid meaning in the words "Rajya Sabha" it would not be possible to holdthat the oath was not in compliance with the form prescribed in Art. 173 (a)of the Constitution. No doubt by common parlance in many of the Statesin Northern India the expression "Rajya Sabha" has come to mean theLegislative Council of a State while the State Legislative Assembly is knownas Rajya Vidhan Sabha. The State of Gujarat has no Legislative Councilof the State. The Legislature consists of one House only, namely, the StateLegislative Assembly. There could therefore, be no misapprehension eitherin the person taking the oath or in the Returning Officer when he wasaccepting the nomination paper with the oath in Gujarati form that thecandidate who afterwards won the election was being nominated as acandidate to fill a seat in the Legislative Council of the State and not in theLegislative Assembly.
i
In the present case the essential requirement of Art. 173 read withForm VII-A was that the person taking the oath or making the affirmationwould bear true faith and allegiance to the Constitution and would upholdthe sovereignty and integrity of India. The words which precede thisportion are merely descriptive of the person and of his nomination as acandidate. It is reasonable to think that a mere misprint in the form of theOath or a mere inaccuracy in rendering the expression "Legislative
298
Assembly" in Gujarati would not be fatal to the election of the candidate,if otherwise valid (634A).
Kamaraj Nadar v. Kunju Thevar (1959) S.C.R. 583: Murarka RaJhe\'Shyam Ram Kumar v. Roop Singh Rathore (1964) 3 S.C.R. 583 :Ch. Subbarao v. Member, Election Tribunal, Hyderabad (1964) 6 S.C.R.213 : State of V.P. v. Manbodhanlal Srivastava (1958) S.C.R. 533 andState of Punjab v. Sat Pal Dang and State of Punjab v. Dr. Baldev Prakashand others. (1969) 1 S.C.R. 478, applied. VIRJI RAM SUTARIA v.NATHALAL PREMJl BHANVADIA AND OTHERS (S.C.) 40 E.L.R.141.
—Constitution of Jammu & Kashmir—Section 51 (a)—Oath—No oathcould be made and subscribed en the date of the scrutiny.
HELD : (i) There was no substance in the allegation made by thepetitioner that he had either enclosed oath forms with the nominationpapers or that the same were removed afterwards. It was also not establish-ed that he had made and subscribed the oath on the relevant date and inthe manner and in the way as provided by the Constitution.
(ii) It is necessary for a candidate to make and subscribe the requisiteoath as enjoined by the Constitution before the date fixed for scrutiny ofnomination paper. Thus a candidate who has failed to make and subscribethe requisite oath along with the nomination paper is not entitled to doso when objection is taken before the Returning Officer on the date ofscrutiny.
Pashupatinath v. Harhar Prasad, A.I.R. 1968 S. C. 1064 ; 35 E.L.R.220 (S.C.) referred to. SHRI SYED NIZAM-UD-DIN v. SHRI HISSAM-VD-DIN AND OTHERS, 42 E.L.R. 274.
Constitution of Jammu and Kashmir—Section 51 (a)—Oath—Requirement of—Oath cannot be made and subscribed on the date of scru-tiny.
In his election petition the petitioner alleged that he had made andsubscribed the oath that he was ready to repeat the oath of allegiance onthe date of scrutiny of nominations but the Returning Officer did not permithim to do so and therefore, the rejection of the petitioner's nominationpapers was improper.
HELD : The rejection of the petitioner's nomination papers was notimproper.
299
A candidate who seeks election has not only to make the oath, that isr
he must not only read it but he must also subscribe to it. Thus reading ofthe oath and signing of the oath are two different and distinct acts and iionly one of the acts is complete and the other is not, it will leave a graveconstitutional lacuna and it will be deemed that the constitutional require-ments have not been met. The law relating to election is a special law andit must be complied with both in letter and spirit.
In the instant case it is not proved that the petitioner had made andsubscribed the oath as required by law.
A candidate who has failed to make and subscribe the requisiteoath along with the nomination paper is not entitled to do so on the dateof the scrutiny. If he has failed to do so till the date of scrutiny, he becomesdisqualified to be choseji to file the seat and his nomination paper is liableto be rejected.
Pashupathi Nath v. Harihar Prasad, A.I.R. 1968 S. C 1084; 35 E.L.R,220 (S. C.) ; referred to.
SHRI, AN AY AT VLLAH KHAN v. ABDUL REHMAN DAR ANDOTHERS, 42 E.L.R. 291.
—-Oath—both making and subscribing of oath mandatory—"making"'meaning of. Constitution of Jammu and Kashmir S. 51 (a), 132—
HELD : On the principle of estoppel the petitioner is debarred"from challenging the rejection of the nomination of respondent No. 2.
Both the making and subscribing of oath or affirmation are mandatorywithin the meaning of s. 51 (a) of the Constitution of Jammu and Kashmirand neither of them can be dispensed with. The plain meaning of theword "make an oath" or "affirmation" is to take it or affirm it. To makean oath must mean to take an oath by words of mouth. In the presentcase admittedly the Respondent No. 2 had only subscribed the oath Formin the sense of signing it, and had not taken it. The full requirements ofsection 51 (a) of the Constitution were thus not complied with. The Return-ing Officer was, therefore, quite justified in rejecting the nomination papersor respondent No. 2; SARDAR HARBANS SINGH v. PEER SHAMS-UD-DIN AND OTHERS, 47 E.L.R. 400.
300
NOMINATION OF CANDIDATES—(3. AGE)
[See Disqualification of Candidates—Age]
POLL
—ss. 123, 130—Corrupt practice^—Canvassing of votes inside pollingboth—proof of—See Corrupt Practice-—Miscellaneous—KARAMJI RE-HMANJI CHAIPA v. A. T. KUNDIWALA AND OTHERS (S.C.) 41E.L.R. 127.
—Sections 25, 57—Conduct of Elections Rules, 1961—Rule 49—Dutyto notify change of polling station—Election Commission cannot give expost facto sanction^—Disturbances in polling booths—Duty to postponepolling—Section 100(1) (d) (iv)—"result of the election has been material-ly affected"—Meaning—Burden of Proof
In his election petition the petitioner alleged that on account of un-authorised change of four notified polling stations at the last moment,disturbances of poll in six polling stations and laches on the part of thepolling officers in leaving the polling station before the scheduled time,the election of the first respondent was held contrary to the provisions ofsections 25 and 57 of the Act of 1951 and rule 49 of the Rules of 1961;that it was materially affected and therefore liable to be set aside underSection 100(1) (d) (iv) of the Act.
HELD : The election of the first respondent was void.
Rule 49 of the Rule of 1961 specifically provides that there must be anotification fixing the polling station at least 15 days before the pollsare held. Section 25 of the Act of 1961 also lays down that the namesof the polling stations must be notified. At the last moment the pollingstation cannot be changed to some other place without prior notificationand thereby deprive the voters of their right of franchise. The ElectionCommission cannot validate and give ex post facto sanction of changinga booth, after the mischief had been done. As the polling stations werenot found the polls should have been adjourned under s. 57 of the Actof 1951 and fresh polls should have been held after due notification undersection 25 of the Act of 1951 and Rule 49 of the Rules of 1961.
Niharendu Dutt Majumdar v. Sudhir Chandra Bhandari, 6 E.L.R. 197;Motilal v. Mangla Prasad, XV E.L.R. 425; Radha Krishnan v. MuthuKumara Swamy, XIX E.L.R. 481; Lakshmi Narayan v. Balwant Singh,XX E.L.R. 76 and Tazuddin v. Dhaniram Talukdar, A.I.R. 1959 Assam,128; referred to.
301
The proceedings of an election commence as soon as a person is nomi-nated as a candidate and end when the result is declared. Under s. 57(1)of the Act of 1951 the polls are to be adjourned if the proceedings at anypolling stations are interrupted or obstructed by any riot or open violence.
Narayan Bhaskar Khare V. Election Commission of India, XIII E.L.R.112 (S.C.); referred to.
If the polls are taken within the scheduled hours, the election is liableto be set aside if the result of the successful candidate is materially affected.
Sudhansu Sekhar v. Satyendra Nath, 4 E.L.R. 73; Kandaswamy v.Subramani Gorsudar, 5 E.L.R. 156; referred to.
RISHANG v. PAOKAI HAOKIP AND ORS., 35 E.L.R. 110
—Conduct of Elections Rules, 1961, r. 43—Corrupt practice—proof ofPoll—closing of. Procedure to be followed—proof required to hold thatthe polling officer disallowed voters to cast votes.
HELD : Under Rule 43 of the Conduct of Elections Rules, it is obliga-tory on the presiding officer to close the polling station at the hour fixed inthat behalf under section 56 of the Act; and it is not open to him to admitany elector into the polling station thereafter. He however had to allowall electors present at the polling station before it was closed to cast theirvotes. But in the instant case, none of the electors who were said to havebeen present at closing time in the polling booth made any complaint re-garding the action of the presiding officer or had come to give evidenceon that score. In these circumstances it would be unsafe to hold thatthe presiding officer disallowed any voters present to cast their votes.
LAXMAN PRASAD VAIDYA v. SRI GANGADHAR YADAORAOTAMSKAR 41 E.L.R. 15(S.C).
—Polling booth—change of—when result immaterially affected—proofof. SEE ELECTION PETITIFN—GROUNDS FOR SETTING ASIDE ELECTION—PT. SHREE KRISHNA SELOT v. SHRI RAM CHARAN PUJARI (S.C.),E.L.R. 50.
—S. 130—Conduct of Elections Rules 1961, Rule 90—Corrupt Prac-tice—canvassing of votes inside polling booth—proof of.
The appellant, a defeated candidate, challenged the election of res-podent No. 1 on the ground, inter alia, that a Police Officer on dutyopenly canvassed for respondent No. 1.
302
HELD : (1) It is a cognisable offence under s. 130 of the Act to can-vass votes within a distance of 100 metres of the Polling Booth. If any-body violated the provisions of the Act, a written complaint by the personwho is said to have objected to such an act, is ordinarily expected. In theabsence of such a written complaint, and especially when he witness giv-ing evidence about the incident spoke in contradictory terms, it could notbe said that the allegation about the police officer canvassing votes forthe respondent No. 1 had been proved.
KARAMJI REHMANJI CHAIPA v. A. T. KUNDIWALA ANDOTHERS (S.C.) 41 E.L.R. 127.
—Polling Stations—Opening of new polling stations—Principles fordetermining whether result of the election had been materially affected.
The election of Respondent No. 1 was challenged on the principal groundthat four new polling stations were opened two days prior to the pollingin complete disregard of the statutory provisions of the Jammu & KashmirRepresentation of the People Act, 1957; that the distribution of the electorsin the matter of polling with regard to the aforesaid stations was so con-fusing that the electors did not know where to cast their vote, and conse-quently the result of the election was materially affected. The High Courtdismissed the petition holding that the result of the election had not beenmaterially affected. Dismissing the appeal to the Supreme Court.
HELD : Even assuming there was some irregularity in the creation ofthe new polling stations, the election could not be set aside unless it wasestablished that the result of the election had been materially affected bynon-compliance with the statutory provisions and the Rules.
The principles on which it has to be determined whether the result ofthe election has been materially affected have been laid down by thisCourt. The casting of votes in an election depends upon a variety of fac-tors and it is not possible for any one to predicate how many or whichproportion of the votes will go to one or the other of the candidates. Thisquestion is one of fact and has to be proved by positive evidence. Inthe present case the decision of the High Court was correct that the resultof the election had not been proved to have been materially affected.
Vashist Narain Sharma v. Dev Chandra & Ors. 1955 1 S.C.R. 509 ;Paokai Haokip v. Rishang, C.A. 683 of 1968 dated 12-8-1968; referredto. RAM NATH v. CHHAJU RAM AND OTHERS, (S.C.), 41 E.L.R.354.
—-Polling booths—change of—approval by Election Commission—speci-fic plea regarding non-approval necessary while challenging election.
303
[HELD :
The result of the election was not in the least affected by the change inthe location of booths.
Though in the election petition it has been mentioned that the changeswere illegal and improper and managed by Respondent No. 1 there is nosuggestion therein that they were not made with the approval of the Elec-tion Commission and the premises were not requisitioned. In the absenceof such a specific pleading it was not necessary for Respondent 1 to bringevidence on the record that previous approval of the Election Commissionwas obtained for the changes in the location of those booths and that thepremises were requisitioned.
PHANINDRA NATH SUR v. PURNENDU NARAIN SINGH ANDOTHERS., 42 E.L.R. 429.
POLLING AGENTS
—Section 123(7)—Corrupt practices by agents—Acting as pollingagent or counting agent—cannot amount to assisting in the furtherance of acandidate's election—-active part by the agent in the canvassing or propa-ganda required.
HELD : Under Explanation 2 of Section 123(7) of the Representationof the People Act, 1951, as it stood before the amendment in 1966, a personwas deemed to assist in the furtherance of the prospects of a candidate'selection if he acted as an election agent or as a polling agent; but the words"or a polling agent or a counting agent" were deleted when the Act wasamended in 1966. Mere acting as a polling agent cannot therefore amountto assisting the furtherance of the prospects of a candidate's election. Whatthe petitioner must prove is that the person had taken some active part in thecanvassing or propaganda to increase the prospects of the candidate's elec-tion. SUBEDAR SINGH v. JAGDISH NARAIN TRIPATHI ANDOTHERS 40 E.L.R. 178.
PRESIDENT
Arts. 58, 84 and 324—Scope of—Candidates to Presidential Office—Oath if necessary for eligibility.
HELD : Dismissing the petition :
The candidate for election as President was not required to take anyoath before becoming eligible for such election. Art. 58(1) prescribes thequalifications for eligibility to stand for election as President and since under
304
Cl. (c) of Art. 58 (1) such candidate has to be qualified for election as amember of the House of the People, it would bring in such qualifications formembers of the House of the People as may be prescribed by law- by Parlia-ment, as required by Article 84(c). It will by its own force bring in Article102 of the Constitution, for that Article lays down certain disqualificationswhich a presidential candidate must not have so as to be eligible for elec-tion as member of the House of the People. But it is not necessary to travelto els. (a) and (b) of Article 84 in the matter of citizenship and of age ofthe presidential candidate, clauses (a) and (b) of Article 58(1), havingmade a specific provision in that behalf.
The fact that no change was made either in Article 58(1) (a) or inArticle 60 or in the Third Schedule prescribing the form of oath to be takenby the presidential candidate before he could stand for election is theclearest indication that Parliament did not intend, when making the Amend-ment Act, that an oath similar to the oath taken by a candidate standingfor election to Parliament had to be taken by a candidate standing forelection to the office of the President. So there is no reason to importthe provision of Article 84(a) as it stood after the Amendment Act intoArticle 58(1) (a) which stood unamended.
The Amendment Act having not made any such provision with respectto those standing for election to the office of the President, it cannot beopen to the Election Commission to prescribe a form of oath for suchpersons by changing from III-A mutatis mutandis. Such power cannotbe spelt out of Art. 324. It follows therefore that no form whatsoeverhaving been prescribed by Parliament when it made the Sixteenth Amend-ment for taking an oath by a presidential candidate, Art. 84(a) when itprescribed taking of an oath for candidates for election to the House ofthe People has no application to candidates standing tot election to Presi-dentship.
The acceptance of the nomination paper of a candidate for presidentialelection is therefore neither illegal nor contrary to law on the ground thathe did not subscribe to an oath under Art. 84(a) read with Art. 58(1)(c). BABURAO PATEL AND ORS. v. DR. ZAKIR HUSSAIN ANDORS. 33 E.L.R. I. (S.C.).
—Presidential and Vice-Presidential Elections Act (30 of 1952),s. 18—Undue influence—Canvassing by Prime Minister and Minister whois Chief whip of Parly, if undue influence.
The petitioners challenged the first respondent's election as president ofIndia on the following ground. The result of the election was materiallyaffected by virtue of undue influence exercised through the Prime Minister
305
addressing a letter to all electors requesting them to vote for the first Res-pondent; Ministers were deputed by the Prime Minister to various StateCapitals to ensure the election of the first Respondent; a Minister who wasalso a Chief Whip of the Congress Party wrote letters to all members of hisparty in Parliament signing them as Chief Whip, requesting them to givetheir first preference votes to the first respondent and to mark the secondor any other preference in favour of other candidates; and the Chief Minis-ter of Maharashtra had briefed members of the Legislative Assembly as tohow and for whom to vote.
HELD : Dismissing the petition :—Mere canvassing in favour of acandidate at an election cannot amount to interference with the free exer-cise of the electoral right. There was nothing in the letter of the PrimeMinister that was the subject matter of complaint which even remotelyamounted to undue influence. As Leader of the Party she was entitled toask the electors to vote for the first Respondent and the fact that she wasPrime Minister could make no difference to her right to make an appealof this nature. Although the office of the President is not a party officemeaning thereby that after his election the President is no longer a partyman, the fact remains that in a democratic system persons who stand forelection are candidates sponsored by parties and without such support noone could get elected for the electors are mostly members of one partyor other.
The letters signed by a Minister signing as Chief Whip to all membersof his party to come to Delhi and contact him in connection with the Pre-sidential and Vice-Presidential elections did not constitute any undue in-fluence.
There is nothing improper in members of the party being told in thecourse of canvassing that it would be better if they only mark their firstpreference and no other preference in a system where voting is by singletransferable vote. Such a request or advice does not interfere with thefree exercise of the electoral right, for the electors would still be free todo what they desired in spite of the advice. Similarly the Prime Ministerdeputing certain senior members of her Cabinet to various State Capitalsto canvass support for the first Respondent also did not constitute anyundue influence.
The mere fact that the person who canvasses is a Chief Minister doesnot mean that he is exercising undue influence in the sense of interferingwith the free exercise of the electoral right. If the Leader of the Partyindicates to members of his party for whom to vote he is merely canvassingwhich lie is entitled to do in a democratic set-up. There can be no ob-jection if a Leader of the Party indicates to the members of his party how4EC/74—23
306
to cote in order to ensure that votes may not become invalid for want ofknowledge of the procedure of voting.
R. B. Surendra Narayan Sinha v. Amulydhone Roy & 43 Ors., 1940Indian Election Cases by Sen and Poddar, Case No. XXX at p. 188;Linge Gowda v. Shivananjappa, (1953) VI E.L.R. 288; Amirchand v.Surendra Lai Jha, (1954) X E.L.R. 57; Mast Ram v. S. Iqbal Singh,(1955) XII E.L.R. 378; N. Sundara Reddi v. Yashoda Reddi (1957)XIII E.L.R. 34; Dr. Y. S. Parmar v. Him Singh Pal. (1958) XVI E.L.R.45: Triloki Singh v. Shivrajwati Nehru, (1958) XVI E.L.R. 234 andJayalakshmi Devamma v. ianardhan Reddi, (1959) XVI E.L.R. 302;referred to. BABURAO PATEL AND ORS. v. DR. ZAKIR HUSSAINAND ORS. 33 E.L.R. I (S.C.).
—Constitution of India Art. 58(1) (a) and (b)—Requirements thatcandidate for Presidentship should be a citizen of India and over thirty-fiveyears old—how satisfied.
Presidential and Vice-Presidential Elections Rules, 1952 r. 6—scopeof.
The petitioner challenged the election of Dr. Zakir Hussain, respondentNo. 16, as President of India on the ground, inter alia, that the nomination papers of respondents 1 to 16 were improperly accepted as they didnot file any proof of their citizenship and age in satisfaction of the requirements of Art. 58(1) (a) and (b). He also contended that the inquiryinto his objection to the nomination papers was not in accordance withrule 6 of the Presidential and Vice-Presidential Elections Rules, 1952, inthat on receipt of his objection the returning officer should have adjournedthe inquiry for 24 hours.
HELD : Dismissing the petition :
(i) The rules do not require that any proof of age or citizenship1 otherthan that mentioned in r. 4 need be furnished at the time of the nomination.Rule 4 requires the filing of a nomination paper completed in Form 2and a certified copy of the relevant entry in the electoral roll. The nomi-nation paper completed in Form 2 contains a declaration by the proposerand secondly that the candidate concerned has completed the age of 35years. The certified copy of the entry in the electoral roll of relevant Parlia-mentary constituency shows that the candidate is registered as an elector. Onlya citizen of India is qualified for registration in the electoral roll. In viewof r. 4 the returning officer could accept these documents as sufficient proofof age and citizenship. Even in the objection filed before the returningofficer, the petitioner did not say that any of the candidates was not a
307
citizen or was below the age of 35 years. In these circumstances, thereturning officer was not bound to call for better proof of age or citizenship.
(ii) The returning officer was required by the proviso to sub-r. (4)of r. 6 to give the respondents time to rebut the objection if they requiredsuch time. None of the respondents asked for any time to rebut the ob-jection. The petitioner was not entitled to ask for an adjournment of theproceedings, nor did he ask for an adjournment. The returning officer heldthe enquiry in accordance with r. 6 and rightly accepted the nominations ofrespondents Nos. 1 to 16. BHAMBURKAR SHRINIWAS GOPAL v.BRAHMA DEO AND ORS. 33 E.L.R. 18 (S.C.).
—President's powers—only Castes specified in President's order to betreated as Scheduled Castes—Constitution (Scheduled Castes) Under 1950,item 9—SEE SCHEDULE CASTES AND TRIBES—ARTICLE 341. PARASRAMAND ANOTHER v. SHIVCHAND AND OTHERS (S.C.), 40 E.L.R296.
PRESIDING OFFICER
Evidence Act, Section 74—Diaries of Presiding Officers, if publicdocument.
HELD : The diaries of the Presiding Officers are public documentswithin the meaning of s. 74 of the Indian Evidence Act and are admissiblein evidence. HAOKHOLAL THANGJOM v. LALROUKUNG AND AN-OTHER, 37 E.L.R. 19.
—Law reform—Law should provide for copy of poster printed to besent to Election Commission by printer—Presiding Officer—Power to Presi-ding Officer to note conveyance of voters and hold summary enquiry.
HELD Obiter : There is a tendency to manufacture evidence for the pur-poses of the election petition and, it is, therefore, desirable that there shouldbe a mandatory provision in law that any poster printed should be sentto the Election Commission by the printer and in any case, by candidate,who would ultimately base himself on that poster, with a notice to theperson who is alleged to have printed that poster. There should also bea provision in law that if any vehicles are used by any candidate to carryelectors, this fact should be noted by the Presiding officers and they shouldhold a summary enquiry on any complaint made in this behalf and recordtheir finding in the Diary which they have to maintain. NIHAL SINGH v.RAO BIRENDAR SWGH AND ANOTHER, 41 E.L.R. 199.
308
RECRIMINATION
—Pleadings—Respondent if can be allowed to contest votes cast in fav-our of petitioner in the absence of recrimination—
HELD : In the absence of recrimination it would not be open to theElection Tribunal to allow the Returned candidate to challenge the validityof votes cast in favour of the petitioner or any other candidate in whosefavour a declaration is claimed by the election petition or to contend thatany of his votes were improperly rejected. Inayatullah Khan v. DuranChand, 15 E.L.R. 219; Lakshmi Shanker Yadav v. Kunwar Shipal Singh, 22E.L.R. 47; disapproved. Jabar Singh v. Ganda Lai, A.I.R. 1964 S. C. 1200;referred to. The election in the present case could not be upheld as itwas open to reasonable doubt whether the transgressions of certain rulesin the conduct of Elections Rules and the directions of the Election Com-mission to give effect to those Rules may not have affected the result of theelection; and it was uncertain whether Respondent No. 1 had really beenelected by a majority of votes. The second prayer of the petitioner couldnot be granted since there was no material on which the opinion couldbe formed that the petitioner received the majority of valid votes. NAREN-DRA NATH SEN v. MAN I SANYAL AND ANOTHER, 36 E.L.R. 69.
—ss. 97(1), 10l(a)—Recrimination under Section 97 (1)—failure byreturned candidate to file—Whether the returned candidate is entitled to am-end his written statement for recounting of votes.
HELD : Where the petitioner had pleaded before the Tribunal forproceedings to be taken under the provisions of Section 101 (a) of the Act,the respondent, the returned candidate, had no right to amend his writtenstatement asking for recounting of the votes cast in favour of the petitionerand his own rejected votes. As the respondent failed to take the opportu-nity under Section 97(1) to file a recrimination petition within the periodof limitation, he was precluded from raising such a plea at the trial stage.In the circumstances of the case, the Tribunal would have to deal withthe dispute under Section 101 (a) of the Act.
Nathu Ram Shikshak v. R. P. Dixii, 1965 A.L.P. 25; Johar Singh v.Genda Lai, A.I.R. 1964 S.C. 1200; Satvakethu v. Election Tribunal. Ba-reilly, A.LJ. 1963, 841; Bhimsen v. Gopali, 22 E.L.R. 288 (S.C.); RAMMILAN SINGH v. HARI SHANKAR PARASAD GUPTA & OTHERS,38 E.L.R. 95.
Recrimination-—Notice—Separate application for giving notice notnecessary—S. 97.
309
The election of Respondent No. 1 was challenged on the grounds ofimproper rejection and improper acceptance of ballot papers and otherirregularities. The respondent did not file any separate application givingintimation to the court that a petition of recrimination shall be filed.Such a notice was however given in the written statement though not in therecrimination petition itself. The petitioner contended that the respondentdid not give the required notice of leading evidence by way of recrimina-tion.
HELD : Dismissing the petition,
(ii) The requirement of section 97 has sometimes been taken by theparties to mean that there should not only be a recrimination petition butalso a separate application giving notice as contemplated by the provisoto s. 97. Section 97 nowhere lays down that a separate application shallbe made. A party may give expression to the intention and thereby givethe stipulated notice in the petition of recrimination itself. In any case,in the instant case the notice contemplated by the proviso to section 97 wasgiven in paras 34 and 37 of the written statement also.
Inamati Mallappa Basappa v. Desai Basavaraj Ayyappa, A.I.R. 1958S.C. 698; Ravindra Nath v. Raghuvir Singh, A.I.R. 1968 S.C. 30U; re-ferred to. KANH1YA LAL BALMIKI v. RAM CHARAN, 42 E.L.R.107.
Recrimination, Lack of, the Particulars—Section 83(1) (B)—Corruptpractice—Charge of feeding of voters and free conveying of voters to andfrom polling station—Full particulars—What are.
The petitioner took a preliminary point that the allegations in paragraph8(A) and (B) of the recrimination were too vague to constitute the "fullparticulars", required by s. 83(1) (B) of the Representation of the PeopleAct. Para 8A contained the allegation that the petitioner and his agentsopened feeding centres and distributed free food to the voters and theannexed schedule specified the places at which the feeding was doneand the names of persons who treated the voters. The petitioner con-tended that Paragraph 8 (A) should have included the names of persons whowere fed or treated. Paragraph 8(B) stated that the petitioner and his agentshired and procured vehicles for the free conveyance of voters to and fromthe polling stations. It was the petitioner's contention that the particularssupplied were insufficient because they did not disclose the names of thevoters who were conveyed in the various vehicles.
HELD : Section 83(1) (B) requires not an exhaustive statement ofparticulars but only as full a statement as possible and what is possible ornecessary will vary in each type of case. Cases of treating where a genera?
310
invitation has been issued to voters to come and take food clearly standon a different footing from cases of specific instance of bribery. In the ma-jority of such cases it would not be feasible for the petitioneron recrimination to ascertain the names of all the voters involved. Evenwithout knowing the names of those voters it is easy enough for the oppo-site party to understand the case he has to meet.
Chandrasekhur Singh v. Sarjoo Prasad Singh, XXIII E.L.R. 206;Sasivarna Thevar v. Arunagiri and ors. XVII E.L.R 313; distinguished.
As regards the objection in respect of paragraph 8(B) full particularshad been supplied in the recrimination as to who hired or procured eachvehicle and from whom as well as the polling station to and from which thevoters were conveyed. Therefore the recrimination cannot be said to bein any way deficient in necessary particulars.
R. M. Sashadri v. G. Vasantha Pai, A.I.R. 1969 S.C. 692; relied on.TEJ SINGH v. RAM CHANDRA VIKAL AND OTHERS, 42 E.L.R.312.
—S. 97—Recriminatory petition, nature of—SEE ELECTORAL ROLL—KABUL SINGH v. KUNDAN SINGH AND OTHERS (S.C.), 42 E.L.R.325.
Recrimination—Section 83(1) (ZJ)—"As full a statement as possible",what is. Held : It is true details given in Paragraph 11—20 of the recri-mination do not reveal the names of dealers from whom petrol was pur-chased nor the dates on which individual purchases were made nor the am-ount which was paid on each occasion. But, the dates of purchases of petroland the amounts paid can only be found on the scrutiny of the accountsof the dealers which obviously are not available to respondent No. 1. Inthe circumstances the recrimination must be held to have given "as fulla statement as possible" within the meaning of s. 83(1) (b). SMT. BENIRAI, v. PREM NARAIN AND OTHERS, 42 E.L.R. 422.
RES JUD1CATA
Res-Judicata—Election Petition—powers of the Speaker of Assemblyunder Section 69 and 70 under Kashmir State Constitution—Reference ofthe Petition on 1962 election by Speaker to the Election Tribunal andHigh Court—validity of—Decision of the High Court whether operatesas res judicata if the same issue is raised again on 1967 election. SEECONSTITUTION—CONSTITUTION OF JAMMU AND KASHMIR, 1957—MOHAMMAD AKBAR v. K. H. LASS A WANI, 38 E.L.R. 221.
311
—Res-judicata—Applicability—Jammu and Kashmir Representation ofthe People Act, s. 24(d)—"Subsisting Contract"—Agreement and Contract—difference between—SEE DISQUALIFICATION OF CANDIDATES—INTE-REST IN CONTRACT WITH GOVERNMENT. ABDUL GANI MALIK v.GULAM NABI MIRCHA AND ORS. 40 E.L.R. 424.
RETURNING OFFICER
—Returning Officer—Nomination—Filing of—Duty of Returning Offi-cer to correct clerical errors—Duty not to reject nomination on account ofminor mistakes—Representation of the People Act, Section 36—SEENOMINATION OF CANDIDATES—HIRA SINGH PAL v. MA DAN LAL(S.C.). 35 E.L.R. 13.
—'Rule 56, Sub-rules (1) and (2)—Conduct of Elections Rules, 1961—Scope of—Returning Officer, if should examine each and every ballot paper—SEE BALLOT PAPERS—RECOUNT.—G. G. MEHTA V. MANUBHAlAMARSEY AND ANR. 36, E.L.R. I.
—Returning Officer, if must be a party to petition.
HELD : The Returning Officer or any other Officer is not a party to anelection petition. The court has no power to dismiss a petition on theground that these officers have not been added as parties.
Dwijandralal Sen Gupta's Case 66 C.W.W. 917, referred to. NAREN-DAR NATH SEN v. MANI SANYAL AND ANR. 36 E.L.R. 69.
—Evidence—assessment of in election trial—SEE CORRUPT PRACTICE—•APPEAL ON GROUNDS OF RELIGION ETC.—M. CHENNA REDDY v.V. RAMACHANDRA RAO AND ANOTHER (S.C.) 40 E.L.R. 390.
—Returning Officer—Scrutiny of Ballot Papers—Handbook for Return-ing Officers for General Elections, 1967, Instructions ll(ti) and (oj—-Scope of—SEE BALLOT PAPERS—SCRUTINY O F — S H A N K A R L A L MAGAN-LAL RAVAL v. GURMAN SINGHJI AND ANR. 36 E.L.R. 176.
—Returning Officer—Failure to observe the Rules—SS. 83(7) (a), 92,Rule 73(1) (b), Requirements of—SEE BALLOT BOXES INSPECTION OF.RAM MILAN SINGH v. HARI SHANKAR PRASAD GUPTA ANDORS. 38 E.L.R. 95.
—S. 22(2)—Assistant Returning Officer whether competent to receivenominations.
312
HELD : Under Section 22 of the Act, the Assistant Returning Officeris competent to perform all or any of the functions of the Returning Offi-cer under his control. Further, the Election Commission had duly notifiedon 29th November, 1966 that the Assistant Commissioner be the AssistantReturning Officer of the Constituency and therefore he was legally compe-tent to receive the nominations and scrutinise the same. S. L. Saraf v.M.S. Qureshi and another, 38 E.L.R. 353.
—SS. 100(1) (c), 123(7) and 129—Allegations of malafides of the Re-turning and Assistant Returning Officers—Burden of proof.
HELD : The second respondent had failed to prove beyond reasonabledoubt that the Returning Officer had acted malafide in contravention of theprovisions of Sections 123(7) and 129 of the Act and therefore the electionof the first respondent could not be set aside as void under Section 100(1)(c) of the Act.
D. Murlidhar Singh v. Manga Ram and others, Doabia's Election Cases,1966, P. 192; Raju V. B. v. Ramchandra Rao and others, 21 E.L.R. 81;Gopala Kurup v. Samuel V. Arulappan Paul and others, Doabia's ElectionCases 1961, p. 185; Nanda Kiseaore Rath v. Himanshu Sekhara Pandhi,Doabia's Election Cases 1962, p. 181; referred to. S. L. SARAF v. M. S.QURESHI AND ANOTHER, 38 E.L.R. 353
—Election—Instructions in handbook for returning officers—// havestatutory force.
HELD : The instructions contained in the Hand Book for returningofficers do not have statutory force and their breach by the Returning Officeris no irregularity, much less any illegality. GULAM QADIR MAS ALA v.ABDUL GHANI LONE AND OTHERS, 40 E.L.R. 53.
SCHEDULED CASTES AND TRIBES
—Caste—determination of—Illegitimate issue could belong to the casteof the father or mother. Nomination—objection to—on ground that can-didate did not belong to Scheduled Caste—Need not be taken at the timeof scrutiny.
The validity of the election of the respondent was challenged on theground that since he was a Rajput and not a Rajwar by caste he was notqualified for standing for election from the Rajgir (Scheduled Caste)Assembly constituency. The respondent maintained that he was a Rajwarand contended that at any rate the petitioner was estopped from raising theissue since no such objection was made at the time of scrutiny of thenomination papers.
313
HELD : Dismissing the petition,
(i) The mere fact that no objection was raised at the time of thescrutiny cannot operate by way of estoppel debarring the petitioner fromraising the plea in the election case filed by him; by his omission to raiseany such plea at the time of scrutiny he cannot be said to have inten-tionally caused or permitted the respondent to believe that he was amember of the Scheduled Caste and to act upon such belief.
(ii) A child born of parents of different castes, though an outcastein the strict sense is regarded for many purposes as belonging to the casteeither of its father or of its mother.
The father of the respondent was an illegitimate issue of a Rajpurfather through a Rajwarin concubine. But the father was being treatedas a Rajwar and not a Rajput by his relatives and the community in whichhe was living. The respondent was begotten through a Rajwarin wife andbesides, he himself had been married to a Rajwarin girl and he was beingtreated as a Rajwarin by his community.
Brindsena v. Nadhamani, l.L.R. 12 Mad. 72; distinguished.Emperor v. Madan Gopal, I.L.R. 34 AH. 589; referred to.RAMPHAL ARYA v. YADU NANDAN PRASAD, 35 E.L.R. 94.
—Scheduled Caste—Member of Scheduled Caste if remains such a mem-ber after becoming Aryasamajist.
HELD : Aryasamajists are, like Sanatandharmists and also like mem-bers of the Scheduled Caste, Hindus by religion. Consequently, and Arya-samajist continues to be a member of the Scheduled Caste after followingthe tenets of Aryasamaj. Therefore the nomination of respondent No. 1was rightly accepted by the Returning Officer.
CHANDRA PAL SHAILANI v. SHRI NAR DEO AND OTHERS,36H.L.R. 31.
—Scheduled Caste Reserved Constituency—elected candidate shown tohave been converted to Budhism—ceased to be a member of the ScheduledCastes.
The appellant's election from a Scheduled Caste reserved constituencyfor the Maharashtra Legislative Assembly in February 1967 was challen-ged on the ground that he had been converted to Buddhism in May 1958;and after that conversion had ceased to be a member of the ScheduledCaste to which he earlier belonged by birth. The High Court, havingheld that conversion was established declared the appellant's election void.
314
On appeal to the Supreme Court,
HELD : On the evidence, the High Court had rightly held that theappellant's conversion was proved.
JANARDHAN YADHAV SAKHARE v. MUKVND VITHOBAALONE AND ANOTHER, (S.C.) 38 E.L.R. 8.
—Constitution (Scheduled Castes) Order, 1950 Adi-Dravida convert-ing to Christianity—Reconversion to Hinduism—// becomes a member ofthe original caste.
The respondent challenged the validity of the election of the appellanton the ground that he was not qualified to be a candidate to fill the seatreserved for a member of the Scheduled Caste. The respondent contend-ed that the appellant was originally born as an Adi Dravida Hindu buthe got himself converted as a Christian some time in 1949; that thereafterthe appellant continued to be a Christian including at the time of theelection in 1967; consequently he could not be held to be a member ofthe Scheduled Caste for the candidature for the reserved seat under theConstitution (Scheduled Castes) Order, 1950. The appellant pleaded thathe never became a convert to Christianity and that in any case he wasprofessing the Hindu religion at the relevant time in the year 1967. TheHigh Court declared the appellant's election void.
Dismissing the appeal.
HELD: On the evidence, the finding of the High Court had to beaffirmed that the appellant was converted to Christianity in the year 1949so that he lost the capacity of an Adi Dravida in which capacity alone hecould have been held to be a member of a Scheduled Caste under theConstitution (Scheduled Castes) Order, 1950.
At the relevant time in 1967, the appellant was professing HinduReligion, so that Paragraph 3 of the Constitution (Scheduled Castes) Order,1950 did not apply to him but the appellant had to show that at the re-levant time he was a member of the caste specified by the President inthat Order. When the appellant got converted to Christianity in 1949 heceased to belong to the Adi Dravida caste.
Even on the assumption that a reconvert to Hinduism can acquire themembership of the original caste, it has to be held that the appellant hadfailed to establish that he became a member of the Adi Dravida Hinducaste after he started professing the Hindu Religion.
315
(Whether a membership of a caste can be acquired by conversion toHinduism or after reconversion to Hinduism, left open;.
Punjab Rao V. D. P. Meshram & Others, (1965) 1 S.C.R. 849; Kar-wada v. Shambhakar, I.L.R. 1959 Bombay 229; G. Michael v. S. Venka-tesweran, Additional Secretary to Government Public {Elections) Depart-ment, Madras, A.I.R. 1952, Madras 474; B. Shyamsunder v. Shankar DeoVedalankar and others, A.I.R. 1960 Mysore 27; Chatturbhuj VithaldasJasani v. Moreshwar Parashram and others, 1954 S.C.R. 817; Administra-tor General of Madras v. Anandachari and others, I.L.R. 9 Madras 466;Gurusami Nadar v. Irulappa Konav (died) and others, 67 M.LJ. Reports389; Mrs. Agnes Dorothy Vermani V. Mr. Bayant David Vermani, A.I.R.1943 Vol. 30 Lah. 51; Goona Durgaprasada Rao alias Pedda Babu andanother v. Goona Sundarasanaswatni and 28 others, I.L.R. 1940 Mad.653; referred to:
S. RAJAGOPAL v. C. M. ARMVGAM & OTHERS, 38 E.L.R. 38.(S.C.).
—Constitution (Scheduled Tribes), Order 1950—Scheduled Castes amiScheduled Tribes—Amendment Act (63 of 1956)—Entry 12—"Gondincluding Mana"—Means Mana Community which is a substitute ofGonds.
Entry 12 in the Constitution (Scheduled Tribes) Order 1950 pro-mulgated by the President read "Gond including Maida (Mana) andMudia (Mana)", By the Scheduled Castes and Scheduled Tribes (Amend-ment) Act 63 of 1956, Entry 12 was substituted by "Gond includingMana".
The respondent in his election petition contended that the appellant was aMana and not a Gond (Mana) and that the Kskatriya Badwaik Manacommunity to which the appellant belonged was a sub-caste of the Mara-thas or Kumbis who are not Gonds and on that account the appellant wasnot qualified to stand for election from the reserved constituency. The HighCourt set aside the election of the appellant. On the question whether bythe Amendment made by Act 63 of 1956 it was intended to declare underentry 12 who are not Gonds as members of the Scheduled Tribes.
HELD: The appellant, merely because he belonged to the Mana com-munity amongst the Marathas, was not eligible to stand as a candidatefor the reserved seat.
316
The Parliament has placed "Mana" under entry 12 of which therelevant part reads "Gond including Mana". If a tribe of tribal commu-nity having no affinity with the tribe or tribal community of Gonds wasintended to be recognised as a Scheduled Tribe, the name of that tribe ortribal community would appropriately be set out under a distinct head.When the Parliament has included the Mana community under entry 12,it would be reasonable to infer that Mana community which is a substituteof the Gonds or has some affinity with it, is intended to be referred to.
In the present case it was clearly established on the evidence that thereis a community called "Mana" in the Chanda and adjoining districts whoare Marathas and not Gonds.
DIN A v. NARAYAN SINGH (S.C.), 38 E.L.R. 212.
—Sections 100(1) (d) (i)—Constitution of India, Articles 342. 356;Clause (25)—Constitution (Scheduled Tribes) (Union Territories) order,1951—"Pangwala"—and Scheduled Tribe—who is a "PangwaW—Re-served seat—candidate, whether a "Pangwala"—whether his impropernomination had materially affected the election—Burden of proof.
The petitioner, a voter in the Lahaul and Spiti District ReservedConstituency for Scheduled Tribes, challenged the election of the first res-pondent from the said Constituency on the ground that the second res-pondent's nomination wa,s improperly accepted, as he was not a memberof the "Pangwala" Tribe and therefore he was not entitled to contest theelection from a Constituency reserved for the Scheduled Tribes. There-fore, the election of the first respondent had been materially affected underSection 100(1) (d) (i) of the Act. It was also urged that but for thenomination of the second respondent the third respondent would havesecured the votes cast in favour of the second respondent.
The returned candidate disputed the allegations of the petitioner.The third respondent admitted that the election petition has been filed athis instance as he could not file the same in time due to illness.
HELD : Dismising the petition.
There was no definition either in the Constitution or anywhere elseas to what a Scheduled Tribe is. Even historical material is lacking onthe subject. Article 366, Clause (5), defines "Scheduled Tribes" to mean"such tribes or tribal communities as are deemed under Article 342 to beScheduled Tribes." Nor has it been denned in the Constitution (ScheduledTribes) (Union Territories) Order, 1951. In the absence of any definitematerial it is very difficult to formulate the exact test by which a person
317
can be said to belong to a particular tribe and much less as to who the"Pangwalas" are. But on the basis of the documents, books and oralevidence adduced in the case the test to determine whether a person is a"PangwaJa" or not depends on many factors. The second respondent hadproved to be a "Pangwala", had been a resident of Pangi, had merged orabsorbed himself among Pangwalas and had been adopted or acceptedby Pangwalas as one of them. Further, he had shown affinity with Pang-walas and the marriages of his father and grand-father with Pangwalawomen lent considerable support to the fact that he was a Pangwala andtherefore his nomination paper was rightly accepted.
Assuming that the nomination of the second respondent was wronglyaccepted, the petitioner had failed to prove that votes which were cast infavour of the second respondent would have been so cast as to swing thebalance in favour of the third respondent. Even though this burden maypracttcally be impossible of being discharged by the petitioner in thecircumstances of the case, that does not absolve or relieve the petitionerfrom the rigour of the burden cast on him. Therefore, the election of thefirst respondent could not be declared void under Section 100(1) (d) (i)of the Act.
Vashist Narain Sharma V. Dev Chand, A.I.R. 1954. S.C. 513; Maha-deo v. Udai Partap, A.I.R. 1966, S.C. 824; referred to.
GAJO v. RAM CHAND AND OTHERS, 39 E.L.R. 99.
Constitution (Scheduled Tribes) (Union Territories) Order, 1951—"Pangwala"—and Scheduled Tribe who is a "Pangwala"—whether hisimproper nomination had materially affected the election—Burden of proof—No objection raised at the time of nomination—whether the petitioneris estopped from filing the petition-—See Scheduled Castes & Tribes.
GAJO v. RAM CHAND AND OTHERS, 39 E.L.R. §9.
—Scheduled Caste constituency—Election challenged on the ground thatsuccessful candidate was converted to Christianity—petition dismissed—Plea that parents of successful candidate were converts, sought to be raisedin Supreme Court—Related plea, if should be allowed—See ScheduledCastes & Tribes—Election petition.
GOKA RAMALINGAM v. BODDU ABRAHAM AND OTHERS(S.C.), 40 E.L.R. 291.
—Election petition—Election to reserved seat from Scheduled Casteconstituency—Election challenged on the ground that successful candidate
318
was converted to Christianity—Petition dismissed—Plea that parents of suc-cessful candidate were converts sought to be raised in Supreme Court-Belated plea if should be allowed—Constitution (Scheduled Castes) Order,1950 Cl. (3)—Scope of.
The first respondent's election from a Scheduled Caste reserved con-stituency was challenged by the appellant on the ground that the respon-dent was not a member of the Scheduled Caste as he had embraced Chris-tianity and professed the Christian religion, and was not therefore eligibleto stand for the reserved seat. On the issue whether the first respondentwas converted to Christianity, the High Court, on a consideration of theentire evidence held that there was no proof of such conversion and dis-missed the petition.
In appeal to the Supreme Court, a petition was filed alleging that aRegister wherein all conversion in the locality were recorded, containedentries showing that the parents of the first respondent were converted toChristinity and it was prayed that the case should proceed on the plea ofconversion to Christianity of the parents of the first respondent, in placeof the original plea that the first respondent himself was so converted.
HELD : The prayer in the petition could not be granted because:(a) The plea changed the entire nature of the case and required fresh evi-dence; (b) it was belated and beyond the period of limitation prescribedfor filing of election petitions; and (c) the application should have beenfiled in the High Court itself, for the register was produced in the HighCourt and it was inspected by the parties who had thus ample opportunityto discover the basis for the new plea.
Under Cl. (3) of the Constitution (Scheduled Castes) Order, 1950, itwould have been sufficient if the appellant pleaded and proved that thefirst respondent was a Christian, that therefore he was not a Hindu andwas not competent to stand for the reserved seat; but he chose to establishthat the first respondent was himself converted to Christianity and failedto do so.
GOKA RAMALINGAM v. BODDU ABRAHAM & ANOTHER,(S.C.) 40 E.L.R. 291.
Art. 341—President's power—Only Castes specified in President'sorder to be treated as Scheduled Castes—Constitution (Scheduled Castes)Order, 1950, item, 9—Scheduled Castes in Punjab—Mochie not mention-ed, chamars mentioned—Court cannot decide on evidence whether theterm mochi is synonymous with the term chamar.
319
HELD: (i) On the evidence it could not be held that the ReturningOfficer had, after announcing his decision accepting the nomination papersubsequently reviewed his own order.
(ii) No ground had been made out for disturbing the conclusion ofthe trial court on the evidence that appellant No. 2 was a mochi and nota member of the chamar caste.
(Hi) It was not open to the Court to scrutinise whether a person pro-perly described as a mochi also fell within the qastc of chamars and coulddescribe himself as such. The question was one the determination ofwhich lay within the exclusive power of the President under Art. 341 ofthe Constitution.
Basavalingappa v. D. Munichinnappa (1965) 1 S.C.R. 316 andBhaiya Lai v. Harikrishan Singh and ors. (1965) 2 S.C.R. 877 referr-ed to.
Art. 341 empowered the President to specify not only entire castesraces or tribes but also parts or groups within castes, races or tribes whichwere to be treated as Scheduled Castes in relation to a particular State orUnion Territory. So far as chamars and mochis are concerned, a refer-ence to the Constitution (Scheduled Castes) Order 1950 shows that thePresident was not of opinion that they were to be considered to belong tothe same caste in all the different States. In several States chamars andmochis were put on the same footing but not so in the State of Punjab.Even after the reorganisation of the Punjab Act, 1966, when the questionof specification of Scheduled Castes in the territories created came up forhis consideration, the President did not take the view that mochis shouldbe classed with chamars in so far as the States of Haryana, Punjab andthe Union Territory of Chandigarh were concerned though he directedthat in the Union Territories of Delhi and Himachal Pradesh mochis andchamars were to be placed in the same group. PARASRAM AND AN-OTHER v. SHIVCHAND AND OTHERS (S.C.) 40 E.L.R. 296.
—Section 5. Constituion of India Article 342(1) Constitution (Schedul-ed tribes) Order 1950. Part III (1) of the Schedule-Item 24-Caste to whicha candidate belongs—Extent of evidence allowed to be let in to provewhether he is a Scheduled Tribe or Caste. Scheduled Tribe—Tribes havingdifferent branches—Same are listed in the Schedule while some are not—Whether listed branches alone are Scheduled Tribes. "Mundas"—"Patar"a branch of Munda Tribe—Munda Tribe listed in the Schedule—WhetherPatars are Mundas—Whether a Patar is entitled to contest election reserv-ed for Scheduled Tribes.
320
.HELD : It is true that what caste a candidate belongs to is a questionof fact and generally a candidate cannot be allowed to produce evidence toshow that though Caste A alone is mentioned in the Schedule, Caste B isalso a part of Class A and, therefore, must be deemed to be included inCaste A. But there could be no absolute bar to prove that a part or agroup of a particular caste or tribe which was known by another name andwhich was not expressly mentioned in the Schedule was covered by anothername in the Schedule.
(ii) It cannot be said that where a tribe has got different branches,some of which are mentioned in the Order, and some of which are notmentioned, only those which are mentioned in the order are ScheduledTribes within the meaning of Article 342 (I) of the Constitution and mem-bers of that branch or branches alone can contest seat from a constituencyreserved for Scheduled Tribes. In the present case, it is true that "Ito"which is a branch of the Kopat Munda and "Mahli" and "Bhumji" whichare also branches of the 'Munda' Tribe have separately been mentioned inPart III(i) of the Schedule to the Constitution (Scheduled Tribes) Order,but from this it cannot be concluded that the intention was to exclude otherbranches of the "Munda". Only such branches of the Mundas who haveformed themselves into an independent group for a long time past such as'Mahlis', Ttos' and 'Bumjis' have been separately mentioned in the listand those who have not formed themselves on to an independent groupbut still regard themselves as 'Mundas' have not been separately mentioned,and are included in item No. 24 "Mundas" of Part III(i) of the Scheduleto the Order.
Laxman Siddappa Naik V. Kathmani Chandappa Jampanna and Ors.,A I R . 1968 S.C. 929; followed.
B. Basavahungappa V. D. Munichinnppa and Ors. A.I.R. 1965 S.C.1269; Bhaiya Lai v. Had Kishan Singh and others, A.I.R. 1965 S.C. 1557;Abhey Pada Saha v. Sudhi Kumar Mondal, A.I.R. 1967 S.C. 115; 28 E.L.R.179 (S.C.) considered. BHAIYA RAM MVNDA v. ANIRUDH PATARAND OTHERS, 42 E.L.R. 362.
STATE GOVERNMENT
State Government's powers under Section 27(3)—Representationof the People Act, 1950. Constitution of India, Article 171 (3) (b)—Elec-toral Roll of Graduates—Declaration that Diplonui holders qualificationdeemed to be equivalent to that of Graduates—whether ultra vires of theConstitution.
321
HELD : Where the State Government has exercised its discretionarypowers under Section 27(3) of the Act of 1950, and has formulated apolicy in consultation with the educational institutes and with the consulta-tion of the Election Commission, prepared a statement showing qualifica-tions deemed to be equivalent to that of a graduate, the exercise of suchpower cannot be said to be void or ultra vires of Article 171 (3) (b) of theConstitution, since Parliament can confer a power on the State Govern-ment to prescribe qualifications "under any law" made by it.
State of Uttar Pradesh v. Singhar Singh, A.I.R. 1964, S.C. 358 ; Virendrav. The State of Punjab, A.I.R. 1957, S.C, 896; referred to. G. VASANTHAPAl v. R. M. SESHADRI AND OTHERS, 38 E.L.R. 267.
[SUPREME COURT] (Appeal to)
Constitution of India—Article 133(1) (ft) & (c)—Certificate—Condi-tions for issuance of.
The applicant (respondent in the election petition) sought a certificateof fitness to appeal to the Supreme Court under Article 133(1) (b) or inthe alternative a certificate under cl. (c) of the Article against the decisionof the High Court declaring his election void. The High Court had set asidethe election on the ground that the applicant committed the corrupt practiceof incurring or authorising expenditure beyond the prescribed limit. It wascontended that in consequence of the judgement to be appealed from, therespondent would be disqualified from being a member of the Assemblyand this would entail a pecuniary loss to him of more than 20,000 fromthe date of judgement to the date of dissolution of the Assembly. Dismissingthe application,
HELD :
(i) When a certificate is sought under cl. (b) on the ground that somequestion or claim respecting property is involved (in addition to or otherthan the subject matter of the dispute in suit) the amount of money mustbe Rs. 20,000 or upwards on the date of judgement appealed from. Theloss which may occur in future in not contemplated by cl. (b), nor clause(a) for that matter.
Printers (Mysore) Pvt. Ltd. v. Union of India, A.I.R. 1966 Mysore237; Chittarmal v. Shah Pannalal Chandula, A.I.R. 1956 S.C. 1440; State ofBihar v. G. N. Ganguly, A.I.R. 1958 Patna 26; Mohammad Chause v. Stateof Andhra Pradesh, A.I.R. 1960, Andhra Pradesh 194; Surendra Nath Royv. Dwarka Nath Chakrabutty, A.I.R. 1917 Calcutta 496; Nathu Lai v.4EC/74—24
322
Babu Ram, A.I.R. 1933 All. 8; Hanuman Prasad v. Bhagwati Prasad,I.L.R. 24 All. 236; Raja of Ramnad v. Kamith Ravuthan, A.I.R. 1922Madras 34; Bon Kwi v. S.K.R.S. K.R. Firm, A.I.R. 1926 Rangoon 128;Madho Prasad Singh v. SAer Bahadur Singh, A.I.R. 1936 Oudh 181;Radhakishan v. Shridhar, A.I.R. 1954 Nag. 267; /VawJw v. Bhuwanoo,A.I.R. 1929 Nag. 75; Xa^wr fl/w/ v. ff/ra Lai D. Nanawati, A.I.R. 1923Bom. 23; Ram Lakshman Singh v. Girindra Mohan. A.I.R. 1963 Calcatta13; Amarsingh v. Karnail Kaur, A.I.R. 1956 Rajasthan 169; G. Appaswamyv. /?. Sarangapani A.I.R. 1966 Mad. 196; State of Andhra Pradesh v.Digyadarsan, A.I.R. 1969 A.P. 9; C. V. K. Rao v. Dante Bhaskarrao,A.I.R. 1964 AP. 185; referred to.
(ii) Grant of certificate under cl. (c) is no doubt a discretionarymatter, but discretion must be exercised on sound judicial principles.
The decision on the crucial items of expenditure is based on questionsof law which have already been decided by the Supreme Court, and onfindings of fact it cannot be certified under Art. 133 (I)(c).
Wilson v. Michigan State Board 199 N.W. 643; R. Vilkes (1769) 4Burr 2527; M/s. Godhan Das Baldev Das v. The Governor General inCouncil; AJ.R. 1952 Pnujab 103; Babu v. State of U.P. A.I.R. 1965 S.C.1967[Electrical Mfg. Co. Ltd., v. D. D. Bhargava, A.I.R. 1967 Delhi 97;State of West Bengal v. Ram Ajodhya Singh, A.I.R. 1965 Cal. 348: P.Seetaramareddy v. China Ramreddy, 1959 Andhra Law Times 61; Hot haSitaram v. State of Andhra Pradesh, A.I.R. 1959 A.P. 358; Union ofIndia Delhi v. Jogendra Kumar Chaudhry, A.I.R. 1964 Tripura 23; RamKumar Singh v. Muhammad Salim, A.I.R. 1929 All. 339; Jagdish Prasadv. State A.I.R. 1957 M.P. 226; Vidyachoran Shukla v. Khubchand Banghel,(1964) 6 S.C.R. 129; Sheo Sadan Singh v. Mohanlal Gautam, 1969 (1)S.C. Cases 408; Harischandra Bajpai v. Triloki Singh, 1957 S.C.R. 370;S.M. Banerji v. Shri Krishna (I960) 2 S.C.R. 289; Babulal Sharma v.Brijnarayan Brijesh. 14 E.L.R. 72; Samant N. Balkrishna v.George Fernandez (Civil Appeals No. 895 and 896 of 1968);S. Khader Sharif} v. Munuswamy. Gounder (1955) 2 S.C.R.469; Vidya Sugar Joshi v. Surinder Nath Gautam, A.I.R. 1969 S. C. 288;P. A. Pleader of Bansi v. Judges of Allahabad High Court, A.I.R. 1963All. 167; Thakur Rudra Pratap Singh v. Mirtunjay Pratap Singh, A.I.R.1957 All. 28; P. Seetharamareddy v. China Ramreddy, 1959 A.L.T.Reports 61; Dalchand Jain v. Narayan Shankar, 1969 S.C. N. 16.1; referredto.
DWARKA PRASAD MISRA v. KAMALNARAYAN SHARMA, 42 E.L.R. 53
323
Assessment of evidence by Supreme Court in appeal under s. 116-A.—ss. 33(5), 116-A and 123(2) («)—Compliance with s. 33(5)—Necessityof—threatening voters they could be committing gohatya by voting for oppo-nent—// corrupt practice—See Corrupt Practice—Appeal on grounds ofreligion etc.—NARBADA PRASAD v. CHAGANLAL & OTHERS (S.C.)39 E.L.R. 277.
SYMBOLS
—5. 123—-Corrupt practice—Dummy ballot omitting unsuccessful•candidate's election symbol—whether amount to corrupt practice.
HELD : Although the dummy ballot papers were in contravention ofthe instructions issued by the Election Commission and the appellant's nameshould not have been printed in them, it was impossible to say that the•dummy papers conveyed to the voters the impression that the appellant hadwithdrawn his candidature. It was not possible to accept the testimonyof the appellant's witnesses that on the eve of the election the respondentand his agents informed the voters that the appellant had withdrawn hiscandidature. The voters knew that there were two candidates in the fieldand the respondent had carried on a vigorous election propaganda till thelast day. H. V.KAMATH v. CH. NITIRAJ SINGH (S.C.), 41 E.L.R. 343.
... —Symbols—Allotment of-—Whether candidate sponsored by multistateparty can as a matter of right claim the symbol of the party—NotificationS.O. 3367 dated December 1, 1966—Proviso to Para 2—Notice under para4—who should give—Effect of improper notice.
The petitioner challenged the election of the first respondent. His casewas that he was sponsored by and contested the election on the ticket ofthe Republican Party of India which party was recognised as a multi-stateParty. He had made the necessary declaration in his nomination paper anda notice as contemplated by para 4 of the Notification No. S.O. 3367 datedDecember 1, 1966, issued under rule 5(1) of the Conduct of ElectionsRules, 1961, had been duly given. But the Returning Officer did notallot him the 'elephant' symbol of the Republican Party of India. Thus thenon-allotment of the symbol materially affected the result of the election.
The two provisions of para 30 of the Notification run :
"Provided that any such candidate sponsored by a recognised partyspecified against that state in column 4 of the Table shall chooseand shall be allotted, the reserved symbol of that party andno other symbol :
Provided further that any such candidate sponsored by a multi-state party not specified against that State in column 4 of
324
the Table may choose, and may be allotted the reserved synvbol of that party."
On the question, whether a candidate sponsored by a multi-state party canas a matter of right claim that the usual symbol of the party be allotted tohim, or the Returning Officer has the discretion to allot or not to allotthat symbol to the candidate ;
HELD : Dismissing the petition,
(i) the order refusing to allot the 'elephant' symbol to the petitionerwas neither against the rules nor was it arbitrary.
The second nart of the second proviso does not place any obligation onthe Returning Officer and, further, on reading the notification as a wholeit must be held that this provision is not so much as restricts his jurisdiction.The provision cannot be held to be mandatory and being discretionary theword 'may' used in the latter part of the second proviso is, in so far asthe Returning Officer is concerned, discretionary, his order not allotting the-'elephant' symbol to the petitioner cannot be held illegal or in non-complianceof the rules unless found to be arbitrary.
Para 4 of the notification lays down that for the purpose of para 2 a;
candidate shall be deemed to be sponsored by a particular recognised partyif and only if the conditions contained in clauses (a) to (c) thereof arefulfilled. The notice contemplated by para 4 has to be given either by thePresident or the Secretary of the party or by an office-bearer of the partywho is authorised by the party. In the instant case this condition has notbeen fulfilled and therefore in the eye of law no notice of the petitionerhaving been sponsored by the party was given and hence the symbol could':not be allotted to him.
Ranjit Singh v. Pritam Singh & others, A.I.R. 1966 S.C. 1626, referredto.
Obiter : (It appears necessary to provide a longer period for the deliveryof the notice contemplated by para 4 of the notification so that the partymay be in a position not to sponsor a dummy candidate. Further, it shouldbe permissible for the person giving the notice to modify it in case the-names of more than one person were indicated in the notice as the candi-dates sponsored by the party. Reconsideration of the whole questionsuggested).
(ii) Even if it be assumed that there was non-compliance with the rules,,the present one is not a case in which a presumption can be_ drawn as to,
325
the result of the election having been materially affected as was done in thecase of Surendra Nath Khosla v. Dalip Singh, XII E.L.R. 370, VashishtNarain Sharma v. Dev Chand and others (X E.L.R. 30) referred to. CHAN-DRA PAL SHAILANI v. SHRI NAR DEO, 36 E.L.R. 31.
WORDS AND PHRASES
"Agent" in S. 123, meaning of—Samant Nilakant V. George Fer-nandez, 35 E.L.R. 259; Aditiyan V. Martin, 34, E.L.R. 359;Mohan V. Arjun Singh, 36 E.L.R. 267.
—"As far as practicable", significance of—Rule of Conduct of Elec-tions Rules—Kasheswar Kusheswar v. Premadhar, 36 E.L.R.245 .
—"Any other candidate" under S. 82 (b)—Birendra Chandra Duttav. J. K. Chowdhury, 38 E.L.R. 381
—"Authorised" in section 77(1) of R. P. Act, 1951—Jai Singh v.Ram Kishan & ors. 34 E.L.R. 73
—"Candidate" person who has withdrawn—Mohan Raj v. SurendraKumar Toparia and ors. (S.C.) 39 E.L.R. 423 . . .
—"Candidate" in section 79 (b), meaning of—Samant Nilakant v.George Fernandes, 35 E.L.R. 259; Shri Mohan Singh v. ShriAlha-i-Ahmad 38 E.L.R. 160;
—"Consent", "Knowledge" in section 123, Expl. (I) scope of,Samant Nilakant v. George Fernandes, 35 E.L.R. 259
—"Classes" in section 153 (A) Penal Code, Definition of ; Adityanv. Martin, 34 E.L.R. 339. . . . . . .
—"Copy" in section 81(3) meaning of—Jagat Kishore PrasadVaidya v. Gangadhar Yadavrao Tamaskar and ors. 34 E.L.R.292; Jagat Kishore Prasad v. Rajendra Kumar, 42 E.L.R.231 ;
—"Corrupt Practices" in S. 123(3), (3A) meaning of—Ram Lakhanv. Athai Ram, 37 E.L.R. 91
—"Election" meaning of—Sitaram Mahato v. Baidyanath Panjiar &ors. 40 E.L.R. 354; Sarkar v. Election Commission 41 E.L.R.206; Ratan Singh v. Election Commission 42, E.L.R. 49
—"Electoral Right" meaning of—Keshavdev v. Kumar Singh, 40E.L.R. 242
326
—"Expenditure in connection with election incurred or authorised"*—Vidya Sagar Joshi v. Surinder Nath Gautam, 40 E.L.R. 29(S.C.)
"His" in S. 123(3), meaning of—Devi Prasad v. Maluram Singha-ria, 35 E.L.R. 59; Shri Mohan Singh v. Shri Alha-i-Ahmad, 38E.L.R. 160; Harish Chandra v. Bogun, 28 E.L.R. 305, ShahJayanthiial v. Kasturi Lai 36, E.L.R. 188., Karimji v. AbdurRahim, 36 E.L.R. 283
—"For the time being entered", meaning of—Vidya Sagar Joshi v..Surinder Nath Gautam, 40 E.L.R. 354
"Mandis" & "Mundas" of Kolhan Area whether Govt. Servants,—Harish Chandra V. J. K. Chowdhury, 38 E.L.R. 381. . . .
—"Material Facts" in S. 83 (I)(a)(b), meaning of,—Shri JanakSinha v. Mahant Ram, 37 E.L.R. 51; Mahant Mahadevanandv. Ambika Sharan, 39 E.L.R. 23
—"Gratification" inCl. (B)(b) of S. 123(1)—Meaning of—MahantMahant Mahadevanand v. Ambika Sharan, 39 E.L.R. 23
—"Names of the parties alleged to have committed such corruptpractice" in Cl. (b) of Sub-Sec, (i) of S. 83—Meaning of—Mahant Mahadevanand v. Ambika Sharan, 39 E.L.R. 23
—"Obtain" in S. 123 (7), meaning of—Birendra Chandra Duttav. J. K. Chowdhury, 38 E.L.R. 381
—"On or near symbol", in Rule 52(2) (d), Narendranath v. ManiSanyal, 36 E.L.R. 69
—"Ordinarily resident" in S. 20(4) & (5) of Act of 1950—Ishwar-appa v. P. Royappa, 39 E.L.R. 120
—Police Patel" in S. 123(7) (f)—B. V. Gandhi v. Police Modi,36 E.L.R. 108
—"Post under the Government", meaning of—Inamdar v. AgadiSanganna, 34 E.L.R. I
—"Procure" & "Obtain" in S. 123(7)—Devi Prasad v. Malluram-35 E.L.R. 59
"Produced" if synonymous with "field"—Harbhajan Singh v.Sagar Singh, 34 E.L.R. 221;
—"Shall" in Sub-Section 81(3) read with S. 86, whether mandatory—Lakhi Prasad v. Nathmal, 35 E.L.R. 300
327
"Statement of fact" in S. 123(4), Scope of —Samant Nilakant v.G. Fernandes, 35 E.L.R. 259
—"Subsisting contract", meaning of,—Gulam Quadir v. AbdulGhani, 40 E.L.R. 53; Gulam Nabi v. Mian Bhasir, 42 E.L.R.263
"—The date fixed for the respondent to appear before High Courtand answer claim"—Mahant Mahadevanand v. Ambika Saran,39, E.L.R. 23
—"True copy" in S. 81(3)—Birendra Chandra v. J. K. Chowdhry,38 E.L.R. 381
—"Undue influence" in S. 123(2) (b)—Mahant Mahadevanand v.Ambika Sharan, 39 E.L.R. 23; Chiranjiv Lai v. Mohan Lai, 40E.L.R. 373.
INDEX TO STATUTES REFERRED TO
CIVIL PROCEDURE CODE, 1908.
Or.I, r.8.
Kesvaiilal Kavi & anr. v. Narain Prakash & anr. 37 E.L.R. 198.
Or.I, 1.10.
R. Satyanaiayana v. Saidaya & Ors. 36 E.L.R. 298.
Nathuram Indra Singh v. Trikamal, Jamandas Patel and Ors. (SC) 37 E.L.R. 267.
Mohan Raj v. Surendra Kumar Taparia & Ors. 39 E.L.R. 423.
Or.VIII, r.5.
Bapurao v. Sidramappa & Ois. 41 E.L.R. 83.
Or.IX, r.9.
Duryodhan v. Sita Ram, 40, E.L.R. 215.
Or.XVI, r.14.
R.M. Seshadri v. G. Vasanthapai, 40 E.L.R. 303.
Or.XIX, 1.3.
Ghulam Hassan Khan «. Shamim Ahmad Shamim & Ors. 40 E.L.R. 318.
CONDUCT OF ELECTIONS RULES, 1961.
r.2(l) (j).
Ram Lakhan Shukla v. Athai Ram, 37 E.L.R. 91.
Shri Bhailabhai Narottamdass Patel v. Shri Mangaldas & Ors. 34 E.L.R. 269.
r.2(2).
Ram Dayal v. Brij Raj Singh and Ors. 38 E.L.R. 53.
T.30(1).
Narendra Nath Sen v. Mani Sanyal, 36 E.L.R. 69.
r.38(3).Samant Nilkant v. George Fernandes & Ors. 35 E.L.R. 259.
329
330
CONDUCT OF ELECTIONS RULES, 1961 (Contd.)
r.39(l)(b).
P.G. Gonsai v. Khachar & Ors. 36, E.L.R. 131.
Smt. Beni Rai v. Prem Narain & Ors. 42, E.L.R. 422.
r.40A.
Raj Pal Singh v. Om Prakash Garg & Ors. 41, E.L.R. 221.
r.43.
L.P. Vaidya v. Sri Gangadhar Yadaoiao Tamaskar & Ors. 41, E.L.R. 15.
r.49.
Rishangv. Paokai Hoakip & Ors. 35, E.L.R. 110
r.52(2)(d)
Narendra Nath Sen. v. Mani Sanyal & anr. 36 E.L.R. 69.
r.53.
Shri Bhailabhai Narottemdass Patel v. Shri Mangaldas Pola & anr. 34, F.L.R. 269.
r.56.
Jai Singh v. Ram Kishan & Ors. 34 E.L.R. 73.
r.56(l) & (2)
G.G. Mehta v. Manubhai Amarsey & anr. 36, E.L.R. 1.
r.56(2)
P.G. Gonsai v. Khachar, 36, E.L.R. 131.
Parkash Singh v. Harcharan Singh & Ors. 33 E.L.R. 21.
r.39(l)(b).
P.G. Gonsai v. Khachar & Ors. 36, E.L.R. 131.
Smt. Berti Rai v. Prem Narain & Ors. 42, E.L.R. 422.
r.40A.
Raj Pal Singh v. Om Prakash Garg & Ors. 41, E.L.R. 221.
r.43.
L.P. Vadiya v. Sri Gangadhar Yadaorao Tamaskar & Ors. 41, E.L.R. 15.
r.49.
Rishang v. Paokai Hoakip & Ors. 35, E.L.R. 110.
r.52(2)(d).
Narendra Nath Sen. v. Mani Sanyal &anr. 36, E.L.R. 69
331
CONDUCT OF ELECTIONS RULES, 1961 (Contd.)
r.53.
Shri Bhailabhai Narottemdass Patel v. Shri Mangaldas Pola & anr. 34, E.L.R. 269*
r.56.
Jai Singh v. Ram Kishan & Ors. 34, E.L.R. 73.
r.56(l)&(2)
G.G. Mshta v. Manubhai Amarsey & anr. 36, E.L.R. I.
r.56(2)
P.G. Gonsai v. Khachar, 36, E.L.R. 131.
Prakash Singh v. Harcharan Singh & Ors. 33 E.L.R. 21.
r.56(2)(b).
Prabhatgiri Gulabgiri Gonsai v. Shivrajkumar Alabhai Khachar and Ors. 36E.L.R. 131.
Rajaju v. Brijkishore Pateria & Ors. 41, E.L.R. 347.
Shri Bhailabhai Narottamdass Patel v. Shri Mangaldas Po!a & anr. 34, E.L.R. 269.
Narendra Nath Sen v. Mani Sanyal and anr. 36, E.L.R. 69.
r.60.
K.K. Baruah v. Premadhar, 36, E.L.R. 245.
r.63.
MiJhav Upsndra Talulicar v. Yashwant Sitaram Desai & Ors. 33, E.L.R. 224.
r.6 3(3)&(4)
R. Chidambara Bharathy v. P.R. Ramanaraju & Ors. 33, E.L.R. 178,
r.73(l)(d)
Ram Milan v. Hari Shankar Prasad Gupta & Ors. 38, E.L.R. 95.
r.83(l)(d)
Ram Milan v. Hari Shanker Prasad Gupta & Ors. 38. E.L.R. 95.
r.90.
K.R. Chipa v. A.T. Kundiwala & Ors. 41. E.L.R. 127.
r.92.(2)
Nathu Ram Mirdha v. Gordhan Soni ; & anr. 40, E.L.R. 62.
r.93.
M.M. Giri v. A.S. Singh & Ors. 39, E.L.R. 23.
S.G. Dutta v. Krishna Bajpai, 42. E.L.R. 353.
332
CONDUCT OF ELECTIONS RULES, 1961 (Contd.)r.93(d)
Ram Milan v. Hari Shankar Prasad Gupta & Ors. 38, E.L.R. 95.
r.94(a)
Birendra Chandra Dutta v. J.K. Chowdhury, 38, E.L.R. 381.
Ali Mohammad Tariq v. Bakshi Guhulam Mohammad and Ors. 39, E.L.R. 287
CONSTITUTION OF INDIA
Art. 14.
J.K. Choudhary v. B.C. Dutta, 42, E.L.R. 66.
Art.l9(a)
Kamata Prasad Upadhyaya v. Sarjoo Prasad Tiwari and Ors. 41, E.L.R. 44.
Art.58.
Baburao Patel & Ors. v. Dr. Zakir Hussain and Ors. 33, E.L.R. l.(S.C)
Art.58(l)(a) & (b).
Bhamburkar Shriniwas Gopal v. Brahma Deo and Ors. 31, E.L.R. 18 (S.C.)
Art.84.
Baburao Patel and Ors. v. Dr. Zakir Hussain and Ors. 33 E.L.R. 1 (S.C.)
Art.84(a).
S.L. Saraf v. M.S. Qureshi and anr. 38, E.L.R. 353.
Art.101.
Bapurao v. Sidramappa & Ors. 41, E.L.R. 83.
Art.lO2.(l)
D.R. Gurshantappa v. Addul Khuddus Anwar and Ors. 41, E.L.R. 153.
Art.103.
Shri Bableshwar Harjisaheb v. Shri Damani Surjratan, 37, E.L.R. 41.
Art.l33.(l)(b)&(c).
Dwarka Prasad Mishra v. Kamal Narain Sharma, 42, E.L.R. 53.
Art.l71(3)(b).
G. Vasantha Pai v. R.M. Seshadri & Ors. 38, E.L.R. 267.
Art.173.
Katnta Prasad Upadhya v. Sarjoo Prasad Tiwari and Ors. 35, E.L.R. 1.
Virji Ram Sutaria v. Nathalal Premji Bhanwadia and Ors. 40, E.L.R. 141.
Namdhari Yadav v. Ram Bilas Paswan, 42, E.L.R. 453.
Bhagwan Das Singla v. Shri Harchand Singh 42, E.L.R. 439.
333
CONSTITUTION OF INDIA—(contd.)
Art.173, (Form VII).Virrji Ram Suteria v. Nathalal Premji Bhanvadia, 35, E.L.R. 181.
Art.173 (a) & Third Schedule.
Pashupati Nath Singh v. Harihar Prasad Singh 35, E.L.R. 220.
Art.l73(b).
Sideshwar Sharma v. Chandradev Pr. Varma, 33, E.L.R. 234.
Amrit Lai Ambalai Patel v. Himatbhai Gomanbhai Patel, 38, E.L.R. 32.
Art. 173(1).
Madan Shukla v. Krishna Prasad Singh, 35, E.L.R. 102.
Art. 190(3).
Mohammad Akbar v. K.H. Lassawani, 38, E.L.R. 221.
Art.191
Umaro Singh v. Darbara Singh and Ors. 39, E.L.R. 240.
Nanak Chand Surana v. Smt. Kanta Khatwria, 39, E.L.R. 390.
Art.l91(l).
D.R. Gurshantappa v. Adbul Khuddus Anwar and Ors. 41. E.L.R. 153.
Art. 171(1 )(a)
D.R. Gurushantappa v. Adbul Khuddus Anwar and Ors. 33, E.L.R. 163.
Art. 191 (l)(a)
D.R. Gurushantappa v. Abdul Khuddus and Ors. 41. E.L.R. 153.Kamta Prasad Upadhya v. Sarjoo Prasad Tiwari and Ors. 35, E.L.R. \.
Art. 192(1)
Mohammad Akbar v. K.H. Lassawani, 38, E.L.R. 221.
Art.226.
Sakti Kumar Sarkar v. The Election Commission 41, E.L.R. 206.
Rattan Singh v. The Election Commission. 42, E.L.R. 49.
Art.227.
Rattan Singh v. The Election Commission. 42, E.L.R. 49.
Art.299(l)
Angani Ramji Hadmat v. Furgo Naryan Shriniwas and Ors. 35, E.L.R. 21..
Harish Chand Deogam v. Begum Sumbrui, 38, E.L.R. 305.
Art.324.
Babu Rao Patel and Ors. v. Dr. Zakir Hussain and Ors. 33, E.L.R. 1 (S.C>
Art.324 Sub-Clause (1).
Rim M.Ian Singh v. Hari Shankar Prasad Gupta and Ors. 38, E.L.R. 95..
334
.Art.326.
Mahant Mahadevanand Giri v. Ambika Sharan Singh and others. 39, E.L.R. 23.
Art.327.
Bapurao v. Sidramppa and others. 41, E.L.R. 83.
Art.329.(b)
Sakti Kumar Sarkar v. The Election Commission, 41, E.L.R. 206.
Art.341.
Parsram and another v. Shivchand and Ors. 40, E.L.R. 296.
Art.342.
Gajo v. Ram Chand and Ors. 39, E.L.R. 99
Art.342(l)
Bhaiya Ram Munda v. Anirudha Patar and Ors. 42, E.L.R. 362.
Art.366 Cl.(25).Gayo v. Ramchand and Ors. 39, E.L.R. 99.
CONSTITUTION OF JAMMU AND KASHMIR.
Art.51(l)
Sardar Harbans Singh v. Peer Shams-ud-din & Ors. 42. E.L.R. 400.
Art.51(a)
Sheik Adbul Rahman v. Shri Jagat Ram, 37, E.L.R. 349.
Jai Lai v. Ghulam Mustafa, 42, E.L.R. 122.
Shri Syed Nizam-ud-din v. Shri Hissam-ud-din 42, E.L.R. 274.
Shri Anayat LJllah Khan v. Shri Adbul Rehman Dar and Ors. 42, E.L.R. 291.
Art.132.
Sardar Harbans Singh v. Peer Sham-ud-din and Ors. 42, E.L.R. 400.
CONSTITUTION (SCHEDULED CASTES) ORDER, 1950.
S. Rajgopal v. CM. Arumugam and Ors. (S.C.) 38, E.L.R. 38.
CONSTITUTION (SCHEDULED TRIBES) ORDER, 1950 .
Dina v. Narayan Singh (S.T.) 38, E.L.R. 212.
Item 9.
Parasram and anr. v. Shivchand and Ors. 40, E.L.R. 296.
C1.3.
Goka RamaHngam v. Boddu Abraham and anr. 40, E.L.R. 291.
335
C, INSTITUTION (S.T.) ORDER, 1950, (PART HI) OF THE SCHEDULED-ITEM 24.
Bhaiya Ram Munda v. Anirudh Patar and Ors. 42, E.L.R. 362.
CONSTITUTION OF JAMMU & KASHMIR, 1956.
S.51.
Ghulam Ahmed Dar v. Modh. Sultan Tantaray & Anr. 40 E.L.R. 91.
Abdul Hami Ranggrez v. G.M.N. Koul & Ors. 40 E.L.R. 130.
Ghulam Razool Hantoo v. Syed Mir Qasim & Anr. 40 E.L.R. 101.
Ghulam Qadir Masala v. Abdul Gahni Lone & Ors. 40 E.L.R. 53.
Haji Saif-Uddin v. Mojammed Ashraf Khan 40 E.L.R. 35.
S.51 (4).
Mohammad Akbar v. K.H. Lassawani, 38 E.L.R. 221.
S.69.
Mohammad Akbar v. K.H. Lassawani, 38, E.L.R. 221.
Ghulam Hassan v. Gulam Nabiwani and Anr. 40 E.L.R. 1.
S.70.
Mohamad Akbar v. K.H. Lassawani, 38 E.L.R. 221. *
S.125.
Ghulam Hassan v. Gulam Nbiwani & Anr. 40 E.L.R. I.
S.I 26.
Ghulam Has-san v. Gulam Nabiwani & Anr. 40 E.L.R. I.
S.142(b). ,
Mohammad Akbar v. K.H. Lassawani, 38 E.L.R. 221.
DELIMITATION COMMISSION ACT. 1962.
S.10.
Birendra Chandra Dutta. v. J.K. Chowdhry, 38, E.L.R. 381.
EVIDENCE ACT, 1872.
S.8, illustration (e).
Samant Nilakant Balkrishna v. George Fernandes & Ors. 35 E.L.R. 259.
S.18.
Samant Nilakant Balakrishna v. George Fernandes & Ors. 35 E.L.R. 259.
S.19.
Samant Nilakant Blakrishna v. George Fernandes & Ors. 35 E.L.R. 259.
336
S.35.
Mohammad Akbar v. K.H. Lassawani, 38 E.L.R. 221.
Rajendra Kumar v. Chandra Narain Singh, 42 E.L.R. 385.
S.45.
Om Prakash v. Lalchand & Anr. 42 E.L.R. 336.
S.74.
Haokholal Thangjom v. Lalrokung, 37 E.L.R. 19.
S.78(6).
Shafqat Rai v. Phuman Singh & Ors. 34 E.L.R. 187.
S.79(b).
Krishna Kant Mishra v. Banamali Babu, 38 E.L.R. 451.
S.81.
B.P. Mouriya v. Prakash Vir Shastri, 37, E.L.R. 137.
S.106.
Birendra Chandra Dutta v. J.K. Chowdury, 38, E.L.R. 381.
S.I 14, illustration (e).
Harbhajan Singh v. Sagar Singh Sidodia, 34, E.L.R. 221.
S.114, illustration (g).
Ram Bharosey v. Jagannath Singh & Ors. 34 E.L.R. 135.
S.I 59.
Purshotamdas Ranchhoddas Patel v. Kantiprasad Jyashankar Yagnik, & Ors.34E.L.R. 160.
S.160.
K.P.J. Yagnik v. P. Ranchoddas & Ors. 41, E.L.R. 132.
GENERAL CLAUSES ACT, 1897.
Bishamber Dayal v. Raj Rajeswar & Anr. 39 E.L.R. 363.
S . 10 (1)
Bishamber Dayal v. Raj Rajeshwar & Anr. 39 E.L.R. 363.
337
INDIAN OATHS ACT, 1873.
S.13.
B.C. Dutta v. J.K. Chowdhury, 38, E.L.R. 381.
JAMMU & KASHMIR, REPRESENTATION OF THE PEOPLE ACT, 1957.
S.12(l)(b). . .
Abdul Gani Malik v. Syed Ahmed Aga & Anr. 40, E.L.R. 148.
S.24. • • •
Ghulam Hassan v. Gulam Nabiwani & Anr, 40, E.L.R.[.
Abdul Ghani v. Ghulam Md. 42, E.L.R. 100.
S.24.(d).
Sri Ghulam Mohd. Paray v. Shri Abdul Gam Namthali & Anr. 39, E.L.R.
Abdul Gani Malik v. Gulam Nabi Mircha & Ors. 40, E.L.R. 424.
Habibullah v. Gulam Rasool Kar & Ors. 41. E.L.R. 1.
S.24(8)
Chandan Lai v. Ram Dass & Anr. 41, E.L.R. 214.
S.44.
Ghuh-n Nibi v. Mian Bhasir. 42, E.L.R. 263.
S.44(5).
Gulzar Ahmed v. Abdul Rashid, 38, E.L.R. 342.
Ghulam Nabi. v. Mian Bhasir, 42, E.L.R. 263.
S.45(2).
Ghulam Quadir Mir v. Ghulam Mohd. Rajpuri and Ors. 39, E.L.R. 485.
S.47.
Shiek Adbul Rahman v. Shri Jagat Ram, 37, E.L.R. 349.
Mohd. Sadiq v. Mohd. Hussain, 41 E.L.R. 170.
Ghulam Nabi v. Mian Bhasir, 42, E.L.R. 263.
S.47(7). . .
Gulzar Ahmad v. Abdul Rashid, 38, E.L.R. 342.
S.69(a).
Abdul Hamid Ranggrez v. G.M.N. Koul & Ors. 40, E.L.R. 130.4 EC/74—25 • ™ ^ •..
338
S.91.
Mohammad Abdulla Shayir v. Syed Abdulla & Ors. 40, E.L.R. 113.
S.91(b).
Satya Paul v. Shri Paramanand, 42, E.L.R. 298.
S.94(5).
Mohammad Abdulla Shayir v. Syed Aidulla & ors. 40, E.L.R. 113.
S.98.
Mohammad Abdulla Shayir v. Syed Abdulla & Ors. 40, E.L.R. 113.
LIMITATION ACT, 1877.
S. 4 to 12.
Bishambar Dayal v. Raj Rajeshwar & Anr. 39 , E.L.R. 363.
LIMITATION ACT, 1963.
S.5.
R. Satyanarayana v. Saidayyaton. 36 E.L.R. 298.
K.V. Rao and Another v. B.N. Reddi and Ors. 39, E.L.R. 445.
S.29(2).
K.V. Rao aid Another v. B.N. Reddi and Ors. 39, E.L.R. 445.
MYSORE VILLAGE OFFICERS ABOLITION ACT, 1961.
Shivamurthiswamy Siddappayaswamy Inamdar v. Agadi Sanganna, 35 E.L.R.I.
MYSORE (PREVENTION OF DISQUALIFICATION) ACT, 1956.
Sec. 2(a), (b) and (c).
Bapurao v. Sidaramappa & Ors. 41 E.L.R. 83.
Sec. 3(d).
Bapurao v. Sidaramappa & Ors. 41, E.L.R. 83.
PRESS AND REGISTRATION OF BOOKS ACT, 1867.
Scope of—
Dr. Pohu Mai v. Bhagwandas Shastri, 33 E.L.R. 264.
S.7.
Devi Prasad v. Maluram Singhania & Ors. 35 E.L.R. 59.
PARLIAMENT (PREVENTION OF DISQUALIFICATION) ACT, 10 OF 1953.
Sec. 3.
Bapurao v. Sidramappa & Ors. 41 E.L.R. 83.
339
PRESIDENTIAL & VICE-PRESIDENTIAL ELECTIONS ACT (30 of 1952).
S.18.
Baburao Patel & Ors. v. Dr. Zakir Hufsain & Anr. 33 E.L.R. 1 (S.C.).V
PRESIDENTIAL & VICE PRESIDENTIAL ELECTION RULES, 1952.
R.6.
B.S. Gopal v. Bhrahtna Deo & Others. 31 E.L.R. 18(S.C).
RAJASTHAN PANCHAYAT SAMITIS & ZILA PARISHAD ACT, 1959.
Omrao Singh Dhabariya v. Yashanath Singh, 42, E.L.R. 126.
REPRESENTATION OF THE PEOPLE ACT, 1950.
S.20(4), (5) and (7).
IS. Ghattarki v. P.R. Velgali, 39 E.L.R. 120.
S.27(3).
G. Vasantha Pai v. R.M. Seshadri & Ors. 38, E.L.R. 267.
S.30.
B.C. Dutta v. J.K. Chowdhury, 38, E.L.R. 381.
REPRESENTATION OF THE PEOPLE ACT, 1951.
S.4(d).
Abdul Gani v. Syed Ahmed, 40 E.L.R. 148.
S.5.
Bhaiya Ram Munda v. Anirudh Patar, 42, E.L.R. 362.
S.7(d).
V. Narayanaswami v. S. Govindaswami Rounder and N. Damodaran, 39, E.L.R. 87.
S.7(e).
Vindhya Basini Devi v. Babulal Mandal & Ors. 36, E.L.R. 225.
S.8A.
Shri Krishna Vaid v. Sat Narain & Ors. 40, E.L.R. 76.
S.8(b)
Vindhya Basini Devi v. Babulal Mandal & Ors. 36, E.L.R. 225.
Ss.9, 9A.
Vindhya Basini Devi v. Babulal Mandal & Ors. 36, E.L.R. 225.
S.9A.
Maisuria Narendra Jhinabhai v. Thakarbhai Manibhai, 33, E.L.R. 50.
NitaTJn Shirraa v. Ram Kumar Agarwal & Ors. 33, E.L.R. 244.
340
Shanta Bai Taipalikar v. D. Gopalareddy, 34, E.L.R, 195.
Angani Ramji Nadmat v. Furgo Narayan Shriniwas & Ors. 35, E.L.R. 21.
Vindhya Basini Devi. V. Babulal Mandal & Ors. 36, E.L.R. 225.
Harish Chandra Deogam v. Begum Sumbrui, 38, E.L.R. 308.
A.R. Khan v. Sadasiva Tripathi, 39, E.L.R. 92.
K.R. Nadgouda v. Vishwanath Reddy & Ors. 39, E.L.R. 182.
D. Gopalareddy v. S. Bai Talpalikar and Ors. 39, E.L.R. 305.
Atarn Das v. Sariya PrasaJ, 41, E.L.R. 359.
S.9A. Explanation.
Amokh Singh v. Surender Singh, 42, E.L.R. 485.
S.10.
D.R. Gurshantappa v. Abdul Khuddus Anwar & Ors. 41, E.L.R. 153.
S.ll.
Karamji Rehmanji Chaipa v. A.T. Kundiwala & Ors. 41, E.L.R. 127.
S.13(d).
Abdul Gani v. Syed Ahmed, 40, E.L.R. 148.
(c).
Sitaram Mahato v. Baidyanath Panjiar, 40, E.L.R. 354.
S.22(2).
Shri Bhailalbhai Narothamdass v. Shri Mangaldas Pola, 34, E.L.R. 269.
Shri S.L. Saraf v. M.S. Qureshi and Anr. 38, E.L.R. 353.
S.23(3).
Sitaram Mahato v. Baidyanath Panjiar, 40, E.L.R. 354.Kundan Singh v. Kabul Singh, 42, E.L.R. 1.Gaya Kishore Samual v. R.N. Rao, 42, E.L.R. 84.Kundan Singh v. Kundan Singh, 42, E.L.R. (SC) 325.Baidynath Panjiar v. Sitarain Mahato, 42, E.L.R. 330.
S.25.
Rishang v. Paokai Haokip, 35, E.L.R. 110.
S.27(2).
Baidyanath Panjiar v. Sitaram Mahato, 42, E.L.R. 330.
S.27 (2) (c).
Sitaram Mahato v. Baidyanath Panjiar, 40 E.L.R. 354.
Ss. 30 to 36.
Pashupati Nath Singh v. Harihar Prasad Singh, 35. E.L.R. 220.
341
S.30(l)
Narendra Nath Sen v. Mani Sanyal and anr. 36, E.L.R. 69.
S.3K1).
Ram Dayal v. Brijraj Singh & ors. 42 E.L.R. (S.C.) 149.
S.33.
Ram Bharose v. Jagannath Singh & ors. 34, E.L.R. 135.Amolak Singh v. Raghuveer Singh, 36, E.L.R. 185.
S.33 (5).
Dr. Lakhi Prasad Agarwal v. Nathmal Dobania, 33, E.L.R. 300
Chaganalal v. Narbada Prasad & ors. 33, E.L.R. 286.
Harbhajan Singh v. Sagar Singh Sisodiya, 34, E.L.R. 221.
S. Harcharan Singh v. S. Mohinder Singh, 38, E.L.R. 1
Narbada Prasad v. Chaganlal and Ors, 39, E.L.R. 227.
AP.-fui Gwi v. Syed Ahmsd, 40. E.L.R. 148.
Kacho Md. Ali Khan v. Shri Kushak Bajula, 34, E.L.R. 323.
S.35(3).
•S. Harcharan Singh v. S. M3hinder Singh, 38, E.L.R. 1.
S.36.
Shantabai Talpalikar v. D. Gopalareddy & Ors. 34, E.L.R. 195.
Hira Singh Pal v. Madm Lai (S.C.) 35, E.L.R. 123
Amolak Chand v. Raghuveer Singh, 36, E.L.R. 185.
Jagdamba Prasad v. Sri Jagannath Prasad, 42, E.L.R. 465.
S.36(a)
Amritlal Ambalal v. Htmatbhai, 38, E.L.R. 32.
S.36(2).
Durga Singh v. Jawar Hussain, 34, E.L.R. 281.Amrit Lai Ambala—Patel v. Himatbhai Gomanbhai 8, 31, E.L.R. 32.Harish Chandra Deogam v. Begum Sumbrui, 38, E.L.R. 305.
S.36(3).
H.C. Deogam v. Degum Sumbrui, 38, E.L.R. 305.
S.36(4).
Dr. Lakhi Prasad Agarwal v. Nathumal Dokaria, 33, E.L.R. 300.
S.36(5).
Durga Singh v, Jawar Hussain, 34, E.L.R. 281;Abdul Gani v. Syed Ahmed, 40, E.L.R. 148.
4 E C/74—26
342
S.36(7j
Bhagwan Dass Singha v. Shri Harchand Singh, 42, E.L.R 439.
S.37(l)
Ram Bharose v. Jagannath Singh & Ors. 34, E.L.R. 135
S. 38.
Ram Bharose v. Jagannath Singh and others. 34, E.L.R. 135. .
S.51(a).
R.M. Afzal Khan v. Mohd. Muzafar Khan & anr. 39, E.L.R. 211.
S.52(2)(d). •
Narendra Nath Sen v. Mani Sanyal and anr. 36, E.L.R. 69.
S.53.
Vishwanath Reddy v. K.R. Nadgouda & anr. 39, E.L.R. 192.
S.56(2)(b).
Narendra Nath Sen v. Mani Sanyal & Anr. 39, E.L.R. 69.
S.57.
Rishang v. Paokai Haokip & ors. 35, E.L.R. 110.
S.58.
Dasu Sinha v. Ram Lakhan Singh Yadav and Ors. 38, E.L.R. 177.
S.58(lXa).
Laxman Prasad Vaidya v. G.Y. Tamaskar, 41, E.L.R. 15.
S.58(l)(b).
Jagdamba Prasad v. Sri Jagannath Prasad, 42, E.L.R. 465.
S.62.
Laxman Prasad Vaidya v. G.Y. Tamiskar, 41, E.L.R. 15.
S.64.
G.G Mchta v. Manubhai Amersey and Anr. 36, E.L.R. 1.
S.77.
Amarnath v. Sardar Lachman Singh & Ors. 34, E.L.R. 103.
Basant Ram v. Nabu Rani, 35, E.L.R. 151.
Hiru Ram v. Arjun Singh, 35, B.L.R. 226.
Surinder Nath Gautam v. Vidya Sagar Joshi, 35, E.L.R. 129.
Mohan v. Arjun Singh, 36, E.L.R. 267. ">
V. Ramachandra Rao v. Chenna Reddy and Anr. 37 E.L.R. 269
Narayan Shankar v. Dalchand Jain, 37, E.L.R. 107.
343
Sheodan Singh v. Mohan Lai Gautam , 38, E.L.R. 242.
Ram Dayal v. B.R. Singh and Ors. 38, E.L.R. 53.
Durga Prasad v. Jayendra Singh and Ors. 39, E.L.R. 1.
Devji Bhai Sadabhai Parmar v. Becharbhai Parmabhai, 39, E.L.R. 457.
Shah Jayantilal v. Kasturilal, 42, E.L.R. 307.
Bapurao v. Sidramappa & Ors. 41, E.L.R. 83.
Karamji Rehmanji Chaipa v. A.T. Kundiwala & Ors. 41, E.L.R. 127.
Megraj v. Radha Krishna Birla & Ors. 41, E.L.R. 296.
Hardwari Lai v. Pratap Singh, 41, E.L.R. 58.
R. Thirumalai Kumar v. Kathiravan, 42, E.L.R. 161.
S.77(l).
Jai Singh v. Ram Kishan & Ors. 34, E L.R. 73.
Ram Dayal v. Brijraj Singh & Ors. 42, E.L.R. 149.
S.77(3).
Ghasi Ram Majhi v. Omkar Singh, 35, E.L.R. 80.
Shri Krishnan v. Sat Narain and Ors. 37, E.L.R. 13.
Hans Raj v. Pt. Hari Ram and Ors. 40, E.L.R. 125.
Jagannath and anr. v. Narayan and anr. 40, E.L.R. 16.
Vidya Sagar v. Surinder Nath, 40, E.L.R. 29.
S.78.
Jai Singh v. Ram Kishan and others 34, E.L.R. 73,
S.79.
Mohan Raj v. Surendra Kumar Taparia and Ors. 39, E.L.R. 423.
S.79(b}
Hari Gopal v. Smt. Vijaya Raje Scindia, 33, E.L.R. 199.
Samant Nilkant Balkrishna v. George Fernandes and Ors. 35, E.L.R. 259.
Krishna Kant Mishra v. Banamali Babu, 38, E.L.R. 451.
K.V. Rao v. B.N. Reddy and Ors. 39, E.L.R. 445.
S. 79 (d)
Keshavadeo v. Khuman Singh, 40, E.L.R. 242.
S.80A
Jai Singh v. Ram Kishan & Others. 34, E.L.R. 73.
S.81.M.M. Giri v. A.S. Singh & Ors. 39, E.L.R. 23.
Samant N. Balakrishna etc. v. George Fernandez and Ors. 41, E.L.R. 260.
344
S.81 (I)
Dasu Sinha v. Ram Lakhan Singh Yadav & Ors. 38, E.L.R. 177.
Gajo v. Ramchand & Ors. 39, E.L.R. 99.
Ram Dayal v. Brijraj Singh & Others , 42, E.L.R. 149.
S.81 (2).
Nathu Ram Indra Singh v. Trikama! Jamandas Patel and Ors. (S.C.) 37, E.L.R. 267.
S.81(3).
Dr. Lakhi Prasad Agarwal v. Nathmal Dokamia, 33, E.L.R. 300.
Hid Vishiu Kamath v. Choudhary Nithiraj Singh, 36, E.L.R. 356.
Birendra Chandra Dutta v. Choudhary, 38, E.L.R. 381.
Priya Gupta v. Abrar Ahmad and Ors. 39, E.L.R. 249.
Bishambar Dayal v. Raj Rajeshwar and anr. 39, E.L.R. 363.
Jagat Kishore Prasad v. Rajsrvlra Kumar, 42, E.L.R. 231.
S.82.
Laxman Prasad Vaidya v. Gangadhar Yadav rao Tamaskar & Ors. 34, E.L.R. 292.
M.M. Giri v. A.S. Singh, 39, E.L.R. 23.
S.82(b).
Hari G3pal v. Smt. Vijaya Raje Scindia, 33, E.L.R. 199.
B.V. Gandhi v. Piloo H. Modi, 36, E.L.R. 108.
R. Siityanarayana v. Saidayya and others, 36, E.L.R. 298.
Nathu Ram Indra Singh v. Trikamal Jamandas Patel and Ors. (S.C.) 37, E.L.R. 267.
Birsitin Chndra D.itta v. Choudhary, 38, E.L.R. 381.
Mohan Raj v. Surendra Kumar, 39, E.L.R. 423.
K.V. Rao v. B.N. Reddy (S.C.) 39, E.L.R. 445.
S.83.
Shreekrishna Sslot v. Ramcharan Pujari, 35, E.L.R. 30.
Prabhatgiri Gulabgiri Gonsai v. Shivraj Kumar Alabhai Khachar & Ors, 36, E.L.R. 131
Shri Janak Sinha v. Mtihwf Ram, 37, E.L.R. 151.
G.N. Gogoi v. P.C. Gogoi, 39. E.L.R. 319.
M.M. Giri v. A.S. Singh & Ors. 39, E.L.R. 23.
Samant N. Balakrishan v. George Fernandez, 41, E.L.R. 260.
S.83(l).
Jai Singh v. Ram Kishan & Ors, 34, E.L.R. 73.
Laxman Prasad Vaidya v. Gangadhar Yadaorao Tamaskar & Ors. 34, E.L.R. 292.
Dasu Sinha v. Ram Lakhan Singh Yadav and Ors. 38, E.L.R. 177.
345
S.83(l)(a).
Parkash Singh v. Harcharan Singh, 33, E.L.R. 21.
Ram Milan Singh v, Hari Shinkar, 38, E.L.R. 95.
S.83(l) (a) (b).
M. M. Giri v. A.S. Singh and Ors. 39, E.L.R. 23.
S.83(l)(b).
D.R. Gurshanthappa v. Abdul Khuddess Anwar & Ors. 33, E.L.R. 162.
Samant Nikant Balkrishna v. George Fernandez and Ors. 35, E.L.R. 259.
- Bharu Kumar Shastri v. Mohan Lai Sukhadia, 38, E.L.R. 119.
A.M. Tariq v. Bakshi Ghulam Mohammad & Ors. 39, E.L.R. 287
M.N. Amersey v. P,.M. Joshi and Ors. 41, E.L.R. 26.
Tej Singh v. Ramachandra Vikal, 42, E.L.R. 312.
Smt. Beni Rai v. Prem Narain, 42, E.L.R. 422.
S.83(l) (c).
A.M. Tariq v. Bakshi Ghuiam Mohammad & Ors. 39, E.L.R. 287.
S.86.
Dr. Lakhi Prasad Aggarwa! v. Nathmal Dokania, 33, E.L.R. 300.
Priya Gupta v. Abrar Ahmad & Ors. 39, E.L.R. 249,.
S.86(l).
Mohan v. Arjun Singh ,36, E.L.R. 267.
R. Satyanarayana v. Saidayya & Ors. 36, E.L.R. 298.
Dasu Sinha v. Ram Lakhan Singh Yadav & Ors. 38, E.L.R. 177.
K.V. Rao v. B.N. Reddy (S.C.) 39, E.L.R. 445.
Mohan Raj v. Surendra Kumar, 39, E.L.R. 423.
Jagat Kishore P. Narain Singh v. Rajendra Kumar Poddar, 42, E.L.R.231.
S.86 (4).
M.M. Giri v. Ambika Sharan Singh & Ors. 39, E.L.R. 23.
S.86(5).
B.C. Dutta v. J.K. Chowdhuri, 38, E.L.R. 381.
M.N. Amersey v. P.M. Joshi, 41, E.L.R. 26.
Samant N. Balakrishna v. George Fernandez, 41, E.L.R. 260.
S.87.
Kesarilal Kavi v. Narain Prakash and Anr. 37, E.L.R. 198.
S.90.Kesarilal Kavi v. Narain Prakash and Anr. 37, E.L.R. 198.
346
S.92.
Ram Millan Singh v. Hari Shankar, 38, E.L.R. 95.
S.97.
Kanhiyalal v. Ram Charan, 42, E.L.R. 107.
S.97O).
Ram Milan Singh v. Hari Shankar, 38, E.L.R. 95.
S.98.
Natho Ram v. Siya Ram, 37, E.L.R. 210.
Dalchand Jain v. Narayan Shankar Trivedi, 41, E.L.R. 163.
S.99.
Shri Venkateswara Rao v. B.N. Reddi (S.C.) 39, E.L.R. 445.
Shri Krishna Vaid v. Sat Narain and Ors. 40, E.L.R. 76.
S.I0O.
Narendra Nath Sen v. Mani Sayal, 36, E.L.R. 69.
Ram Lakhan Shukia v. Athai Ram and Ors. 37, E.L.R. 91.
Sahodrabai Rai v. Ram Singh Aharwar and Ors. 37,. E.L.R. 176.
Bhanu Kumar Shastri v. Mohan Lai Sukhadia, 38, E.LR. 119.
M.M. Giri v. A.S. Singh & Ors. 39, E.L.R. 23.
Hardwari Lai v. Pratap Singh, 41, E.L.R. 58.
Nihal Singh v. Rao Birendra Singh, 41, E.L.R. 199.
Jagat Kishore v. Rajeadra Kumar, 42, E.L.R. 231.
S. 100(1).
Madhav Upendra Talavlicar v. Yashwant Sitaram Desai and Ors. 33, E.L.R. 224.
Ram Piara v. Ram Lai & Anr. 33, E.L.R. 94.
S. 100(1) (a).
Amrit Lai Ambalal Patel v. H.G. Patel, 38, E.L.R. 32.
Ram Milan Singh v. Hari Shanker, 38, E.L.R. 95.
S. 100(1) (b).
Dr. Pohu Mai v. Bhagwandass Shastri, 33, E.L.R. 264.
Samant Nilkant Balkrishana v. George Fernandez and Ors. 35, E.L.R. 259.
Hari Vishnu Kamalh v. Chaudhary Nitiraj Singh, 36, E.L.R. 356.
Dasu Sinha v. Ram Lakhan Singh Yadav & Ors. 38, E.L.R. 177.
S. 100(1) (c).
S.L. Sarafv. M.S. Qureshi & Anr. 38, E.L.R. 353.Ram Dayal v. B.R. Singh and Ors. 38, E.L.R. 53.Jagdamba Prasad v. Sri Jagannath, 42, E.L.R. 465.
347
S.
Haokholal Thangjom v. Lalroukung and Anr. 37, E.L.R. 19.
K.P. Upadhyaya v. S.P. Tiwari, 41, E.L.R. 44.
S. fOO(l)(d) (i).
Brij Mohan v. Hardyal Devgun, 36, E.L.R. 384.
A.A. Patel v. Himatbhai Gomanbhai Patel, 38, E.L.R. 32.
Gajo v. Ram Chand and Ors. 39, E.L.R. 99.
S. ) (
B.N. Patel v. M. Pola, 34, E.L.R. 269.
Samant Nilkant Balkrishana v. George Fernandez and Ors. 35, E.L.R. 259.
H.V. Kamath v. Chaudhary N. Singh, 36, E.L.R. 356.
Dasu Singh v. Ram Lakhan Singh Yadav and Ors. 38, E.L.R. 177.
S. JOOOXd) (iii).
Shri B.N. Patel v. Shri Mangaidas Pola and Anr. 34, E.L.R. 269.
Kesheswar Baruah v. Premdhar Bora, 36, E.L.R. 245.
Priya Gupta v. Abrar Ahmad and Ors. 3.9, E.L.R. 249.
Nathu Ram Mirdha v. Gordhan Soni, 40, E.L.R. 62.
S. 100tt)(d) (iv).
Rishang v. Paokai Haokip, 35, E.L.R. 110.
Dasu Sinha v. R.L.S. Yadav, 38, E.L.R. 177.
Paokai Haokip v. Rishang and Ors. 39, E.L.R. 431.
Abdul Gani v. Syed Ahmed, 40, E.L.R. 148.
S. 100(2)(b).
Hari Vishnu Kamath v. Choudhary Nitiraj Singh, 36, E.L.R. 356.
S. 101.
M.M. Giri v. A.S. Singh and Ors. 39, E.L.R. 23.
Jagat Kishore v. Rajendra Kumar, 42, E.L.R. 231.
S. 102.
M.M. Giri v. A.S. Singh and Ors. 39, E.L.R. 23.
S. 106.
B.C. Dutta v. Chowdhury, 38, E.L.R. 381.
S. 109 & 110.
Karan Singh v. Nand Kumar Somani, 39, E.L.R. 384.
S. 116.Dalchand Jain v. N.S. Trivcdi, 41, E.L.R. 163.
348
S. 119.
Natho Ram v. Siya Ram and Ors. 37, E.L.R. 210.
S. 123.
Trilochan Singh v. Karnail Singh & Anr. 34, E.L.R. 234.
Ramdhani Mishra v. Jagdish Prasad & Ors. 35, E.L.R. 241.
Om Prabha Jain v. Abnash Chand & Ors. 36, E.L.R. 101.
Baijnath Singh Vaidya v. Ravindra, 36, E.L.R. 327.
Shah Jayanthilal v. Kasturlal, 36, E.L.R. 188.
Umrao Singh v. Gopidas, 36, E.L.R. 261.
Shri Janak Sinha v. Mahant Ram, 37, E.L.R. 151.
Ram Lakhan Shukla v. Athai Ram, 37, E.L.R. 91.
Narayan Shankar Trivedi v. Dalchand Jain, 37, E.L.R. 197.
Amarnath Gupta v. Ram Gopal, 37, E.L.R. 1.
Birendra Chandra Dutta v. Choudhary, 38, E.L.R. 381.
Shri Mohan Singh Obcroi v. Shri Alha-i-ahmad 38, E.L.R. 160. '
Bhanu Kumar Shastii v. Mohan Lai Sukhadia, 38, E.L.R. 119.
H.C. Dcogam v. Begum Sumbrui, 38, E.L.R. 305.
B.B. Salunkhe v. G.A. Deshmukh (S.C.) 39, E.L.R. 225.
A.M. Tariq v. B.G. Mohammad and Others, 39, E.L.R. 287.
Om Prakash v. Lalchand, 40, E.L.R. 203.
Chunilal Singh v. Gyadhai & Ors. 40, E.L.R. 339.
Huna Mai and Another v. Balwant Rai Tayai, 40, E.L.R. 444.
Om Prakash v. Lai Chand, 40, E.L.R. 203.
Karamji Rehmanji Chaipa. v. A.T. Kundiwalaand Ors. 41, E.L.R. 127.
Laxman Prasad Vaidya v. G.Y. Tamaskar and Ors. 41, E.L.R. 15.
Deviprasad v. Maluram Singhania and Ors. 41, E.L.R. 335.
H.V. Kamath v. Ch. Nitiraj Singh, 41, E.L.R. 343.
R. Thirumalai Kumar v. Kathivaraa, 42, E.L.R. 161.
S. 123(1).
Abnash Chand v. Smt. Om Prabha Jain and Anr. 33, E.L.R. 142.
Shri Bailalbhai Narotemdass Patel v. Shri Mangaidas Pola & Anr. 34, E.L.R. 269.
Trilochan Singh v. Karnail Singh and Another, 34, E.L.R. 234.
Shanta Bai Talpalikar v. D. Gopalareddy, 34, E.L.R. 195.
Ramdhani Mishra v. Jagdish Prasad and Ors. 35, E.L.R. 241.
Shivamurthiswamy Siddappalyaswamy v. Agadi Sangarna, 34, E.L.R. 11.
Om Prabha Jain v. Abnash Chand and Another, 36, E.L.R. 101.
Baijnath Singh Vaidya, v. Ravindra, 36, E.L.R. 327.
349
Shah Jayanthilal v. Kasturilai, 36, E.L.R. 188.
Umrao Singh v. Gopidas, 36, E.L.R. 261.
Ghasi Ram v. Dal Singh and Others, 36, E.L.R. 60
Karamji Rahmanji v. Abdhuram, 36, E.L.R. 283.
Sri Janak Singh v. Mahant Ram, 37, E.L.R. 151.
Ram Lakhan Shukla v. Athai Ram, 37, E.L.R. 91.
Narayan Shankar Tiivedi v. Dalchand Jain, 37, E.L.R. 107.
Amarnath Gupta v. Ram Gopal, 37, E.L.R. 1.
Sahadrabai v. Ram Singh, 37, E.L.R. 176.
V. Ramachandra Rao v. M. Chenna Reddy and Another, 37, E.L.R. 176.
Subhas Chandra v. Ram Babu Maheswari, 37, E.L.R. 45.
Shyam Lai v. Mansa Din & Ors. 37, E.L.R. 67.
Popat Lai Joshi v. Manubhai, 37, E.L.R. 223.
Haokholal Thangjom v. Lalroukung, 37, E.L.R. 19.
Bhanu Kumar Shastri v. Mohan Lai Sukhadia, 38, E.L.R. 119.
Birendra Chandra Dutta v. Choudhury, 38, E.L.R. 381.
Shri Mohan Singh Oberoi v. Shri Alha-i-ahmad, 38, E.L.R. 160.
Jagatpati Singh v. Ramanand Singh, 38 E.L.R. 25.
Onkar Singh v. Ghasiram Majhi, 39, E.L.R. 477.
Anant Ram Majhi v. Kolaka Nila Kantham, 39 E.L.R. 359.
Chunilal Singh v. Gayadhar & o'rs. 40, E.L.R. 339.
Huna Mai and Anr. v. Balwant Rai Tayal, 40, E.L.R. 444.
Om Prakash v. Lalchand, 40, E.L.R. 203.
Keshadev v. Khuman Singh, 40, E.L.R. 242.
Magraj v. R.K. Birla, 41, E.L.R. 296.
K.N. Sharma v. D.P. Mishra, 41, E.L.R. 369.
S. 123(1) (A) (a).
Han Gopal Dube v. Smt. Vijaya Raje Scindia, 33, E.L.R. 119.
Dsviprasad v. Maiuram Sighania and Ors. 35, E.L.R. 59.
Rai Pal Singh v. Om Prakash Garg & Ors. 41, E.L.R. 221.
Sarla Prasher v. Shri Ram Dev, 42, E.L.R. 412.S. 123(1) (A) (b).
Hari Gopal Dube v. Smt. Vijaya Raje Scindia, 33, E.L.R. 119.
Harbhajan Singh v. Sagar Singh Sisodiya, 34, E.L.R. 221.
K. Nilakantham v. A.R. Majhi, 34, E.L.R. 212.
Ghasi Ram Majhi v. Omkar Singh, 35, E.L.R. 80.
Rai Pal Singh v. Om Prakash Garg & Ors. 41, E.L.R. 221,
Sarla Prasher v. Shri Ram Dev, 42, E.L.R. 412.
350
S. 123(1) (B)
Amarnath v. Sardar Lachman Singh & Ors. 34, E.L.R. 103.
S. 123(2)
Amarnath Verman and Anr. v. Dev Raj Anand and Ors. 34, E.L.R. 359.
Trilochan Singh v. Karnail Singh and anr. 34, E.L.R. 234.
Shivamurthiswamy Siddappalyaswamy v. Agadi Sangaana 34, E.L.R. 11'.
Ramdhani Mishra v. Jagdish Prasad and Ors. 35, E.L.R. 241.
Baijnath Singh Vaidya v. Ravindra, 36, E.L.R. 327.
Shah Jayanthilal v. Kasturilal, 36, E.L.R. 188.
Umrao Singh v. Gopidas, 36, E.L.R. 261.
Ghasi Ram v. Dal Singh & Ors. 36, E.L.R. 60.
Karamji Rahmanji v. Abdhuram, 36, E.L.R. 283.
Sahadrabai v. Ram Singh, 37, E.L.R. 176.
B.P. Mauryia v. Prakash Vir Shastri, 37, E.L.R. 137.
Janak Singh v. Mahant Ram, 37, E.L.R. 151.Ram Lakhan Shukla v. Athai Ram, 37, E.L.R. 91.
Narayan Shankar Trivedi v. Dalchand Jain, 37, E.L.R. 107.
Amarnath Gupta v. Ram Gopal, 37 E.L.R. 1.
V. Ramachandra Rao v. M. Chenna Reddy and Anr. 37, E.L.R. 269.
Shyam Lai v. Mansa Din and Ors. 37, E.L.R. 67.
Popat Lai Joshi v. Manubhai, 37, E.L.R. 223.
Haokholal Thangjom v. Lalroukung, 37, E.L.R. 19.
Birendra Chandra Dutta v. Choudhury, 38, E.L.R. 381.
Mohan Singh Oberoi v. Alha-i-ahmad, 38, E.L.R. 160.
G. Vasantha Pai v. Seshadri, 38, E.L.R. 267.
Bhanu Kumar Shastri v. Mohan Lai Sukhadia, 38, E.L.R. 119.
Jagatpati Singh v. Ramanand Singh , 38, E.L.R. 25.
Bishambar Dayal v. Raj Rajeshwar and Anr. 39, E.L.R. 363.
Dinesh Rai Dangi v. Daulat Ram, 39, E.L.R. 463.
M.M. Giri v. A.S. Singh and Ors. 39, E.L.R. 23.
Chiranjiv Lai v. Mohan Lai Sethia, 40. E.L.R. 373.
Chunilal Singh v. Gyadhar and Ors. 40, E.L.R. 339.
Huna Mai and Anr. v. Balwant Rai Tayal, 40, E.L.R. 444.
Om Prakash v. Lalchand, 40, E.L.R. 203.
Keshadeo v. Khuman Singh, 40, E.L.R. 242.
M.N. Amersey v. P.M. Joshi, 41, E.L.R. 26.
Lalrovikung v. Haokholal Thangjom, 41, E.L.R. 35.
351
B.P. Mauriya v. Prakash Vir Shastri (S.C.) 42, E.L.R. 342.
J.K. Chowdhury v. Birendra Chandra, 42, E.L.R. 66.
Shah Jayanthilal Ambalal v. K.N. Doshi, 36, E.L.R. 188.
Popat Lai Joshi v. Manubhai N. Araersey and Ors. 37, E.L.R. 223.
M. Chenna Reddy v. Ramchandra Rao, 40, E.L.R. 390.
Pt. Shree Krishana Selot v. Ram Charan Pujari, 41, E.L.R. 50.
i:3(3).
Narayan Sharma v. Ram Kismal Agarwal and Ors. 33, E.L.R. 244.
Chagan Lai v. Narbada Prasad, 33, E.L.R 286.
Dr. Lakhi Prasad v. Nathmal Dokamia, 33, E.L.R. 300.
R. Chidambara Bharathy v. P. Ramaraju, Returning Officer and Ors. 33. E.L.R. 178.
Amarnath Verman and Anr. v. Dev Raj Anand and Ors. 34, E.L.R. 359.
Shivamurthiswamy Siddappalyswamy v. Agadi Sanganna 34, E.L.R. 11.
Samant Nilkant Balkrishna v. George Fernandez and Ois. 35. E.L.R. 259.
Shreekrishna Selot v. Ramcharan Pujari, 35, E.L.R. 30.
Deviprasad v. Maluram Sighania and Ors. 35, E.L.R. 59.
Ghasi Ram v. Dal Singh & Ors. 36, E.L.R. 60.
Kaiamji Rahmanji v. Abdhuram, 36, E.L.R. 283.
Umrao Singh v. Gopidas and Ors. 36, E.L.R. 261.
Baijnath Singh Vaidya v. Ravirtdra Pratap Singh, 36, E.L.R. 327.
Shah Jayanthilal Ambalal v. K.N. Doshi, 36, E.L.R. 188.
Sahodrabai v. Ram Singh, 37, E.L.R. 176.
V. Ramachandia Rao v. M. Chenna Reddy and Anr. 37, E.L.R. 269.
Subhash Chandra v. Ram Babu Maheswari, 37, E.L.R. 45.
Shyam Lai v. Mansa Din and Ors. 37, E.L.R. 67.
Popat Lai Joshi v. Manubhai, 37, E.L.R. 223.
Haokholal Thangjom v. Lalroukung, 37, E.L.R. 19.
Amarnath Gupta and Anr. v. Ram Gopal Shawlwala, 37, E.L.R. 1.
Sahodrabai Rai v. Ram Singh, 37, E.L.R. 210.
B.P. Mauryia v. Prakash Vir Shastri, 37, E.L.R. 137 and 42, E.L.R. 342.
Ram Lakhan Shukla v. Athai Ram and Ors. 37, E.L.R. 91.
Shri Mohan Singh Oberoi v. Shri Alha-i-ahmad, 38, E.L.R. 160.
Jagatpati Singh v. Ramanand Singh, 38, E.L.R. 25.
Harish Chandra Deogam v. Begum Sumbrui, 38, E.L.R. 305.
Birendra Chandra Dutta v. Choudhury, 38, E.L.R. 381.
G. Vasantha Pai v. Seshadri, 38, E.L.R. 267.
332
Priya Gupta v. Abrar Ahmad and ors. 39, E.L.R.249.
Dinesh Rai Dangi v. Daulat Ram, 39, E.L.R.463.
Keshadev v. Khumati Singh, 40.E.L.R.242.
M. Chenna Reddy v. Ramachandra Rao, 40, E.L.R. 490.
Chiranjiv Lai v. Mohan Lai Sethia, 40, E.L.R.373.
K.P.J. Yagnik v. Purshottamdas Ranchoddas & Ors. 41. E.L.R.132.
Ambika Saran Singh v. Mahant Mahadev Nand Giri, 41, E.L.R.183.
Nihal Singh v. Rao Birendra Singh and anr. 41, E.L.R.199.
J.K. Chowdhury v. Birendra Chandra, 42, E.L.R.66.
S.123(3A).
Dr. Lakhi Prasad Aggarwal v. Nathumal Dokamia, 33, E.L.R.300.
R. Chidambara Bharathy v. P. Ramaraju, Returning Officer and ors. 33, E.L.R.178.
Amarnath Verman & anr. v. Dev Raj Anand & Ors. 34, E.L.R.359.
Ramchandra Rao v. M. Chenna Reddy and anr. 37, E.L.R.269.
B.P. Mauryia v. Prakash Vir Shastri, 37, E.L.R. 137.
Ram Lakhan Shukla v. Athai Ram & Ors. 37, E.L.R.91.
Shri Mohan Singh Oberoi v. Shri Alha-i-Ahmad, 38, E.L.R.160.
G. Vasantha Pai v. R.M. Seshadri and Ois, 38, E.L.R.267.
Birendra Chandra Dutta v. Choudhury, 38, E.L.R.381.
M. Chenna Reddy v. Ramachandra Rao, 40, E.L.R.39O.
Chiranjiv Lai v. Mohanlal Sethia, 40, E.L.R.373.
J.K. Choudhury v. Birendra Chandra, 42, E.L.R.66.
S. 123(4).
R.Chidambara Bharaty v. Ramaraju, Returning Officer and ors. 33, E.L.R.178.
D.R. Gurushantappa v. Abdul Khuddus, 33, E.L.R.162.
Amarnath v. Sardar Lachman Singh and ors. 34, E.L.R.103.
B?.s?.nt Ram v. Nalu Ram, 35, E.L.R. 151.
Deviprasad v. Malm am Sighania and ors. 35, E.L.R. 59.
Ramdhani Mishra v. Jagdish Prasad & Ors, 35, E.L.R.241.
Sahodrabai v. Ram Singh, 37, E.L.R.176.
Ram Kishan v. Jai Singh, 37, E.L.R.217.
Birendra Chandra v. Choudhary, 38, E.L.R.381.
Mohan Singh Oberoi v. Alhaj-i-ahmad, 38, E.L.R.16.
G.N.Gogoi v. Promode Chandra Gogoi & Ors. 39, E.L.R.319.
B. B. Salunkhe v. G.A. Deshmukh. 39, E.L.R.225.
Guruji Shuhar v. Vithalrao, 40, E.L.R.189.
Magraj v. R.K. Birla, 41, E.L.R.296.
353
K.N. Sharma v. DP. Mishra, 41, E.L.R. 369.
Hardwari Lai v. Pratap Singh, 41, E.L.R. 58.
Samant N. Balakrishna v. George Fernandez, 35, E.L.R. 259 and 41, E.L.R. 163.
Dalchand Jain v. N.S. Trivedi, 41. E.L.R. 163
B.P. Maurya v. Prakash Vir Shahstri 42, E.L.R. 342.
J.K.Choudhury v. Biiendia Chandra 42, E.L.R. 66.
Om Prakash v. Lalchand, 42, E.L.R. 336.
S.I 23(5).
Shivamurthiswamy Siddappayswamy v. Agadi Sangamma, 34, E.L.R. 1.
Shanta Bai Talpalikar v. D. Gopalareddy and Ors. 34, E.L.R. 195.
Surinder Nath Gautam v. Vidya Sagar Joshi, 35, E.L.R. 129.
Mangal Singh v. Banwarilal, 36, E.L.R. 307.
Ghasi Ram v. Dal Singh and others, 36, E.L.R. 60.
Karamji Rahmanji v. Abdhuram, 36, E.L.R. 283.
Sahodrabai v. Ram Singh, 37, E.L.R. 176.
V. Ramaihandra Rao v. M. Chenna Reddy and another, 37, E.L.R. 269.
Subhas Chandra v. Ram Babu Maheswari, 37, E.L.R. 45.
Shyam Lai v. Mansa Din and others, 37, E.L.R. 67.
Popat La! Joshi, v. Manubhai, 37, E.L.R. 67.
Haokholal Thangjom v. Lalroukung, 37, E.L.R. 19,
G. Vasant Pai v. Seshadri, 38, E.L.R. 267.
Dasu Sinha v. R.L.S. Yadav and Ors., 38, E.L.R. 177.
Shri Mohan Singh Oberoi v. Shri Alha-i-ahmad, 38, E.L.R. 160.
Jagatpati Singh v. Ramanand Singh, 38, E.L.R. 25.
Joshibhai Chunibhai Patel v. Anwar Beg A. Mirza (SC) 39, E.L.R. 438.
Kcshadev v. Khuman Singh, 40, E.L.R. 242.
Seshadri v. Vasanthapai, 40, E.L.R. 303.Magraj v. R.K. Birla, 41, E.L.R. 296.K.N. Sharma v. D.P. Mishra, 41, E.L.R. 369.
S.123(6).
Shivamurthiswamy Siddappaswamy v. Agadi Sangamma, 34, E.L.R. 11.
Amarnath v. Sardar Lachman Singh & Ors., 34. E.L.R. 103.
Surinder Nath Gautam v. Vidya Sagar Joshi, 35, E.L.R. 129.
Ghasi Ram v. Dal Singh and Ors., 36, E.L.R. 60.
Karamji Rahmanji v. Abdhuram, 36, E.L.R. 283.
Mohan v. Arjun Singh, 30, E.L.R. 267.
Sahodrabai v. Ram Singh, 37, E.L.R. 176.
354
V. Ramachandra Rao v. M. Chenna Reddy and Ors., 37, E.L.R. 269.
Subhas Chandra v. Ram Babu Maheswari, 37, E.L.R. 45.
Shyam Lai v. Mansa Din and Ors., 37, E.L.R. 67.
Popatlal Joshi v. Manubhai, 37, E.L.R. 223.
Haokholal Thangjom v. Lalroukung, 37, E.L.R. 19.
Shri Krishnan v. Sat Narain and Ors., 37, E.L.R. 13.
Shri Mohan Singh Oberoi v. Shri Alha-i-ahmad, 38, E.L.R. 160.
Jagatpati Singh v. Ramanand Singh, 38, E.L.R. 25.
D.S. Parmar v. Becharbhai Parmabhai (SC), 39, E.L.R. 457.
Sri Durga Prasad v. Sri J. Singh and Ors., 39, E.L.R. 1.
J.C. Patel v. Anwar Beg A. Mirza, 39, E.L.R. 438.
Bishambar Dayal v. Raj Rajeshwar and anr., 39, E.L.R. 363.
Keshavdev v. Khuman Singh, 40, E.L.R. 242.
Hans Raj v. Pt. Hari Ram and Ors., 40, E.L.R. 125.
Jagannath v. Narayan and anr., 40, E.L.R. 16.
Vidya Sagar Joshi v. Surinder Nath, 40, E.L.R. 29.
Bapurao v. Sidramappa & Ors., 41, E.L.R. 83.
Magraj v. R.K. Birla, 41, E.L.R. 296.
K.N. Sharma v. D.P. Mishra, 41, E.L.R. 369.
Dalchand Jain v. N.S. Trivedi, 41, E.L.R. 163.
Shah Jayantilal v. Kasturilal E.L.R. 307.
S.123(7).
Shivamurthiswamy Siddappaswamy v. Agadi Sangamma, 34, E.L.R. 11.
Deviprasad v. Maluram Sinhania and Ors. 35, E.L.R. 59.
Ghasi Ram v. Dal Singh and Ors., 36, E.L.R. 60.
Karmaji Rahmanji v. Abdhuram, 36, E.L.R. 283.
Babubhai Vallabhadas Gandhi v. Piloo Homi Modi, 36, E.L.R. 108.
Sahodiabai v. Ram Singh, 37, E.L.R. 176.
V. Ramachandra Rao v. M. Chenna Reddy and anr., 37, E.L.R. 269.
Subhas Chandra v. Ram Babu Maheswari, 37, E.L.R. 45.
Shyam Lai v. Mansa Din and Ors., 37, E.L.R. 67.
Popatlal Joshi v. Manubhai, 37, E.L.R. 223.
Haokholal Thangjom v. Lalroukung, 37, E.L.R. 19.
Shri Mohan Singh Oberoi v. Shri Alha-i-ahmad, 38, E.L.R. 160.
Jagatpati Singh v. Ramanand Singh, 38, E.L.R. 25.
S.L. Saraf v. M.S. Qureshi and anr., 38, E.L.R. 353.
Krishna Kant Mishra v. Banamali Babu, 38, E.L.R. 451.
355
Birrendra Chandia Dutta v. Choudhury, 38, E.L.R. 381.
Keshavdev v. Khuman Singh, 40. E.L.R. 242.
Subedar Singh v. Jagdish Narain, 40, E.L.R. 178.
M. Chenna Reddy v. Ramachandra Rao, 40, E.L.R. 390.
Ambika Saran Singh v. Mahant Mahadev Nand Giri, 41, E.L.R. 183.
J.K. Choudhury v. Birendra Dutta, 42, E.L.R. 66.
S.123(7)(a).
Abdulgani v. S. Ahmad. 40, E.L.R. 148.
S.123(7)(b)
Kara-Idas U'c.b'rw P'.-mir v. Sxnihi-id Mnubhai Solanki aid am. 33, E.L.R. 74.
S.123(8).
Babusha Vallabhadas Gandhi v. Piloo Homi Modi, 36, E.L.R. 108.
S.127.
Deviprasad v. Maluram Singhania and Ors., 41, E.L.R. 335.
S.127A.
Piiya Gupta v. Abrar Ahmad and Ors., 39, E.L.R. 249.
S.l.?9.
S.L. Saraf v. M.S. Qureshi and am., 38, E.L.R. 353.
S.130.
G. Vasantha Pai v. R.M. Sesadri and Ors., 38, E.L.R. 267.
Karamji Rahmanji Chaipa v. A.T. Kundiwala and Ors., 41, E.L.R. 127.
S.I 58.
Kacho Mohammad Ali Khan v. Shri Kushak Bakula, 34, E.L.R. 323.
S.I 69.Ram Milan Singh v. Hari Shankai, 38, E.L.R. 95.
REPRESENTATION OF THE PEOPLE ACT, (J.&K. ACT, 4 OF 1957)
Abdulgani v. Syed Ahmad, 40, E.L.R. 148.
S.24(d).
Mohammad Akbar v. K.H. Lassawani, 38, E.L.R. 221.
S.47(7).
Mohammad Akbav v. K.H. Lassawani, 38, E.L.R. 221.
MGIPRRND—IV(N.S.)—4EC/74—4-8-75—1000
