Election Law Reports, Vol. LXIII

, GOVT. OF INDIA PEca-45-Lxm500-1985 (D.S.K. IV)

ELECTION LAW REPORTS

Containing cases on election law decided by the Supreme Court andthe High Courts of India and the opinions of the Election Commission

Vol. LXIII

Editor :R.K.P.SHANKABDASS, M.A., LLB.(Cantab.)

Advocate, Supreme Court

63 E.L.R.

Published under the authority of Election Commission of Indiaby the Controller of Publications, Civil Lines, Delhi-110 054 andprinted by the Manager, Government of India Press, Coimbatore-641 019

1988

Price: Inland Rs. 40.00 or Foreign £4.67 or % 14.40.

(£) GOVT. OF INDIA PECI. 45: LXDB500-1985 (D.S.K. IV)


Containing cases on election law decided by the Supreme court andthe High Courts of India and the opinions of the election commission

Vol. LXIII

Editor :R.K. P. SHANK ARD ASS, M.A., LLB.(Caniab.)

Advocate, Supreme Court

63 E.L.R.

Published under the authority of Election Commission of Indiaby the Controller of Publications, Civil Lines, Delhi-110 054 andprinted by the Manager, Government of India Press, Coimbatore-641 019

1988

Price: Inland Rs. 40.00 or Foreign £ 4.67 or $ 14.40.

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Vno

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VOLUME LXIII

CASES REPORTED

PAGE

Abhayacharanlal v. Shri Chandra .Mouleshwar Singh (HighCourt of Patna) 49

Badrivishal Pitti v. Shiv Pershad & Ors. (High Court ofAndra Pradesh) 229

Bedprakash Mahanand v. Lalit Mohan Gandhi & Ors. (HighCourt of Orissa) 95

Gobind Prasad Shiv prasad Chaudhary v. ReturningOfficer & Ors (High Court of Bombay) . . . . 124

Haji C. H. Mohammad Koya v. T K S M A Muthukoya(Supreme Court of India) . . . . . . 22

Ishaq Mohamad v. Devaji (High Court ol" Bombay) . . 171

Kasi Viswara Venkata Rama Krishna Sriraghava Raju v.Murla Yerraiash Reddy and Another (High Court of AndraPradesh) 337

Loknarain v. Bhairon Singh ShekhawiU and anr (High

Court of Rajasthan) . . . . . . 6 5

Meghraj Medhavi v. Ekhlakh Ahmed (High Court of Patna) 109

G Narayana Reddy v. S Narayana Reddy & Ors (High CourtCourt of Andhra Pradesh) 249

In re: From the President of India Under Section 8A (3)(Election Commission of India) . . . . . 334

In re: From the President of India Under Section 8A (3)(Election Commission of India) . . . . . 335

Rajendra Prasad Gupta v. Pradeep Kumar Bajaj & Ors(High Court of Allahabad) . . . . ' . . 2 6 9

Rajendra Singh Yadav v. Chandra Sen and Others (SupremeCourt of India) 259

Satyadeo Rajpurohit v. Shankar Lai & Another (High Courtof Rajasthan) 311

Sukhdfeo Babu v. Dadaji And Others (High Court of Bombay) 201

S Suwarna Kumar v. Smt Radha Bai Ananda Rao (HighCourt of Andh-ra, Pradesh) , . . . . . . 83

T K S M A M Thangal v. Haji C H Mohamad Koya (HighCourt of Kerala) . . •,%. . . ; . , . . . 1

(i)

00ELECTION LAW REPORTS

VOLUME LXIIl

TABLE OF CASES CITED

PAGE

Abdul Shakurv. Raikhab Chand & Ors AIR (1958) SC 52 . 50,59

Ali Nasir Khan v.Manik Chand: ILR 25 All. 90. . . 270,279

Amrit Lai Ambalal Patel v. Himathabhai AIR (1968)SC1455 . ' . . 2 7 0

Amritsar Municipal Committee v. Hazara Singh: AIR (1975)

SC1087 202,224

Anil Krishna Basak v. Sailendra Nath (69 C.W.W. 593) . 271, 280

Dr Anup Singh v. Shri Abdul Shani & Ors AIR (1965) SC 815 . 126,163

Baidyanath Panjira v. Sita Ram Mahto AIR (1970) SC 314 . 271, 282

S N Balakrishna etc. v. George Fernandez &Ors etc. (1969)3 S.C.R. 603 40, 172,

195, 197S Baldev Singh v. Teja Singh & Ors AIR (1975) SC 693 . 95, 013 151,

229, 235

Balwan Singh v. Prakash Chand & Ors AIR (1976) SC 1187 270,278

Basavalingappa v. Minichinnappa AIR (1965) SC 1269. . 202, 224

Bashir Ahamed Magrey v. Ghulam Quadir Mir (1977)

1 SCC 285 . . " . . . . . . 3 1 3

PRBelagali v .BDJa t t i AIR (1971) SC 1348 . . . 271,282

Beli Ram v. Nand Kumar : AIR 1977 SC 1914 . . . 3 1 3

Bhabi v. Sheo Gobind & Ors AIR (1975) SC 2117 . . 96,103

Bhagat Singh v. Jaswant Singh ATR (1966) SC 1861

Bhagwati v. Chandramul : AIR (1966) SC 735 . . . 269,284

Bhaiya Lai v. Harikrishan Singh : AIR (1965) SC 1557 . 83, 90

Bhaiyaram Munda v. Aniruddh : AIR (1971) SC 2533 . 202, 224

Bharat Basi v. Gobi Nath : AIR (1941) All. 385 . . . 271, 281

Bhatya Ram v. Anirudh : AIR (1971) SC 2533 . . . 337, 344, 345

Bibi Imambandi v. Haji Matatisuddi 15 C.L.J. 621 . . 271, 279The Board of H.S. & I.E. U.P. & Ors v. Kumari Chittra

Srivastava & Ors AIR (1970) SC 1039 . • ' • ' . . . 66Brahma Dutt v. Paripurna Nand Family & Ors AIR (1972) .

All. 340 •" . 2, 15Brijendraial & Ors v. Jwafaprasad & Ors AIR (19601 SC i ' ' V

1049 . . . 65,66,69,70.72,75 110

(iii)

PAGE

Brij SiSBan Singh v. Priya Brat Narain Singh & Ors AIR(1965) SC 282 110,270,277

299, 307

Chanda Singh v. Ch. Shiv Ram Verma & Ors AIR (1975)SC403 . . . . . ; . . 151, 229,235

R Chandra v. M V Marappan : (1973) Bihar Bar CouncilJournal 369 . . . 110,113

Chief Commissioner of Ajmer & Anr v. Radhey Sham Dhani(1957) SC 304 210

S K Choudhary v. Baidyanath Panjiar 1973 (1) SCC 95 . 114

Commissioner of Agricultural Income Tax West Bengal v.Keshab Chandra Mandal AIR (1950) SC 265 . . . 172,192,193

Court of Wards Balrampur v. Lai Bahadur AIR (1937)Oudh 353 • . . 2 7 0

Dadarao v. The State of Maharashtra (1974) SCC 630 . . 23, 42

Dalim Kumar Sain & Anr v. Nandrani & Anr AIR (1970)

Cal. 292 271,280

Deoki Nandan v. Murlidhar & Ors AIR (1957) SC 133 . 270, 278

Dharamsingh v. Harisingh & Ors AIR (1975) SC 1274 . 77Dhulabhai & Anr v. State of Madhya Pradesh & Anr.

AIR (1969) SC 78 172,182

V VGiri v. D S Dora & Ors AIR (1959) SC 1318 . . 337,344,345

Goona Durgaprasad Rao & Anr v. Goona SudharshanaSwami AIR (1940) Mad. 513 . . . . . . 337,344,345

Great Western Railway Co. v. Baxter : 8 Tax Cases 231 •(1922) 2 A. C.I 49,54,55,

56, 58

Gurbanta Singh v. Piara Ram : AIR (1960) Pun. 614 . . 270, 278

Gurcharan Singh v. State of Punjab (1972) F.A.C. 549 . 225

Guru Gobinda Basu v. Sankari Prasad Bhosal & Ors AIR(1964) SC 254 50, 59

Hafiz Mohammad Ibrahim v. Election Tribunal : 13 ELR262/1962 Doabia Election Cases 282 . . . . 3 1 2

Haji Abdul Wahid v. B V Keskar & Anr 13 ELR 262/21ELR 409 332

Hanumant y. The State of Madhya Pradesh 1952 SCR94/1952 SCR 1091 . 23,42

Hardwari Lai v. Kanwal Singh : AIR (1972) SC 515 . 313

Hari Prasad Mulshankar Rivedi v. V B Raju : 1974 (3)SC416 202,210

(iv)

PAGE

Hari Vishnu Kamath v. Ahmed Ishaquo AIR (1955) SC 233 . 93, -TZ5

N EHaro v.Jahanara AIR (1972) SC J840. . . . 337,344,345

Hazura Singh & Ors v. Mohinder Singh: AIR 1937 Lahore

599 270,279

Hem Chand v. Pearey Lai : AIR (J942) PC 64 . . . 270, 278

Heirraj v. Raraji Lai (1975) 4 SEC 671 . . . 172Hindasthan Construction Company Limited v. U.O.I. : AIR

(1S67)SC526 . . . . . . . . 172, 192

Imrit Chimar v. Sibdhan Pandey (17) Calcutta Weekly

Notes 108 . . . 271, 279

Inayatula v. Diwun Chand Mahajan: (I95S) ELR 219 . . 172, 197

Inder Lai v. Lai Singh: AIR (1961) Raj. 122 . . . 330

Indra Noh.ru Gandhi v. Raj Narain: AIR (1975) SC 2299 . 312, 313

Jagat Kishore v. Rajendra Kumar Poddar AIR (I964> SC1545 66, 81

Dr J.igjit Singh v. Giaai Kartar Singh and Ors : AIR 1966SC773 150

Janal; Singh v. Mahant Ram Kishore Das A R (1972) SC 359 50, 64

Jashbhai Patel v. Anverbeg: AIR 1956 SC 586 . . . 3 1 3

Jitendra Bahadur Singh v. Krishna Bihari & Ors : AIR (1970)

• SC275 150

Jugal Kishore v. •Ratnakar Mohanty: AIR (1976) SC 2130 . 270, 278

K Kamaraj Nadar v. Kunju Thevar : AIR (1958) SC 687 66

Kanda & Ors v. Waghu : AIR (1950) PC 68 . . . 270, 278

Kanhaiyalal v. Minna Lai : AIR (1976) SC 1886. . . 50, 62

Smt'Kanta Kathuria v. Manak Chand Suram-. (1969)2 SCC268/(1970)2 SCR 835/A1R (1970) SC 694 . . . 50,55

Karbhaii Bhimaji Rohamare v. Shankar Rao Genuji Kolhe& Ors: AIR (1975) SC 575 59

Karnail Singh v. Election Tribunal, Hissar: 10 ELR 189 . 65, 69

Kanick Chandera Rout v. Bijoy Krishna 1962 Doabia Elec-tion Cases 282 312, 332

Keshav Laxman Borkar v. Deorao Laxman Anande(1960) SC 131

M A Khan v. Board of Revenue (1962) A.L.J 1094

Kishori Lai v. Mt. Chakibai : AIR (1959). SC 504

Kotiswar & Ors v. Paresh Nath & Ors AIR (;956);Cal. 205

Krishan Kumar v. Krishna Gopal : AIR (1964) Raj 21

AIR. 202,

271,

. 278

05 . 270,

330

226

280

279

(v)

PAGE

wr;.iinii i*rasad Chaudliary v. Nitcshvvar Frasiid & Ors :28 ELR 209 - 5 0

Laxman Siddappa Naik v. Kattimani Chandappa Jampanna'& Ors : AIR (1968) SC 929 90

Macmilian y Guest (H M Inspector of Taxes) : 24 Tax Cases190(1942 AC 561) 50,54

Madan Gopal v. Mamraj : AIR (1976) SC 461 . . . 270. 278

Madhaukar G E Pankakar v. Jaswant Chobbildas Rajani(1977) 1 SCC 70 AIR (1970) SC 694 . . . . 50. 56. 59

Mahadeo v. Shantibhai & Ors (1969) 2 SCR 422 . 50,55.58

Mahadeo v. Udai Pratap : AIR (1966) SC 824 . . . 3 1 3

P Malai Chami v. V M Andi Ambalam & Drs AIR 1973 -

SC2077 126,154,155, 167

Manubhai Nandlal Amersev v. Popatlal Manila! Joshi(1969) 3 SCR 217/ATR (1969) SC 734 . . . . 1 7 2

Matajog Debey v. H C Bhari (1955) 2 SCR 9 2 5 - AIR 1956

SC 44 332

Meghraj Patodia v. R K Birla & Or; (1971) 2 SCR 118 . 23, 39

Military Stores v. R L Kohli : \ R 1965 ALJ 298 . . 270, 278

D P Mishra v. Kamal Narain Sharma & Ors AIR (1971)SC856 2, 14, 15,20,

22, 29, 30

Mochiram Triva v. Lalmohan Nayak: 46 ELR 563 . . 1 5 2

Mohan Singh v. Bhanwar Lai & Ors AIR 1964 SC 1365 . 23, 39

H C Mohanty v. Surendra Mohanty AIR (1974) SC 47/ (1974)

2 SCR 39 20, 22, 30

Mohesh Lai v. Busunt Kumaree: (1881) ILR (i Cal 340 . 172, 193

G Mohiuddin v. Election Tribunal: AIR 0959) All 357 271, 282Murarka Radheyshyam v. Roop Singh Rathore & Ors AIR

(1964) SC 1545 . . . . . . . . 66, 81

Murlidhar v. International Film Co AIR (1943) PC 34 . 270, 278

Muthuswami Mudhalidar v. Masilamani ILR 33 Mad 342 . 337, 344, 345

Nagaraja Rao v. Koothappan : AIR (1941) Mad 602 . . 270,279,299

Nanhak Lai v. Baijnath Agarwala AIR (1935) Patna 474 . 272, 280

Naran Bhagwantrao Gosavi Balajwale v. Gopal VinayakGosavi & Ors : AIR (1960) SC 100 . . . . . 1 1 0 , 117M Narayana Rao v. C Venkata Reddy AIR (1977) SC 208

(1977) 1 SCR 490 . . . . " . . . . 5 0 , 6 2

(vi)

PAGE

Nripendra Bahadur Singh' v. Jairara Verma & Ors : AIR

(1977) SC 1992 . 110, 113

Om Prabha Jain v. Gianchand & another AIR (1959) SC 837 66, 80

Palvinder Kaur v. The State of Punjab (1953) SCR 94 . . ' 23, 42

Paokai Haokin v. Rishnag : AIR (1969) SC 663 . . . 172, 195, 196

Pars Ram v. Shiv Chand : AIR 1968 Punjab 331 . . 2 7 0

Paryanibai v. Bajirao : AIR (1963) Bom. 25 . . . 271,280

D D Pawar v. Pandurang : AIR (1978) SC 361 . . . . 50, 62

Prakash Chandra v. State of UP : AIR (1960) SC 195 . . 202, 224, 225

Prem Ex-Servicemen Co-operative Tenant Farming Societyv. Thiru John v. The Returning Officer AIR (1977) . . 110,118,270

Projan & Co v. Nagappa : ATR 1953 SC 235 . . . 270, 278Rahim Khan v. Khurshid Ahmad (1975) 1 SCR 643, AIR

(1975) SC 290 50,61,62

B Rajagopala Rao v. N C Ranga AIR (1971) SC 267 . . 20

Ram Autar Singh v. Ram Gopal Singh &Ors: AIR (1975)

SC 2182 126, 168

Ram Awadesh Singh v. Sumitra Devi & Ors: AIR (1972) SC 580 65, 76

Ramanbhai v. Ajit Kumar : AIR (1961) Gujarat 315 . . 330Ramanbhai Patel v. Jaswant Singh Udesingh Dabhai & Ors:

AIR (1968) SC 1162

Ram Sewak v. H K Kidwai : AIR (1964) SC 1249

Ram Dayal v. Brijrai Singh : AIR (1970) SC 110

M Ramappa v. Sangappa & Ors : AIR (1958) SC 937 .

B M Ramaswamy v. B M Krishnamurthy: AIR (1963) SC 458

Rangilal Chaudhary v. Dabusao : AIR (1962) SC 1248

Ram Prasad Sharma v. State of Bihar : AIR (1970) SC 326 .

Rajik Ram v. J S Chouhan : AIR (1975) SC 667

S R Rehman v. W T Commissioner : AIR (1970) Cal. 292 .

Saddik Mohemed Shah v. MT Saran & Ors: AIR (1930) SC 57 270, 277

Sahodra Bai v. Ram Singh : AIR (1968) Sc 1079

MT Saidunnisa v. MT Ruqya & Ors : AIR (1931) All. 307

Sakhawat Ali v. State of Orissa (1955) 1 SCR 1004

Sheodhari Rai & Ors Suraj Prasad : AIR 1954 SC 758

Sheopat Singh v. Harish Chandra & Ors: AIR (1960) SC 1217 330

23,96,

65,

50,

202,271

65,

40103, 150

76

59

209,,28275

270, 279

50,

271

61

,280r 270, 277

66

271

56

27C

,280

). 278

(1971)

AIR

172

172,

50,:

210

PAGES

195, 198

59

95, 103

66

225

(vii)

R M Seshadri v. G V Pai : AIR (1969) SC 692 .

Shiv Kirpal Singh K V V Giri: AIR 1970 SC 2097

Shivmurthy Swami v. Agadi Sanganna Andanappa3 SCC 870

Shri Shreewant Kumar v. Shri Baidyanath Panjiar(1973) SC 717 . . . . . . ' .

Sumitra Devi v. Sheo Shankar : AIR (1973) SC 215 .

Srinivasa Naicker v. Engammal : AIR (1962) SC 1141 .

State of Kerala v. Vasudevan (1975) Crl. L.J. 97

State of Maharashtra v. R B Chowdhari & Ors : AIR (1968).SC 110/(1967)3 SCR 708 20,22,29

Statcman v. Deb (1968) 3 SCR 614 and 620 ATR (1968) SC1495 at ps 1499 49, 54

R Subbanna v. S. R. Guru & Ors : 22 EUR 201 . . . 1 2 5

Suresh Prasad Yadav v. Jai Prakash Mishra & Ors : CIR(1975) SC 376 229, 235

Thiru John v. The Returning Officer : AIR Jefssi SC 1724 . 110, 117, 270

277, 307

Udhav Singh v. M R Scindia : AIR (1976) SC 744 . . 279, 278

Vashisht Narain Sharma v. Dev Chand & Ors 10 ELR 30 . 313

Vishwanath v. Konappa : AIR (1969) SC 604 . . . 202

Venkata Raddy v. Sultan & Ors : (1976) 3 SCR 445 . . 23, 39271,281

Wilson Reade V, C S Booth & Ors : AIR (1958) Assam 128 337, 343, 345

2—3 EC1VN3D/85

IN THE HIGH COURT OF KERALA AT ERNAKULAM

T.K.S.M.A.M. THANGAL

V

HAJI C.H. MOHAMMAD KOYA

(N. D. P. NAMBOODIRIPAD, J.)

December 19, 1977

Representation of the People Act, 1951—Section 123 (34)—The Pressand Registration of Books Act, 1867—Sees. 1, 7—allegation of indulgencein the corrupt practice of inciting communal hatred for the furtheranceof prospects of election—how court has to deal with it—presumptionraised by Section 1 of the Press Act—whether can he used to prove acorrupt practice in an election petition.

The petitioner, a defeated candidate, challenged the election of therespondent on the ground that the respondent had, by the publicationof various articles directed towards inciting communal hatred in a news-paper of which he was the Chief Editor, committed the corrupt practiceset out in Sec. 123 (3A) of the Representation of the People Act. Therespondent in his defence mainly contended that the impugned publi-cations did not contain anything objectionable and that the presumptionraised by Sec. 7 of the Press Act that an editor of a newspaper is theeditor of every article produced in that newspaper cannot be available toprove allegations of corrupt election practices which were of a quasi-cri-minal nature.

HELD : Allowing the petition and setting aside the respondent'selection—

(1) An analysis of sub-sections (1) to (7) of Sec. 123 of the Repre-sentation of the People Act shows that the corrupt practice included insub-section (3A) has special significance and certain particular featureswhich are not possessed by the activities prohibited by other sub-sectionsof Sec. 123. The evil effects of the activities specified in the other sub-sections are compartively short from the point of view of duration andless harmful to the society at large. But Sub-section (3A) deals with acti-vities which promote or attempt to promote what may generally be des-cribed as communal hatred. Consequently an allegation in an electionpetition of acts attracting Section 123 (3A) of the Act has to be seriouslyconsidered by a Court from a broader and realistic angle.

(2) The presumption raised by Section 7 of the Press Act that theperson whose name appears as the editor on a newspaper is the editorof every portion of the issue as produced will be available against anyperson in any legal proceeding who satisfies the requirements of the defi-nition of 'editor' as set out in Section 1 of the Press Act, viz. that he isone who is in a position to control the selection of the matter that ispublished in a newspaper.

2 T.K.S.M.A.M. THANGAL V. HAJI C.H. MOHAMMAD KOYA [VOL. LXlll

D. P. Mishra v K. Sharma : Air (1971) SC 856...relied on

Brahma Dutt v Paripurna Nand : Air (1972) All. 340 dissented from

ELECTION PETITION NO 16 OF 1977

M. M. Cherian and R Radhakrishnan Nair, for the petitioner

S. Narayanan Poti, S. Sankarasubban, Dr George Mathew and

V. K. Veeran Sahib, for Respondent

JUDGEMENT

NAMBOODIRIPAD J.—In the general election held to the Legisla-tive Assembly of Kerala on 19th March 1977, the petitioner and the res-pondent were the contesting candidates from 34 Malappuram Constituency.The respondent was the candidate of the Muslim League supported by theruling United Front, while the petitioner was the candidate of the MuslimLeague (Opposition) supported by Jana Sangh and the Marxist Party. Thecounting of votes took place on 20-3-1977 and the respondent was declaredelected. The election of the respondent is challenged on the ground thatthe returned candidate has committed corrupt practices falling within theambit of sections 123(3), (3A) and (4) of the Representation of the PeopleAct, 1951 for (brevity the Act). The respondent is the Chief Editor of'Chandrika', a Malayalam daily paper which is the official organ of theMuslim League. According to the petitioner the respondent holds shareworth three lakhs rupees in the aforesaid company. That newspaper publi-shed reports and articles appealing to the members of the Muslim com-munity to vote for the respondent, and not to vote for the petitioner. Thereports and articles tend to promote or attempt to promote feelings ofenmity and hatred between different classes of citizens on grounds of religionand community, in furtherance of the prospects of the election of therespondent. The respondent published in the said Daily, reports which arefalse and which the respondent believed to be false and did not believeto be true in relation to the candidature of the petitioner. Paragraphs 5and 6 of the petition extract the objectionable portions of the matterspublished in the paper. Further, the details regarding the objectionablematters printed and published in the aforesaid Daily are given in para-graphs 7 to 16 of the petition. The objectionable portions are extracted inthe aforesaid paragraphs of the petition. According to the petitioner, theconcerned publications constituted corrupt practices and the prayer in thepetition is for a declaration that the election of the respondent is voidand that the petitioner has been duly elected from the 34 MalappuramConstituency.

2. In answer to the summons issued from the court the respondententered appearance and field a written statement raising the following con-tentions. The allegations contained in paragraph 3 of the petition are un-true and untenable and the election of the respondent is not liable to be de-clared void. Chandrika Daily is published by the Muslim Printing andPublishing Company Limited, Calicut, and the respondent is the chiefeditor of that newspaper. The actual functions of the editor are beinglooked after by Sri V. C. Aboobacker, who is the editor, printer and publi-sher of Chandrika Daily. As a member of Parliament and the Secretary ofthe Indian Union Muslim League the respondent has other important acti-

fc.L.R/j T.K..S. M.A.M. THANGAL V. HA31 C.H. MOHAMMAD KOYA 3

vities and he has little time to perform the functions of the chief editor.The respondent was not in a position, to devote any time to look after theday-to-day editing of Chandrika Daily and he was only nominally hold-ing the post of Chief Editor, and the actual day-to-day work was doneby Shri. V. C. Aboobacker. Because of pre-occupation connected withthe election campaign the respondent was not having the leisure or thetime to read through the daily issues of the Chandrika excepting nowand then to have a cursory glance at them. Kerala Muslim League nowshares worth Rs. 3 lakhs in the Muslim Printing and Publishing CompanyLimited and those shares stand in the name of the respondent because thecompany is an unincorporated body. The respondent is holding the sharesfor and on behalf of the Muslim League. It is not right or fair to attributeany reports or articles appearing in Chandrika to this respondent as sta-ted in paragraph 4 of the petition. The allegation that Chandrika Dailyhas published reports and articles appealing to the members of the Mus-lim community to vote for the Muslim League in the name of religionand community and not to vote for the candidates of the Muslim League(Opposition) in the name of religion and community is not true. Thereports or articles do not tend to promote feelings of enmity and hatredbetween different classes of citizens on grounds of religion and communityin furtherance of the prospects of the election of the respondent. Suchpublication has not prejudicially affected the prospects of. the petitionerin the election. The respondent has not published any reports which arefalse and which he believed to be false and did not believe to be true inrelation to the candidature of the petitioner. The allegations in paragraph4 of the petition are vague, without stating what statement and by whomamounts to the corrupt practices described therein. The extract mentionedin paragraph 5 of the petition is out of a speech made by the respondentto a gathering in which he addressed the Kerala State Muslim LeagueConference held on 27-2-1977 at the Calicut Stadium ground. The respon-dent does not precisely recollect the actual words used by him in thespeech which was an extempore one and unable therefore to admit thatthe words extracted in inverted comas have been, in fact, spoken to byh'm. The reporting of such news in newspapers including the Chandrikacannot always be expected to be precise and accurate. Tt is submitted fur-ther that the words extracted in paragraph 5 do not constitute a corruptpractice under section 123 (3), (3A) and (4) of the Act. The speech wasa purel.v political address and it was quite innocuous and lawful and therewas no likelihood of creating any feeling of enmity or hatred between anyclasses of citizen" on grounds of religion, race or caste. There was no appealto vote or refrain from voting for any person on the ground of religion,race or caste or community. The reporting of the alleged extract of therespondent's speech in the issue of Chandrika dated 1-3-1977 was not madeby him and the respondent cannot be made liable or responsible for thereport simply because he is the chief editor. The contention raised inparagraph 6 of the petition is untenable. It is the normal function of anynewspaper to report speeches and events that take place and the respon-dent had no hand in the reporting of the speech of Sri G. N. Banathvalaas the reporting was done at the instance of reporters of Chandrika, andthe respondent was not even aware of the report. Sri Banathvala is thePresident of the Maharashtra Muslim League and the speech was madeby him at Feroke, which is far outside the Malappuram constituency. SriBanathvala is neither the agent of the respondent nor has the respondenthad anything to do with the speech of Sri Banathvala. The speech doesnot fall within the mischief of section 123(3), (3A) and (4) of the Act.The allegation in paragraph 7 of the petition is untrue. The article of

4 T.K.S.M.A.M. THANGAL K HAJI C.H. MOHAMMAD KOYA [VOL. LXIII

Haji N. V. Mohammed Ali appears to be an innocuous political speechand it cannot be characterised as a call in the name of the Muslim community.The petitioner has not shown, that the respondent had anything to do withHaji N. V. Mohammed Ali in contributing the article to the Chandrikadated 6-3-1977 or the publishing of it in the said issue. The article referredto in paragraph 8 of the petition is not stated to be by any particularperson. It is not known why the petitioner should attribute the authorshipof the aforesaid statement and its reporting, to the respondent. That state-ment also does not amount to a corrupt practice under section 123 (3),(3A) or (4) of the Act. The article contributed by Shri P. K. Parakkadayuis innocuous. It is a mere political statement against the Jana Sangh whichaccording to the author has been acting against the interests of the Mus-lim League and the author was neither the agent nor any worker of therespondent. The publication of this article in the Chandrika Daily wasnot made at the instance of the respondent. The petitioner is trying tomisinterpret the metaphorical language in the article and give it a meaningwhich it does not have; nor was intended by the author. The allegationin paragraph 10 of the petition is devoid of any truth or merit. The openletter of Sri K. M. Chummar published in the Chandrika Daily dated 12thand 18th of March. 1977 has merely a political content and is quite in-nocuous and it contains none of the mischiefs which amount to corruptpractice under section 123 (3), (3A) or (4) of the Act. The letter was,

' not intended to or likely to promote feelings of enmity or hatred between differ-ent classes of citizens on grounds of religion. Sri K. M. Chummar was notan agent or worker of the respondent and the publication of that letter inthe Chandrika was not made at the instance or with the direction of therespondent. The cartoon which seems to have been published in the Chan-drika dated 12-3-1977 does no! have the meaning or the sense which isattributed by the petitioner, it was not published with the consent or know-ledge of the respondent. The cartoon does not appear to be intended toor likely to promote any hatred in the minds of the Muslims against theUnited Front or the Marxist party, the Janatha party and the Muslim Lea-gue (Opposition). It is merely a political cartoon as is usually published insimilar papers all over India. The article of Sri Rahim Machery is in-nocuous and has none of the vices which could make it amount to a corruptpractice within the meaning of section 123 (3), (3A) or (4) of (he Act. Thearticle is purely political in character and the respondent had nothing todo with the article or its publication. The statement attributed to Sri Man-galam Gopinath referred to in paragraph 13 of the petition does not amountto a corrupt practice. It was a general address of a political character andthat statement was not likely to promote any clash between the communi-ties. Sri Mangalam Gopinath was not art agent of the respondent or a per-son working under the directions or at the instance of the respondent. Thereport was made in Chandrika without the knowledge or consent of therespondent. The statement of Sri Ebrahim Sulaiman Sait, referred to inparagraph 4 of the petition was made at Pulikkal which is outside theMalappuram Constituency. It was a political speech and it was neverintended to promote any feelings of hatred between communities. Theseare general statements which are often made during election campaign anddo not constitute a corrupt practice. The speech of Sri Sulaiman Sait wasnot made at the request or as an agent of the respondent, and it was, notreported in Chandrika at the instance or under the directions of the res-pondent. The speech of Sri Shihab Thangal referred to in paragraph 15of the petition was made at Kozhikode, far away from the Malappuramconstituency. Tt was a political speech and Sri Thangal was not an agentof the respondent. The speech does not attract section 123 of the Act. The res-

E.L.R.] T.K.S.M.A.M. THANGAL V. HAJI C.H. MOHAMMAD KOYA 5

pondent was not responsible for the reporting of the speech. The speechmade by Sri Karunakaran and referred to in paragraph 16 of the petitionwas a merely political speech made on behalf of the United Front of whichhe was a prominent member. The respondent had nothing to do with thespeeches rendered by Sri Karunakaran and the reporting of the speechwas not done at the instance of the respondent or under his directions.Excepting the statement attributed to the respondent as having been madein the course of his speech at the State Muslim League Conference atPookoya Thangal Nagar on 27th February. 1977, none of the other itemsmentioned in paragraphs 6 to 16 of !he petition have been shown to bestatements made or reported by the respondent or by any of his agents.The articles and speeches, referred to in paragraphs 6 to 16 are no morethan what is usually said and expressed by the parties during an electioncampaign and they were not intended to promote any feeling of enmity andhatred between different classes of citizens or to appeal to any voter to voteor to refrain from voting for any person on the basis of religion, caste or com-munity. The articles do not offer section 123 (4) of the Act. The MuslimLeague (Opposition) owns and publishes the 'League Times', a similardaily like Chandrika, advocating the views and disseminating the propa-ganda of the Muslim League (opposition) as well as the other parties whichwere its allies in the concerned election. Similar articles and speeches wereprinted and reported in League Times. The election petition is not inconformity with law, and it is not accompanied by an affidavit in termsof section 83 proviso of the Act. The petitioner is not entitled to anyof the reliefs prayed for.

3. After discussing with both sides the following issues were raised :

(1) Whether the petition is maintainable?

(2) Whether the election is vitiated by all or any of the corrupt pra-ctices alleged in the petition?

(3) Regarding reliefs and costs.

4. The assembly constituency involved in this case is a segment of theManjeri Parliamentary constituency. The main contest there was betweenSri Ibrahim Sulaiman Sait, candidate of the Muslim League, and a nomi-nee of the Opposition League. Sri Sulaiman Sait won the election, andE. P. 18/1977 was filed by an elector challenging that election. Sri Saitis the 1st respondent. Sri Sait is cited as a witness in this case. So whenthe 1st respondent was examined in E. P. 18/1977, both sides agreed thatthe deposition of Sri Sait in E. P. 18/1977 may be treated as substantiveevidence in this case by producing an attested copy of his deposition. Onthe basis of that agreement 1 have passed an order dated 23-11-1977 inE. P. 18/1977, and a copy of (hat order is placed in this case as part ofthe records. A copy of the deposition of the 1st respondent in E. P. 18/1977 is produced in this case and on the agreement of both sides it wasmarked as Ext. XI.

5. Issue No. 1.—The respondent has not satisfied me in what respectthe petition is not maintainable. There is a vague contention in the writ-ten statement that the affidavit filed is not in accordance with the .pro-viso to section 83 (1) of the Act. But the respondent did not press thiscontention at the time of hearing, and I hold that the petition is main-tainable.

6 T.K.S.M.A.M. THA.NGAL V. HAJ1 C.ll. MOHAMMAD KOYA [VOL LXIH

6. Issue No. 2.—A political party by name the Indian Union MuslimLeague has a unit in Kerala. There was a rift in the unit sometime in1974. As could be seen from Ext. XI there was an attempt to patch upthe quarrel, and a temporary settlement was reached, the terms of which/•were embodied in an instrument marked as Ext. P9 in E P. 18/1977. Thereconciliation proved abortive and the party split into two different groups.Though the group that went away from the parent organisation was bran-ded as "oilaraxft" (dissidents) it assumed the political name of MuslimLeague (Opposition). During the last election both the Muslim League andthe Opposition League put up separate candidates even in the same cons-tituency. In the election from the Malappuram constituency which gaverise to this election petition the peitioner and the respondent were thecontesting candidates. The petitioner was a nominee of the OppositionLeague supported by the Marxist Communist party, Jana Sangh, Janatha,R.S.S. and other minor groups constituting what was generally referredto as the Opposition Front. The respondent was the candidate of theMuslim League, which was then a constituent of the ruling United Frontconsisting of the Indian National Congress, the Communist Party of Tndia,Kerala Congress, Revolutionery Socialist Party, Muslim League, etc.

7. The validity of the election of the respondent is challenged by thepetitioner on the only ground that certain corrupt practices were committedby the respondent during the course of his election campaign. The variousitems of corrupt practices alleged in the petition relate to certain publi-cations in a Malayalam Daily Newspaper called Chandrika. Though in thepetition sub-sections 3, 3A and 4 of section 123 of the Representation ofthe People Act, 1951 (briefly the Act), are specifically referred to, from theevidence tendered in the case it would appear that the applicability of sub-section 3A of Section 123 alone falls for decision.

8. Section 123 of the Act was enacted to prevent certain forcesfrom interfering with the free exercise of electoral rights by an elector.Sub-sections 1 to 7 of section 123 enumerate the different types of acti-vities that are treated as corrupt practice for the purposes of the Act.An analysis of sub-sections (1) to (7) of section 123 shows that the corruptpractice included in sub-section (3A) has special significance and certainparticular features which are not possessed by the activities prohibitedby the other sub-sections of section 123. The evil effects of the activitiesspecified in the other sub-sections are comparatively short from thepoint of view of duration and less harmful to the society at large. Butsub-section (3A) deals with activities which promote or attempt to pro-mote what may generally be described as communal hatred. Feelings ofenmity or hatred between different classes of citizens of Tndia based onreligion, race, caste, community or language do not, when once created, usuallydisappear shorty after the elections are over as in the case of other cate-gories of corrupt practice. Communal hatred invariably inflicts woundshard to heal and has the dangerous tendency to persist for long periodsundermining the peace and security of the society as a whole. Since dur-ing an election campaign the most effective methods of propaganda arc.invariably used by almost all influential sections of the society, creationof communal disharmony will be easier and more effective. Experiencehas taught that in this country religious or communal: hostility has oftenled to retaliation at the instance of the injured party, and in certain othercases the hatred so created- lies dormant like a volcano which may un-expectedly erupt leading to disastcrous consequences. Consequently, an

E.L.R.] T.K.S.M.A M. THANGAL FHAJI C.H. MOHAMMAD KOYA 7

allegation in an election petition of acts attracting section 123 (3A) of theAct has to be seriously considered by a court from a broader and realisticangle.

9. Reliance is placed upon sub-section (3A) of section 123 of theAct by the petitioner on the strength of certain publication in Chandrikapaper, as referred to, and which have been marked in this case as Exts.PI to P l l . That provision may be read :

"123. The following shall be deemed to be corrupt practices for thepurposes of this Act: —

(3A) The promotion of, or attempt to promote, feelings of enmityor hatred between different classes of the citizens of Tndia ongrounds of religion, race, caste, community or language, by acandidafe or his agent or any other person with the consent ofa candidate or his election agent for the furtherance of the pros-pects of the election of that candidate or for prejudicially affectingthe election of any candidate."

The essential ingredients of the provision are: (i) the promotion orattempt to promote feelings of enmity or hatred between different classesof the citizens of India; (ii) the promotion or attempt to promote feelingsor enmity or hatred must be based on grounds of religion, caste, com-munity or language; (iii) the promotion or attempt to promote enmityor hatred must be by a candidate or his agent or any other person withthe consent of a candidate or his election agent; and (iv) the object mustbe for the furtherance of the prospects of the election of that candidateor for prejudicially affecting the election of any candidate. For the sakeof convenience I may refer to these ingredients as Nos. 1 to 4. The ques-tion for consideration is whether the impugned publications jointly orseverally satisfy the aforesaid conditions.

10. Considering the nature of the pleadings and the evidence adducedin this case, it would appear that the creation or attempt to create feelingsof enmity and hatred between different classes of people are traceable loreligion and community. For a proper appreciation of the true character-istics and consequences of the impugned publications it may be necessaryto advert to certain facts and circumstances which are generally appli-cable to each one of the publications.

11. All the impugned publications, as already referred to, were madein a Malayalam daily newspaper called Chandrika, which is owned by acompany by name the Muslim Printing and Publishing Company. Theonly activity of the company is the running of this Daily. The MuslimLeague holds shares to the tune of Rs. 6 lakhs in the company, out ofwhich shares worth 3 lakhs are held by the respondent, who is the Secre-tary of the Muslim League, and the remaining shares worth Rs. 3 lakhsstand in the name of the President of the State unit of the Muslim League,who was examined in this case as P.W. 4. Both of them hold small sharesin their individual, capacity also. It has come out in evidence that themajority of the shares are held by members of the Muslim League. Ext.P 14 fa) is the issue of Chandrika dated 18-5-1975. The respondent is shown

3—3 ECI/ND/85

8 T.K.S.M.A.M. THANGAL KHAJI C.H. MOHAMMAD KOYA [VOL. LXIIT

as the Chief Editor of the paper. In the front page there is a statement inthe following te rms: "^(jy"10 ej"ltrfl6>ciSo Q6unj(gj)cDooa> ^JISSIACQJCTS gsmajgooa)

T iaJoiocn0 tsrajdio0 ojenjug1oMiocn° ACTUCDI e/lffliooajDiocflo nuooxi gsm<e>" That passage shows that Chandrika was being treated as the

of (he Muslim League. When the respondent was examined asR. W. 1 he stated that 'ajsno^^o' means 'official organ', but accordingto him that statement in that issue is not correct. There is obvious reasonfor offering such an explanation because the respondent was the ChiefEditor even at the time when the result of the election was declared, andhe was a candidate put up by the Muslim League. I am not, therefore,inclined to ignore the statement contained in Ext. P14 (a) regarding thecapacity in which that paper functions. Ext. XI contains paragraph 8of the agreement marked in that case as Ext. P9. The first sentence inparagraph 8 of Ext. P9 shows that the paper Chandrika is to give effectto the policy of the Muslim League. Even assuming that Chandrika is notan official organ of Muslim League as the respondent now attempts toexplain away, P.W. 2 who is the editor, printer and publisher of the paperdeposed even in his chief examination that Chandrika is a paper safe-guarding the interests of the Muslim community and other minorities.Again, the respondent himself deposed as follows: "^qw*1" ejicniooSo (B% cnw»

0 s o i i u ' l 5 c n s i r a i n<aro)i6&06ns1ra3anofg0

(2-j6iii0nJiRn sDej(ft>°niio5 oooft'OTroTffxTxwiraooQii n-nggiAOQ/lffji acmo a icmi§1gj." Thus (he relationship of the paper wi<h the Muslim community gene-rally and with the Mus'im League particularly is intimate. So the nature offh* medium selected for th-> publications contained in Ex<s. PI <o P l l hasenough significance. R.W. 1 further admitted that in the Malappuramconstituency the Muslims are in a majority though the majority is notvery large.

12. The next aspect to be considered is regarding the authors of thematters published in Exts. PI to P t l . The speech recorded in Ext. PI (a)was made by the respondent, who is the Secretary of the Muslim Leagueand the chief editor of Chandrika. Ext. PI 1 is the report regarding the speechrendered by the President of the Kerala unit of the Muslim League andwho was examined in this case as P. W. 4. Ext. P10 contains the reportof a speech made by Shri Ibrahim Sulaiman Sait, the President of theIndian Union Muslim League and the deponent in Ext. XI. Ext. P9 isthe report of a speech delivered by the then Home Minister. Ext. PI (b)is the report of a speech made by Sri G. N. Benathwala, who is thePresident of the Maharashtra Muslim League and who contested as acandidate of the Muslim League to the Lok Sabha from the Ponnaniconstituency in this State. Exts. P4 and P7 are articles by two members ofthe editorial staff of Chandrika. Ext. P5 is a cartoon by one Sheraff, who,according to P. W. 2, usually draws cartoons for Chandrika. It can thusbe seen that almost all these publications relate to speeches made byprominent leaders of the Muslim League and of the ruling United Frontand also contributions made by members of the staff of Chandrika.

13. When P. W. 4, the President of the State Muslim League wasexamined, he was asked a leading question as to whether R. S. S. andJana Sangh are considered to be rivals of the Muslims. He answered asfollows: raroaift rarasraacn (jvjaj&rtsraimo cns<ur!Tflai)'l§<5rBu. T-n h ;s rh'of exami-nation R. W. 1 was asked a leading question whether there was an impres-sion that Jana Sangh was against minorities. The answer was i i f t

E.L.R.] T.K.$M*A»M#THANGAL V HAJI C.H. MOHAMMAD KOYA

gD6O86)or) 6vtB (joo(06rD* g s n s u " . A g a i n , a l e a d i n g qu^s^ ion Was a s k e dwhether Jana Sangh and R. S. S. are hated by the Muslims, and heanswered in the affirmative. These items of evidence unmistakably showthat there was already an impression in the minds of the Muslims thatJana Sangh and R. S. S. were inimical to them.

14. All the impugned publications contain an important commonfactor. In all of them the main criticism advanced against the OppositionMuslim League is that they have joined hands with R. S. S., Jana Sanghand Marxists, who are enemies of Muslims; and some of the publicationsrefer to the R. S. S., Jana Sangh and Marxists as people who murderMuslims and set fire to holy mosques and educational institutions. R.W. 1in unambiguous ti-rms deposed as follows: "8<e>oscoVlGraajca>g'l£4ggnf\a>(b(jtm° Opposition Lsague R. S. S., Marxis's gccu<o3iBooe/l§c

o^omsgj G.aJO. (modem, g . j8mcroo"ejo mtyib. og)oruu. r^)oa>°HC^y*loorui6)a5o gosoofitfji a r a njicsajnUiiiiGgj. &ajo. g s r s " . iHroajrtBffis p o l i t i c a ll ine ™u • u9(J2<e«)Oo j r o i a m t m " &<m oootosmajiane" (g )

15. One cannot also fail to note that the authenticity and the correct-ness of the contents of Exts. PI to P l l are not seriously challenged by•the respondent. P. W. 2 deposed that matters are printed in Chandrikaafter ascertaining their truth and that the reports are invariably correct.H e d e p o s e d a s f o l ' o w s : "^cjyioej icn" (njcn/lruucfio" ggseraToo; <s<nrty>o<0aanor!B6is

ft cmaoia/lasi o a i

16. In the background of the facts and circumstances narrated above,I may briefly examine the offending portions of the impugned publications.

(a) Ext. PI is a copy of the issue of Chandrika Daily dated 1-3-1977.Ext. PI (a) is a report regarding the speech rendered by the respondentin the State Convention of the Muslim League. Paragraph 2 of the reportc o n t a i n s t h e f o l l o w n g sen tence : cruujsocQWHonn 6)aj§in_pgc?>cnro <iejora><&>

a/lmcnirmo(?> gDCojooo HjCjyioCc&roiKjnsiiaoeajsnsT soaryi.nj rosamcruog" ru1sT<9« a <x»o

croi. ^ JThe suggestion in that passage is that the dissidents (the name given byR. W. 1 and his group to the Opposition League) are assassins of thecommunity by dissecting it and that they are now canvassing votes forR. S. S. and Jana Sangh who are thirsting for the blood of the Muslims.In paragraph 1 it is stated that the respondent exhorted the Muslims toenter the battle field for a holy war against the communal reactionary facistpowers inclusive of the R.S.S. In the witness box an attempt was madeby R.W. 1 to explain the inflammatory expressions as only the usage offigurative language when he spoke that the R. S. S. and Jana Sangh arethirsting for Muslim Blood. The question is not whether R.W. 1 intendedto use metaphoric language in choosing the particular expressions foundin his speech, but it is the impression those words are likely to causein the mind of an ordinary reader. Further figurative language is oftenresorted to for making the idea more appealing and more effective to thehearer or the reader as the case may be. There are also the other generalcircumstances. I have mentioned earlier and the then subsisting disharmony"between Muslims on the one part and R. S. S. and Jana Sangh on the

other. The editorial in the same issue is marked as Ext. PI (d). The

j0 T.K.S.M.A;M. THANGAL VHAJI C.H. MOHANIMA^KOYA [VOL. LX1II

contents of Ext. PI (d) mainly deal with the State Convention of the Mus-lim League as well as the speeches rendered therein. In Ext.PI (d) also there is a reference to R. S. S. and Jana Sangh as"<a,OTjo£j1tft>(?>" and that th ir hands arc drenched iai blood. !he sameexpression ">a>oo_ioe/l<a,c?>" W a s u sed in Exi. P7, • and R. W. Ideposed that by that expression what is intended is R. S. S. andJana Sangh. The petitioner has got a case that Ext. PI (d) itself was writtenby the respondent. In the witness box the respondent was asked a leadingquestion as to whether he did not write Ext. PI (d) leader. R. W. 1 pre-tended loss of memory. His re-examination was on another day and inthe re-examination it was elicited that R. W. 1 did not write Ext. PI (d).I was not very much impressed by that denial in the re-examination. Iwas referring to Ext. PI (d) only to show that the reference to R. S. S.and Jana Sangh in Ext. PI as people who are thirsting for the bloodof Muslims was not a mere figurative expression, but was one calculatedto fan the hatred of the Muslims against those organisations. R. W. 1 alsoreferred to the Opposition League as murderers of the parent organisation.Further, it shall not be forgotten that practically identical expressions cha-racterising R. S. S. and Jana Sangh as groups who murdered Muslims andset fire to mosques have been used in some of the other impugned publi-cations discussed below. The consistent stand taken in almost all thesepublications is that the R. S. S., Jana Sangh and Marxists are the worstenemies of the Muslims. I cannot, therefore, consider the speech of therespondent as reported in Ext. PI (a) as a metaphoric or impulsive speechmade in the heat of passion normally associated wjth election campaigns.Exts. PI to P l l show that they were intended to implement a particularline of attack against the Jana Sangh, R. S. S. and the Marxists and toaggravate the disaffection existing between those groups on the one partand the Muslims on the other. Ext. PI (a) cannot be read in isolation, andit would appear that by the impugned speech that the respondent did wasto set the ball of communal hatred in motion and which gained alarmingacceleration by the subsequent publications in the paper Chandrika ofwhich the respondent is the Chief Editor. I hold that the relevant passagesin Ext. PI (a) promote or at any rate attempt to promote feelings of enmityand hatred between Muslims on the one part and the R. S. S. and JanaSangh People on the other, who undoubtedly constitute a class within themeaning of section 123 (3A). The purpose of the speech as is clear fromExt. PI (a) was the policy to be pursued in the election Ext. PI (a) thus satis-fies all the ingredients of section 123 (3A).

Ext. PI (b) is the report of a speech made by Sri. G. N. Benathwala,who was the President of the Maharashtra Muslim League and who contes-ted from the Ponnani Parliamentary constituency in this election. In Ext.PI (b) it is mentioned that the Janatha Party is supporting Israel, whoare the eternal enemies of the Muslims and that the dissident League peoplewho have joined with the Janatha Party are engaged in activities detri-mental not only to the Muslims of Kerala but the entire Muslim commu-nity of the world.

Ext. PI (c) is only a request for contribution to be sent to P.W. 4,and no portion of Ext. PI (c) attracts section 123 (3A).

(b) Ext. P2 is the issue of Chandrika dated 9-3-1977. The headingof ho ariie''.v is "oTlairova r u i s i ^ scnoroooejo ojoej" (meaning th : taii ofJana Sangh caught hold of by the dissidents). The author is mentioned as'on looker'. Paragraph 8 of the petition dealing with Ext. P3 does not

E.L.R.] T.K.S.M.A.M. THANGAL V HAJI C.H. MOHAMMAD KOYA 11

extract any particular passage. The article contains criticism about Janathaparty. In paragraph 3 of column 4 a question is posed whether the dissi-dents are allying with Jana Sangh and R. S. S. who are reactionariesintending to convert the Muslims into idol worshippers or to Indianisethem by worshipping Sree Rama. Read as a whole the article createsthe impression that by joitaing with R. S. S. and Jana Sangh the dissi-dents are causing grave injuries to the Muslims and their religion.

(c) Ext. P4 occurs in Chandrika dated 11-3-1977. It is an articleby one P. K. Parakkadavu who was a trainee in the editorial staff ofChandrika, as deposed by P. W. 2. The article is captioned "sonraioruo*§l—$6ijo$s1 laooQocruooo (meaning Janatha party when the mask isremoved), "ihe passage extracted in the petition is the last sentence in thatarticle and ii reads as follows : "

When the article is read as a whole it is clear that the concluding portionis sufficiently offensive. Jana Sangh, Janatha party and the Marxist Partyare criticised in strong terms and the suggestion is that if the dissidentsjoin those people the result will be that the blood of minorities will flowlike Yamuna. The relevant passage is clearly an attempt to promotefeelings of hatred between different classes of the citizens of India.

(d) Ext. P5 in a cartoon printed at the front page of Chandrikadated 12-3-1977. P. W. 2 admitted that it was drawn by one Sheriff.The cartoon contains the picture of a dead pig, which is named as JanaSangh. On one side of the pig stands the Marxist party leaderE.M.S. Namboodiripad with the flesh of the pig in his right-hand and aknife in the left. On the opposite side stand two Muslims, who areidentified by P.W. 2 as Syed Ummer Baffakki Thangal and CheriaMammu Keyi, who are two prominent leaders of the OppositionLeague. Below the picture is writien, <3TOOTT3SU AsiG^jog. o/lc/acesamajcacoo0 njcrni goo-a/1 anej3ejO6rro°e§o! rt is rather difficult to bring out thesarcasm of that statement through a translation in the English language.Literally it means that eating of pig flesh is permissible for the hungry.Regarding the identity of the pig, Shri E. M. S. Namboodiripad- andShri Syed Ummer Baffakki Thangal, R. W. 1 has no different version.His only doubt is regarding the third person on the ground that thefeatures are not sufficient to identify him as Cheria Mammu Keyi. Theeffect of a cartoon to catch, the eye of the reader is well known and it isconfirmed by P. W. 2. Jana Sangh is depicted as a pig. P.W. 2 deposedthat generally Muslims consider pig as a despicable creature, and to call aMuslim a pig is to abuse him. P.W. 4 who is also a religions dignitarydeposed as follows : <VJCTD1 or>1«§>n siojoojooojigosmra0 nj.a/]«>'l<9«cm@o.

R. W. 1. deposed as follows : "njorni gocjyoortaa0 era m1c§><i0Q)O6n?>u. cBcjyian^or) ojoroi rxg)<rra a/lg1<sa(m®0 arm offensive «sa)<wr\%osra"6)aiaj1n)1<s«onr)f2u." So by Ext. P5 cartoon Jana Sangh is depicted as an un-holy and leathsome animal asi far as the Muslims are concerned. The cartoonfurther suggests that if the Opposition League joins the Marxist Party theywill have to swallow pig flesh. Though P. W. 2 will call the cartoon asfun, R. W. 1. could call it a political cartoon. The interpretation of R.W.1 in one sense is correct because Ext. P5 is very much a political cartoon.What is to be considered is the reaction it will create in the minds of thepeople who happened to see it. According to the cartoon, Muslims shouldtreat Jana Sangh as a pig, and how hateful that animals is to a Muslim is

12 T.K.S.M.A.M. THANGAL KHAJIC.H. MOHAMMAD KOYA [VOL LXIII

specifically spoken to by R. W. 1. and P. W. 4. I have no hesitation tohold that Ext. P5 cartoon has the effect of promoting hatred between Mus-lims on the one part and the Jana Sangh and Marxist party on the other.

(e) Ext. P5 (a) and Ext. P6 contain a fairly long article by oneK. A. Chummar. They purport to be an open letter to Shri M. K. Haji.The petition does not point out the offensive portions in the concernedarticle. It cannot, therefore, be said that Ext. P5 (a) and P6 tend topromote communali hatred.

(f) Ext. P7 is an article published in Chandrika dated 14-3-1977.The writer is shown as Rahim Mecherry, who is one of the sub-editors ofChandrika. The heading is to the effect that League is the only party whichfought for conserving the rights of minorities. The offending portion isextracted in paragraph 12 of the petition, and it is the last sentence in thefirst p a r a g r a p h , c w e j o j ^ r o i n j g g i d f c r o n n i c e a A c g j o Q c j y ° l o C L j ' ' ) $ < 9 j O o o c n O A

i 1 1 flb<ft>oej ^

cruqjsoaQ) flDOgjtoÔTOiiwcfbo (SrcJroitai croocruotoiaaocrogg cJoo&mB'lc&.aioca) otoaiThe passage means that th^ dissidents who are rubbing the fcei of

the murderers who set fire to mosques and muslim hous.s of Teliichery andwho deprived the means of livelihood cf th ; muslim fisher men and who setfire even to 'Mushaf ($orou«n<-u3u) have no moral right to sp; ak on Khalf of \heMuslim community. The reference in the earlier portions of the same para-graph is regarding the activities of R. S. S. There cannot be any doubtthat the R. S. S. is painted in lurid colours, and the inpugned passageis intended to promote hatred in the minds of the muslims against theR. S. S. and also the Opposition League who are seeking alliance withR. S. S.

(g) Ext. P8 is the report of the speech of one Mangalam Gopinathdescribed as a Congress leader, and published in the issue of Chandrikadated 15-3-1977. The offending portion is extracted in paragraph 13 of thepe»i\ier>. "gocrcniooflrai ftcn)(amoara0.c8TOaj<ft>o(/B6Bis§i6>£jcrrou ajos1c9«onr> KorxruonejagiEOcs>1^§Qnj(%ma° cgcjyio cronj30QQ)6><OTtn tSjcrao^jsvajoâjooft (^mieeecm <fr.onjoe.ficft>ODOr!B6>scroonejscDcoo6nBu a/loKOTejisicDmro" (a-jcâi 8<ft>06n&(y)arot' eennnoajoaa) aiocnejo ccnoruTcnomv (rycTjprui^. Th; passage means (hat the dissident are a group of'Kapalikas' attemting to assassinate the Muslim Community by joining withthe Jana Sangh, who say that the Muslims have no right in India. Theterms used are such as to create apprehension and hatred in the mindsof Muslims against Jana Sangh as well as the Opposition League. Theconcerned passage attempts to promote feelings of hatred between theMuslim on the one part and the Jana Sangh and Opposition League on theother.

(h) Ext. P9 is a report printed at page 4 of Chandrika dated 16-3-1977concerning a speech made by the then Home Minister Sri Karunakaran.The first paragraph states that Sri Karunakaran made it clear that thedissidents have joined hands with the Marxists who murdered workers ofthe Muslim League at Kannapuram, Valapattanam and Alleppey. Thestatement is sufficiently mischievous and it will antagonise the Muslimsas against the Marxists.

E.L.R.] T.K.S.M.A.M. TKANGAL FHAJI OH. MOHAMMAD KOYA 13

(i) Ext. P 10 is the report of a speech made by the President of theIndian Union Muslim League at Pulikkal and printed at page 3 of Chan-drika dated 12-3-1977. Paragraphs 1 and 2 of the report read as follows:

acros

oosrcnsfl ^<9«O(mra aoTa^aj(!iCDi«2) cra<&ra)1<9>©o<9«!o fflorSf^1crouOQ<9j©o<9ffio go's oa)H3Oca)6>(mai ©ooT

CrOo<»ejSClD6Kfl)0Q)O6rTS0

j c r o ° l o q < s / l § 0 ( B r a > (OOou'(EO(g)oroor>eJscT)ce)1«5S mirrro ajinejsi^QoJOcQiojflBosoQJo (BroaiOLDOeJooJinosna0 son

omo ojotiejTexsajQ <fl306moecT)o-ao1roao1roJ ^cjyomiQofto rocafij)6>iB0fcfl>(Tr) e r a

It is stated that Jana Sangh set fire to holy mosques and murdered Mus-lims at Tellicherry and other parts of India, and the dissidents who arehelping the Jana Sangh will never be pardoned by the Muslim Community.Ext. P 11 (a) is report of another speech made by Shri Sait, printed at page4 of Chandrika dated 18-3-1977, which is equally inflammatory. It wasessentially on the basis of Ext. P 10 in this case, and which was markedas Ext. P6 in E. P. 18/77 that the election of Shri Ibrahim Sulaiman Saitwas set aside by me. Ext. P 10 is therefore hit by section 123 (3A).

(j) Ext. Pll (b) is a report seen in Chandrika dated 18-3-1977 relatingto the speech made by P. W. 4. the President of the State Muslim League.In paragraph 3 it is stated that the dissidents are in the camp of Marxistsand the R. S. S. and that people know the communal riots at the instanceof those people in Tellicherry and in North India. That passage also hasthe tendency to promote feelings of enmity between the Muslims and theR. S. S.

(k) Exts. P12 and P13 were tendered in evidence to show that Sheriffwho drew cartoons in Chandrika during election time, and Rahim Mecherrywho wrote articles in Chandrika were given awards for the meritoriousservices they rendered during the election period. Those publications donot fall within the mischief of section 123 (3A). But they have some signi-ficance in another respect. The nature of Ext. P7 article written by ShriRahim Mecherry and Ext. P5 cartoon subscribed by Shri Sheriff havebeen explained above. Both publications are sufficiently offensive and bygiving cash awards to them, it would appear that the readers enjoyed theattack on particular sections of the people of the country and that encou-ragement awaits people who spread communal canard.

14 T.K.S.M.A.M. THANGAL KHAJI C.H.MOHAMMAD KOYA [VOLLXIII

17. From the contents of the documents discussed above it could beseen that the main attack against the Opposition League was that theyjoined hands with the Jana Sangh, R. S. S. and Marxists who were con-firmed enemies of the Muslims and who indulged in assassination and arson.To repeat, these publications came in a paper published for the purpose ofpreserving the rights and safeguarding the interests of Muslims and thatthe offensive matters came from responsible people like the President,Secretary and other leaders of the Muslim League and also the staff atta-ched to the paper itself. It is significant that in the election campaign madethrough those publications, the political, or public activities of the opposi-tion parties were not the subject of criticism the consistent and systematicefforts taken were to condemn the R. S. S., Jana Sangh and Marxists asthe enemies of Muslims. The publications mentioned above, therefore,amply satisfy the first and second ingredients of sub section 3A of section123, namely the promotion or attempt to promote, feelings of enmity orhatred between different classes of citizens of India on the basis of religionand community.

18. The third- condition to attract sub section 3A of section 123 is thatthe objectionable activities were carried on with the consent of the respon-dent or his agent or any other person with the consent of the respondent orhis election agent. As far as this question is concerned there is differencebetween Ext. PI (a) and the other objectionable publications. Ext. PI (a)is by the respondent himself, and consequently, it can be easily held thatExt. PI (a) satisfies the third condition.

Much of the controversy in this case is regarding the responsibility ofthe respondent in relation to Exts. PI (b) to Pll . The main connectinglink alleged in the petition is that during the relevant period respondentwas the Chief Editor of Chandrika, and consequently, a presumption underSection 7 of the Press and Registration of Books Act, 1867 (for brievityreferred to as the Press Act) has to be drawn. The contention of the res-pondent is that though his name was printed in all the issues of Chandrikaas the Chief Editor, he was only an honorary Chief Editor and that thereal editor, printer and publisher of the paper is P.W. 2 and consequently,no presumption can be drawn on the basis ot section 7 of the Press Act.He has also an alternative contention that even if any presumption arisesin this case that has been rebutted by the evidence available in the case.The relevant portions of section 7 as well as its scope could be seen fromthe decision of the Supreme Court in D. P. Mishra v. K. Sharma (AIR1971 SC 856). Paragraph 11 of the judgment contains the following state-ment of the legal position:

"Section 7 of the Press and Registration of Books Act, 1867, in sofar as it is relevant, provides:

'In any legal proceeding whatever the production of...,in the case of the editor, a copy of the newspaper containinghis name printed on it as that of the editor shall be held (unlessthe contrary be proved) to be sufficient evidence as against theperson whose name shall be printed on such newspaper,

that the said person was...the editor of every portion of thatissue of the newspaper of which a copy is produced.'

Section 7 raises a presumption that a person whose name is printedin a copy of the newspaper is the editor of every portion of thatissue. The presumption may be rebutted by evidence."

B.L.R.] t.K.S.M.A.M. THANGAL V. HAJI C.H. MOHAMMAD KOYA 15

The learned counsel for the respondent drew my attention to a decisionof the Allahabad High Court reported in Brahma Dutt v. Paripurna Nand(AIR 1972 Allahabad 340). In that case a contention was raised that apresumption would arise by virtue of section 7 of the Press Act. Thatargument was met by the court in the following words:

"I do not think that I should take notice of such presumptions inan Election Petition which, in regard to allegations of corrupt prac-tices, is in the nature of a quasi-criminal proceeding."

The decision was cited to support the view that as far as< election petitionsare concerned section 7 of the Press Act cannot be pressed into service.The decision of the Allahabad High Court apparently is against what theSupreme Court has held In D. P. Mishra v. K. Sharma (AIR 1971 SC 856)with great respect I disagree with the proposition laid down in the Allaha-bad case referred to above. From the wording of section 7 of the Press Actwhat is contended by the respondent is that the presumption can applyonly to 'editor' and that as far as Chandrika is concerned P.W. 2 is theeditor, printer and publisher. But according to the petitioner, Chief Editoralso is a person coming within the ambit of section 7 'Editor' is dennedin Section 1 of the Press Act as follows:

"1 . (1) In this Act, unless there shall be something repugnant in thesubject or context,—

'editor' means the person who controls the selection of the matterthat is published in a newspaper;"

Irk interpreting the definition the respondent contended that since the word'control' is used as a verb in the definition the 'control' contemplatedtherein is the actual exercise of control, whereas the petitioner wouldcontend that the 'control' referred to in the definition is the right to con-trol. If the argument of the respondent that the expression 'control' is tobe construed as the defactor exercise of control in a given case, the ack-nowledged editor of a newspaper can very well say that regarding a parti-cular issue or regarding one or more issues of a paper he did not actualexercise the control with respect to selection of the matter published andthat some sub-editor did it. The ^ub-editor in his turn can say that an assis-tant editor has done it. Ultimately it may not be possible to fix up theliabilty on any person unless the person who relies upon the presumptioncould prove the particular person who exercised that control in the selectionof the matter that was published. It was precisely to avoid such a contin-gency that the presumption itself has been provided for in section 7. Asfar as I could see the word 'controls' appearing in the definition of "editor'contained in section 1 of the Press Act relates to the right to exercise con-trol in the selection of the matter that is published in a newspaper, andwhether in a particular case the person who has such authority actuallyexercised it or not is of little consequence. Hence if the respondent in this'case is entitled to control the selection of the matter that is publisheddn Chandrika, he will be an 'editor' falling within the definition of thatexpression in section 1 of the Press Act, and in consequence, the presum-ption under section 7 will apply as far as; the impugned publications areconcerned. So the question is whether the respondent had legally theright to exercise control in the selection of the matter for-auiblication inChandrika. ^

4-3ECI/ND/85

16 T.K.S.M.A.M.THANGALK HAJIC.H. MOHAMMAD KOYA [VOL. LXIII

19. The case put forward by the respondent and supported by P.W.2 and P. W. 5 is that he was holding only an honorary position andthat the actual editing was always done by P. W. 2. Tt is necessary toexamine whether the respondent is only a namelender as far as thenewspaper is concerned. The association of the respondent with Chan-drika is long. He joined the staff of the paper sometime in 1945 as asub-editor. He was promoted as editor in 1954, and later on as chief editorin 1961. In 1967 he gave up the position because he was elected to theState legislature and he became a Minister. On the termination of thatoffice-the respondent again became chief editor in 1974 and continued assuch till he joined the present ministry after he was elected. Thereafteraccording to the records he has taken long leave without pay. Exts. P 17and P 18 are the pay registers maintained by the company which ownsthe paper. The register containing entries regsWding the payrnent of re-muneration to the respondent. The respondent admitted that he was recei-ving a remuneration of Rs. 700 per mensem and another amount of Rs.150 towards driver's salary. Tt is also seen from the relevant entries inthe register that from the remuneration so paid deductions were madefor contribution towards provident fund and E.S.T. P.W. 2 deposed thata separate room was allotted to the chief editor. Respondent further de-posed that he had always worked for the prosperity of the paper andthat he collected funds from abroad for the company and the paper. Theconnection of the respondent with the paper was therefore long and very'intimate. T am not in the least impressed with the version of P. W. 2that the respondent was merely lending his name to the paper whenhe was shown as the chief editor of Chandrika. P.W. 5, who is a memberof the Board of Directors of the Muslim Printing and Publishing Com-pany was the Director in-charge of the paper. When P.W. 5 was examin-ed Ext. P. 20 was shown to him. He identified the signature as thatof the respondent and deposed that it was a letter sent bythe chief editor to a reporter. Ho further added : <*§tfsS><e>S0><*©°ms^onotm" Chief Editor (TOJOTTO". By Exi. P 20 the chief editor informed acorrespondent of Chandrika at Taliparamba that he is removed from thepost of Reporter since he was not sending any report for a long time.When R. W. 1 was confronted with Ext. P 20 his explanation was that thebody of the letter was written by somebody and that he simply signed itas demanded by the manager. Ext..P. 21 dated 4-7-1975 is a similar letterfrom R. W. 1 to the chief sub-editor, of Chandrika. Through Ext. P. 21,R. W. 1 as chief editor, has warned a chief sub-edilor for coming to theoffice late. While admitting that the entire letter was written by him, herealso the explanation offered by R. W. 1 was that he wrote the letter asdictated by the manager. The evidence of R. W. 1 shows that themanager is only a paid employee of the company, and it is not easy tobelieve that a man of respondent's; status and who is also the chief editorcould have simply functioned as a subordinate of the manager in thatoffice. There is again Exts. P. 22 and P. 22(a), which are the postal ack-nowledgement and copy of a lawyer's notice issued to R.W. 1 in con-nection with a damage action. The explanation of R.W. 1 is that becausethe was the chief editor notice was sent to him also and that the samenotice was sent to other persons as well However, he unequivocally ad-mitted that for legal purposes he is considered as chief editor by theoutside world. R.W. 1 was asked "Legal purpose <™° «s>«9«> CT/I6OT36>§

n(j)CDisi<9«o«>1cQ)orooaj1gj. yt is t h u s

abundantly clear that the respondent was not a mere namelender and that


he was legally and factually the chief editor of the newspaper at the re-levant time.

20. The next aspect to be considered is whether as chief editor therespondent was invested with authority to exercise the control for thepurposes of section 7 of the Press Act. P.W. 4, the President of the Stateun'u of the Muslim League deposed as fcHows: "Chief editor^s a/lsOejosro" editor" P. W. 2 who is shown as tlu. editor, priruer and publish r ofChandrika, deposed as follows:" nj(2)<BT!jn6>aao (ajiaj onjntwmc&cmnfiwmraVlroooojT a(j)6)atftBjle4o n_i(g)(aTO)1«$ ojanooro?) rarosxmnjool cTOjOJt/o triOc&i cnittxsgimo oirooni(3raG§rLO«5TOi1ooaj ,oM>fljsnsu. rsraci§rLOo mention.. .d by P . W. 2 is n o n e o t h e r t h a nthe respondent. P. W. 5. the Director-in-charge of the paperdeposed that none of the members of the Board was as compe-tent as G. H. (i.e. the respondent) regarding the publication ofthe paper. It has the evidence of P.W. 2 that the respondent is anable and experienced journalist. Since, as spoken to by P.W. 5, members

•of the Board of Directors of the company which owns the newspaper, hadlittle knowledge regarding the running of a newspaper, an experiencedand acknowledged leader of their community, the respondent, was un-doubtedly appointed as the chief editor for the purpose of controllingithe entire conduct of the paper. P. W. 5 was asked the question

When in the witness box R. W. 1 was asked regarding Ext. PI toP 11 he said that he felt the concerned publications to be harmless andithat if he felt otherwise he would have rectified it. Thus according to therespondent he had the authority to rectify the errors committed by therest of the staff inclusive of P.W. 2. The evidence in the case thus showsthat P. W. 2 was subordinate to the respondent and bound to carry out(his instructions and that even according to the respondent himself, tothe outside world, he is legally the chief editor and he had the authority|to rectify the error if any committed by his subordinates. It is, therefore,clear that legally and factually the respondent had the power to controlnot only the selection of the matter for publication in the newspaper butieven wider powers of control. 1 hold that the presumption under sectionJ of the Press Act is available to the petitioner as against the respondent.

21. The alternative contention pressed by the respondent is that evenif the presumption under section 7 of the Press Act is available againsthim such presumption has been rebutted by the evidence available in the.case. I may at the very outset stale that the respondent has no case thathe at any time delegated his powers to P.W. 2, and he is relying only onan alleged course of conduct. In the witness box, apart from the respon-dent, P.Ws. 2 and 5 gave evidence to the effect that the actual editingand publication were always done by P.W. 2 and that the respondenthas never done any such work after he became the chief editor. Theyialso referred to the circumstance that since the respondent was a memberof the Parliament, he had to be in Delhi for fairly long periods and thathe was not exercising any control. A mere perusal of Ext P 20 dated29-6-1975 and Ext. P 21 dated 4-7-1975 are sufficient to show the hollow-ness of that contention. In Ext. P 21 the respondent found fault with theconcerned chief sub-editor for not being punctual in attending office andbeing late on various days. The respondent has no case that the con-tents of Ext. P 21 are false. Unless the respondent himself was attending

18 T.K.S.M.A.M. THANGAL V. HAJI C.H. MOHAMMAD KOYA [VOL. LXHT

office one fails to understand how he can mention in Ext. P 21 that thechief sub-editor was late on many days. Thus even when he was a mem*ber of the Parliament the respondent was exercising his power as chiefeditor. In Ext. P 20 also the respondent as chief editor finds fault withthe continued indifference shown by the correspondent to whom Ext.!P 20 was issued. Unless the respondent was not attending office hecould not have noticed the irregularities mentioned in Ext. P 20 also.If that was the way in which the respondent functioned even when he wasa Member of the Parliament, certainly much stronger evidence is neededito show that he was lethargic regarding the affairs of the paper after heceased to be a Member of Parliament and was residing some four fur-longs away from the office of the newspaper. Exts. P 20 and P 21 providealso an answer to the contention of the respondent that the expression'controls' in the definition of 'editor' in section 1 of the Press Act meansexercise of control, in the sense that the respondent used to exercise defacto-control as well. As I pointed out earlier, the question is not whetheractually the respondent exercised the power of control vested in him ata given time, but whether he possessed such right. After the dissolutionof the Lok Sabha and after giving nomination for election it cannot besaid that the respondent had no physical opportunity to exercise any con-trol. The general explanation put forward is that being a leader of thecommunity and also being a candidate for the Assembly the respondenthad to move about, and consequently, he did not exercise any controlin selecting the matter for publications, It has come out from the evidencethat the residence of the respondent is only four furlongs away from theoffice of the newspaper Chandrika, and no evidence has been adducedto prove that on the dates of the relevant publications he, was not instation. It is also significant that phone facilities are available both at theresidence of the respondent and at the office of the newspaper.

22. Now I shall deal with the general policy pursued by Chandrika.R. W. 1 deposed that there was « discussion regarding the election bet-ween the leaders of the Muslim League both before and after the State Con-vention. He deposed: gD6or36)cr> goojarogjoo ^sT (wictBaocni ) crLjog rroT.saggiroJoy)rrro6>c&>06nso6nro0 gejcft>°o±iaft (rj-jajcSitmjKno aosrarafloQjgs". Speeches §° moqQmgjOoma) (8n_iog1cro1aj)6>s (3ras1cru£iocT)asKnTejooQ)1«B(Tro. fDcmnammoaniraT (a_|croocrn<s«>6rr>

it is thus abundantly clear that as far as propaganda through thepaper is concerned a policy was already evolved and that ths paper was onlyimplementing that policy. He further deposed: "ejTcoisic^o m>oirf\Q<v) enw<3Tw1fflcrwj>'l«>ocQ/l6>§oanrao nJitgrarairaS OJCTTVI§1 gj. It is hence clear that there wasa policy recognised and decided by the Muslim League and that the paperdid not publish anything against that policy. So, as long as the staff ofthe paper simply implemented the policy of the League it is not necessarythat the respondent should look into the selection of matter, editing, etc.every day. P.W. 4, the President of the State Unit of the Muslim Leaguedeposed as follows :

ojs>ro '

gDej<9.uo±icrflra3 n^wjcftcftMices)0 (apparently the respondent in this case)


This item of evidence shows not only the general policy of the paperbut also, its specific policy regarding the election matters of the respondent.It is Clear that the paper was always publishing matters favourable to therespondent. That being so, I fail to understand how it can be said that thepresumption under section 7 of the Press Act has been rebutted. P.W. 5who is the Director-in-charge of the paper deposed as follows:

^ j ^ <T>1 «SI3<36)S

j

uicnQMieLjO(e«)oaJ. miGQnnmsf\mu aj3)fijflfiB<J>6nsa>1(tji njoctymagjo,"

Again he deposed : "goejca>0o±iaiS

R. W. 1 deposed as follows: "go°-rtas riDOsjoraodKnioQiisjgg £ x t s p j to& 1 i d T

g ^ arosuc&jgTejgg (jjouooo cuiaiAo-oono Oppo-sition League, sonuroo"ej<>, (s%(b. OQCTO". a^)rruu., Marxist gDajRBaion i

oraroioflj^ ^cjyTocro1s)nao ggsaQ/liaJ atO3 a i l o s j o U i i i i c i g j ( G n j o . ) g6nB° ( g ) .oasis s>njog1oo1c9«)ra^ 6>6)ejcrflai>u c/slSgiflfflOo (BT5i6)6n")cnDo <3c33 cjuoraffmaysris0. R ,1 also a d m i t t e d " cscjyioejTcnieoSo tms) CDCOJO nnnfmoaosno"

R.W. 1 further deposed that there was the election council, Stateworking Committee, parliamentary board and similar groups of the Mus-lim League wherein also the policy was discussed. He adds:

(ojajt?i(!3Ta>GnsOT30otsa0 ffla^te^iggoj^o cojsmsimanro0 micmjooJCBOco'lnBonra.

It has come out in evidence that Chandrika has no editorial boardand that the post of Managing Editor which was in existence for sometime was abolished.

Thus the position of R. W. 1 as Chief Editor had considerableimportance as far as the interests of the paper and the company wereconcerned. The direct and circumstantial evidence thus shows that thepaper was only implementing the policy decided by the Muslim League,of which the respondent is the Secretary. The Central idea in the impugn-ed publications, namely Exts. P 1 to P 11 was that the Opposition Leaguewas securing the support of R.S.S., Jana Sangh and Marxists who wereenemical, to the Muslims, and those organisations were responsible formassacre of Muslims and for setting fire to mosques. The respondent him-self started that kind of propaganda through Ext. P 1 (a). R.W. 1 wasshown Exts. P 1 P 11. He deposed that he had seen some of them andthe others were seen only subsequently. He was perfectly aware of Exts.P I to P 11 publications. In the witness box R.W. 1 was asked: "Exts.

20 T.ICS.M.A.M. THANGAL V. HAJI C.H. MOHAMMAD KOYA [VOL. LX11I

P I t o P 11 t8T3>0Q)ns 6icfljO§(oiij)T(o1i9«cm _aJ(Q3n<a> o_i(r!S)(TOJ>'lffr& o j o i d ^ g g ajor5«5Tm<£hff)g

o ( G ^ J O . ) gDgj. gogo" O-iaayiaJis" sDrmlsiejoanroo cu iTupl p r a c t i c eroooinmra0 n^j)onT<a° " l n B T C D csroocmnTcsiiT«336>rn)g1(!ji

s" rectify sinJcgjooJ eroraaJ

e

Thus the case of the respondent is not that he has nothing to do withthe various publications or that he was unaware of them, but that accor-ding to him they do not contain objectionable matter and that if he everfelt that there was anything wrong he would have rectified it. To put itin a nutshell, during the election period the staff of Chandrika inclusiveof P. W. 2 was only implementing the policy decided by the leaders of theMuslim League inclusive of the respondent. It was thus not a case ofP.W. 2 evolving a policy or selecting materials according to his ownwhims and fancies. Such being the position it is not possible to hold thatthough the respondent was the Chief editor, it was P.W. 2 who made theselection of matters for publication. That being so, I fail to understandhow it can be held that in the circumstances of this case the presumptionunder section 7 has been rebutted. On the other hand, as far as I couldsee, instead of the presumption being rebutted, it is only confirmed bythe facts deposed by the witnesses and extracted above by me. Thelearned counsel for the respondent cited before me the decisons of theSupreme Court reported in D. P. Mishra v. K. Sharma (A.I.R. 1971S. C. 856), B. Rajagopala Rao v N. C. Ranga (A.I.R. 1971 S.C. 267),H. C. Mohanty v Surendra (A.I.R. 1974 S.C. 47) and State of Maharashtrav. R.B. Chowdhari (A.I.R. 1968 S.C. 110) as instances where the Courtheld that the presumption under Section 7 of the Press Act was rebutted.Whether in a given case the presumption available under Section 7 ofthe Press Act is rebutted or not is essentially a question of fact and appre-ciation of the evidence available in the case. I do not think that I haveviolated the guidelines contained in the aforesaid decisons in arriving atthe conclusion that as far as the present case is concerned the respondenthas not succeeded in rebutting the presumption available against himunder section 7 of the Press Act.

23. The petitioner has got an alternative case. According to himeven if the presumption under section 7 of the Press Act is not avilableas against the respondent in view of the consistent policy adopted byChandrika in supporting the election of the respondent the newspapershould be deemed to have functioned as an agent of the respondent. Therespondent contended that no such allegation could be spelled out fromthe averments in the petition. 1 think, that contention has some force.In the absence of a definite pleading in the petition that Chandrika atleast acted as agent of the respondent I may not be justified in consider-ing the agency put forward by the petitioner, eventhough from the evi-dence it is perfectly clear that the position of Chandrika was that of anagent, if the presumption under section 7 of the Press Act stands rebuted.

24. The only other question remaining for consideration is whetherthe last ingredient of sub-section 3A of section 123 has been satisfied inthis case. According to the petitioner the object of these publications wasto further the prospects of the election of the respondent or for prejudi-cially affecting the election of the petitioner. Paragraph 2 of Ext. P 1 (a),the report of the speech made by the respondent himself, shows that

E.L.R.] T.K.S.M.A.M. THANGAL V. HAJI C.H. MOHAMMAD KOYA . 21 '

his exhortation to the audience was to rout the R.S.S. Jana Sangh groupin the election. In'fact, the respondent did not contend before me thatthe publicatiops in question were ,not made with reference to the election.My conclusion, therefore, is that the object of the publications was tofurther the cause of the respondent in the election and also to prejudi-cially affect the prospects of the petitioner who was the rival candidate.

25. From the foregoing discussion 1 hold that by their contents Exts.f> I %), P I (b), P3, P4, P5, P6, P7, P8, P9, P10 and P 11 (b) constitutecorrupt practice specified in sub-section (3A) of section 123 of the Actaild t$at the respondent is guilty of that corrupt practice.

••'•'. lf>. After the. evidence was closed both sides were heard, and thenthe petitioner raised the doubt whether a notice under section 99 shalllipt issue as against P.W. 2 who is the editor, printer and publisher ofChandrika. A notice was issued, and P. W. 2 filed on objection. Since1 have held that as chief editor the respondent is responsible for theoffensive publications, it cannot be said that P.W. 2 is guilty of any cor-rupt practice. That apart, the name of P. W. 2 is not mentioned in thepetition, and the petition also does not contain any suggestion that P.W.2 is responsible for th£ impugned publications. I hold that P.W. 2 is notguilty of the cprrupi practice under section 123 (3A), which alone wasrejiec} qa b y ^ e petitioner both against the respondent and P.W. 2.

A separate order under section 99 of the Act is simultaneously passed.

27. Issue No. 3. In view of the finding on issue No. 2 the electionof the respondent is liable to be set aside. The prayer of the petitionerthat in addition to invalidate the election of the respondent the petitioner.must be declared' as elected cannot be sustained. So that part of thepetitioner's prayer has only to be rejected.

In the result, the election of the respondent from the MalappuramAssembly constituency to the Legislative Assembly of Kerala is hereby,set aside and jfcbe; flection ,is declared to be void. The election petition isallowed to that extent and the prayer of the petitioner to declare him aselected is rejected. The petitioner will get his cost from the respondent.Advocate's fee is determined at Rs. 1,000.

The Office will, communicate the substance of this decisibn to theElection Commission and the Speaker of the Legislative Assembly ofKerala. It shall also send an authenticated copy of this decision to theElection Commission as soon as it is ready.

Petition allowed.

THE SUPREME COURT OF INDIA

HAJ1 C.H. MOHAMMAD KOYA

V

T.K.S.M.A. MUTHUKOYA

(S. MURTAZA FAZAL ALI and P. N. SHINGHAL, JJ.)

September 12, 1978

Representation of the People Act, 1951—Section 123 (3A)—Publi-cation of material promoting religious and communal hatred between citi-zens—Proof beyond reasonable doubt of preponderence of probabilities—what constitutes—how to be proved.

Press and Registration of Books Act, 1867—Section 7—Presumption—Meaning of Editor—Object of the Act.

The petitioner challenged the appellant's election in 1977 to theKerala Legislative Assembly alleging that the appellant had committedvarious corrupt practices. It was mainly alleged that before the electionsthe appellant was the Chief Editor of a daily paper called Chandrikawhich was the official organ of the Muslim League; the paper publishedseveral articles, extracts of speeches and cartoons which tended to aslrthe Muslims to vote for the appellant on religious and communal groundsand also promoted ill-will and hatred between two classes of citizens,namely, the Jana Sangh and Muslim League. At the hearing of the peti-tion the allegations were confined to Section 123 (3A). The appellantcontested the petition denying that he made any speech which offendeds. 123 (3A) and contended that he was not aware of any articles or car-toons published in Chandrika prior to the elections. He also denied hewas editor of Chandrika within the meaning of Section 7 of the Pressand Registration of Books Act, 1867.

The High Court allowed the petition and set aside the appellant'selection.

ALLOWING the appeal, the Supreme Court held:

(1) It was clear from an examination of issues of the publicationChandrika that the printer/publisher was someone other than the appel-lant. There were no pleadings or evidence to show the nature of the dutiesperformed by the appellant as Chief Editor which was not an officecontemplated by the Press Act which had selected only one person, i.e.the Editor who can be sued and against whom alone a presumption underSection 7 of the Press Act can be drawn.

State of Maharashtra v Dr R B Choudhury and Ors: (1967) 3 SCR708

D P Mishra v Kamal Narain Sharma and Others : (1971) 3 SCR257

Narasingh Char an Mohanty v Surendra Mohanty : (1974) 2 SCR39.

relied upon

22

E.L.R.] HAJI C.H. MOHAMMAD KOYA V. T.K.S.M.A. MUTHUKOYA 23

Even if it be assumed that the appellant was the editor the presum-ption under Section 7 is rebuttable and the evidence in the case showsthat the presumption had been sufficiently rebutted.

The publication of the material promoting hatred between two classesof citizens is undoubtedly a corrupt practice. It is well settled by a longcourse of decisions that such practices must be clearly alleged and all thenecessary particulars must be proved not by the standard of preponder-ence of probabilities but beyond reasonable doubt.

Mohan Singh v Bhanwar Lai and Ors : AIR (1964) SC 1366;

Meghraj Patodia v R K Birla and Ors : (1971) 2 SCR 118

D Venkata Reddy v R Sultan and Ors: (1976) 3 SCR 445

Ramanbhai Patel v Jaswant Singh Udesingh Dabhi and Ors: AIR(1968) SC 1162

relied on

(2) Neither the writer of the article nor the speaker who deliveredthe speech, nor the reporter, nor even the manuscript of the speeches hadbeen produced before the court. All these articles and speeches are in-consequential until they are shown to have been made with the know-ledge and consent of the appellant.

The allegations in the petition were vague. No evidence was producedby the petitioner to prove whether the extract of the speeches complainedof was correct and was a reproduction of the very words used by theappellant. It is well settled that the admission unless it is separable hasto be taken as a whole or not at all.

Hanumant v The State of Madhya Pradesh : (1952) SCR 94;

Palvinder Kaur v The State of Punjab : (1953) SCR 94

Dadarao v The State of Maharashtra : (1974) 3 SCC 630

relied on

(3) It has not been shown that the extract of the speech complainedof tended to promote hatred or enmity between two classes of citizens. Noevidence had been produced to substantiate the allegation made.

(4) The petitioner has failed to prove that the cartoon complainedof was published with the consent and knowledge of the appellant. Theterm consent is a much stronger word than knowledge because it impliesassent. There is nothing to show that the appellant gave his consent tothe publication of the cartoon at any time. There is no evidence either ofconsent or knowledge. On the contrary there is evidence to negative thisfact- ff#1R'

CIVIL APPEAL N O 12 AND 863 OF 1978

F S Nariman, S Narayanan Poti, J B Dadachanji and K J John for appel-lant (in CA 12 and Respondent in CA 865/78)

Y S Chitale and N Sudhakaran for Respondent (in CA 12 and Appel-lant in CA 865/78)

5—3 ECI/ND/85

as

24 HAJI C.H. MOHAMMAD KOYA V. T.K.S.M.A. MUTHUKOYA [VOL. LXIIT

JUDGMENT

FAZAL A l l . J : This election appeal is directed against the orderof the High Court of Kerala dated 19th December, 1977 by which the electionof the appellant Haji C.H. Mohammed Koya has been set aside and hehas been disqualified from taking part in the elections for a period of sixyears under the provisions of the Representation of the People Act, 1951(hereinafter called the Act).

For the purpose of brevity we shall refer to the respondent-petitionerthe petitioner and Haji C.H. Mohammad Koya as the appellant.

In the general election held to the Legislative Assembly of Keralaon 20th March, 1977 the petitioner and the appellant were the contestingcandidates from No. 34 Malappuram Constituency. The counting of votestook plance on the 20th March, 1977 and the appellant was declared electedon the same date. The total votes polled were 56,276. The appellantsecured 39,362 votes and thus defeated the petitioner by a margin of20,000 votes. Aggreived by the election results, the petitioner filed anelection petition in the High Court alleging that the appellant had com-mitted various corrupt practices falling within the ambit of sections 123(3),(3A) and (4) of the Act. It was mainly alleged that before the elections,the appellant was the chief Editor of a Malayalam daily paper calledChandrika which was the official organ of the Muslim League. It isfurther alleged by the petitioner that the appellant held shares worth Rs.3 lakhs in the Printing and Publishing Company which published Chan-drika. This paper, according to the petitioner, contains several articles,extracts of speeches and cartoons which tended to ask the Muslims tovote for the appellant on religious and communal grounds and also pro-moted ill-will and hatred between two classes of citizens, r.amely theJanasangh and the Muslim League. It appears, however, that at the hearingthe petitioner confined his case only to the corrupt practices alleged byhim under section 123(3A) of the Act. In this connection, the learnedJudge of the High Court observed as follows:—

"Though in the petition sub-sections 3, 3A and 4 of Section 123 of theAct are specifically referred to, from the evidence tendered in thecase it would appear that applicability of sub-section 3A of Section123 alone falls for decision".

The petition was contested by the appellant who filed a counter-affidavit denying the assertions and averments made by the petitioner andtook the stand that he made no speech which offended section 123(3A) ofthe Act nor was he aware of any of the offending articles or cartoonspublished in Chandrika prior to the elections. He also denied that he washa Editor of Chandrika but admitted that he was the Chief Editor andthat too only in name. Being an important and an influential person hewas able to collect lot of money for Chandrika from the Gulf States andthat is why he was assigned an important role in Chandrika as Chief Edi-tor for the purpose of deciding the larger policies of the paper. The ap-pellant further denied that he had anything to do with the editorial workof Chandrika or the publication of the speeches or articles etc. It maybe partinent to note here that even the petitioner in his petition has notat all alleged or described the nature of the duties which the appellantperformed as Chief Editor nor has he stated that as Chief Editor he was

E.L.R.J HAJI C.H. MOHAMMAD KOVA V. T.K.S.M.A. MUTHUKOYA 25

controlling the materials published in the paper so as to ascribe construc-tive knowledge to him of the articles published in Chandrika. All thatthe petitioner pleaded in his petition on this subject may be extractedthus:—

"The respondent is the Chief Editor of Chandrika, a daily newspaperpublished from Calicut. It is published by the Muslim Printing andPublishing Company Limited. The major shares of this companyis owned by the Muslim League Party and the respondent holdsshare worth of Rs. 3 lakhs in the above company. The daily Chandrikais the official organ of Muslim League Party. It is submitted thatin the daily Chandrika of which the respondent is the Chief Editor,is published reports and articles appealing to the members of theMuslim community not to vote for the candidates of the MuslimLeague (Opposition) in the name of religion and community".

As regards the speech while the petitioner admitted that he didmake a speech as would appear from the extract Ex. P.I (a) but deniedthat he made any communal allegations against the Janasangh but statedthat some of the words used by him in the speech were used purely ina figurative sense. When the appeal was heard before us counsel for theparties agreed that the only items of evidence which could be relied uponagainst the appellant were (1) his speech Ex. P.I (a), (2) Cartoon Ex.P.5and (3) other offending speeches and articles which were published inthe paper or which was the Chief Editor. It was conceded by Dr. Chitale,counsel for the petitioner that if he was not able to prove that the appel-lant was really the Editor of the paper then the presumption under sec-tion 7 of the Press and Registration of Books Act 1867 (hereinafter calledthe Press Act) would not apply and the case of the petitioner would standor fall on Ex.P.l(a) and Exhibit P.5. It is also not disputed that althoughthe High Court has relied on a number of articles and extract of speechespublished in the various issues of Chandrika yet none of these have beenproved according to law by examining the writer or the reporter or pro-ducing the original script of the paper. If therefore, the petitioner failsto establish that the appellant was virtually the Editor of Chandrika orat any rate performed the duties of the editor then no constructive know-ledge of these articles can be attributed to him.

The High Court framed the following issues:—

1. Whether the petition is maintainable?

2. Whether the election is vitiated by all or any of the corruptpractices alleged in the petition.

3. Regarding reliefs and costs.

As regards issue No. 1 the High Court held that the petition wasmaintainable and decided this issue against the appellant. This findinghas not been challenged by the appellant before us and we thereforeaffirm the same.

The main issue in the case was issue No. 2 and we should have expect-ed the High Court to have framed a more detailed issue giving the natureand character of the corrupt practices alleged by the petitioner againstthe appellant in order to give a clear picture to the parties regarding thematters which were to be decided by the court. However, as both the

26 HAJI C.H. MOHAMMAD KOYA V. T.K.S.M.A. MUTHUKOYA [VOL. LXII1

parties understood what the allegations were and proceeded to trail onthat basis the vagueness of the issues framed by the High Court has notcaused any prejudice to any of the parties.

The main corrupt practice pleaded against the appellant by thepetitioner and which has been vehemently argued before us is to be foundin paragraph 5 of the petition which is regarding the inflammatory speechErhibit P.I (a) said to have been made by the appellant and which accord-ing to the petitioner fell within the mischief of section 123(3A) of the Act.

Another important averment made in the petition was in para-graph 11 of the petition which refers to the cartoon and may be extractedthus:—

"In Chandrika dated 12-3-1977 on the front page a cartoon ispublished. In depicting Janasangh as a Pig and Shri E.M. SankaranNamboodiripad, the Marxist Leader, cutting to the flesh of the pigand serving it to the Muslim. This is an attempt to promote feelingsof enmity and hatred between different classes of citizens of Indiaon grounds of religion. It is well known to eat pork is pardial anathema(haram) for true muslims. The publication of this cartoon in Chan-drika is with the consent and knowledge of the respondent, whichpromoted hatred of the Muslims against the United Front of MarxistParty and Janatha Party and Muslim League (opposition) of whichthe petitioner is a candidate from the concerned constituency."

It is clearly pleaded that the cartoon was published in Chandrika withthe consent and knowledge of the appellant. Thus, in other cases, consentand knowldege were not expressingly pleaded by the presumptions to bedrawn under section 7 of the Press Act.

We shall first take up, therefore, the question whether the petitionercan avail of the presumption to be drawn under section 7 of the Press Act.The High Court has found that in the circumstances of the case, section 7of the Press Act fully applies to the facts of the present case. We are how-ever for the reasons that we shall give hereafter unable to agree withthe view taken by the High Court.

Before dealing with the various provisions of the Press Act, itmay be necessary to divide this question into two parts : (1) the legal as-pect, and (2) the factual aspect. The legal aspect concerns the effect ofthe various provisions of the Press Act and the extent of their applicabi-lity to the appellant. The factual aspect would take within its fold theduties and responsibilities performed by the appellant as the Chief Edi-tor. We will first take up the legal aspect.

The Preamble to the Press Act runs thus:—

"Whereas it is expedient to provide for the regulation of printing-presses and of newspapers, for the preservation of copies of everybook and newspaper printed in India and for the registration ofsuch books and newspaper, it is hereby enacted as follows".

It would thus appear that the object of the Press Act was to regulateprinting presses and newspapers in order to preserve copies of news-papers and books. Moreover, in order to avoid multiplicity of suits and


uncertainities of liabilities, it was considered necessary to choose one ofthe persons from the staff and make him liable for all the articles ormatters published in the paper so that any person aggrieved may useonly the person so named under the provisions of the Press Act and isrelieved from the necessity of making a fishing or roving enquiry aboutpersons who may have been individually responsible for the offendingmatters published in the paper. Our opinion in this regard is howeverre-inforced by the statement, object and reasons accompanying the PressAct which may be extracted thus:—

"Whereas it is expedient to repeal the Indian Press Act, 1910 and thenewspapers (Incitements to Offences) Act, 1908 and to make fur-ther provision in the Press and Registration of Books Act, 1867, forthe liability of editors of newspapers in civil and criminal proceed-ings and to make certain amendments in that Act in order to facilitatethe registration of printers and publishers; and to provide in theSea Customs Act, 1878, the Code of Criminal Procedure, 1898, andthe Indian Post Office Act, 1898, for the seizure and disposal of cer-tain documents; it is hereby enacted as follows:"

It was with this avowed object that the Press Act clearly defines 'Editor'who has a clear legal status under the Press Act. Section 1 (1) of thePress Act defines 'Editor' thus :

" 'Editor' means the person who controls the selection of matter thatis published in the newspaper".

Section 5 of the Press Act provides that no newspaper shall be publishedexcept in conformity with the rules hereinafter laid down. Section 5(1)runs thus:—•

"Without prejudice to the provisions of section 3, every copy of everysuch newspaper shall contain the names of the owner and editorthereof printed clearly on such copy and also the date of its publi-cation".

It would thus be clear that under section 5(1) of the Press Act the legalrequirements is that every newspaper shall contain the name of the ownerand the editor printed clearly, so that there is no confusion in the mindsof the people on this account. Sub-section (2) of Section 5 of the PressAct makes it incumbent en the printer and the publisher to appear beforethe authorities mentioned in that section and make a declaration.

Sub-rife (2) of rule 8 of the Rules made under the Press Act runsthus:

"Every copy of every newspaper shall have printed legibly on it thenames of the printer, publisher, owner and editor and the place ofits printing and publication in the following form:

Printed by and published by on behalf of

(name of owner) and printed at

(place of printing) and published

at (place of publication) Editor

28 HA.TI C.H. MOHAMMAD KOYA V. T.K.S.M.A. MUTHUKOYA [VOL. LXIII

This rule enjoins that the name of the printer, publisher, owner, and editormust be clearly indicated. The note to this rule is extracted thus:—

"Note : This form may be modified to suit the circumstances of eachpaper, for example, where the printer, publisher and owner are thesame the imprint line can be : Printed, published and owned by

The editor's name, however, should be given sepa-rately in every case".

This requires that the editor's name, however, should be given separatelyin every case. Rule 6 requires every publisher to submit an annual state-ment to the Press Registrar. It is not disputed in the present case thatthis statement was not made by the appellant but by P.W.2, Aboobeckerwho was the editor, publisher and printer of Chandrika. The annualstatement which has to be filed in form 2 contains one of the columnswhere the editor's name has to be shown. Section 7 of the Press Act runsthus:-—

"In any legal proceeding whatever, as well civil as criminal, the pro-duction of a copy of such declaration as is aforesaid, attested by theseal of some Court empowered by this Act to have the custody ofsuch declarations, or, in the case of the editor, a copy of the news-paper containing his name printed on it as that of the editor shallbe held (unless the contrary be proved) to be sufficient evidence, asagainst the person whose name shall be subscribed to such declara-tion, or printed on such r^wspaper as the case may be, that the saidperson was printer or pujlishc;-. or printer and publisher (accord-ing as the woris cf the said dc;l-• ration may be) of every portionof every newspaper whereof the title shall correspond with the titleof the newspaper mentioned in the declaration or the editor of everyportion of that issue of the newspaper of which a copy is produced".

Section 8(a) of the Press Act provides that where any person'sname has appeared as an editor in a paper although he was not an editorhe shall within two weeks of his becoming aware that his name has beenso published, appear before the District, Presidency or Sub-DivisionalMagistrate and make i declaration that his name has been incorrectlypublished and get a certificate from the Magistrate that the provisionsof section 7 shall not apply to him. It may be interesting to note thefollowing facts here:—

1. That the issues of Chandrika shown to us clearly and unmis-takably mention the name of Aboobaker as the printer, pub-lisher and editor of Chandrika and does not mention the ap-pellants as the Editor of Chandrika. The appellant is merelyshown as the Chief Editor but this is an officer which is notall contemplated by the Press Act.

2. That if the appellant was really the editor of the paper thenP.W. 2 Aboobecker ought to have restored to section 8(A) tocorrect the mistake in the paper where his name was shown asthe editor but no such thing has been done. On the other hand.P.W. 2 Aboobecker tacitly and clearly admits that he is theeditor of the parser.

E.L.R.] HAJI C.H MOHAMMAD KOYA V. T.K.S.M.A. MUTHUKOYA 29

3. That the petitioner has not at all pleaded in his petition the natureof the duties performed or responsibilities shouldered by theappellant as Chief Editor. There is no averment at. all in thepetition that the appellant controls the selection of matter thatis published in the newspaper which alone would make him aneditor as defined in section 1(1) of the Press Act. The word'Chief Editor' is clearly absent from the Press Act and in factforeign to it because the Press Act has selected only one personwho has a special status and that is the editor who can be sued,if necessary, or can sue and against whom alone a presumptionunder section 7 of the Press Act can be drawn.

While holding that the presumption under section 7 of the Press Act isavailable to the petitioner, the High Court has completely overlooked theaforesaid aspect mentioned by us. The law on the subject is absolutelyclear and there are a number of decisions of this Court which have inter-preted the relevant sections of the Press Act.

In the case of State of Maharashtra v. Dr. R.B. Chowdhary & Ors. (1)(1967) 3 S.C.R. 708 this Court observed as follows :

"The term 'editor' is defined in the Act to mean a person who con-trols the selection of the matter that is published in a newspaper.Where there is mentioned an editor as a person who is responsiblefor selection of the material section 7 raises presumption in respectof such a person. The name of that person has to be printed on thecopy of the newspaper and in the present case the name of Madaneadmittedly as printed as the editor of the Maharashtra in the copy ofthe Maharashtra which contained the defamatory articles. The decla-ration in Form I which has been produced before us shows the nameof Madane not only as the printer and publisher but also as the editor.In our opinion the presumption will attach to Madane as havingselected the material for publication in the newspaperIn the circumstances not only the presumption cannot be drawn againstthe others who had not declared themselves as editors of the news-paper but it is also fair to leave them out because they had no con-cern with the publishing of the article in question".

This case, therefore, clearly holds that where a pcson is not shown inthe paper to be its editor no such presumption under section 7 of thePress Act can be drawn but it must be held that he has no concern withthe publishing of the articles.

To the same effect is another decision of this Court in the caseof D.P. Mishra v. Kamal Narain Sharma & Ors. (2) (1971) 3 S.C.R. 257.In this case which was also an election matter a newspaper called Maha-koshal was published from Raipur and one Shukla was registered as theprinter, publisher and editor with the Press Registrar. The defence ofShukla was that he had appointed one Tarangi as the editor of Mahako-shal in June 1962 and was not present at the relevant time. This Courtpointed out that the proceedings for naming a person who is found res-ponsible for publication of an offending matter and for constituting acorrupt practice are in the nature of quasi-criminal proceedings. It fol-lows therefore that being a corrupt practice it has to be proved beyondreasonable doubt and not by the measure of preponderance of proba-bilities. The Court observed in this connection as follows ;

30 HAJI C.H. MOHAMMAD KOYA V. T.K.S.M.A. MUTHUKOYA [VOL. LXHI

"Section 7 raises a presumption that a person whose name is printedin a copy of a newspaper is the editor of every portion of that issue.The presumption must be rebutted by evidence Thepresumption under section 7 of the Press and Registration of BooksAct undoubtedly arises, but in a charge under section 123(4) of theRepresentation of the People Act the presumption under section 7of the Press and Registration of Books Act, 1867 would come withgreater or less force, according to the circumstances to the aidof a person claiming that the editor was responsible for the publica-tion and that the publication was to the knowledge of editor".

"Granting that there was close association between Mishra and Shuklaand even granting that Mahakoshal was exclusively carrying on pro-paganda on behalf of Mishra, unless there is evidence to prove thatShukla had, either authorised the publication of the offending matter,or had undertaken to be responsible for all the publications madein the Mahakoshal, no inference that the offending publications weremade to the knowledge and with the consent of Shukla may beraised".

"The statement filed by Shukla is not inconsistent with the case set upby him in this proceeding. Responsibility for publication was ac-

cepted by him but he had clearly stated that the publication of news-items from the correspondence were attended to by the Sub-editorsand that he generally laid down the policy of the newspaper and gavegeneral directions. He admitted his responsibility because he per-sonally had with knowledge published the article which constitutedcontempt of^Court".

We may mention here that in this case Shukla in his statement has clearlystated that the publication of the news-items in the paper were attendedto by Sub-editors and he generally laid down the policy of the newspaperand gave general direction. No such allegation or evidence is forthcom-ing in the instant case because it has neither been alleged nor provedthat the appellant was in any way controlling selection of the matterspublished in the paper.

In the case of Narasingh Charon Mohanty v. Swendra Mokanty(1974) 2 S.C.R. 39 this Court pointed out that consent or agency could notbe inferred but had to be proved affirmatively like any other fact. In thisconnection the Court observed as follows:—

"Consent or agency cannot be inferred from remote causes. Con-sent cannot be inferred from more close friendship or other relation-ship or political affiliation. As pointed out in D.P. Mishra's case(supra) however close the relationship unless there is evidence toprove that the person publishing or writing the editorial was autho-rised by the returned candidate or he had undertaken to be respon-sible for all the publications, no consent can be inferred".

It was further held in this case that the presumption under section 7 ofthe Press Act is a rebuttable presumption and the so called editor can re-but the presumption by showing that he had nothing to do with the pub-lication of the editorial or the news report. In our opinion, even if anypresumption is drawn against the appellant the same has been sufficiently


rebuted by him not only from the evidence adduced by the appellant butalso by the evidence adduced by the petitioner. We shall presently dealwith this fact of the matter, namely, the factual aspect of this question.The court further observed as follows:—

"When once it is established that neither the editorial (Ext. 1) northe news report (Ext. 2) were published by the respondent or by someone else with his consent or that the speech alleged to be made byBiju Pataaik even if it amounts to corrupt practice, was made with-out the consent of the respondent, and that Biju Patnaik was not hisagent. It is unnecessary to consider the question whether the editorialand the news report as well as the speech of Biju Patnaik did in factconstitute corrupt practice under sub-section (3) of section 123 of theAct".

As against this Dr. Chitale, counsel appearing for the petitionersubmitted two points before us. In the first place, he argued that theprovisions of rule 3 thereof have not at all been complied with, and, there-fore, the appellant cannot escape his liability even though he was theChief Editor. It was argued that the note to rule 8 as also the formmentioned in rule 8 sub-rule (2) clearly provide that the editor's namemust be separately shown in every paper and in the instant case the issueof the paper Chandrika shows in a composite form that the editor, printerand publisher of the paper was P.W. 2 Aboobaker. It was thus contendedthat the provisions of rule 8(2) have not been complied with because thename of the editor has not been separately shown, in these circumstances,it was argued that as the name of the Chief Editor was separately shownhe must be taken to be the editor of the paper under the provisions of thePress Act and the rules made thereunder. We are however unable to acceptthis argument. In the first place, the paper clearly shows the name of theeditor as Aboobaker. As the printer, publisher and the editor WBS oneand the same person it cannot be said that merely because the name ofthe editor was not shown at a separate place he was absolved of his res-ponsibilities as the editor. The intention of the rule is merely to clarifywho the editor of the paper is and once this is shown then there is a sub-stantial though not a literal compliance of the rule. Secondly, the PressAct does not recognise any other legal entity except the editor in so faras the responsibilities of that office are concerned. Therefore, more mentionof the name of the Chief Editor is neither here nor there, nor does it inany way attract the provisions of the Press Act particularly section 7.Thirdly, it is not even pleaded in the petition, much less proved, that theappellant being the Chief Editor, it was part of his duty to edit the paperand control the selection of the matter that was published in the newspaperwhich in fact has been demonstrably disproved by the appellant. Thus,we are unable tp accept the finding of the High Court that any presump-tion under Section 7 of the Press Act can be drawn against the appellant.

This brings us to the factual aspect of the matter. In this connec-tion, the definite case of the appellant is that although he has been shownas the Chief Editor of Chandrika he was not at all connected with anyeditorial function but his name was lent to the paper because of his pastservices to Chandrika and because he used to get lot of money for thispaper being an influential man. This has been proved not only by the evi-dence led by the appellant but also by the evidence adduced by the peti-tioner.

6—3 ECI/ND/85

32 HAJl CM. MOHAMMAD KOYA V. T.K.S.M.A. MUTI1UKOYA [VOL. LXIII

Before taking the evidence on this point we might mention a fewadmitted facts which loom large in our minds (1) that the petitioner pro-ceeds on the footing in his petition that the appellant was the Chief Edi-tor and no where he has been mentioned as the editor of Chandrika, (2)there is no pleading by the petitioner that the appellant was an editorwithin the meaning of section 1(1) of the Press Act particularly when thepaper Chandrika was the pivot and the sheet anchor of his case and whichclearly showed that the appellant was not the editor but P.W.2 Aboobakerwas officially and factually the editor of the paper and yet there is no po-sitive denial of this fact in the petition; (3) no particulars of the functions,duties and powers of the appellant as Chief Editor have been pleaded. Onthe other hand, it has been pleaded that the appellant hold shares worthRs. 3 lakhs in the company but that will not attract the provisions of thePress Act at all: and (4) as Aboobaker was admittedly the editor of thepaper Chandrika as clearly admitted by the petitioner himself in his evi-dence, the onus was clearly on the petitioner to allege and prove that theduties of the editor were actually performed not by P.W.2 Aboobaker butby the appellant. In this background we would now discuss the evidenceof the parties on this point.

P.W.I Thangal (Petitioner) categorically states thus:—

"V.C. Aboobaker is the editor and printer of Chandrika'7.

He further admits that Aboobaker's responsibility is to submit the reportsand the speeches supplied by the appellant. He also admitted that Aboo-baker does the editing. The witness no doubt says that he had seen theappellant in the Chandrika office twice but that by itself would not showthat the appellant was the editor of the paper.

Strong reliance was placed by counsel for the petitioner on thestatement of P.W.I to the effect that the appellant was doing the day-to-day editorial work of Chandrika. In the first place, this statement does notappear to be true and is clearly contradicted by the petitioner's own wit-nesses, namely, P.Ws.2 and 5 who have categorically stated that Aboo-baker was the editor and the appellant was not a member of the editorialgroup and was extremely busy with the elections to be able to devoteany time to do the work of the editor. The evidence of this witness shallbe discussed hereafter. Another important aspect of the matter is thatas the petitioner was not connected with Chandrika he is not competentto depose to show who did the editing work of Chandrika. The only com-petent witnesses on this point are P.Ws.2 and 5 and the appellant and theyhave said that the appellant had nothing to do with the editorial work ofthe paper. Moreover, it would appear from the evidence of P.W.5 thatthere is a special attendance register for the editorial staff and that theappellant had not signed the said register which clearly shows that theappellant had no concern at all with the editorial group. Finally, theallegation that the appellant was doing day-to-day editing work of Chan-drika is not merely a piece of evidence but a material fact which oughtto have been pleaded in the petition if the petitioner wanted to rely onthe presumption under section 7 of the Press Act. Tf this fact was with-in the knowledge of the petitioner there was no reason why he did not men-tion it in his petition. In these circumstances, therefore, the statementof P.W. 1 on the point cannot be accepted.


l'.W. 2 Aboobaker wlio has been examined as the petitioner's ownwitness categorically states that he is the printer, publisher and editor ofChandrika and his statement on this point is extracted thus:—

"1 am the Printer, Editor and Publisher of the Malayalam DailyChandrika. This is published by Chandrika Printing and PublishingCompany".

He further states that in this institution (Chandrika) the post of ChiefEditor is an ornamental post. Thus, the witness fully supports the ap-pellant's case that he was the Chief Editor only in name and his post waspurely ornamental. The witness further admits that all responsibilitiesarc with the editor and Chandrika has no regular Board called the Edi-torial Board. He further admits that as an editor he knows what hisresponsibilities are. The witness further admits in clearest possible termsthat the authority to change the policies from time to time is vested inhim. His statement may be extracted thus :

' The authority to change policy from time to time is vested in him".He further states that the reports of the news are published only afterhe is satisfied about the truthfulness of the report concerned. This showscleariy that P.W.2 was both de jure and de jacto an editor inasmuch asthe control of the policy was vested in him. He was performing the dutiesand shouldering the responsibilities of the editor and the reports werepublished under his authority.

Reliance was however placed by counsel for the petitioner on thvstatement of the witness P.W.2 which runs thus:—

"In the Chandrika Office, Chief Editor has got a special roomHe is interested in the maintenance of the standards of Chandrikaas a newspaper He knows the policy of the paper.If any thing appears against the declared policy of the paper hehas got the authority to give necessary direction to me about that'

to show that the appellant was controlling the general policy of the paperWe are unable to infer from this statement that the appellant was con-trolling the selection of the matter published in the paper so as to fallwithin the definition of the word 'editor' as defined in section 1(1) of thePress Act. The appellant was no doubt connected with the paper for along time and there is nothing wrong in his.giving directions to the edi-tor if he found that some event look place against the declared policyof the paper. The witness at a later stage of his evidence has clearlystated that he had not discussed with the appellant the news item whichappeared in the paper nor did the appellant given any direction to thewitness about the printing and editing of the paper. This statement ma>be extracted thus:—

"1 have not discussed with the respondent about the news items whichappeared in the paper. He did not give any direction about theprinting and publishing of the paper".

The witness further clarifies that the Chief Editor has no such specialresponsibility. He further states thus:—

34 HAJI C.H. MOHAMMAD KOYA V. T.K.S.M.A.MUTHUKOYA [VOL. LXII]

"In the editorial staff of Chandrika there are 20 persons includingme. This 20 include trainees also. Under me, there are two newseditors. There are two Chief Sub-Editors. 5 or 6 Sub-Editors. 1have got supervision of their work I have onlyresponsibility of editing and printing of the paper".

This clearly shows that the witness was not only entirely responsible forthe printing and editing of the paper but was also supervising the workof the Sub-editors under him. He also admits that the declaration underthe Press Act was filed by him. To an express question whether the ap-pellant has been selecting or editing any of the day to day matters ap-pearing in the paper the witness categorically denied the same. The state-ment may be extracted thus:—

"The declaration under the Registration of Press and Books Act wasfiled by me. Has the respondent been selecting or editing any of theday-to-day matter appearing in the paper? (Q) No. (Ans)At the time of election because of his responsibility as the Secretaryof the Muslim League and as a leader of the United Front, duringthe months of February and March, the respondent was mostly ontour on all days when I was present, I sign the register".

It is, therefore, clear that even the witness examined by the petitioner hasknocked the bottom out of the case of the petitioner that the appellanthad anything to do with the duties and functions of an editor, and thequestion put to the witness which is denied by him clearly shows that theappellant has demonstrably disproved that he could be an editor of thepaper as defined in section 1 of the Press Act. Further this witness hasalso admitted that at the time of election because of the appellant's beingthe Secretary of the Muslim League and leader of the United Front hewas mostly on tour. This admission goes to show that the appellant wastoo busy to be ascribed knowledge of the article or speeches, publishedin Chandrika.

P.W.3 C.K. Hassan who is a worker of the petitioner merely saysthat the appellant Haji C.H. Mohd. Koya was the Chief Editor and itwas mentioned in the Chandrika paper that the Chief Editor would givespeeches. The witness further says that since it was printed in the Chan-drika paper it was understood that the appellant was the Chief Editor.This takes us no where because the witness does not throw any light onthe duties performed by the Chief Editor and also does not say who wasthe editor of Chandrika. In these circumstances, the evidence of thiswitness is absolutely valueless on the point in issue.

P.W.4 Mohammed Ali Shihab Thangal is an important witnessbeing the President of the Muslim League and Managing Director of theMuslim Printing and Publishing Press which published the paper Chan-drika. The witness was fully conversant with the working of the editorialdepartment of the paper. The witness clearly states that the appellant wasthe Chief Editor and the editor was under him. The witness further cate-gorically asserts that the policy of Chandrika is decided by the editorialstaff which as has already been seen does not include the Chief Editor.This fact was admitted by P.W.2 as reported above. Even this witnessdoes not say that the appellant as the Chief Editor was a member of theeditorial staff. On a specific question asked to him whether the appellant

E.L.R.] 11AJI C:.H. MOHAMMAD KOYA V. T.K.S.M.A. MUTHUKOYA 35

as the Chief Editor had powers to take decision about the paper, the wit-ness has denied knowledge of the same. The witness further proves thatthe appellant was the Chief Editor was drawing a salary of Rs. 700 permonth, but the witness admits that the entire management is done by SeethiSahib as Director-in-Charge. Thus, according to this witness, Seethi Sahibwho has been examined as P.W.5 is the most competent witness to proveas to what was the exact nature of the duties of the Chief Editor.

P.W.5 Seethi Haji is the Director-in-chargc of the Muslim Print-ing and Publishing Press and admits that he attended to the administra-tive functions of the Press. He clearly admits that Aboobaker (P.W. 2)was the editor of Chandrika paper and his responsibilities are the sameas they were in 1974-75. While explaining the reason why the post ofManaging Editor and Chief Editor existed in the establishment, he saysthat this was because it was thought that the names of big personalitionwould be prestigious. In other words, the witness fully corroborates theversion given by P.W.2 that the appellant's name as Chief Editor wasmerely ornamental. The witness also says that although the appellanthad a lot of experience in journalism yet that was not the only reason whyhe was made the Chief Editor but another consideration that swayed withthe authorities concerned was that the appellant was a leader of thecommunity. The witness further asserts thus:—

"To write 'Chief Editor' has a value of its own; that was why thename was inserted. (Ans.) He is also a leader of the communityas well as a journalist. He is an M.P. So his name was inserted".

The witness stoutly denied the suggestion put to him that there was animpression among the public that Chandrika and everything about itconstitutes the responsibility of the appellant. The witness says thatfrom 1967 to 1974 the appellant was in Chandrika but there is no suchimpression in the public. The appellant is a share-holder having investedRs. 400 whereas Rs. 3 lakhs has been invested in the name of the MuslimLeague.

Another important suggestion which is denied by the witness wasan answer to the following question :

"Will you work out the policy of the paper on your own accord withoutthe knowledge of C.H.?"

the witness ar.;wer is as follows :

"I do things now, after consulting P.W.2 Till now I have not askedCH."

It is, therefore, clear that even in matters of policy the witness who wasin 'charge of the administration of the paper would not consult the ap-pellant but only P.W.2 who was admittedly the editor of the paper. Inother words, it is clear that the appellant had nothing to do with the policy ofthe paper much less the editing part of it. To a question that except theChief Editor the appellant has got any other official position in thiscompany the witness answered 'nothing'. The witness further stated thatthe Chief Editor had not raised any objection to him about any newsitem published in Chandrika or (he policy matter of the paper from

HAJI C.H. MOHAMMAD KOYA V. T.K.S.M.A. MUTHUKOYA [VOL LXI11

which he inferred that the Chief Editor had approved the policy for ifhe had no objection he would have told him. Again, the witness makesa very significant statement which runs thus:—

*']. am present in the office on almost all days. T was in-charge ofgoing through the publications appearing everyday in the paper andchecking up as to whether they are in conformity with the declaredpolicies and interests of the paper. It was my responsibility to placeobjections, if any, if they were against the declared policies".

'I he witness further stated that the Manager had nothing to do with theediting and printing of the paper but categorically asserted that P.W.2 isselecting and editing everydays' matters in the Chandrika. Thus, on theadmission of this witness who was fully conversant with the working of thepaper P.W.2 alone fulfils the requirements of the definition of an editoras given in Section 1 of the Press Act and totally excludes the appellantfrom the scope and ambit of an editor as defined in the aforesaid sec-tion.

The witness further admits that there is a special attendance re-gister for the editorial staff and when the register is shown to him he ad-mits that this is the same register since January 1977. This register ismarked Exhibit R-7. The witness further admits that the register is forthe entire editorial staff including P.W.2. The witness further assertsthat the appellant who was the Chief Editor had not signed in this re-gister. This therefore clearly and conclusively proves and unmistakablyshows that the appellant was not a part of the editorial staff at all andhad no concern with that department. This is all the evidence led by thepetitioner and from this evidence it has not at all been proved that thcappellant as the Chief Editor performed any functions of the Editor orwas an editor within the meaning of Section 1 of the Press Act. Beforeconcluding this part of the case we might refer to the evidence of theappellant himself. But before we do that it would be necessary to ana-lyse the pleading of the appellant.

In para 4 of the counter affidavit which is really a substitute forthe written statement the appellant avers as follows:—

"The actual functions of the editor are being looked after by Sri.V.C. Aboobaker who is the editor, printer and publisher of theChandrika. This respondent has very little time to perform the func-tions of the Chief Editor as he is pre-occupied with other importantactivities on account of his membership of Parliament and his beingthe Secretary of the Indian Muslim League both all-India and State

The actual editing and publishing were entirelylooked after by Sri V.C. Aboobaker".

In the evidence given by the appellant as his own witness what he hasstated in his counter-affidavit is fully proved and further supported bythe evidence of P.Ws. 1 to 5 as discussed above. At any rate the appellanthimself has made the entire position clear in his evidence which is fullycorroborated by the witnesses of the petitioner examined by him.

On a specific question put to him as to whether he worked asChief Editor during those days, the witness has categorically denied thesame. The witness further stated that he became the Chief Editor in 1971

E.L.R.] HAJIC.H. MOHAMMAD KOYA V. T K.S.M.A. MUTHtlfcOYA 37

and continued to be so til! 1977. He has further clarified that when hebecame the Chief Editor he was not doing the editing work which hewas doing before. According to the witness, he joined the paper as farback as 1944 as Sub-Editor. It is, therefore, natural that in the earlystages of his career he was a part of the editorial staff and must beperforming editorial duties when he became the editor. But what wehave to see is what was the position in 1977 after he became the ChiefEditor. On this point, the witness has categorically stated that as ChiefEditor he was not doing any editing work. The witness has further ex-plained that when he became the Chief Editor he was also an M.P. andso he did not get any tifne for doing the editorial work. The witnessthen goes on to state that from 1974 to 1977 till the Lok Sabha was dissolvedhe was in Delhi as an M.P. and even during that time his name used tobe printed in the paper as Chief Editor but he was not doing any editingwork. He further states that as leader of the United Front and of theMuslim League he had much work to do during the election time and hewas very busy with the election speeches. Explaining the responsibilitiesand duties of an editor the witness stated thus :

"The responsibility of editing Chandrika is of P.W.2 Aboobaker.There is a large staff of Chief Sub-Editors and Sub-Editors to assisthim. There are two Chief Sub-Editors, including Sub-Editors therearc about 10, 20 persons. The work of these persons is supervisedand co-ordinated by P.W.2".

The witness further states that the Chief Editor has no room in the edi-torial section. He further corroborates P.W.2 by stating that P.W.2 hasgiven the declaration under the Press Act.

Regarding the nature of the functions which he actually performedthe witness asserted thus :—

"You had no difference of opinion with the reports and articles whichappeared in Ext. P.] to 11 Having read I did notthink that any of those would constitute corrupt practices. If T hadthought so T would have tried to rectified them".

He further stated that he did not belong to the regular staff. He furtheradmitted that he collected funds from The Gulf countries to finance thepaper Chandrika and the Muslim League holds the shares in the nameof the witness.

Learned counsel for the petitioner laid very great stress on Ex.P.2 a letter signed by the appellant to show that he "was doing the edi-torial work. This letter was sent to one of the correspondents of "the paperChandrika and the appellant has explained in his statement that in theabsence of the editor P.W. 2 the Manager requested the appellant to signthe letter and so he signed it. This was just an act of official accommoda-tion which was totally unconnected with the duties performed by the ap-pellant. After all the appellant was a high officer in the said organisa-tion and if the letter had to be sent to one of the correspondents and wasa little urgent instead of waiting for the editor to come there could beno harm if the Manager asked the appellant as Chief Editor to sign it.Such a casual actj oil the part of the appellant done not voluntarily but atthe request of the Manager cannot clothe him with the legal status ofan editor.

38 HAJI C.H. MOHAMMAD KOYA V. T.K.S. M.A.MUTHUKOYA [VOL. LXIII

Thus, this fact alone would not show that he was performing anyeditorial functions. The witness further states that the Chandrika hasno editorial Board but there is an editorial group consisting of Editor,Sub-Editor and others. This is the relevant part of the evidence of theappellant on this question. Thus, on a close and careful consideration ofthe evidence discussed above, the following inescapable conclusions emerge:

1. P.W. 2 Aboobaker was admittedly the editor of Chandrika, ful-filled all the conditions of section 1(1) of the Press Act and hisname was printed as editor in the issues of Chandrika.

2. P.W. 2 as the editor of the paper supervised the editorial staff,controlled the selection of materials to be published in the paper,approved the policies to be followed in publication and waswholly in charge of the editorial group.

3. The appellant was never shown or referred to as the editor any-where. Even the register which is meant to be signed by the

. editor and the other staff on the editorial group was not signedby the appellant as he had nothing to do with the editorial work.

4. The appellant had been appointed as Chief Editor because hewas a Member of parliament and an influential man who couldget finance for the paper from the Gulf States but he had nohand at all in any of the functions and duties performed by theeditor.

5. The appellant was no doubt shown as Chief Editor in the issuesof the Chandrika but the Press Act as held by us does not re-cognise any such legal entity and the only person who is recog-nised by the Press Act is the editor who in this case was P.W. 2and who had admittedly filed the declaration under section 5(2)of the Press Act.

6. Although section 8A was the specific provision under which aperson could apply for a certificate that he ceased to be the editorno such action was taken by P.W. 2 to get his name struck offfrom the roll of editor. This clearly shows that P.W. 2 alonewas the editor and the appellant was merely a name-lender andhis post was purely ornamental.

7. The petitioner himself has not at all anywhere pleaded in his peti-tion that the appellant was the editor nor has he mentioned theduties or responsibilities which were performed by the appellantas Chief Editor so as to bring him within the fold of section 1of the Press Act.

From the facts established above, it is manifest that the petitionerhas miserably failed to prove either that the appellant was the editor ofthe paper or that he was performing the functions, duties or shoulderingthe responsibilities of the editor. It is obvious that a presumption undersection 7 of the Press Act could be drawn only if the person concernedwas an editor within the meaning of section 1 of the Press Act. Wherehowever a person does not fulfil the conditions of section 1 of the PressAct and does not perform the functions of an editor whatever may be hisdescription or designation, the provisions of the Press *Act would have no

E.L.R.] HAJ] C.H. MOHAMMAD KOYA V. T.K..S.M.A. MUTHUKOYA 39

application. In these circumstances, therefore, the High Court had no legaljustification to draw a presumption against the appellant under section 7of the Press Act in holding that he was proved to be the editor of Chandrika,and, therefore, must be deemed to be aware of the articles published inthe said paper. Even if, for the sake of argument, it is assumed that theappellant was the editor it has been pointed out by this Court that thepresumption to be drawn under section 7 of the Press Act is rebuttableand the evidence and the circumstances of this case discussed above showthat this presumption has been sufficiently rebutted.

The next question that arises for consideration is that if the findingof the High Court on this point is rejected as it must be then can the' peti-tioner be liable: for the materials or speeches published in the paper Chan-drika. The publication of the materials promoting hatred between twoclasses of citizens is undoubtedly a corrupt practice and it is well settledby long course of decisions of this Court that such practices must be clearlyalleged with all the necessary particulars and proved not by the standardof preponderance of probabilities but beyond reasonable doubt. We arefortified in our view by the decision of this Court in the case of MohanSingh v. Bhanwar Lai & Ors. (4) A.l.R. 1964 S.C. 1366 where this Courtobserved as follows: —

"The onus of establishing a corrupt practice is undoubtedly on theperson who sets it up, and the onus is not discharged on proof ofmere preponderance of probability, as in the trial of a civil suit, thecorrupt practice must be established beyond reasonable doubt by evi-dence which is clear and unambiguous".

To the same effect is a decision of this Court in the case of Magrdj Patodiav.R. K. Birla & Ors. (5) (1971) 2 S.C.R. 118 where this Court observedas follows: —

''But the fact remains that burden of proving the commission of thecorrupt practices pleaded is on the petitioner and he has to dischargethat burden satisfactorily. In doing so he cannot depend on prepon-derance, of probabilities. Courts do not set at naught the verdict ofthe electorate except on good grounds".

In the case of D. Venkata Reddy v. R. Sultan & Ors. (6) (1976) 3 S.C.R.445 this Court after reviewing most of the previous decisions of thisCourt observed as follows: — •

"In a democracy such as ours, the purity and sanctity of elections,the sacrosanct and sacred nature of the electoral process must bepreserved and maintained. The valuable verdict of the people at thepoljs must be given due respect and candour and should not be dis-regarded or set at naught on vague, indefinite, frivolous or fancifulallegations or on evidence which is of a shaky or prevaricating charac-ter. It is well settled that the onus lies heavily on the election, peti-tioner to make out a strong case for setting aside an election. Inour country election is a fairly costly and expensive venture and theRepresentation of the People Act has provided sufficient safeguardsto make the elections fair and free. In these circumstances, therefore,election results cannot be lightly brushed aside in election disputes.

Another principle that is equally well settled is that theelection petitioner in order to succeed must plead- all material parti-

7—3/ECI/ND/85

40 HAJi C.H. MOHAMMAD KOYA V. T.K.S.M.A. MUTMUKOYA [VOL. LXII1

culars and prove them by clear and cogent evidence. The allegationsof corrupt practices being in the nature of a quasi criminal charge thesame must be proved beyond any shadow of doubt".

In the case of Ramanbhai'Nagjibhai Patel v. Jasvantsingh Udesingh Dabhi& Ors. (7) A.l.R. 1968 S.C. 1162 this Court observed as follows: —

"We may state that the charge of bribery is in the nature of a criminalcharge and has got to be proved beyond doubt. The standard of proofrequired is that of proving a criminal or a quasi-criminal charge. Aclear-cut evidence, wholly credible and reliable is required to provethe charge beyond doubt. Evidence merely probabilising endeavouringto prove the fact on the basis of preponderance of probability is notsufficient to establish such a charge".

In the light of these decisions we shall now proceed to decide thenext question. In view of our finding that the appellant has not beenproved to be the editor of the paper Chandrika Ext.P. 2 to P. 11 except-ing Ext.P. 5 will have to be totally excluded from consideration becausethose are speeches and articles of various persons published in Chandrikaand the constructive knowledge of this has been ascribed to the appellantby virtue of the allegation that he was the editor of the paper. As how-ever this has not been proved it was incumbent on the petitioner to proveknowledge of these articles or speeches like any other fact. The admittedposition appears to be that neither the writer of the article nor the speakerwho delivered the speech nor the reporter nor even the manuscripts ofthe speeches have been produced before the Court. In these circumstances,therefore, all these articles and speeches are inconsequential until they areshown to have been made with the knowledge and consent of the appellant.Even in the pleading the petitioner has not averred that the appellant hadany independent knowledge of these things or that these speeches or articleswere written with his express or implied consent. The petitioner has basedhis case entirely on the footing that as the appellant was the editor hemust be deemed to be aware of these,.articles and speeches and if thespeeches contained offending masters and promoted hatred and ill willbetween two classes of citizens the appellant must be deemed to have com-mitted the corrupt practice under section 123(3A) of the Act. As theentire edifice built by the petitioner for the admissibility of Ex.P. 2 to P. 11except P. 5 collapses, the allegation of the petitioner on this score is clearlydisproved. Moreover, we are fortified in our view by the decision of thisCouYt in the case of Samant N. Balakrishna etc. v. George Fernandez &Ors. etc. (9) (1969) 3 S.C.R. 603 where this Court observed as -follows : —

"The best proof would have been his own speech or some propagandamaterial such as leaflets or pamphlets etc., but none was produced...

A news item without any further proof of what had actuallyhappened through witnesses is of no value. Tt is at best a second-hand secondary evidence. Tt is well-known that reporters collect in-formation and pass it on tn the editoi who edits the news item andthen publishes it. In this process the truth might g6t perverted orgarbled. Such news items cannot be said to prove themselves althoughthey may be taken into account with other evidence if the other evi-dence is forcible".

6.L.R.] HAJI C.H. MOHAMMAD KOYA V. T.K.S.M.A. MXJTHUKOYA 41

We might also mention here that the High Court rejected Ext.P. 12and P. 13 by finding that these documents did not fall within the mischiefof section 123(3A) of the Act. Some reliance was however placed onEx.P. l(d) which is said to have been written by tke appellant. Thisdocument cannot be taken into consideration for two reasons. In the firstplace, this was undoubtedly a material particular if it was an article ac-tually written by the appellant and contained offending matter, and, there-fore, it was necessary that it should tind place in the petition before beingconsidered by the Court. Secondly, it has not been proved to have beenwritten' by the appellant at all. This document is in the nature of an edi-torial written on 1-3-1977. The appellant has already denied that he hadanything to do with the editorial work and was too busy with the electionwork as an M.P. and had no time to devote td these things. The learnedJudge of the High Court has wrongly mentioned in his judgment at page28 of the paper book Vol. 1 that the petitioner had made out a case thatExt.P. l(d) was written by the appellant. There is no such averment inthe pVdtion at all and the High Court has committed a clear error ofrecord. Thirdly, the appellant staled that he could not say after suchlength of! time that the editorial was written by him. But on re-examina-tion the appellant categorically asserted that the editorial written couldnot be in his language and thus denied having written the editorial. Al-though P.W. 2 the editor of the paper was examined by the petitionerand being the editor he was the best person to know whether or not thiseditorial was written by the appellant yet this document was not put tohim. In these circumstances, this document has not been proved accord-ing to law, and, therefore, must be excluded from consideration. Counselfor the petitioner also did not press us to consider these documents Ext.P. 2to P. 11 except P. 5 if we find that the appellant was not the editor ofthe paper Chandrika or that the presumption is not available to the peti-tioner.

Reliance was however placed by counsel for the petitioner as also bythe High Court on two documents, namely, Ext.P. l(a) which was an

• extract of a speech delivered' by the appellant at one of the election meet-ings where he is said to have made c;rtain observations which tended topromote hatred or ill-will between the Janasangh and the Muslim League.

Reliance was further placed on Ex.P. 5, which was a cartoon printedin the paper Chandrika and it was alleged by the petitioner that it wasdone with the knowledge and consent of the appellant. The cartoon, ac-cording to the High Court, did contain offending matter inasmuch as ittried to promote feelings of hatred between two classes of citizens. Sofar as Ex.P. l(a) the speech of the appellant is concerned the petitionermade the following averments in the petition which nniy be extractedthus: —

"The respondent is the Chief Editor of; Chandrika. a daily newspaperpublished from Calicut. It is published by the Muslim Printing andPublishing Company Limited. The major shares of this company isowned by the Muslim League Party and the respondent holds shareworth of Rs. 3 lakhs in the above company. The daily Chandrika isthe official organ of the Muslim League Party. It is submitted thatin the daily Chandrika of which the respondent is the Chief Editor,is published reports and articles appealing to the members of theMuslim Community not to vote for the candidates of the MuslimLeague (Opposition) in the name of religion and community".

42 HAJI C.H. MOHAMMAD KOYA V. T.K.S.M.A. MUTHUKOYA [VOL.LXIII

The analysis of the averment clearly discloses the follows facts: —

1. The petitioner has not mentioned the name of a single personwho had actually heard the speech and made a report.

2. According to the evidence of P.W. 1 he was present at the placewhere the speech was delivered by the appellant and yet this fact,though a very material particular, does not find mention in theaverment in the petition referred to above.

3. It is not indicated in the petition as to how and in what mannerthe speech tended to promote feelings of enmity or hatred bet-ween two classes of citizens against whom hatred was preachedby the speaker has not been mentioned.

From the infirmities mentioned above, it is clear that so far as the speechis concerned the allegations made in the petition are ^vaguc. Assuminghowever that para 5 may amount to an allegation as contemplated bysection 123(3A) of the Act, we shall proceed now to determine how far thepetitioner has been able to prove his case within the four-corners of theaforesaid section.

No evidence was produced by the petitioner to prove whether theextract of the speech was correct and was a reproduction of the very wordsused by the appellant. Although the witnesses for the petitioner admittedthat his speeches were reported to the paper by the reporters neither thescript of the speech nor the reporter concerned was examined as a witnessto prove that the contents were the transcript of the speech delivered bythe appellant. The entire case of the petitioner on this point rests on anadmission made by the appellant in his statement in court that the extractprinted in the paper was more or less the correct reproduction of hisspeech. Thus, it is clear that the petitioner relies on this part of the casesolely on the admission of the appellant. It is well settled that an ad-mission unless it is separable has to be taken as a whole or not at all.In the case of Hanumant v. The State of Madhya Pradesh (9) 1952 S.C.R.1091 this Court observed as follows: —

"It is settled law that an admission made by a person whether amount-' ing to a confession or 'not cannot be split up and part of it used

against him. An admission must be used either as a whole or notat all".

To the same effect is the decision of this Court in the case of PalvinderKaur v. The State of Punjab 1953 S.C.R. 94 where Mahajan, J. speaking

"The court thus accepted the inculpatory part of that statement andrejected the exculpatory part. In doing so it contravened the weljaccepted rule regarding the use of confession and admission that thesemust either be accepted as a whole or rejected as a whole and thatthe court is not competant to accept only the inculpatory part whilerejecting the exculpatory part as inherently incredible".

The same view was taken in a recent decision of this Court in thecase of Dadarao v. The Slate Maharashtra (11) (1974) 3 S.C.C. 630 wherethis Court observed as follows: —

E.L.R.] HAJI CH. MOHAMMAD KOYA V. T.K.S.M.A. MUTHUKOYA 43

It may not, however, be overlooked that the admission made by theappellant must be read as a whole, for what he has stated is that hehad made his signature in the account books of the branch officeafter an audit objection was raised that he ought to have signed thebooks at the end of every day in his managerial capacity. The state-ment of the appellant on this -aspect is not capable of dissection be-cause the particular part thereof on which the High Court relies isinextricably connected with the other part which the High Court hasnot taken into consideration".

In view of the settled law on the question, it is manifest that the peti-tioner would fail or succeed on the admission of tlje appellant and theadmission will have to be read in the light of what the appellant has him-self stated in his statement unless there are other satisfactory reasons fortaking a contrary view. To begin with the offending words of the extractmay be quoted thus: —

"C. H. declared emphatically that the assasins who dissected the com-munity are now canvassing votes for the United Front of Janasanghand R.S.S. who were thirsting for Muslim blood. He loudly declaredthat the community should rest only after completely flooring thisfront in the ring of the elections. C. H. exhorted the. gathering to cutdown the facist scarecros to the extent that they cannot rise again".

Out of the entire speech this is the only portion against which offence hasbeen taken as falling within the mischief of section 123(3A) of the Act.It was suggested by counsel for the petitioner that the words used by thespeaker clearly indicate that the party of the United Front of Janasanghand R.S.S. was after Muslim blood and the Muslim community should notrest unless this party is obliterated from the election. Strong exceptionhas been taken by counsel for the petitioner to the use of the words 'assasins'for describing the Muslims who had gone over the side of the UnitedFront. This passage was put to the appellant who stated thus: —

"In Ext.P. l(a) second paragraph rt is said 'Murderers who split thecommunity' which community was split (Q). I was referring to thesplit in the Muslim League (Ans.) The speech was at 2'OClock in the night. I do not know whether the words which I exactlyused have come in the paper. The general idea is the same. I saythat you used these very words; can you deny (Q). I am not sure(Ans.). When a speech is made different versions will come in thepaj er. T do not usually prepare my speeches. I speak extempore"."1 .annot say that I used the very same words. But I have stronglyu%jd that the Opposition Front be defeated (Ans.) Have you said"RSS-Janasangh which was thirsting for the Muslim blood" (Q) Thespeech was made a year ago. I do not remember the actual wordsused. Ex.P. l(a) report was written by Chandrika reporters. Theideas were mine. The phrase 'thirsting for blood' was used in afigurative language (Ans.)".

It is clear that the appellant does not admit that the extract contains thevery words which were used by him in his speech particularly when theappellant had delivered an extempore speech. As the speech was delivereda yeai before by the appellant, it. is quite natural that he would not havebeen able to remember the actual words used by him. The appellanthowever makes it clear that the phrase 'thirsting for Muslim blood' was

44 HAJI C.H. MOHAMMAD KOYA V. T.K.S.M.A. MUTHUKOYA tVOL. LXIII

used in a figurative sense and not literally. That must obviously have beenso. He has further .stated that he used the words 'thirsting for blood' ina figurative sense and not in the sense of drinking blood. What he meantwas to give the Muslim community a warning that it would guard itselfagainst such undesirable candidates by defeating them in the election. Itwas, therefore, a speech in a political matter. Further while explainingthe words 'Getting into .the battle field' the witness has stated that he usedthe same in the sense of getting ready for a political contest. This is howthe appellant has explained his speech and the explanation given by himcannot be rejected because no other evidence has been produced by thepetitioner excepting the statement of the appellant regarding the interpreta-tion of the speech.

Furthermore, the extract of the speech quoted above also shows thatthere- does not appear to be any intention on the part of the speaker topreach hatred or enmity between two classes of citizens, namely, Janasangh,RSS and the Muslim League. We might mention that a good deal ofargument was advanced before us by counsel for the appellant as to the.nature character and significance of the term 'citizen' and it was containedthat political parties having a particular ideology could not be treated as aclass of citizens as contemplated by section 123(3A) of the Act. In theview which we have taken it is not necessary for us to examine this ques-tion. We shall assume for the sake of argument that Janasangh, R.S.S.and the Muslim League were different classes of citizens, but even thenthat does not advance the case of the petitioner any farther. We feel our-selves in complete agreement with the interpretation given by the appellantregarding the speech made by him. In the first place, being the speakerthe appellant was the best person to say what he meant by the speech hedelivered. Secondly, the petitioner has not produced either the reporterwho was present at the meeting when the appellant spoke nor has he calledfor the script of the speech the extract of which was given in the newspaper.It is very difficult to interpret a part of the speech completely torn fromits context. Furthermore, the words 'thirst for Muslim blood' have beenused for a particular purpose as explained by the appellant, because thewords following, namely, 'he loudly declared that the community shouldrest only after completely flooring this front in the ring of the elections'clearly show that what the speaker meant was that as Janasangh and R.S.S.were against the Muslims they should muster all efforts to get them de-feated and teach a lesson to the dissident Muslims who had joined theJanasangh party. There does not appear to be any element of hatred orenmity in the extract of the speech of the appellant reported above. Thereis no exhortation by the speaker to the Muslims to attack the Janasanghor the R.S.S. or to do any kind of harm or violance. The entire speechis made against a political background and for a political; purpose.

Another intrinsic circumstance which taken the speech out of theambit of section 123(3A) of the Act is the conduct of the petitioner. Thepetitioner admits in his evidence that he heard the speech of the appellantbut did not take down the same. He further clearly admits that thespeech excited religious sentiments which is an election offence and yethe did not complain to any one about the speech of the appellant. Inthis connection, the petitioner stated thus:

"It is a speech which exites the religious sentiments. , That is anelection offence. I had not complained to any authority about thespeech of the respondent".

E.L.R.] HAJt C H . MOHAMMAD KOYA V. T.K.S M.A. MUTHUKOYA 45

The petitioner has not examined any independent member of thepublic belonging to the place where the speech was delivered and whohad heard the same to prove that the speech tended to promote hatredor enmity between different communities, nor is there any such evidenceconsisting of the members of the people to show what impact the speechmade on them. On the other hand, it was rightly pointed out by Mr.Nariman, counsel for the appellant that there is reliable evidence to showthat the speech was not trusted to be an offending one or one that fellwithin the mischief of section 123(3A) of the Act.

P.W. 1 admits in his statement that a paper called 'Mathrabhumi'dated 1-3-1977 which was shown to him contains the correct reproduc-tion of the speech of the appellant. Tn this connection, the witness statesas follows: —

"I read the Mathrubhumi also. 'Mathrubhumi' dated 1-3-1977 shownto the witness. Ts not the news item under the heading the UnitedFront will return to power on page 3 in this about the same newsP. l(a) meeting (Q). A copy of paper shown to witness. The wit-ness reads the passage. The report about the meeting may be correct.Does it give an exact report of the speech of the respondent on thatday (Q) Yes (A)".

This extract in the Mathrubhumi is Ex. R-l and runs thus: —

"C. M. Mohammed Koya expressed the opinion that the fate of thosewho condemned and denigrated the leaders of the community andthose who stabbed the organisation from behind the back will beknown by the next election".

A perusal of this extract would clearly show that the appellant neverpreached any hatred or enmity between two classes of citizens, but hadmerely condemned the dissident leaders of the community who had stabbedthe organisation, namely, the Muslim League in the back and who wereseriously condemned for their defection. Had the speech been understoodby the public and the intellectuals as promoting hatred or enmity betweentwo parties, some comment on this aspect must have been found in thepaper Mathrubhumi which belonged neither to the Janasangh nor to theMuslim League.

Forthermore, there is another paper 'League Time' which is Ex. R-14and which clearly mentions that in the last election communalism has notplayed any part at all. The relevant extract may be quoted thus: —

"Communalism has not played any part in the election. Mr. Raja-gopal pointed out this is a hopeful situation".

Thus, both these papers found no communal tinge nor any senmon preach-ing hatred or enmity between Janasangh and Muslim League in any "ofthe speeches delivered by the appellant at the various meetings in the courseof the elections.

Tn view of the circumstances, therefore, the only evidence from whichthe Court can find that the appellant had committed a corrupt practiceas contemplated by section 123(3A) of the Act is the evidence of theappellant containing the explanation and the ramifications of his speechwhich being an admission has, in the facts and circumstances of this

46 HAJI C.H. MOHAMMAD KOYA V. T.K.S.M.A. MUTHUKOYA [VOL. LXI1I

case, to be taken as a whole or not at all. Moreover, as the offend-ing extract of the speech is an integral part of the speech of the appellantit cannot be dissected. In other words, a corrupt practice must be provedbeyond reasonable doubt and applying this standard we must hold thatthe petitioner has failed to prove that the speech given by the appellantpromoted or attempted to promote hatred or enmity between two classesof citizens. In these circumstances, the allegation para 5 of the petitionagainst the appellant has not been proved. None of the aspects discussedby us have been adverted to by the High Court which seems to have pro-ceeded on presumptions and assumptions.

Lastly we come to the next item on which reliance is placed whichis Ex.P. '5, the cartoon. The allegation regarding the cartoon is madeby the petitioner in para 11 of the petition which may be extractedthus: —

"In Chandrika dated 12-3-1977 on the front page a cartoon is pub-lished. It depicting Janasangh as a Pig and Shri E. M. SankaranNamboodiripad, the Marxist leader, cutting the flesh of the pig andserving it to the Muslim. This is an attempt to promote feelings ofenmity and hatred between different classes of citizens of India ongrounds of religion. It is well-known to eat pork is pardial ansthma(haram) for true Muslims. The publication of this cartoon in Chan-drika is with the consent and knowledge of the respondent whichpromoted hatred of the Muslims against the United Front of MarxistParty and Janatha Party and Muslim League (Opposition) of whxhthe petitioner is a candidate from the concerned constitutency".

It may be pertinent to note that in this averment the petitioner has pleadedthat the cartoon was published with the consent and knowledge of thepetitioner a fact which the petitioner has miserably failed to prove. Thereis absolutely no evidence on record to show that the cartoon was shownto the appellant and his approval was obtained before it was published,nor is there any evidence to show that the appellant had any knowledgedirect or indirect about the cartoon before its publication in Chandrika.We might indicate here that the term 'consent' is a much stronger wordthan knowledge because it implice conscious assent and there is nothingto show that the appellant at any time gave his consent to the publica-tion of the cartoon. The actual cartoon seems to depict Janasangh asa pig and Shri E.M.S. Nampoodiripad the Marxist Leader cutting theflesh of the pig and serving it to Muslims. It is well known that porkis strictly prohibited by Islam and the very act of offering pig to aMuslim is extremely abhorrent to the Muslim so the cartoon no doubtattempts to promote feeling of harted between the Hindus and the Muslimsand the High Court was right in coming to this finding. But this doesnot conclude the matter because it must be affirmatively proved by thepetitioner that this cartoon was shown to the appellant or was withinhis knowledge or had his consent before its publication. On this thereis no evidence at all. Indeed if there is any evidence -it is to negativethis fact. The petitioner has mainly relied on the statement of P.W. 2the editor which is to the effect that the copy of Chandrika used to besent to the appellant. That by itself would not show that the appellantmust have read all the issues of Chandrika including the one which con-tained the cartoon. In fact, as indicated above, P.W. 2 has himself ad-mitted that at the time of election because of his responsibilities as the

E.L.R.] HAJIC.H. MOHAMMAD KOYA V T.K.S.M.A.MUTHUKOYA 47

Secretary of the Muslim League and as a leader of the United Frontduring the months of February and March the appellant was mostly ontour. The appellant has also admitted that during the relevant time henever got time to read the paper completely. He has also stated cate-gorically as indicated by us while dealing with his evidence that he wasextremely busy and has stated thus: - -

"As a leader of the United Front and the leader of the Muslim LeagueI got much work to be done during election time. During this timewere you very busy with your election speeches? (Q) Yes (Ans.)I was very busy".

He has further admitted that although a copy of Chandrika was sent tohim yet he did not get time to read fully. The statement runs thus: —

"As Chief Editor one issue of Chandrika used to be sent to me.Did you have time to read Chandrika and other newspapers duringelection time? (Q) / do not get time to read fully (Ans.)".

This is all the evidence that has been produced in the court to showthat the cartoon was printed with the knowledge and consent of theappellant. Putting however the case of the petitioner at the highest allthat has been shown is that the appellant may have seen or received thepaper and at the same time it is equally possible that in view of hispre-occupation the appellant may not have read or seen the paper at all.Tn such a situation the onus of proof being on the petitioner to provethat the appellant had knowledge of the publication of the cartoon andapplying the standard of proof by the doctrine of benefit of doubt theallegation of the petitioner that the appellant was aware of the cartoonor gave his consent to its publication stands disproved for the appellantwill get the benefit of doubt if two clear possibilities are available. Thus,it is impossible for us to jump to the conclusion that the appellant hadany knowledge of the publication of the cartoon before its publication, orthat he gave his consent to its publication merely from the fact that theappellant was the Chief Editor and received a copy of Chandrika every-day particularly when the appellant has explained that he was too busyand did not find time to read the paper fully. As the allegation regard-ing the cartoon is also a corrupt practice it has to be proved by clear andcogent evidence which is wholly wanting in this case. It is true, that theappellant was shown the cartoon while he was deposing in court and wasasked to give his impression but whatever he might have said in courtis totally irrelevent because that would not show that he had any knowledgeof the cartoon prior to its publication. He gives his impression onlywhen the cartoon is shown to him.

On a careful consideration of the evidence we are clearly of the opinionthat the petitioner has not been able to prove the corrupt practice allegedagainst the appellant. There is no legal or satisfactory evidence to provethat the speech Ext.P. l(a) made by the appellant promoted or attemptedto promote feeling of enmity and hatred between two classes of citizens,namely, the Janasangh and R.S.S. on the one side and the Muslim Leagueon the other. Similarly, there is no reliable evidence to show that theappellant had any knowledge or had given prior consent to the publica-tion of the cartoon Ex.P. 5. Thus, the petitioner has miserably failedto prove the allegation made by him in paragraphs 5 and 11 of the peti-

8—3 ECI/ND/85

48 HAJ1 C.H. MOHAMMAD KOYA VT.K.S.M.A. MUTHUKOYA [VOL LXlil

tion which alone have been pressed %before us. We have also come tothe conclusion that the presumption under section 7 of the Press Act isnot available to the appellant and the learned Judge was wrong in rely-ing on the same.

The result is that the appeal is allowed with costs. The judgmentof the High Court setting aside the election of the appellant and unseatinghim is quashed as also the order of the High Court disqualifying theappellant from contesting the election for a period of six years. Theelection petition filed by the petitioner before the High Court is dismissed.

Appeal allowed.

IN THE HIGH COURT OF JUDICATURE AT PATNA

ABHAYACHARANLAL

V

SHRI CHANDRA MOULESHWAR SINGH

(MEDINI PRASAD SING, J.)

• September 12, 1978

Constitution of India—Article 191(a)—Disqualification—Holding anOffice of Profit—Candidate functioning in the capacity of Assistant Govern-ment Pleader on an ad hoc basis—whether holds an office of profit.

Representation of the People Act, 1951—Section I23(2)(iii)—corruptpractices—forcibly preventing a voter jrom casting his vote and casting ofbogus votes proof of.

The petitioner challenged the election of the respondent to the BiharLegislative Assembly from Sarath Constituency Dumka on the groundinter alia that the respondent was disqualified to contest the election ashe was holding an office of profit at the time of the election; furthermorethat the respondent was guilty of corrupt practices as the voters of theelection-petitioner were forcibly prevented from voting and bogus votes werecast in favour of the respondent. These corrupt practises were denied bythe respondent.

On the evidence it was established that the respondent was appoin-ted as a pariel lawyer for the Government of Bihar for a specified periodwhich expired before the date of the filing of the nomination paper; afterthe expiry of the said period the respondent continued to do cases onbehalf of the Government which were assigned to him and he was notprohibited from appearing against the government in cases in which hewas not engaged. The arrangement with him after the expiry of the periodfor which he was appointed as a panel lawyer was of a casual nature andthere was no subsisting permanent or substantive position of AssistantGovernment Pleader in existence at the relevant time.

HELD: Dismissing the petition—

(i) for an office of profit within the meaning of Article 191(l)(a) theremust be an office existing independent of the holder of the office. Theprecarious circumstances in which the respondent was doing the cases ofthe government after the expiry of the period of appointment as a panellawyer did not amount to holding an office of profit under the govern-ment and as such the respondent was not disqualified from contesting theelection.

Statesman v Dev : (1968) 3 SCR 614 and 620 AIR (1968) SC 1495at p 1499.

Great Western Railway Co: v. Baxter: 8 Tax Cases 231: (1922) 2A.C.I.

49

50 ABHAYACHARANLAL V. SHRI CHANDRA MOULESVVAR SINGH[VOL. LXIII

Macmillan v Guest (H M Inspector of Taxes) : 24 Tax Cases 190(1942 AC 561).

Mahadeo v Shantibhai and Ors: (1969) 2 SCR 422;

Smt Kanta Kathuria v. Manakchand Surana: (1969) 3 SCC 268/(1970) 2 SCR 835/A1R (1970) SC 694.

Madhukar G. E. Pankakar Rajani v Jaswant Chobbildas Rajani:(1977) 1 SCC 70/AIR (1976) SC 2283.

Abdul Shakury Raikhab Chund and Ors: AIR (1958) SC 52;

M Ramappa v Sangappa and Ors: AIR (1958) SC 937;

Guru Gobinda Basu v Sankari Prasad Bhosal and Ors: AIR (1964) SC254

Shivtnurfhy Swami v Agadi Sanganna Andanappa: (1971) 3 SCC 870.Krishna Prasad Chaudhary v NUeshwctr Prasad and Ors: 28 E.L.R.

209.

referred to

(ii) On evidence the petitioner failed to prove against the respondentthe allegations of corrupt practices, i.e. preventing voters from casting theirvotes or casting bogus votes.

Rahim Khan v Khurshid Ahmad: (1975) 1 SCR 643; AIR (1975) SC290;

Razik Ram v J S Chouhan: AIR (1976) SC 667;

Kanhaiya Lai v Manna Lai: AIR (1976) SC 1886;

D D Pawar V Pandurang : AIR (1978) SC 361;

M Narayana Rao v C Venkata Reddy: AIR (1977) SC 208.

Janak Sinha v Mahant Ram Kishore Das: AIR (1972) SC 359.

... referred to

ELECTION PETITION NO 45 OF 1978.

R P Matriyar, Gaya Prasad Roy and Ram Shankar Pradhan for the peti-tioner.

Kanhaiya Prasad Verma, S N Sharma, Nandan Prasad Singh and ArbindKumar Sharma, for the respondent.

JUDGMENT

MEDINI PRASAD SINGH, J.—In the election to the Bihar Legisla-tive Assembly held on 10th June, 1977, from the Sarath Constituency,Dumka, the respondent Chandra Mouleshwar Singh, a nominee of theJanata Party wais declared elected. He was an advocate at Deoghar in thedistrict of Santhal Parganas. He polled 18,256 votes. The petitionerAbhya Charan Lai, an independent candidate and the nearest rival obtained12,609 votes. He presented this election petition to undo the election

E.L.R.] ABHAYACHARANLAL V. SHRl CHANDRA MOULESWAR SINGH 51

of the respondent on the ground, inter alia, that the respondent was dis-qualified under Article 191(l)(a) of the Constitution from being chosen as,and for being, a member of the Legislative Assembly, because he wasat the material time an Assistant Government Pleaderat Deoghar and assuch he was holding an office of profit under the State Government. Thechallenge was also on the ground of having committed corrupt practicesunder section 123(2X3) of the Representation of the People Act, 1951(briefly the 'Act').

2. The respondent has denied the allegations. It is contended by himin the written statement that there was no appointment of AssistantGovernment Pleader but only selection of some lawyers for a panel wasmade and that he was not holding any office of profit.

3. On the pleadings of the parties this court raised six issues throwinglight on the controversies between the parties :

Issues

(1) Is1 the election petition, as framed, maintainable? •

(2) Is the election petition liable to be dismissed due to non-compliancewith the provisions of sections 81, 82, 83 and 117 of Representa-tion of People Act, 1951?

(3) Whether the sole respondent had been appointed as an AssistantGovernment Pleader for Deoghar Courts and was working as suchand getting remuneration and, if so, whether the post of AssistantGovernment Pleader was an 'office of profit' within the meaningof Article 191(1X#) of the Constitution of India and as such whe-ther the sole respondent was disqualified to be chosen as a mem-ber of the Bihar Legislative Assembly and whether on this groundthe result of the election concerning him was materially affectedby the improper acceptance of his nomination as contemplated bysection 100 clause (a)(i) of the Representation of the People Act,1951.

(4) Whether the respondent, his workers and supporters with theconsent of respondent, promoted or attempted to promote thefeeling of caste among the Bhumihar voters of the Constituencyas alleged in paragraph 21 of the election petition read with Sche-dule A of the same? If so, whether they were guilty of commit-ing corrupt practice under section 123(3) of the Representation ofPeople Act.

(5) Whether the respondent, his workers and supporters with his con-sent prevented the voters forcibly from casting their votes andwhether votes were cast by false impersonation in their names asalleged in paragraph 23 of the election petition, read with Sche-dule-B of the same? If so, whether they were guilty of corruptspractice under section 123(2) of the Act?

(6) To what relief is the petitioner entitled?

FindingsIssue nos. 1 and 2

4. These two issues were not pressed by the respondent. They areaccordingly answered in favour of the petitioner.

52 ABHAYACHARANLAL V. SHRI CHANDRA MOULESWAR SINGH [VOL.LXIII

Issue no. 4

5. This issue is not pressed by the election petitioner. It is accord-ingly answered in favour of the respondent.

Issue no. 3

6. This issue relates to the ground that the respondent being A.G.P.at Deoghar court was holding an 'office of profit' under the State Govern-ment and so he. was disqualified under Article 191(l)(a) of the Constitution.That Article provides that a person shall be disqualified for being chosenas, and for being, a member of Legislative Assembly or Legislative Coun-cil of a State, if he holds any office of profit under the Government ofIndia or the Government of any State, specified in the first Schedule, otherthan an office declared by the Legislature of the State by law not to dis-qualify its holder. The core question, therefore, is whether the respondentwas holding an office of profit and that under Government. Admittedly,he was an advocate at Deoghar. It is also admitted that by letter no.1543, dated 11th July, 1974 (Ext. 2), a panel of A.G.P. was prepared inthe Law Department and by that letter the respondent along with oneanother was appointed A.G.P. for two years. This panel came to an endon 11th, July, 1976. But under another letter no. 4944, dated 2nd Novem-ber, 1976 (Ext. 2/a) issued from the Law Department it was directed thatuntil the preparation of a fresh panel, work should be taken from theformer panel. These facts have come in the evidence of P.W. 11 NirmalKumar, an assistant of the Law Department, Bihar, Patna. This witnessalso deposed that the prescribed amount was Rs. 20 per day for therevenue and settlement cases for payment to each A.G.P. Thus, on thelast date of filing the nomination paper (18th May, 1977) the respondentwas not newly appointed A.G.P. He could merely work at the mercy ofthe State Government in any case if given to him, until a fresh panel wasprepared. His position was a precarious one. Mr. K. P. Verma hassubmitted, and in my opinion rightly, that merely because the respondentwas in a position to do some case if assigned to him, it cannot be saidthat he held an office of profit. He has referred to the evidence of therespondent (R.W. 1) regarding his position as A.G.P. which is as follows:

"There was never any office of the A.G.P. The State Governmentnever, provides any office to A.G.P. at any place in Bihar. No officefor A.G.P. existed either physically or for any official work. I usedto conduct only the few cases that used to be specifically entrustedto me. As A.G.P. I had to conduct only those few cases which werespecifically assigned to me for conducting them. Such cases werebeing entrusted to me from time to time by the G.P. or by someofficer of the legal section. Such cases were very few in number. Ihad absolutely no connection with any other case or work of the StateGovernment. I never got any permanent remuneration from theGovernment for conducting the aforesaid few cases nor I ever gotany retainer-fee. I am entitled simply to get fee for doing those specific-cases.

It was always open to me to refuse any of the cases entrusted to me.In fact, I refused several briefs which were given to me for conduct-ing them, e.g.-, (1) I refused the case of Kamakhya Nand Jha vs. Stateof Bihar,' which was a money suit in the court of the 4th AdditionalSubordinate Judge, Deoghar; (2) the Revenue Misc. Appeal on behalfof Baldeo Mahton v. CO., Mohanpur and State of Bihar, in the court

E.L.R.] ABHAYACHARANLAL F.SH.R1 CHANDRA MOULESWAR SINGH 53

of the Deputy Commissioner, Santhal Pargana; (3) Ram SanjiwanSingh, Principal Training College, Deoghar v. State of Bihar; (4) Hanu-man Prasad Saraff v. State of Bihar. The latter two were in the. court ofthe Subordinate Judge, Deoghar. I never got any monthly salary orfee for doing any case of the Government. In all those four casescited by me above which I refused. I had worked against the Govern-ment and without any grievance from any quarter. There was abso-lutely no binding on me of any kind regarding other cases of theGovernment. It was always open to me to give up the work ofA.G.P., if I so desired. No new case was entrusted to me after thedate of expiry of the panel which had been prepared on the 11thJuly, 1974. I never held nor do I hold any office of profit under theState Government of Bihar."

Mr Verma also referred to some letters (Al to A5 and B to B/2) to showthat the respondent had refused to work in several cases. The evidenceof the respondent has been criticised by the petitioner on the ground thatunder his Bill no. 114/74-75, dated 12th March. 1974 the respondent with-drew an amount of Rs. 530.90 for the work done by him as A.G.P. buthfi falsely deposed "I have not received any remuneration or fee fromthe Government as yet from 1974. I have not submitted any Bill". In myopinion the argument is devoid any merit. It will appear from paragraphs6 to 13 of the election petition that the allegation refers to the appoint-ment of the respondent as A.G.P. from 11th July, 1974 and not prior tothat. It was from that time onward that the respondent was alleged tohave got the prescribed remuneration from the State Government for theworks done (see paragraph 8 of the petition). The evidence of respondentis with respect to the Bill dated 12th March 1974, that is, four monthsprior to the above alleged date. The contention, therefore, fails. I seeno reason to reject his honest and truthful testimony. Moreover, thequestion whether an A.G.P. holds any office or not depends upon princi-ples of law and merely upon the evidence of the respondent.

7. Mr. Katriar appearing for the petitioner contended that the respon-dent held an office and that was an office of profit under the Governmentof Bihar, I do not agree. The word 'office' has various meanings. TheNew English Dictionary fills four columns. In Webster's Dictionary seve-ral meanings are given of this word, some of which are : —

(1) That which a person does for, or with reference to, another orothers; a service.

(2) That which one ought to do or must do:

(a) duty connected with an occupation, position, etc.

(b) Position of trust or ministration.

(3) (a) A special duty, trust, charge or position conferred by an exer-cise of Government authority and for a public purpose, aposition of trust or authority conferred by an act of Govern-mental power; a right to exercise a public function or em-ployment and receive the emoluments thereto belonging.

In its fullest sense an office embraces the elements of tenure,duration, duties and emoluments but the element of emolu-ments is not essential to the existence of an office.

54 ABHAYACHARANLAL V. SHRI CHANDRA MOULESWAR SINGH [VOL.LXII1

(b) In a wider sense, any position or place in the employment ofthe Government, especially one of trust or authority; alsothat of an employee of a Corporation invested with a part ofthe executive authority."

In Statement v. Deb (1968) 3 S.C.R. 614 and 62O=(AIR) 1968 S.C. 1495at page 1499 it is said—

"An office means no more than a position to which certain dutiesare attached. According to Earl Jowitt's Dictionary a public office isone which entitles a man to act in the affairs of others without theirappointment or permission."

However, the appropriate sense of the word 'office' for the purposes ofArticle 19](l)(a) of the Constitution is indicated by the words "its holder".It means that there must be an office which exists independently of theholder of the office. The very fact that the legislature of the State hasbeen authorised by Article 191 to declare an office of profit not to dis-qualify its holder, contemplates existence of an office apart from its holderJustice Rawlatt's definition in Great Western Railway Co. v. Baxter, 8 TaxCases 231 : [(1922) 2 A.C.I.] is the most appropriate meaning to be sup-plied to the word "office" in Article 191 of the Constitution. It was ob-served at page 235: —

"Now it is argued, and to my mind argued most forcibly, that thatshows that what those who used the language of the Act of 1842meant, when they spoke of an office or an employment, was an officeor employment which was a subsisting, permanent, substantive positionwhich had an existence independent from the person who filled it,which went on and was filled in succession by successive holders; andif you merely had a man who was engaged on whatever terms, to doduties which were assigned to him, his employment to do those dutiesdid not create an office to which those duties were attached. Hemerely was employed to do certain things and that is an end of it;and if there was no office employment existing in the case as a thing,the so-called office or employment was merely an aggregate ofthe activities of the particular man for the time being. And I thinkmyself that that is sound. I am not going to decide that, because Ithink I ought not to in the state of the authorities, but my own viewis that the people in 1842 who used this language meant" by an office.asubstantive think that existed apart from the holder."

On a perusal of the above it is clear that Rowlatt. J. rivetted attention on"a subsisting, permanent, substantive position, which had an existence inde-pendent from the person who filled it, which went on and was filled insuccession by successive holders". This language was accepted as generallysufficient by Lord Atkin and Lord Wright in Macmillan v. Guest (H. M.Inspector of Taxes) 24 Tax Cases 190 (1942 AC 561). Lord Atkin observedat page 201: —

"There is no statutory definition of 'office'. Without adopting thesentence as a complete definition one may treat the following expres-sion of Rowlatt. J., in Great Western Railway Co. v. Bate.r. (1920) 3K.B. at page 27 adopted by Lord Atkinson in that case, (1922) 2 AC.at page 15, as a generally sufficient statement of the meaning of theword; an office or employment which was a subsisting, permanent,

E.L.R.] ArillAYACilARANLALF. SIlRI CHANDRA MOULESWAR STNGH 55

substantive position, which had an existence independent of the personwho filled it, which went on and was filled in succession by successiveholders."

Lord Wright at page 202 observed:

"The word 'office' is of indefinite content : its various meanings.coverfour columns of the New English Dictionary, but I take as the mostrelevant for purposes of this case the following: 'A position or placeto which certain duties are attached, especially one of a more or lesspublic character". This, T think, roughly corresponds with such ap-proaches to a definition as have been attempted in the authorities, inparticular Great Western Railway Co. v. Bater, (1922) 2 AC. T......where the legal construction of these words, which had been in Sche-dule E since 1803 (43 Geo. Ill , Class 122, section 175), was discussed."

In Mahadeo v. Shantibhai and others, (1969) 2 S.C.R. 422. Mitter, J.quoted with approval the definition of Lord Wright. There also the dis-qualification of a lawyer on account of holding an office of profit underthe Government arose. After quoting Lord Wright in Mao Millan v.Guest (supra) trying to define "office"- the Court proceeded to considerwhether a lawyer who aecepted a position on the panel of railway pleadersfor conducting suits filed against the Union of Tndia on the terms andconditions therein mentioned, was holding an office of profit. Holding on

• the facts of the case that such an appointment on the panel of lawyersfor the Union of India was an office of profit, the Court observed:

"Tf by 'office' is meant the right and duty to exercise an employmentor a position to which certain duties are attached as observed by thisCourt, it is difficult to see why the engagement of the appellant inthis case under the letter of February 6. 1962 would not amount tothe appellant's holding an office. By the said letter he accepted cer-tain obligations and was required to discharge certain duties. He wasnot free to take a brief against the railway administration. Whetheror not the railway administration thought it proper to entrust anyparticular case or litigation pending in the court to him, it was hisduty to watch all cases coming up for the hearing against the railway

. administration and to give timely intimation of the same to the officeof the Chief Commercial Superintendent. Even if no instructionsregarding any particular case were given to him, he was expected toappear in court and obtain an adjournment. In effect this cast aduty on him to appear in court and obtain an adjournment so as toprotect the interests of the railway. The duty or obligation was acontinuing one so long as the railway did not think it proper toremove his name from the panel of railway lawyers or so long as hedid not intimate to the railway administration that, he desired to befree from his obligation to render service to the railway. In the absenceof the above he was bound by the terms of the engagement to watchthe interests of the railway administration, give them timely intimationof cases in which they were involved and on his own initiative applyfor an adjournment in proceedings in which the railway had made noarrangement for representation."

The next case of importance is Srimati Kanta Kathuria v. ManakchandSurana, (1969) 3 S.C.C. 268=(1970) 2 S.C.R. 835 AIR 1970 SC 6 9 4 - I a9-4ECI/ND/85

3fi ABHAYACHARANLAL PSHRT CHANDRA MOULESWAR SINGH [VOL. LX1II

that case Sikri J. (as he then was) adopted the classic definition of 'office'given by Justice Rowlatt in Great Western Railway Co. v. Bater. 8 TaxCases 231 as appropriate even in an electoral context. Tt was observed:

"It seems to us that in the context Justice Rowlatt's definition in GreatWestern Railway Co. v. Bater is the appropriate meaning to be ap-plied to the word 'office' in Article 191 of the Constitution."

The learned Judge then proceeded to apply the ratio to the facts of the caseand said:

"We cannot visualise an office coming into existence, every time apleader is asked by the Government to appear in a case on its behalf.The notification of his name under Rule 8B, does not amount to thecreation of an 'office'. Some reliance was also placed on Rule 4 ofOrder 27 C.P.C. which provides that:

'The Government pleader in any court shall be agent of the Govern-ment for the purpose of receiving processes against the Governmentissued by such court'.

This rule would not apply to the facts of this case because the ap-pellant was appointed only to assist the Government advocate in aparticular case. Assuming it applies, it only means that the processescould be served on the appellant, but processes can be served on anadvocate under Rule 2 of Order XLV of the Supreme Court Rules,1966. This does not mean that an advocate on record would holdan office under the client.

The learned Counsel for the respondent, Mr. Chagia, urges that weshould keep in view the fact that the obiect underlying Article 191of the Constitution is to preserve purity of public life and to preventconflict of duty with interest and give an interpretation which willcarry out this object. Tt is not necessary to give a wide meaning tothe word 'office' because if Parliament thinks that a legal practitionerwho is being paid fees in a case by the Government should hot bequalified to stand for an election as a Member of Legislative Assem-bly, it can make that provision under Article 19KlXe) of the Constitu-tion. The case of Sakhawat AH v. State of Orissa, (1955) 1 SCR 1004provides an instance where the Legislature provided that a paid legalpractitioner should not stand in the municipal elections."

Even the minority view in that case which was expressed by Hidayatulia,C.J. was this:

"Tf'Mrs. Kathuria had been briefed as a lawyer and given all theGovernment1 litigation in Rajasthan to conduct on behalf of the Govern-ment she could not have described as holding an office of profit. Theaggregate of her work and her activities could not have created anoffice nor she could have been described as anything but an advocatewhat happened here was different. An office was created which wasthat of a special Government pleader."

8. The interpretation of the word 'office' as given'by Justice- Rowlattwns also followed bv the Supreme Court in Madhuknr G. F. PankakarRajani v. Jaswant Chobbildas Rajani C1977) 1 S.C.C. 70 (ATR 1976 S.C.

E.L.R.] ABHAYACHARANLAL |SHR1 V CHANDRA MOULESWAR SINGH 57

2283). In that case the appellant was an Insurance Medical Practitionerappointed as such to provide medical benefit under the Employees' StateInsurance Act, 1948 and to perform such other functions under the controlof the Comptroller and Auditor-General as may be assigned to him by theGovernment of India in respect of two Government Companies—DuvgapurProject Ltd. and the Hindustan Steel Ltd. His remuneration was also fixedby the Government. A question arose whether this was tantamount toholding an office. It was held that he did not hold any office of profitand that he was not under the Government and so he sullercd no dis-qualification on the score of holding an office of profit under the Govern-ment. The following observation at page 88 made in that case is impor-tant:

"Justice Rowlatt's locus classicus in Great Western Railway Co. (follo-wed by this court in many cases) helps us steer clear of logomachyabout 'office' especially since the New English dictionary tills fourcolumns. Rowiatt, J. rivetted attention on 'a subsisting, permanentsubstantive position, • which had an existence independent from theperson who filled it, which went on and was filled in succession bysuccessive holders'. So, the first step is to enquire whether la perma-nent, substantive position, which had an existence independent fromthe person who tilled if can be postulated in the case of an insurancemedical practitioner. By contrast, is the post an ephemeral, ad hoc,provisional incumbency created, not independently but as a list or panelelastic and expiring or expanding, distinguished from a thing that sur-vives even when no person had been appointed for ihe tune being?'This partitions do their bounds divide', we agree, but the distinction,though delicate, is real. An office of insurance medical practitionercan be conjured up if it exists even where no doctor sits in the saddleand has duties attached to it qua office. We cannot equate it withthe post of a peon or security gunman who too has duties to performor a workshop where Government vehicles are repaired, or a milkvendor from an approved list who supplies milk to Government hospi-tals. A panel of lawyers for legal aid to the poor or a body of doctorsenlisted for emergency service in an epidemic outbreak charged withresponsibilities and paid by Government cannot be a pile of offices ofprofit. If this perspective be correct, Kanta and Mahadeo lit into alegal scheme. In the former, an ad hoc Assistant Government Pleaderwith duties and remuneration was held to fall outside 'office of profit'.It was a casual engagement, not exalted to a permanent position, occu-pied pro tempore by A or B, In Mahadeo, a permanent panel oflawyers 'maintained by the Railway Administration' with special dutiesof a lasting nature constituted the offices of profit—more like standingcounsel. If, in our case, had there been a fixed panel of doctors withspecial duties and discipline, regardless of doctors being there to fillthe positions or no, a different complexion could be discerned—as inthe case of specified number of Government pleaders, public prosecu-tors and the like, the offices surviving even if they remain unfilled.On the other hand, no rigid number of insurance medical practitionersis required by the rules or otherwise. If .an insurance medical prac-titioner withdraws, there is no office sticking out e-ven thereafter calledoffice of insurance medical practitioner. The critical test of indepen-

dent existence of the position irrespective of the occupant is just notsatisfied.'

58 ABHAYACHARANLAL V SHRI CHANDRA MOULESWAR SINGH [VOL. LXII]

The crucial question which now arises in the present case is whether therespondent having the precarious position of A.G.P. under the letter Ext.2/a dated 2nd November 1976 of the Law Department held an 'office' with-in the meaning of term as interpreted by Rowlatt J., in Great Western Rail-way Co. v. Bater, 1922 A.C.I. In my opinion, the answer must be 'No'.There was no subsisting permanent or substantive position in existenceindependent from the person who filled it. No duties were attached quooffice. He was just a lawyer like any other lawyer. He could not com-plain why he was not being given any work. If he got any brief, he wasfree to reject it. In fact he refused to work in several cases. He couldappear against the Government in cases in which he had not been engagedor in cases which he chose not to accept. He was not a retained lawyerlike the GP. There was no duty cast on him to watch permanently theGovernment cases as was the case of the railway lawyer in Mahadeo v.Shanti Bhai 1969-2 S C R . 422 to watch the railway cases. He was notengaged in every case. He was not full-time employee. He was not incharge of the Government cases. His engagement in a particular casewhich was assigned to him was merely casual. He was not duty boundto work for the Government in other cases. He was not under any obli-gation to see that the Government cases other than those entrusted tohim did not suffer for default. Neither any sitting place nor any staff isprovided to an A.G.P., which are generally given and attached to an office.Engagement only in a particular case at the choice of the employercannot mean permanent employment. It appears to me that if a personis only casually employed and if he can refuse to work, there is no officeor employment held by him. If an A.G.P. withdraws one cannot say thatthere is still an office called the "office of A.G.P.". No number of A.G.P.is required by any rule or enactment. Learned counsel for the petitioner,however, contended that under the letter (Ext. 2/a) dated 2nd November,1976, the former panel was to continue to work until a fresh panel wasprepared and hence the respondent continued to be A.G.P. 1 do not thinkso. At that time that the status of the respondent was precarious. Hewould cease to be so as soon as a fresh panel was prepared. It wasmerely a sort of stop-gap or ad hoc arrangement. It appears that no newcase was assigned to the respondent after the expiry of the panel. Hemerely did some heard cases and one M. J. C. relating to a T.S. whichhad previously been dismissed for default. It was then submitted onbehalf of the petitioner that the petitioner himself described his positionas A.G.P. in hazris and time petitions (Ext. 4 series) filed in the court in1977. It was also pointed out that in some letters of the Governmentofficers (Ext. A series) of the years 1973, 1975, 1976 and 1977, the respon-dent was described as A.G.P. My attention was also drawn to the lettersExt. B series some of which are of 1976 sent by the respondent describinghimself as A.G.P. It cannot be denied, however, that his status was pre-carious after the expiry of the formal panel. In any way, I have decidedthis case on the footing that the respondent was A.G.P. on the date ofthe filing of the nomination paper. Still his position was not an 'office'within the meaning of Article 191(1 )(a) of the Constitution. In such asituation even the fee received by him cannot be called a source of 'profit'.Each case has to be decided on its'own facts and'circumstances. A law-yer in a particular case can hold an 'office of profit' under? the Governmentas was the case of their railway lawyer in Mahadeo v: Shanti "Bhai 1969-2S.C.R. 422, because in that case the lawyer had been appointed by the railwayto watch cases'coming'up for hearing against the railway in the variouscourts and give timely intimation of the same and if any instructions regard-

E.L.R.] ABHAYACHARANLAL V SHRl CHANDRA MOULESWAR SINGH 59

ing a particular case were received by .him he was expected to appear in thecourt and obtain an adjournment. He was to be paid Rs. 5 for every adjourn-ment. He had received a letter of appointment from the railway. Hewas not free to accept any case against the railway. He was thus discharg-ing a duty under the terms of agreement and while so attending thecourts, was paid for each adjournment. He, therefore, clearly deriveda profit. There may be another type of iawyer like the respondentwho is casfially engaged in particular cases and he is free to reject anycase assigned to him and he can also work against the Government.In such a case he is not on a permanent panel of lawyers. He isnot like a Standing Counsel for doing Government cases. His position,therefore, cannot be called 'office'. The observations made by KrishnaIyer J., in M.G.E. Pankakar, 1977^S.C.C. 1970 quoted earlier, para-graph 7 of his judgement will apply wltn full force to a case like this. Wemay also recall again the observation of Rawlatt J., in Great Western Rail-way Co., 8 Tax cases 231 (supra) which aptly applies with full force to therespondent : " and if you merely had a man who was engagedon whatever terms, to do duties which were assigned to him, his employ-men to do those duties did not create an office to which those duties wereattached. He merely was employed to do certain things and that is an

"end of it; and if there was no office or employment existing in the caseas a thing, the so called office or employment was merely an agrregate ofthe activities of the particular man for the time being. And I think myselfthat is sound " It follows that the respondent was not holdingan office of profit. In Karbhari Bhima Ji Roha Mare v. Shankar RaoGenuji Kolhe, (AIR 1975 S.C. 575), it was observed at page 579 "thequestion has to be looked in a realistic way the law regarding thequestion whether a person holds an office of profit should be interpretedreasonably having regard to the circumstances of the case and the timewith which one is concerned, as also the class of person whose names weare dealing with and not divorced from reality". In Madhukar G.E. Pan-kakar v. Jaswant Chobbildas Rajani and ors. (AIR 1977-1 S.C.C. 70), itwas observed at page 87 "A practical view, not pedantic basket of testsshould guide in arriving! at a sensible conclusion". It is clear from the factsand circumstances of the present case that the respondent was not holdingany office. There is no dispute that if the respondent held an office of profit,the same shall be under the State Government. It is not, therefore, necessaryto embark upon the question as to what are the principal tests for decidingwhether office is under the Government. Those tests have been stated in alarge number of cases. See these cases AIR 1958 S.C. 52 (Abdul Shakur v.Rikhab Chand and ors.), AIR 1958 S.C. 937 (M. Ramappa v. Sangappa andors.), AIR 19)54 S.C. 254 (Guru Gobinda Basu v. Sankari Prasad Ghosaland ors.), 1971-3 S.C.C. 870 (Shivamurthy Swami v. Agadi SangannaAndanappa); 1977-1 S.CC. 70 = AIR 1976 S.C. 2283 (Madhukar G.E.Pankakar v. Jaswant Chobbildas Rajani and ors.): I have accordingly con-fined my decision to the question whether the respondent was holding ahoffice of profit.

9. Mr. Kanhaiya Prasad Verma cited a Division Bench case of thisCourt in Krishna Prasad Choudhary v. Niteshwar Prasad and ors. 28 ELR209. In that case one Niteshwar Prasad the successful candidate had beenappointed as A.G.P. at Muzaffarpur and he, according to the contention ofthe petitioner of that case, continued' to act as such till the date of the filingof his nomination paper. Mr. Niteshwar Prasad had resigned from tb^

60 .ABHAYACHARANLAL V SHRI CHANDRA MOULESWAR SINGH [VOL. LXIIj

post of A.G.P. before the date of filing of the nomination paper. The Dis-trict Magistrate was the returning officer. He had accepted the nomina-tion paper of Mr. Niteshwar Prasad. A question arose whether the res-pondent was holding an office of profit. It was decided on the evidenceon record that the respondent by getting an appointment as A.G.P. didnot hold any office of profit and that even assuming that the appointmentcarried an office of profit the respondent had ceased to hold that officebefore the filing of the nomination paper. That decision, no doubt, is rele-vant and helps the respondent of the present case to some extent, but thefacts are somewhat different. Any way, 1 have decided this case on takinginto consideration the legal position of the word 'office' and the evidenceon record as well. 1 hold that the respondent was not holding any 'office'.

10. Learned counsel for the petitioner next argued that according toparagraph 10 of the Circular (Ext. 1) dated 12th May 1977, an A.G.P.holds an office of profit. It was a Circular issued by the Chief ElectoralOfficer and not by the Election Commission. Counsel for the petitionerhas not been able to satisfy this court that the Chief Electoral Officer hadany authority to issue this Circular under any provision of law. Moreover,the circular says that it had been issued on the basis of the decisions ofthe High Court and the Supreme Court. No decisions have been referred to.None has been shown to me by the petitioner. Mr. Verma has rightly ex-pressed his apprehension that some interested person might have got itissued. He pointed out that the date of issue of this Circular was 12thMay 1977 and the date of filing of the nomination paper was 8th of May1977.

After having considered the submissions raised by the parties and aftergiving due weight to them, I hold that none of the tests laid down byRawlatt J. are found here. It must accordingly be held that the respon-dent Chandra Mauleshwar Singh was not holding any 'office of profit' andhe was not disqualified under Article 191(l)(a) of the Constitution.

Issue no. 5

11. This issue relates to the charge that the voters of the electionpetitioner were forcibly prevented from voting and bogus votes were cast,for the respondent. This allegation has been made in paragraphs 22, 2Aand 24 of the election petition and the particulars have been given in ScheJdule-B attached to the petition. It is said that on 10th June 1977, thejrespondent along with his supporters and workers prevented the Adivasi^and other backward class voters, from exercising their franchise and cast bo-jgus votes in their names by false personation in his favour. The petitionejhas examined nine witnesses on this point and their evidence is confined tq,only three booths Babhankund, Magra and Gajiadih. Their evidence is of urii:form type. Most of them (see P.VVs. 1, 4 to 8) say that they went to votflwere asked by workers of the Janata Party to vote for the Janata Pardand were not allowed to Vote by them and that the respondent also wa]there. One of them (P.W. 9) says that bogus votes were cast on behal:of the Janata Party at Gajiadih booth. I will now briefly refer to th<evidence on record and will examine the question whether it has beeiproved beyond doubt that the: respondent is guilty of corrupt practice unde]section 123(2) of the Act.

15. It is to be noticed that P.W. 3 the election petitioner has deposethat he cannot name any of his polling agents of any booth who actefor him. It seems to me that he has deliberately concealed the truth. 1

E.L.R.] ABHAYACHARANLALISHR1 CHANDRA MOULES WAR SiNGH 61

cannot be believed that F.W. 3 would not remember their names. He hasjust picked up one witness (P.W. 1) of village Balua to depose that voterswere prevented from voting at Babhankund booth. He then picked uptwo witnesses (P.Ws. 4 and 5) of village Nawadih to prove that the votersof the Nagar booth were prevented from voting there. Similarly, he broughttwo person (P.Ws. 6 and 8) from village Lachumandih one (P.W. 7) fromAshan and another from Gajiadih to show that the voters were preventedfrom voting at Gajiadih booth. Their evidence^ is too wideand vague to be accepted as reliable. The allegation in the elec-tion petition in this respect is that bogus votes were cast for the respondentin the names of the Adibasis and backward class voters by forcibly pre-venting them from exercising their electoral right. Thus the election peti-tion has failed to prove. Evidence of denial has been adduced by therespondent. They are R.Ws. 1, 3. 4 to 14. They have deposed that novoter was prevented from voting. There is no reason to reject their evi-dence which is supported by independent and distinterested Governmentofficers like the Presiding Officers (P.Ws. 20, 21 and 22} of the three boothsBabhankund, Nagra and Gajiadih and also by documentary evidence,namely, the diaries of the Presiding Officers. On the other hand, the oralevidence adduced on behalf of the petitioner is not backed by any docu-mentary evidence. It would be well to recall the principles regarding thestandard of required to establish a corrupt practice which have been consis-tently laid down by the Supreme Court. In Rahim Khan v. KhushidAhmad (1975) I SCR 643 : AGR 1975 SC 290 it was observed as under :

"We have therefore to insist that corrupt practices, such as are allegedin this case, are examined in the light of the evidence with scrupulouscare and merciless severity. However, we have to remember anotherfactor. An election once held is not to be treated in a light-heartedmanner and defeated candidates or disgruntled electors should not getaway with it by filing election petitions on unsubstantial grounds andirresponsible evidence, thereby introducing a serious element of uncer-tainty in the verdict already rendered by the electorate. An election is apolitically scared public act, not of one person or of one official, butof the collective will of the whole constituency. Courts naturallymust respect this public expression secretly written and show extremereluctance to set aside or declare void an election which has alreadybeen held unless clear and cogent testimony compelling the Court touphold the corrupt practice alleged against the returned candidate isadduced. Indeed election petitions where corrupt practices are im-puted must bo regarded as proceedings of a quasi-criminal naturewherein strict proof is necessary. The burden is therefore heavy onhim who assails on election which has been concluded."

Tn Razik Ram v. J. S. Chouhan, ATR 1976 SC 667 it was laid down:

"A charge of corrupt practice is substantially akin to a criminal chargeJust as in a criminal case, so in an election petition, the res-

pondent against whom the charge of corrupt practice is levelled, ispresumed to be innocent unless proved guilty. A grave and heavyonus therefore rests on the accuser to establish each and every ingre-dient of the charge by clear, unequivocal and unimpeachable evidencebeyond reasonable doubt. A charge of corrupt practice cannot beestablished by a mere balance of probabilities, and, if after giving due

62 ABHAYACUARANLAL I SI1RI CHANDRA MOUL1SWAK SINGH [VOL. LXIII

consideration and effect, to the;, totality of the evidence and circum-stances of the case; the mind of the Court is left rocking with reason-able doubt as to the veracity of the charge, it must hold thesame as not proved. A court embarking upon an appreciation ofevidence, without this rudder and compass, is apt to find itself at sea,mistaking every flotsam for shore, suspicion for proof and illusion forreality".

In Kanhaiya Lai vs. Manna Lai AIR 1976 Supreme Court 1886 in this :"Oral testimony will have to be judged with the greatest care and anelectoral victory cannot be allowed to be nulified by a mouthful oforal testimony without contemporaneous assurance of a reliable nature,from an independent source An election dispute is not a privatefued between one individual and another. The whole constituency isintimately involved in such a dispute. Shaky and wavering oral testi-mony of a handful of witnesses cannot still the dominant voice of themajority of an electorate."

In D. D. Pawar v. Pandurang (AIR 1978 SC 361 at page 354) it wasobserved:

"Another principle which is also well established is that it is unsafe inan election dispute to accept oral evidence at its face value unlessit is backed by unimpeachable and incontrovertible documentary evi-dence May be P.Ws. 5 to 7 are not liers but their testi-mony falls for short of the compelling degree of proof. It would beprofitable in this context to refer to the two decisions of this Courtin Rahim Khan v. Khurshid Ahmad, AIR 1975 SC 290 and N.Narayana Rao v. C. Venkata Reddy (1977) 1 SCR 490: (AIR 1977SC 208). Tn Rahim Khan v. Khurshid Ahmad (supra), it was held asfollows (at pp. 298-299 of AIR S O : —

We must emphasise the danger of believing at ils face value oralevidence in an election case without the backing of sure circumstancesor indubitable documents. It must be remembered that corrupt prac-tices may perhaps be proved by hiring half of a dozen witnesses ap-parently reasonable and disinterested, to speak to short and simpleepisodes such as that a small village meeting took place where thecandidates accused his rival of personal vices. There is no X-raywhereby the dishonesty of the story can be estabished and, if theCourt were gullible enough to gulp such oral versions and invalidateelections, a new meanace to our electoral system would have been in-vested through the judicial apparatus. We regard it as extremely un-safe, in the present climate of Kilkenny cat election competitions andpartisan witnesses were in robes of veracity, to upturn a hard wonelectoral victory merely because lip service to a corrupt practices whilemiirht not merely cancel the election result but extinguish many a man'spublic life."

In M. Narayana Rao. v. C. Venkata Reddy (ATR 1977 SC 208). Tt wasobserved:

''A charge of corrupt practice is easy to level but difficult to p^ove.Tf it is sought to be proved only or mainly by oral evidence withoutthere being contemporaneous documents to support it, court should

K.L-.R.] ABHAYACHARANTAT. V. SHRl CHANDPA MOUXESWAR.SINGH 63

be very careful in scrutinising the oral evidence and should not lightlyaccept it unless the evidence is credible, trustworthy, natural and show-ing beyond doubt the commission of corrupt practice, as alleged."

In my opinion, the same principles apply to the facts of the presentcase. If we bear in mind the above principles, it must be held that theevidence laid by the petitioner falls for short of the compelling degree ofproof. I have already analysed the evidence. The diaries of the Presi-ding Office"s clearly sho\v that the voting was peaceful. The petitionerdid not call for the reports o£ the patrolling Magistrates. There is no evi-dence of any violent activities or untoward incident at any booth.

16. It will not be out of place to point out here that there was suffi-cient security arrangement at every booth. R.W. 1 the respondent hasdeposed that full security arrangements had been made for each and everybooth in his constituency by the Government. There were static force,mobile force, patrolling party and polling party on the booths reinforcedby the village volunteer force, Chowkidars, constables and there was alsoconstant checking at an every six miles on the road by Magistrates addedby force. The witness has further said that it was because olthe security arrangement that the son of one Govind Rao was arrestedwith unlicensed loaded rifle at Sarath Chawk on 10th June 1977 at about9 A.M. and this news helped in maintaining complete calm in the consti-tuency. R.W. 5 Kameshwa- Prasad Rai said in his cross-examinationthat there were 5 or 6 Government officers inside the booth, there wasrifle police party out-side the booth and there also police armed with lathisbesides the three Chowkidars. The witness gave this evidence in res-pect of his booth at Gajiadih. R.W. 6, Hirdaya Narayan Rai has alsosaid that there were armed constables, three gun men and constables ofthe Bihar Government at the Gajiadih booth. R.W. 8, Bhannu Ravanihas deposed that rifle police party and police force armed with lathis werepresent at Babhankund booth and there was also a Chowkidar .near thedoor. Similarly R.Ws 9 and 11 has also spoken about the security arrange-ment. R.W. 20 Mahend'a Jha was the Presiding Officer at Nagra booth.He deposed that no voter was prevented from voting at the booth andthat no one made any complaint to him about casting of any bogus vote.He further deposed that there were armed force, village volunteers andChowkidars at the booth and that the Patrolling Magistrate used to visitthe booth along with armed force. R.W. 21, Judagi Prasad was the Presi-ding Officer at Babhankund booth. He also said that there was r.o bogusvoting and nobody had prevented the voters from voting by the respon-dent or by the men of the respondent. He further deposed about thesecurity arrangement. He said that the-e were three armed constables ofB.M.P. and two Homeguards, chowkidars and that the Patrolling Magistratealso used to visit the booth with armed police. R.W. 22, was the Presid-ing Officer of Gajiadih booth. He said that the polling was peaceful andno voter was prevented from voting by any man and no bogus voteswere cast and none made any complaint rega'ding the bogus voting. Inview of such security arrangement, it cannot be believed that the voters atbooths Babhankund, Nagra and Gajiadih would be scared and no writtencomplaint would be made. No document has been placed before this courtto show that any complaint was ever made to any officer at any place regar-ding any incident. The respondent has produced witnesses from each ofthe booths aforesaid to prove his denial RWs. 7 to 10 are of Babhankundbooth, R.Ws. 11, 12 and 13 are of Nagra booth, R.Ws. 4 to 6 are of

10—3 ECI/ND/85

64 ABHAYACHARANLAL V. SHRI CHANDRA MOULESWAR SINGH [VOL. LXIU

Gajiadih booth. They have all denied the allegation made by the peti-tioner. Their evidence is supported by independent Government Officers(R.Ws. 20, 21 and 22). On the other hand the petitioner by the oralevidence of his 7 witnesses seeks to stultify the people's verdict aftei hefought the election and lost it. Out of these 7 witnesses only one voterwas examined regarding Babhangund booth. Counsel for the petitionerhimself felt weakness in his case regarding that booth. Two witnessesfrom one village Nawadih were examined for Nagra booth. Regardingthe third booth Gajiadih two witnesses from village Lachhumandih, onefrom Asahna and one from Gajiadih were examined. Their evidence isshaky and it cannot be accepted at its face value without the backing ofsure circumstances or indubitable documents. Learned counsel for thepetitioner submitted that according to their evidence even if there was noallegation of any overt act against the respondent, his consent should bepresumed if he did not stop his supporters from preventing the votersfrom voting. Reference was made to the case of Janak Sinha v. MahantRam Kishore Das (AIR 1972 SC 359). In my opinion, the question ofconsenl does not arise because I have already held that these witnessesare unreliable. The charge of commission of corrupt practice by an ap-peal to vote on the basis of caste in issue no. 4 set out in paragraph 23of the election petition and in the hearsay evidence of the petitioner wasnot pressed at the time of hearing. There were 120 booths in the consti-tuency in question, but the evidence relating to the allegations of corruptpractice was confined only to three booths—Babhankund, Nagra and Gajia-dih. It is not understandable as to why only three booths would be chosenby the respondent for committing corrupt practices. It appears to me thatthis election petition has been in the nature of roving and fishing enquiryand charges of corrupt practices were made recklessly by the petitioner inthe hope that he will be able to prove them. It is quite clear from the dis-cussions aforesaid that the petitioner has miserably failed to prove theallegation of any of the corrupt practices pleaded by him. I accordinglyhold that the charge of corrupt practice under section 123(2) has not atall been proved. This issue is accordingly decided against the petitionerand in favour of the respondent.

Issue no. 6

17. In view of the findings recorded above, it clearly follows that theelection petitioner is not entitled to any relief and this issue, therefore,answered against him.

18. The election petition, therefore, has no merit and it is accordinglydismissed. I further hold that no corrupt or illegal practice ha_s been pro-ved to have been committed at the election against the respondent and thathe was not disqualified under Article 191(1XO) of the Constitution. Thecharges of the corrupt practices, namely, (i) an appeal to vote under section123(3) on the basis of caste and (ii) undue inference, that is to say, byforcibly preventing the voters from voting at the three booths—Babhan-kund. Nagra and Gajiadih and thus interfering with the free exercise oftheir electo-al right u/s 123(2) of the Act miserably fail. The petitionerwill pay Rs. 1000 as costs to the respondent and he will be entitled to arefund of the balance Rs. 1,000 of his security deposit.

Petition dismissed

IN THE HIGH COURT OF JUDICATURE FORRAJASTHAN, JAIPUR BENCH

LOKNARAIN

V

BHAIRON SINGH SHEKHAWAI AND ANR

(M L JOSHI, J.)

September 15, 1978

Representation of the Fcople Act, 195 I—is. 33(1), 33(4), 36(2), 36(4).36(5), 81(3) & 117—Rejection oj nomination paper—omission to specifyage in the nomination paper—whether defect is of a substantial character—-electoral roll filed with the nomination specifying the age of the candidate—whether sufficient—nature of enquiry to be held by the returning officer atthe time of scrutiny—amendment to Section 33(4) in 1966—correction ofclerical technical printing errors etc permitted—scope of.

Election petition—copy of Hie petition served on respondent notExactly true copy—effect of—security deposit in the name of RegistrarHigh Court—whether valid.

In the Bye-election to the Rajasthan Legislative Assembly fromChhabra Constituency held in November 1977, the Returning Officerrejected the nomination papers of two persons on the ground that theyhad omitted to specify their age in the nomination papers. The petitioner,an unsuccessful candidate, challenged the election of the lirst respondentcontending inter alia that the nomination papers of the said two personswere illegally rejected inasmuch as the omission to specify the age in thenomination paper is not a defect of a substantial character; that the Elec-toral Roll submitted with the nomination papers specified the age of thepersons nominated and that the Returning Officer should have held an en-quiry at the time of scrutiny and remedied or caused to have remediedthe defect or in any event should have overlooked the mistake after theamendment in 1966 incorporating a proviso t Section 33(4).

HELD : Dismissing the petition —

(i) The omission to specify age in the prescribed form of the nomina-tion paper is a defect of a substantial character and is not similar to meremisnomer or inaccurate description clerical, technical, printing error, etc.

Brijendralal v Jwalaprasad : AIR (1960) SC 1049

... followed

Karnail Singh v Election Tribunal, Hissar : 10 E L R 189.

Bangilal Chaudhary v Dabusao : AIR (1962) SC 1248;Ram- Awadesh Singh v Sumitra Devi : AIR (1972) SC 580 distinguished

Devi Singh v Brijrai Singh: AIR (1970) SC 110;... referred to

G5

66 LOKNARAIN V. BHAIRON SINGH SHEKHAWAT AND ANR [VOL. LXIII

(ii) The fact that the age is mentioned in the Electoral Roll submit-ted with the nomination paper is of no relevance as it merely disclosesthat the person is over 21 years, whereas for being a candidate at theelection he must have completed 25 years of age.

Brijendralal v Jawalaprasad (Supra)... relied on

(liO At the time of scrutiny the Returning Officer is not requiredunder Section 36(2) to hold an enquiry in cases where there is clear noii-compliance with Section 33 and the defect is of a substantial character.

Brijendralal v Jwalaprasad (Supra) ... followed

Srinivasa Naicker v Engammal : AIR (1962) SC 1141

Board of H.S. & I.E., U.P. v Chitra : AIR (1970) SC 1039... distinguished

(iv) The ratio laid down by the Supreme Court in the case ofBRIJENDRALAL v JWALAPRASAD (supra) holds good even after theamendment to Section 32(4) whereby the proviso to save rejection of nomi-nation paper on account of clerical, technical, printing error etc was addedto the Section.

(v) The fact that the copy of the Election Petition served on the res-pondent is not an absolutely exact copy of the original will not renderthe petition defective so long as the respondent would not be misled soas to cause prejudice in regard to his defence.

Murarka Radheshyam v Roop Sint-h\ Ralhore : AIR (1964) SC 1545

Jagat Kishore v Rajendra Kumar Poddar : AIR (1971) SC 342;... relied on

Sahodm Bai v Ram Singh: AIR (1968) SC 1079... referred to

(vi) Security for cost deposited in the name of the Registrar of theHigh Court is sufficient compliance with the provisions of Section 117 ofthe Act.

K Kamaraj Nadar v Kimju Thevar : AIR (1958) SC 687... referred to

Om Prakash Jain v. Gyanchand : AIR (1959) SC 837

... distinguished

Election Petition No 2 of 1978

M R Calla, for the petitionerR K Rastogi and J S Rastogi for non-petitioners

JUDGMENT

JOSHI J.—This is an election petition by an elector under Section 81of the Representation of the People Act. 1951, hereinafter called the Actwhereby the petitioner Loknarain a voter has challenged the election of

E.L.R.] LOKNARAIN V. BHAIRON SINGH SHEKHAWAT AND ANR 67

respondent No. I Shri Bhaironsingh to the Rajasthan Legislative Assemblyfrom Chhabra constituency (114).

The bye-election for the Rajasthan Legislative Assembly, Chhabra,was held in November, 1977. Shri Bhaironsingh Shekhawat was declaredelected in the said election. In all 9 candidates had filed their nomina-tion papers, including Sarv Shri Gamcrlal and Narainlal. The nomina-tion papers were taken up for scrutiny on November 4, 1977. After scru-tiny, the respondent No. 2, the Returning Officer rejected the nominationpapers of Gamerlal and Narainlal on the sole ground that each one ofthem omitted to specify his age in his nomination paper which was obli-gatory under Section 33 of the Act. The petitioner has, therefore, filedthis petition inter alia alleging that the rejection of the nomination papersof iGamerlal and Narainlal was illegal as the defect as to omission tospecify the age in the nomination paper was not of a substantial charac-ter. It has further been pleaded that Gamerlal and Narainlal had filedalong with their nomination papers certified copies of the relevant entriesof the electoral roll which contained their names and age etc. from whichtheir age could have been easily ascertained by the Returning Officer. Ithas been further averred in the petition that Gamerlal and Narainlal werepresent at the time of scrutiny of the nomination papers and the Return-ing Officer should have ascertained their age. But instead the ReturningOfficer illegally rejected thci- nomination papers without holding summaryinquiry which according to the petitioner is a condition precedent to therejection of the nomination paper. On these allegations, it has beenprayed that the election of the respondent No. 1 be declared illegal, nulland void, and it be set aside.

The election petition was registered on January 31, 1978, and the res-pondents were directed to enter their appearance and to file their writterstatement on March I, 1978 and the case was ordered to be listed inCourt on March 10, 1968.

The respondent No. 1 filed reply to the election petition on March10, 1978 and the respondent No. 2 on March 20, 1978. In the reply therespondent No. I contended that the nomination papers of Gamerlal andNarainlal were rightly rejected on the reason of omission to specify age inthe nomination paper as the same is a defect of substantial character. Thefact of Gamerlal and Narainlal having annexed certificates of being elec-tors from the constituency of Udaipur and Khanpur respectively was alsodenied and in the alternative it was said that entry in the electoral rollwas wholly irrelevant for ascertaining the age of Gamerlal and Narainlalfor determining their eligibility as a candidate for the said election. Thepresence of Gamerlal and Narainlal at the time of scrutiny was also denied.It was further pleaded that at any rate it was none of the duty of the•Returning Officer to have ascertained the age suo moto when the samewas not at all specified in the nomination paper. It was further pleadedthat the Returning Officer was not competent to hold any inquiry aboutthe age of the candidate when the column of the nomination paper inregard to the age was totally left blank. Such a defect according to therespondent was a defect of substantial character and fatal. The respon-dent No. 1 further alleged in his reply that the deposit of security for costshas not been made as required under section 117 of the Act read withthe relevant Rules and so the election petition is liable to be dismissed onthat score also. Lastly, it was contended that the election petition also

68 LOKNARAIN V. BHAIRON SINGH SHEKHAWAT AND ANR [VOL. LXHI

deserves to be dismissed because the copies of the same furnished to therespondent No. 1 are not true and correct copies of the original. On thesimilar lines is the reply of the respondent No. 2 which is substantiallyidentical with that of the respondent No. 1.

A rejoinder was tiled by the petitioner after obtaining permission ofthis Court reiterating the contentions made in the petition and furthercontroverting the allegations and contentions raised in the replies of therespondents Nos. 1 and 2.

On the pleadings of the parties in all five issues were settled en April11, 1978 and the .case was fixed for arguments on May 8, 1978. Theissues settled may be reproduced below:—-

(1) Whether the rejection of the nomination papers of Shri Gamerlaland Narainlal was improper on account of omission to mentiontheir age in the column meant for giving the age of the candidate?

(Burden on petitioner).

(2) Whether the deposit of security fo' costs has not been made bythe petitioner, as required by section 117 of the Representation ofthe People Act, 1951, read with Rules 819 and 820 of the Rajas-than High Court Rules and is the election petition liable to bedismissed on that account under section 86 of the Act?

(Burden on respondents).

(3) Whether the copies submitted with the election petition and anne-xures served upon the respondents a e not true copies, as requiredby section 81 of the Act; and is the petition liable to be dismis-sed if it is held that the provisions of section 81 of the Act inthat behalf have not been complied with?

(Burden on respondents).

(4) Whether the election petition does not disclose cause of action, asit does not mention that due to the alleged wrongful rejection ofthe nomination papers the result of the election has been material-ly affected and so the election petition is liable to be dismissedon this ground?

(Burden on respondents)

(5) To what relief the petitioner is entitled?

Initially the burden of issue No. 1 was wrongly mentioned on the res-pondents which mistake was rectified vide order dated May 9, 1978 andthe case was posted for arguments on issues Nos. 2, 3 and 4 on May 8,1978. On May 10, 1978 Mr. Rastogi stated at the Bar that he did notpress issue No. 4. After hearing the arguments on issues Nos. 2 and 3,1 felt that issue No. 1 could be simultaneously decided along with issuesNos. 2 and 3. 1. therefore, decided to hear the issue No. 1 on meritsand give my decision on merits on all the issues if inquiry into facts inregard to issue No. 1 was not deemed necessary. Decision on issue Nos.2 and 3 was therefore, postponed until the hearing of arguments on issueNo. 1. The arguments on issue No. 1 were, therefore, heard.

K.L.R.J LOKNARAIN I'. BUAIKON SINGH SHEKHAWAT AND ANR 69

1 now proceed to deal with the issues at seriatum.

Issue No. 1 in my opinion is a very important issue in this case. Itmay be reproduced hereunder:—

(1) Whether the rejection of the nomination paper of Shri Gamerlaland Narainlal was improper on account of omission to mentiontheir age in the column meant for giving the age of the candidate?

(Burden on the petitioner).

It is not in dispute that Gamerlal and Narainlal omitted to specify theirage in their nomination papers. The question therefore arises whetheromission to specify his age by a candidate in his nomination paper is adefect of substantial character so as to warrant the rejection of the nomi-nation paper. It has been argued by Mr. Calla, the learned counsel forthe petitioner that formerly prior to the amendment of proviso to sub-section (4) of section 33 such a defect was taken to be a defect of sub-stantial character in Brijendralal V. Jwukiprasad (A.l.R. 1960 S.C. 1049).But that case does not lay down good law as the ratio laid down wasagainst the law laid down in Karanibsingh V. Election Tribunal Hissar (10E.L.R. 189), which was a decision of a larger Bench consisting of riveJudges. It was further urged that any rate in view of the amend-ment of proviso to sub-section (4) of section 33, ratio laid down in Bri-jendra Lai's case (supra) cannot hold good after the amendment of thesub-section. According to Mr. Calla in view of the amendment of theproviso to sub-section (4) of section 33 of the Act the scope of provisohas been largely extended so as to include the defect of omission to men-tion the age in the nomination paper as a defect of the type mentionedin the said proviso and it could be allowed to be rectified by the ReturningOfficer more particularly when the relevant entries of electoral roll of thecandidates whose nomination papers were .'.ejected were annexed withtheir nomination papers. It is submitted that in the electoral roll the ageof Sarvashri Gamerlal and Narainlal was mentioned which showed that theywere duly qualified candidates for contesting the election. The ReturningOfficer did not consider this aspect of the matter and erroneously rejectedtheir nomination papers simply on the ground that the column as to agein the nomination paper was totally left blank and so the nominationpapers did not comply with the requirement of section 33 of the Act.The learned counsel for the petitioner strenuously urged that the Return-ing Officer could not have rejected the nomination paper simply on theground that the column as to age in the nomination paper was left blank.He contended that in view of the amendment of proviso to sub-section(4) of section 33 of the Act omission to mention the age in the nominationpaper could be rectified or overlooked on the p'inciple of 'ejusdemgeneris'. It has. therefore, been strenuously contended by Mr. Calla thatthe Returning Officer was wholly in error to treat the defect of omissionto mention the age in the nomination paper as a defect of substantialcharacter and on that basis to reject the nomination paper of Sarva ShriGamerlal and Narainlal. It has been further urged that the ReturningOfficer committed serious error in rejecting the nomination paper withoutholding inquiry and affording opportunity to the petitioner being heard asaccording to the learned counsel the holding of inquiry and affordingopportunity of being" heard was obligatory.

70 LOK.NAR.AIN V. JBHAIKOM SINGH SHEKHAWAT AND ANK. [VOL. LXIII

On the other hand Mr. Rastogi the learned counsel lor the respondent•No. 1 has with equal vehemence argjued that the defect in omission tomention age in the nomination paper is a defect of substantial characteras in the absence of mention of age in the nomination paper it is im-possible to ascertain the eligibility and identity of the candidate to contestthe election which is an essential requirement for a completed nominationpaper as envisaged by section 33(1) of the Act. Learned counsel in thisregard placed reliance on Brijendralal's case (supra) which according to himsquarely covered the present issue. He has submitted that the amendmentof the proviso to sub-section (4) of section 33 has not made any vital diffe-rence in regard to requirement of mentioning the age in the nominationpaper. The amendment of the proviso in question according to M;r.Rastogi does not authorise the Returning Officer to permit any correctionor rectification to fill up the blank column as to age or overlook thatdefect. According to Mr. Rastogi the defect of misnomer or inaccuratedescription or clerical, technical or printing error pertains simply to mis-nomer or inaccurate description or errors in regard to the name ofthe candidate or his proposer or any person or in regard to place men-tioned in electoral roll or the nomination paper only and its operationcannot be extended so as to cover the defect as to omission to specifyage in the nomination paper. He further urged that the contention of Mr.Calla based on the principle of ejusdem generis is wholly misconceived.

1 have heard the learned counsel for the parties on the rival conten-tions and given my anxious and earnest consideration to them. Thequestion which calls for consideration is:—Does the omission to specifythe age by the candidate in the nomination paper amounts to a defect ofsubstantial character within the meaning of section 36(4) so as to warrantrejection of the nomination paper. in Brijendralal V. Jwalaprasad (supra)the Supreme Court has held that the omission to declare his age in thenomination by a candidate amounts to non-compliance with section 33 ofthe Act as section 33 requires that the nomination shall be completed inthe form prescribed. Omission to complete the nomination paper in ac-cordance with the prescribed form falls within the mischief of section 36(2)(b) entailing its rejection if the defect is of a substantial character. TheSupreme Court has categorically held in that case that failure to specifythe age in the nomination paper amounts to a defect of substantial char-acter under section 36(4) as the specification of age of the candidate is re-quired to be made by the candidate above his signature and is substan-tially treated his declaration in that regard; that the eligibility of the per-son to stand as a candidate which depends under Article 173 of the Consti-tution on his having completed 25 years is important and essential matterthat the prescribed form requires the candidate to make declaration. Thiscase squarely covers the point involved in issue Mo. 1, as the provisionin regard to specification of age in the Act as amended has remained un-changed and no other provision exists to mitigate the defect of omissionto specify age which has been considered to be not only irremedial butfatal to the election petition.

Mr. Calla, learned counsel for the petitioner however contends thatthe subsequent amendment of the proviso in the year 1966, the positionhas entirely changed as according to the amended proviso the defect ofomission to mention age of the candidate in the nomination paper canno more be taken to be a defect of substantial character and so Brijendra-lal's case (supra) does not hold water after the amendment of proviso to

.KL.R.J LOKNARAIN F. BHA IRON SINGH SHEKHAWAT AND ANR 7i

section 33(4). In order to examine this contention of Mr. Calla, it willbe useful here to notice the proviso as it existed in the year 1951 and inthe year 1956 and under the present law. I may, therefore, refer to theproviso to sub-section (4) of section 33 as it existed in the year 1951 andas amended in the year 1956. In 1951 there was a proviso correspond-ing to the proviso to sub-section (4) of section 33 under sub-section (5) ofAct. No. 43 of 1951. It was as under:—

"Provided that—

(a) the Returning Officer may permit any clerical error in the nomi-nation paper in regard to the said names or numbers to be correc«ted in order to bring into conformity with the corresponding en-tries in the electoral rolls.

(b) where necessary direct any clerical or printing error in the said, entries shall be overlooked."

It will appear that, under the unamended proviso as it existed in the year1951 any clerical error in the nomination paper in regard to the name andthe electoral roll numbers of the candidate and his proposer and secondercould be corrected in order to bring them in conformity with the corres-ponding entries in the electoral rolls.

The proviso was further amended by Act No. 27 of 1956 and itsambit was bit enlarged. Under the proviso as amended by Act. No. 27 of1956 the Returning Officer was authorised to permit any clerical or tech-nical error in the nomination paper in regard to the names or numberof the persons mentioned therein to be corrected in order to bring theminto conformity with the corresponding entries in the electoral rolls andwhere necessary direct that any clerical or printing error in the said en-tries shall be overlooked. The proviso as amended in the year 1956, there-fore, extended the scope so as to embrace in its ambit technical as wellas printing error besides the clerical error in regard to the name or num-ber of the candidate, proposer or seconder, so as to bring them into con-formity with the corresponding entries in the electoral rolls. By Act No.47 of 1966 the proviso was again amended with effect from 14-12-1966. Bythe amendment of 1966 certain errors as to misnomer inaccurate descrip-tion, clerical, technical or printing error in regard to the name of thecandidate or his proposer or any other person or in regard to place men-tioned in the electoral roll or in the nomination paper and clerical ortechnical or printing error in regard to the electoral rolls as to any suchperson in the electoral roll or nomination paper would not affect the fulloperation of the electoral roll or the nomination paper. It will thusappear that besides the clerical, technical or printing error, the error inregard to the name of the candidate or his proposer, the error of the abovetypes mentioned in this proviso in regard to the place mentioned in theelectoral roll, or the nomination paper or error in regard to the electoralroll, or number of any person in the electoral roll, or the nomination paperare taken to be defect not of substantial character and they could be per-mitted to be remedied by the Returning Officer or could be overlooked.From the study of the proviso as it existed in the year 1951 and after it'samendment in the year 1956 as well as after its amendment in the year 1966,I do not find any vital change so as to hold that the omission to specify ageby t'he candidate in the nomination will be a defect of remedial character only.In this view of the matter I am definitely of the opinion that ratio laid

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72 LOKNARAIN V. BHAIRON SINGHL SHEKH.AWAT AND A.NR [VOL. 1X111

down in Brijcndralal's case (supra) applies with equal force even after theamendment of the proviso in question and it is still a good law and holdsthe field.

Mr. Calla, however, pointed out that the words 'such misnomer orinaccurate description clerical, technical or printing error' should be readin the light of principle of ejusdem generis so as to cover the defect ofomission of age in the prescribed form or nomination. In; my opinion thiscontention has no substance in it. The principle of ejusdem generis contem-plates that when particular words are followed by general words, the lattertake colour from the particular words preceding them and are to be inter-preted in that context. There are no general words following the particulartypes ol defects mentioned in the said proviso to section 33(4). There isno justification to read words which do not exist in the statute. The con-tention of Mr. Calla based on the principle of 'ejusdem generis' is there-fore wholly misconceived and unsustainable in law. There is thereforeno justification to apply the principle of ejusdem generis to take thtomission to specify age by the candidate in the nomination paper adefect of remedial character under the proviso in question. So this conten-tion also has no legs to stand and is hereby repelled.

The learned counsel for the petitioner then argued that the age of thecandidate could have been ascertained from the copies of the electoral rollsubmitted along with their nomination papers. I am not at all impressed bythis argument. The electoral roll under the existing law only means thatthe person whose name finds place in the electoral roll is not less than 21years of age and is an ordinary resident of that constituency and nothingmore. It has no relevance whatsoever to ascertain the age for determiningthe vaiidity of the nomination paper for the simple reason that the validityof the nomination paper, it has to be proved that the candidate has com-pleted 25 years of age. This is what has been exactly held in Brijendralal'scase (supra) after elaborate discussion by the Supreme Court; I need notdilate the matter any further as the point is squarely covered by thatdecision.

Mr. Calla next contended that no inquiry was made under section 36(2) which has pre-requisite condition before rejecting the nomination paper.A similar argument came to be advanced before the Supreme Court butthe same was repelled by their Lordships of the Supreme Court in Brijend-itdai V. Jwalaprasad (Supra). The Supreme Court held that in case ofnon-compliance with Section 33 which attracts the provisions of Section36(2) (b), there would be no occasion to hold an inquiry under section36<2). The Supreme Court while dealing with the question as to whetherinquiry under section 36(2) is necessary in a case of omission to specifythe age by the candidate in the nomination paper, answered the questionin unequivocal terms in para 9 of its judgment in Brijendra Lai V. Jwala-prasad (supra. Here it will be apt to extract relevant observations of theSupreme Court as under: —

"The next question which we must consider is whether in the case ofsuch an omission it was obligatory on the Returning Officer to holdan inquiry under S. 36(2) of the Act. The High Court has held thatthe Returning Officer ought to have held an enquiry under S. 36(2) (a)and satisfied himself whether or not respondent 5 was eligible to standfor the election. Jn our opinion the High Court was in error in

E.L.R.J LOKNAKAIts V. BHAIROIS SINGH SHEKHAWAT AND ANR 73

coming to this conclusion. If the "nomination paper of respondent 5did not comply with the provisions of S. 33 the case fell squarely underS. 36(2) (b) and the only question which can arise in such a case iswhether or not the defect arising from the failure to comply with theprovisions of S. 33 is of a substantial character or not. If the defectis not of a substantial character the Returning Officer shall not rejectthe nomination paper on the ground of the said defect; if on the otherhand, the defect is of a substantial character the Returning Officer hasto reject the nomination paper on the ground of the said defect. Thatis the effect of the provisions of S. 36(2)(b) and (4) read together. Anenquiry which is necessary under S. 36{2)(a) may and can be held forinstance in cases where the nomination paper shows the age of thecandidate as above 25, but an objection has been raised that in fact heis below 25 and as such incompetent to stand for election under Art.173 of the Constitution: in other words, the impugned nomination hascomplied with the provisions of S. 33 and as such does not fall underS. 36(2)(b) at all nevertheless the validity of the nomination can bechallenged on the ground that in fact Art. 173 is not complied with.Cases falling under this class must be distinguished from cases fallingunder S. 36(2Xb). In the latter class of cases the failure to comply withthe provisions of S. 33 being established there is no scope for any enquiryunder S.36(2)'a). Once the alleged non-compliance is proved thedefective nomination falls to be accepted or rejected according as thedefect is of an unsubstantial or of a substantial character. Therefore,it is not right to hold that even after the Returning Officer was satis-fied that the omission to specify his age showed that the nominationpaper of the respondent 5 had not complied with the provisions of S.33 he should still have held an enquiry under S. 36(2;(a). Non-com-pliance with the provisions of S. 33 itself would justify the rejection ofthe nomination paper provided of course that the defect arising fromthe non-compliance in question is of a substantial character."

The above observation effectively negatives the above contention of thelearned counsel of the petitioner.

It was next argued that the failure to specify the age in the nomina-tion paper does not amount to a defect of substantial character under S.36(4) so as to justify the rejection of the nomination paper of Gamerlal andNarainlal. Again a similar argument was raised in Brijendralal V. Jwala-prasad (supra) and the same was rejected by the Supreme Court by observingas under: —

"That takes us to the question as to whether the failure to specifythe age in the nomination paper amounts to a defect of a substantialcharacter under S. 36(4) or not. There is little doubt that the ageof the candidate, is as important as his identity, and in requiring thecandidate to specify his age the prescribed form has given a place ofimportance to the declaration about the candidate's age. Just the no-mination paper must show the full name of the candidate and his ele-ctoral roll number, and just as the nomination paper must be duly sign-ed by the candidate so must it contain the declaration by the candidateabout his age. It is significant that the statement about the rge OTthe candidate is required to be made by the candidate above his signa-

74 LOKNARAIN V. BHAIRON SITNGH SHEKHAWAT AND ANR tVOL. LXIII

ture and is substantially treated as his declaration in that behalf. Thatbeing the requirement of the prescribed nomination form it is difficultto hold that the failure to specify the age does not amount to a defectof a substantial character. The prima facie eligibility of the personto stand as a candidate which depends upon Art. 1/3 of the Constitu-tion, inter alia, on his having completed the age of 25 years is an im-portant matter, and it is in respect of form requires the candidate tomake the declaration. It would, we think be unreasonable to hold thatthe failure to make a declaration on such an important matter is adefect of an unsubstantial character. In this connection it is relevantto refer to the fact that the declaration as to the symbol which theprescribed form of the nomination paper requires the candidate to makeis by the proviso to rule 5 given a subsidiary place. The proviso torule 5 shows that any non-compliance with the provisions or sub-rule(2) of rule 5 shall not be deemed to be a defect of a substantial cha-racter within the meaning of S. 36, sub-sec. (4). In other words, thisproviso seems to suggest that, according to the rule-making authority,failure to comply with the requirements as to the declaration of symbolsas specified in rule 5 sub-rule (2) would have been treated as a defectof a substantial character; that is why the proviso expressly providesto the contrary. This would incidentally show that the failure to specifythe age cannot be treated as a defect of an unsubstantial character."

From these observations of the Supreme Court it is amply clear thatthe eligibility of the person to stand as a candidate depends upon the com-pletion of the age of 25 years under Article 173 of the Constitution andso it is essential to specify the age in the nomination paper to prove thatthe candidate is eligible to contest the election. Omission to specify ageby the candidate in the nomination paper is indisputably a defect of sub-stantial character entailing the dismissal of the petition under S. 36(4) ofthe Act. There is, therefore no force in this contention either.

The learned counsel for the petitioner, however, tried to wriggle outfrom the principle laid down in Brijendmlal's case (supra) on the groundthat the Supreme Court in that case has not noticed section. 36(5) and itsproviso which contemplate that in case an objection is raised by the Return-ing Officer or is made by any other person the concerned candidate is to beallowed time to rebut if not later than the next day the one following theday fixed for scrutiny and the Returning Officer shall record the decisionon the date to which the proceedings had been adjourned. It is submittedthat in BrijendralaTs case (supra) the Supreme Court has not noticed thisproviso and if that proviso had been noticed by the Supreme Court than itwould not have been held that the summary enquiry as envisaged under section36(2) wa snot necessary. In my opinion there is no force in this contention.Sub-section (5) will apply to the cases where enquiry is necessary. But in acase of total omission of essential requirements there is no scope for makingany summary inquiry and to me it appears that on that account the SupremeCourt did not think it necessary to notice sub-section 36(5) proviso.

Next it was contended that the principles of natural justice diddemand an enquiry and affording of opportunity to the petitioner toremedy the defect in regard to omission of specification of age in the

E.L.R.1 LOKNARAIN V. BHAlRON SINGH SHEKHAWAT AND ANR 75

nomination paper. In this connection the learned counsel for the petitionerhas cited Srinivasa Naicker V. Engammal (A.l.R. 1962 S.C. 1141) andBoard of H.S. & l.E.U.P. V. Chitra (A.l.R. 1970 SC 1039) which deal withthe case in regard to the observance of principle of natural justice. Butthe cases relied upon by Mr. Calla have no application as there is no scopefor any inquiry as held by the Supreme Court in Brijendralal's V. Jwalaprasad(Supra) in view of the provisions of section 33 read, with section 36(2) (b) and36(4) of the Act. The contention therefore has absolutely no force.

The learned counsel for the petitioner then contended that ratio laiddown in Brijendralal's case (supra) cannot be held to be valid law in viewof the decision of the Supreme Court in Karnail Singh V. Election TribunalHissar 10 E.L.R, 189). It was submitted by Mr. Calla that Karnailsingh'scase (supra) was decided by a Bench consisting of 5 Judges whereasBrijendralal's case being a decision of Bench consisting of 3 Judges only,should not be acted upon. This argument has also no force. In the first placeKarnailsingh's case (supra) did not relate to the omission to specify an essen-tial fact in the nomination paper. In that case the Tribunal rejected thenomination paper on the ground that name of the Sub-Division was notstated therein. But in that case there was evidence to show that there wasno difficulty in identifying the candidate and the candidate himself pointedout to the Returning Officer the entry of his name in the electoral roll. Thedefect in that case was merely a technical one and, therefore, the SupremeCourt held that the defect was not of a substantial character. But the samecannot be said in a case of a defect of omission of age in the nominationpaper, as the defect of omission to specify the age of nomination paper,being a defect of substantial character was a fatal one. It is, there-fore, futile on the part of the learned counsel to over come the effect of aratio laid down in Brijendralal's case (supra) which is a direct case on thepoint before me. The Supreme Court itself noticed Karnailsingh's case (10ELR 189) and after dealing it in detail observed that it has no bearing inthe case of omission to specify the age of candidate in nomination paper Itis, therefore futile on the part of the learned cousel for the petitioner tomake an attempt to escape from the effect of the ratio laid down in Brijen-dralal's case (A.l.R. 1960 SC 1049). On the close examination of the sec-tion 36 it is evident that neither the provisions of section 33 nor section36 have undergone vital change by the amendment of Act No. 46 of 1966.The ratio laid down in Brijendralal's case (supra) holds the field and strikesat the very root of the election petition and the same deserves to be dismis-sed on that score alone.

Many cases.have been cited at the Bar in the courses of argumentsbut I do not think it proper to consider all of them. It will be enoughto deal with Supreme Court cases cited in the course of arguments.

The first case which deserves to be noticed in Bangilal ChaudharyV. Dabusao (A.l.R. 1962 S.C. 1248). In this case it was held that thefact that the name of constituency was wrongly mentioned as Bihar ins-tead of Dhanbad in the nomination paper did not vitiate the nomination.This case' is of no assistance to the petitioner as in this case it was clearfrom the reading of the entire nomination paper that the respondent wasseeking election from Dhanbad constituency. In reaching this conclusionthe Supreme Court referred to the requirements of section 33(4), section

76 LOKNARAlN V. BHATRON SINGH SHEKIIAWAT AND ANR [VOL. LXHI

36(2) (b) and section 36(4). After noticing these provisions the Courthas observed that the result of the above provisions is that the proposerand the candidate are expected to file the nomination complete in allrespects in accordance with the prescribed form but even if there is somedefect in the nomination paper in regard to the either the names or the elec-toral roll number it was incumbent upon the Returning Officer to satisfyhimself at the time of the presentation of the nomination paper aboutthen and if necessary to allow them to be corrected in order to bringthem into conformity with the corresponding entries in the electoral roll.That was a defect of the type mentioned in the proviso to sub-section33(4) which could not be taken to be a defect of substantial character.This case therefore does not help the petitioner.

1 may next refer to Dcvisingh V. Brijrahingh (A.l.R. 1970 S.C. 110).In that case the proposer of the candidate was an illiterate person. He hadnot got authenticated or attested the mark put by him in the nominationpaper by one of the designated officer as required by the relevant provi-sions of the Act and the Rules framed thereunder. The Returning Officerrejected the nomination paper. The rejection was upheld by both theTribunal and the High Court and ultimately by the Supreme Court. TheSupreme Court held that the proposer being an illiterate it was essen-tial requirement for a valid nomination that the signatures or mark shouldhave been got authenticated or attested by one of the designated officer.In these circumstances the nomination paper was held invalid on theground that in the absence of authentication in the manner required bylaw the candidate cannot be said to have been duly nominated.

In Ram Awadesh Singh V. Suinilni Devi (A.l.R. 1972 S.C. 580),the facts were like this. The appellant Ram Awadesh Singh had beencontesting from the Arrah constituency since the year 1962. He wasregistered as an elector in the Sandesh assembly constituency of the BiharState. His name continued to be in electoral roll of that constituencyeven at the time of filed his nomination from the Arrah constituency onJanuary 6, 1969 i.e. two days prior to the last day for filing the nomination.His name was also entered in the electoral roll of Arrah constituency.But later on it appears that because his name stood entered in the San-desh constituency ihe same was deleted from the Arrah constituency butthe appellant in that case had no notice of this fact as the deletion wasshown in a separate supplementary list. His name however in the mainlist continued to be shown. It was on this account that the appellantin his nomination entered his electoral number as shown in the electoralroll of Arrah constituency. But at the same time he showed the certi-fied copy of the Sandesh constituency's electoral roll wherein his name hadbeen entered. The Returning Officer after checking the nomination paperof the appellant in that case as well as the electoral roll number foundin electoral roll of Arrah constituency received the nomination paper. Atthe time of the scrutiny no one objected to the nomination of the appellantand the Returning Officer accepted his nomination as valid. An objec-tion to the acceptance of the nomination of the appellant was put forwardfor the first time in the election petition. On these facts it washeld that it was a case of mere misdescription as to electoral rollnumber of the candidate or of a proposer in the nomination paperand the defect was not fatal one in view of the provisions of section 33(4).It was pointed out in this case that that was a mere case of misdescrip-tion as to electoral roll number which was not a material defect. Their

E.L.R.J LOICNARAIN V. BH.VlRON SINGH SHEKHAWAT AND ANR 77

Lordships further pointed out that what is of importance in an electionis that the candidate should possess prescribed qualification and he shouldnot have incurred any of the disqualifications mentioned either in theConstitution of India or the Act. This case obviously is of no help tothe petitioner. It need not be gainsaid that the defect as to omissionto specify the age in the nomination paper is a fatal defect as it relatesto the very eligibility and qualification of the candidate for standing atthe election.

The next case is Bharamsingh V. Harisingh (A.I.R. 1975 S.C. 1274).In this case in the nomination forms, in the column of postal address,the only thing written was Smalkha Mandi. The Returning Officer re-jected both the nomination papers of one Jagnnath on this ground. TheReturning Officer took this defect to be a defect of technical error fitto be rectified but as there was nobody present on behalf of the candidate atthe time of the scrutiny of the nomination paper the rectification couldnot be made and the' nominations were rejected. The High Court how-ever held that the nomination paper suffered from a defect of non-comp-liance of requirement of section 33(1) of the Act and the defect was ofa substantial character. It was held in the facts of the case that sub-section(4) of S.36 enjoins the Returning Officer not to reject any nominationpaper on the ground of any defect which is not of a substantial character.Sub-section (2) however provides that if the defect is of a substantial cha-racter then it was incumbent upon the Returning Officer to reject thenomination paper on the reason that there has been failure to complywith any of the Provisions of sections 33 or 34 read with Rule 4 of theConduct of Election Rules 1961 and form 2B. The Supreme Court inthese circumstances came to hold that non-supply of postal address of thecandidate or supplying such cryptic address amounts to non-supply ofaddress and is clearly a case of failure to comply with the provisions ofsection 33(1). This case reinforces the view taken in Brijendmlal's case(supra) in as much as it has further reiterated that omission to comply withthe provisions of section 33 in regard to the essential matter is a defect ofsubstantial character entailing the dismissal of the election petition.

No provision of law or any case of the Supreme Court has beenpointed out by the learned counsel in which the view might have beentaken that the total omission of mention of an essential fact in the nomi-nation paper would not be taken to be a defect of substantial character.On the other hand from the direct authority of the Supreme Court, namely,BrijendralaPs case (supra) it stands formerly established that the omissionto specify the age in the nomination paper is a defect of substantial charac-ter justifying the dismissal of the petition.

As a result of the foregoing discussion the irresistible conclusionis that the rejection of the nominations of Gamerlal and Narainlal on thereason of omission to specify the age in the nominations was a defect ofsubstantial character falling under the mischief of section 36(4) of theAct entailing the dismissal of the petition. The issue No. 1 is, therefore,decided against the petitioner.

Issue No, 2: —This bring me to Issue No. 2. It may be reproduced below: —

'Whether the deposit of security for costs has not been made by thepetitioner as required by S. 117 of the Representation of the Peopl-e

78 L O K N A R A I N V. BHAlRON SINGH SHEK.HAWAT AMD ANR LVOL. LXHI

Act, 1951 read with Rules 819 and 820 of the Rajasthan High CourtRules; and is the election petition liable to be dismissed on that ac-count under section 86 of the Act?"

(Burden on the respondents)

Before dealing this issue on merit it will be appropriate to notice section86(1), section 117 and Rules 819 and 820 of the High Court Rules Section86(1) reads as under: —

"The High Court shall dismiss an election petition which does notcomply with the provisions of sections 81 and 82 or section 117".

Reference may now be made to section 117(1) which is reproduced below: —

'LAT, the time of presenting an election petition, the petitioner shalldeposit in the High Court in accordance with the Rules of the HighCourt a sum of two thousand rupees as security for the costs of thepetition."

Reference may now be made to Rule 819 which relates to the heads ofaccount one of which is judicial deposit. Rule 820 provides that paymentof money into Court shall ordinarily be made by means of a printed ten-der form in triplicate duly filled in Hindi or English by the payer. Rule821 lays down that the payer shall present the tender form to the DeputyRegistrar ordinarily between hours o f 10.30 and 11.30 A.M. (or duringmorning hours 7 and 8 A.M.). The Deputy Registrar shall then call re-port from the officer incharge and thereafter put his signature on the ten-der form, get tender entered in the register of tenders as well as sign theorder to receive payment on the duplicate and triplicate of the forms. Itfurther provides that the original tender shall be retained in safe custody bythe Superintendent Accounts Section. The duplicate and triplicate formsare to be returned to the payer for presentation and payment of moneyeither to the officer named in the order i.e. the cashier or the treasuryofficer. The form in this behalf has been annexed with the Rules whichis form No. 1 under Rule 820. It is reproduced as under:—

•FORM NO. 1

Tender

(Rule 820)

JodhpurIn the High court of Judicature for Rajasthan at

Jaipur Bench

Instructions to ~| Fill up accurately columnsapplicant J 1 to 4.

1. Name of party on whose behalf the money in tendered.2. Name of parties and number of the suit.3. Nature of payment.4. Amount tendered.

E.L.R.] LOKNARATN V BHATRON STNGH SHEKHAWAT AND ANR 79

Office report.

Signature of actual payer. Signature of cashier.

Stamp

Dated Dated

Receipt acknowledged in Register No

Dated '.

Signature of Receiving Officer

It has been contended . on behalf of the respondents that there isnoncompliance of the provisions of section 117 of the Act. In order toexamine the contention it will be useful to refer to the entries of the tenderform as filled by the petitioner.

" 1 . Name of parly on whosebehalf money is tendered. Loknarain

2. Name of parties and number Lotaiarian V. Bhairon Singhofthesuit. Election petition No /" 78.

3. Nature of payment : Security for cost.

4. Amount tendered : Rs. 2000/- (Rupees two thousand).

5. Officer report : "May be deposited".

Sd/-T-.oknarian Upadhyaya.

Signature of Actual Payer."

The tender from was signed by the Chief Accountant and SuperintendentRajasthan High Court in token of the receipt of payment. The questiontherefore arises whether this deposit is in accordance with section 117 of theAct. There is no dispute that the petitioner deposited the required amountand enclosed the deposit receipt with his petition. The deposit receiptwas in the tender form prescribed. The tender form did not containany heading indicating the person in whose favour the money was paid.It is evident from the receipt that the nature of payment was security forcosts obviously in respect of the election petition. The amount was ac-cepted by the officer of the Court. Mr. Rastogi -however contends thatthis deposit is not in accordance with Rule 117. I regret T cannot acceptthis contention. In K. Kamaraj Nadar v. Kanju Thevar (A.I.R. 1958S.C. 687) the Supreme Court held that the words 'in favour of the sec-retary- to the election commission' is used in section 117 were directoryand not mandatory. It will be apt here to extraet the relevant observationsof their Lordships as under :—

"What is of the essence of the povisions contained in section 117 isthat the petitioner should furnish security for the cost of the peti-tion, and should enclose along with the petition a Governmenttreasury receipt showing that the deposit of one thousand rupeei

12 —3 ECI/ND/85

80 LOKNARAIN KBHAIRON SINGH SHEKHAWAT AND ANR [VOL. LX1U

has been made by him either in Government treasury or in theReserve Bank of India is at the disposal of the election commissionto be utilised by it in the manner authorised by law and is underthe control and payable on the proper application being made inthat benefit to the Election Commission or to any person, duly autho-rised by it to receive the same as he is the Secretary to the ElectionCommission or any one else."

So far section 117 as it stands now is concerned,. what is essential isthat the petitioner should furnish security for the costs of the electionpetition and should enclose along with the petition a receipt that suchdeposit has been made by him as required by section 117. The receiptevidencing the deposit may be either in the form. of a Treasury receiptor a form of a tender duly receipted by the officer of the Court. Indis-putably the receipt showing the deposit has been annexed with the elec-tion petition. In the first column of the tender receipt the name of theparty on whose behalf the money is tendered has been mentioned asLoknarain. In the second, column the name of the parties to the litigationhas been mentioned and in column 3 nature of payment has been des-cribed as security for costs. The money is deposited admittedly as costsfor security in the election petition. Undoubtedly, money shall be atthe disposal of the High Court of Rajasthan and no one can withdrawthe money without the order of the High Court. It is true that the de-posit has been made on behalf of Loknarain. Mr. Rastogi contends thatthe deposit should be taken to be in favour of Loknarain and thereforeit cannot be taken to be under the disposal of the High Court. I amunable to agree with this contention. The form of the receipt contains noother heading for indicating the person in whose favour the money wasto be paid. The money has been paid and it must be taken to be paid infavour of the High Court as the nature of the payment has been classifiedas payment of security for costs which falls under the head "Judicial De-posits" under Rule 819 of the Rajasthan High Court Rules. Such adeposit is undoubtedly under the control of the High Court and it cannotbe withdrawn without the order of the High Court and the same could beutilised by the High Court towards the costs if awarded to the respon-dent. I, therefore, do not see much force in this contention of the learnedcounsel for the respondents. The authority Omprakash Jain V. Gyan-chand (A.I.R. 1959 S.C. 837) does not give much assistance to thelearned counsel for the respondents in the facts and the circumstances ofthis case. I, therefore, feel no doubt in holding'that the receipt submit-ted along with the election petition was in full compliance with section117 of the Act. This issue is, therefore, decided against the respondents.

Issue No. 3:

Issue No. 3 relates to the objection that the copies of the elec-tion petition and annexnres served upon the respondents are not truecopies and so the petition was liable to be dismissed on account of non-compliance with the provisions of section 81 of the Act. It has beenstrenuously urged by Mr. Rastogi, the learned counsel for the respondentNo. 1 that the provisions as to furnishing the true copies of the electionpetition, affidavit and the annexure is a mandatory one under S. 81 ofthe Act. Learned counsel has submitted that the requisite copies fur:

E.L.R.] LOKNARAIN V BHAlRON SINGH SHEKHAWAT AND ANR 81

nished to the respondents, are not true copies. 1 have fune through thecopies of the election petition as well as the affidavit furnished to therespondent No. 1. Mr. Rastogi could not point out any substantial mis-take in those copies. He however contended that the copy of the annexureNo. 1 furnished to the respondent No. 1 is not a true copy. Annexures1 and 2 contain the copy of the orders of the Returning Officer reject-ing the nomination of Gameiial and Narainlal. They are reproduced asfollows:—

(Ex. 1) : miT-ff % T*T fafsTiT TO

ra" PT ir^TrfT I i ^ # ?mr

*F\ | i ^ sfrrfafa^ srfsrftwsrqvfr ^^r ^r vTTTt fr TO #' ^

Hand Book for Returning Officers<rc "TCS I 1 The candidate has omitted to specify his age inthe nomination paper am: ww-fi $T ^mt^T T^ irf-r r

cTTo 4-11-77 ^o

5fTT

TO

HRT

H 3p

33

Tfrr. 1

<

%

t 'iff qxj jj o 2 8

(Ex. 2) :

ff ^ I f f f f f t 33 %

#' Hand Book for Returning Officers <re^ ?ro 2 8 qr ?TCH: | I The candidate has omitted to specifyhis age in the nomination paper arer: ar sff ^T TO

d"T° 4-11-77 ^o

frsfrnr arrPRn: (Ex. 2) .

In the copies of the above orders furnished to the respondents the Englishwords are missing. To that extent the copies are of course not true copies.The question therefore arises whether this will render the copies not tiuecopies as envisaged under section 81(3) of the Act. It may'be at oncepointed out that the word copy occurring in section 81(3) does not meanabsolutely exact copy but a copy so true that nobody could by any possi-bility be misled to prejudice1 the defence of the respondents. The testaccording to the Supreme Court is whether a copy was true copy andwhether any variance from the original is likely to mislead and prejudice anordinary man in his defence. In this connection reference may be made toMurrarka Radheyshyam V. Roop Singh Rathore (A.I.R. 1964 S.C. 1545)and Jagatkishore V. Rajendra Kumar Poddar (A.I.R. 1971 S.C. 342).In Murrarka Radheyshyam V. Roop Singh Rathore (supra) it has beenheld that copy though not the exact copy may be true copy if the defectis clerical. In Jagatkishore V. Rajendra Kumar Poddar (supra) it hasbeen ruled by the Supreme Court that the word copy occurring in sec-tion 81(3) does not mean absolutely an exact copy but a copy so true

82 LOKNARAIN KBHAIRON SINGH SHEKHAWAT AND ANR [VOL. LXIH

that the respondent would not be misled so as to cause prejudice in regardto their defence. In the light of the above decisions I have perused an-nexures 1 and 2 and examined them minutely. Having examined I am ofthe opinion that the omission to mention English words in copies of An-nexures 1 and 2 furnished to the respondents was not of a naturewhich would mislead the respondent No. 1 so as to cause prejudicein respect of this defence. From an over all reading of the copies of theorders of the Returning Officer rejecting the nomination papers it willbe clear that the Hindi portion of the order was sufficient to give noticeand appraise the respondent of the ground on which the Returning Officerrejected the nomination papers of both Gamerlal and Narainlal. Thereis dear mention in the Hindi portion of the orders in question that thenomination papers of Gamerlal and Narainlal were rejected on the groundof noncompliance of section 33 of the Act. Even if we omit to read theEnglish words the Hindi portion of the order gives clear indication thatthe nomination papers were rejected for noncompliance of section 33.In this view of the matter it is very difficult to hold that the omissionof English words in the orders rejecting nomination papers was such anerror which was likely to mislead the respondents and cause prejudicein • his defence. Moreover, orders rejecting the nomination papers arenot integral part of the election petition. They were submitted as evi-dence only. Therefore even if the copies of such orders were not exactly truethat cannot furnish valid grievance to the respondent in that behalf. Re-ference in this connection may be made to Sahodra Bai V. Ram Singh(A.l.R. 1968 S.C. 1079). In this case documents annexed with the elec-tion petition were not furnished to the respondents. Objection was takenthat there was no compliance of section 83 and therefore the elec-tion petition was liable to be dismissed. The Supreme Court overrulledthe objection holding that the documents annexed with the election peti-tion were "mere; evidence and not essentially an integral part of the elec-tion petition. In view of the foregoing discussion I have no hesitationto hold that there is no substance in the contention based on noncomp-liance of section 81 of the Act in the facts and circumstances of this case.Issue No. 3 is therefore, decided against the respondents.

Issue No. 4:

This issue was not pressed on behalf of the respondents vide pro-ceeding dated May 10, 1978. It is decided against the respondents.

Issue No 5 :

In the result, Issue No. 1 is decided against the petitioner, whereasissues Nos. 2, 3 and 4 are decided against the respondents. However, inview of my findings on Issue No. 1, the election petition deserves to bedismissed and is accordingly dismissed. In the facts and circumstancesof the case I leave the parties to bear their own costs.

Let the substance of the decision be intimated to the Election Com-mission and Speaker of the Rajasthan Legislative Assembly and there-after let an authenticated copy of the decision be sent to the ElectionCommission.

petition dismissed.

IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH,AT HYDERABAD

S SUWARNA KUMAR

V

SMT RADHA BAI ANANDA RAO

(CHBNNAKESAV REDDY, J.)

September 21, 1978

Representation of the People Act, 1951—Section 81—The Constitutionof India—Article 341—determination as to whether or not a particularcaste is a scheduled caste—court can only look at the public notificationissued by the President in this behalf.

The election of the respondent to the Lok Sabha from the Bhadrachalam(Scheduled Tribe) Parliamentary constituency was challenged on theground that the respondent had wrongly declared herself as belonging tothe 'koya' tribe, which was a Scheduled Tribe, when in fact she belongedto the 'doli' tribe which was not a Scheduled Tribe. The respondent indefence raised two main contentions: (a) that she had earlier fought andwon elections as a member of the koya Scheduled Tribe, and (b) that inany event she was a 'koya' and that 'doli' was merely a sub-caste in the'koyas'.

HELD : Allowing the petition—

(1) the fact that the respondent had earlier contested and was electedas a Scheduled Tribe candidate from the same constituency cannot be itselfalter her caste and make 'doli' a Scheduled Tribe. Nor can that be a baragainst the petitioner questioning the right of the first respondent to con-test and hold the seat reserved for Scheduled Tribes.

(2) In order to determine whether or not a particular caste or tribeis a Scheduled Caste or Tribe within the meaning of Art. 341 of the Cons-titution one has only to look at the public Notification issued by the Presi-dent in that behalf and see whether or not that particular tribe or casteis notified as a Scheduled Tribe or Caste. The plea that though the peti-tioner is not a member of a caste or tribe so notified but is entitled to thesame status by reason of the fact that he belongs to a sub-caste of thecastes so notified cannot be accepted. It appears that an enquiry of thiskind is not permissible having regard to the provisions contained in Art.341 of the Constitution.

Bhaiya Lai v Harikishan Singh : AIR (1965) SC 1557 relied upon

Election Petition No 3 of 1977

P A Choudary, for thq petitioner

J Easwaraprasad, for respondent No 1

Government Pleader for respondent No 2

84 S SUWARNA KUMAR V SMT. RADHA BAI ANANDA RAO VOL. [LXIII

JUDGMENT

CHENNAKESAV REDDY J.—The Bhadrachalam Parliamentary Con-stituency in the State of Andhra Pradesh is a reserved constituency forScheduled Tribes. In the recent General Elections held for the Sixth Lok-sabha, the election to elect a Member from the Bhadrachalam (ScheduledTribes) Parliamentary Constituency was held on 16th March, 1977.

K. Bapanna.Dora filed his nomination as an Independent Candidatewhile Smt. Radha Bai Ananda Rao stood as the candidate of the IndianNational Congress Party. The result of the election was declared on 21stMarch, 1977. Smt. Radha Bai Ananda Rao was declared elected as Mem-ber of Parliament.

K. Bapanna Dora filed the present Election Petition under Section 81of the Representation of the Peoples Act, 1951 (hereinafter referred to as'the Act') challenging the election of Smt. Radha Bai Ananda Rao imple-ading her as respondent No. 1 in the petition and the District Collector,Khammam, (Returning Officer) as the 2nd respondent. It is alleged inthe petition that the 1st respondent is not a member of any Scheduled Tribeand that she wrongly declared in her nomination that she belongs to 'Koya'community, a Scheduled Tribe Community, whereas she actually belongsto 'Doli' community. It is stated that 'Doli' caste is not included as oneof the Scheduled Tribe Communities in the Notification issued by the Pre-sident under Article 342 of the Constitution and that although an objection-was raised for the acceptance of her nomination, the objection was over-ruled by the Returning Officer. Therefore, the election petition has beenfiled seeking to set aside the election of the 1st respondent to the Houseof the People.

On behalf of the first respondent a written statement has been filedasserting that she belongs to 'Koya' community which is a Scheduled Tribe,and therefore, she was qualified to be a candidate "for election from theBhadrachalam reserved constituency. She also stated that she contestedthe election from the same constituency and got elected in the previouselection also. She denied that she belongs to 'doli' community.

The 2nd respondent in his written statement admitted that the 1strespondent declared in her nomination that she belongs to 'Koya' com-munity which is a. Scheduled Tribe as per the Constitution (Scheduled Tribes)Order 1950. It is also stated that she also filed a Caste Certificate issuedby the- Tahsildar, Bhadrachalam, that she belongs to 'koya' caste which isa Scheduled Tribe and as such the Returning Officer found no defect inthe nomination to reject it.

On the aforesaid pleadings of the parties, the following issues wereframed on 17-3-1978.

1. Whether the respondent belongs to the Scheduled Tribe Com-munity of 'koya'?

2. Whether the acceptance of the nomination of the first respondentby the second respondent is illegal and whether the nominationof the first respondent was liable to be rejected?

E.L.R.] S SUWARNA KUMAR V SMT. RADHA 1SA1 ANANDA RAO ' 35

3. Whether the election of the first respondent is liable to be de-clared invalid?

4. To what relief?

On 3-4-1978 Bapanna Dora filed an application under Section 109(1)of the Act for leave of the Court to withdraw the election petition. Ul-timately, Bapanna Dora was permitted to withdraw the election petitionand S. Suvarna Kumar was substituted as the petitioner on an applicationfiled by him under Section 110(c) of the Act.

On behalf of the petitioner three witnesses were examined and Exs.A-l to A-6 were marked. P. W. 1 deposed that he belongs to 'Valmiki'caste, which is a Scheduled Tribe and he was one of the candidates thatcontested in the recent Lok Sabha Elections from Bhadrachalam (Schedul-ed Tribe) Parliamentary Constituency. He filed Ex. A-l, a list of validnominations. He stated that Karam Bapanna Dora objected to the no-mination filed by the first respondent alleging that the first respondent doesnot belong to 'koya' community and that she belongs to 'doli' communitywhich is not a Scheduled Tribe; but the Returning Officer overruled theobjection on the ground that she had contested as a Scheduled Tribe can-didate even in 1967 from the same Parliamentary Constituency. It is inhis evidence that the father of the first respondent, Chidem Gowraiah, is a'doli' by caste, that he had 3 daughters, namely, Radha Bai, the 1st res-pondent, Vani and another VenkAapathi, and a son, Venkataswamy. Ac-cording to the witness, all the four children of Gowraiaha studied in theVenkatapuram Higher Elementary School and were admitted in the years1924, 1927, 1935 and 1937 respectively. In the Admission Register thecaste of all the four children was mentioned as 'dolj' and the said Gow-raiah, the father of the first respondent, died in 1954. He -also filed Ex.A-3, a certified copy of the extract from the birth register of Venkata-puram village, Nugur Taluq for the year 1930. According to Ex. A-3, achild was born to Chidem Gowraiah on 22-4-1930 and the caste of ChidemGowraiah was shown as 'doli' under column No. 6. The witness furtherstated that he would not get the birth extracts of other three children andstated that he had filed an application for summoning the Tahsildar ofVenkatapuram for producing the same. The witness further stated thathe did not file the Election Petition in the first instance since he knew thatK. Bapanna Dora had filed a petition and that he was informed duringApril by the said Bapanna Dora that he was withdrawing the said Elec-tion Petition and so he came forward and got himself substituted in theplace of the said Bapanna Dora. It is maintained that the first respon-dent belongs to 'doli' community and so she was not entitled to contestfrom the Bhadrachalam (Scheduled Tribe) Constituency. In the cross-examination he stated that he contested in 1967 also from the same Par-liamentary constituency and at that time the first respondent also con-tested from the same constituency and she was declared elected but noelection petition was filed challenging the election of the first respondent.He also admitted that Bapanna Dora gave him Ex. A-3.

P. W. 2 is a Koya of Yellavaram agency area. He is a caste elderof Koya community of Rampachodavaram, Yellavaram Taluq. He de-posed that there are no persons belong to the community called as 'doli'community in Nugur Taluq which was previously in East Godavari Dis-trict and later transferred to Khammam District. He was emphatic thatthe coroxouniti«s «f 'doli' and 'koya5 are different and that there are no

86 S SUWARNA KUMAR V SMT. KADHA DAI ANANDA RAO [VOL. LXIII

marriage or other social relationship between the two communities. Healso added that the 'doli' community is treated as an inferior communityby the Koyas.

P. W. 3 is a Superintendent in the Office of the District EducationalOfficer at Khammam. He has produced the Admission Register, Ex.A-4 of the Panchayat Samithi Elementary School, Venkatapuram Villagefor the period 1921 to 1951. The entry at Serial No. 115 at page 28 ismarked as Ex. A-4(a). Ex. A-4(a) shows that the Radha Bai was ad-mitted in the First Standard on 2-2-1927, that her date of birth is 15-6-1922and that she belongs to 'doli' caste. This entry was re-written at page37 at Serial No. 26 and is marked as Ex. A-4(b). Radha Bai was againshown to have been admitted on 2-2-1927 in Class I and left the schoolon 3-11-1930. Under Column No. 10 the caste of Radha Bai is shown as'Doli (Koya)'. In the cross-examination P. W. 3 admitted that he didnot make any entries in the register and that the register was maintainedin the school. To a question whether he knows on what basis the en-tries in the register were made, the witness stated that the entries weremade on the declaration made by the parents in the relevant admissionform. He also stated that there was no possibility for tampering withthe record in the office.

On behalf of the first respondent, she examined herself as R. W.1. She stated that she belongs only to 'koya' community which is a Schedul-ed Tribe community. She also stated that she contested from the sameParliamentary Constituency reserved for Scheduled Tribes in 1967, 1971and 1977 and was declared elected. She filed Ex. B-l, the certificateissued by the Tahsildar of Nugur stating that she belongs to 'koya' com-munity which comes under Scheduled Tribes. She also filed Ex. B-lcommunity certificate issued by the Tahsildar, Bhadrachalam, stating thatshe belongs to 'koya' community. According to the witness; she studiedin the Panchayat Samithi Elementary School, Venkatapuram upto VIIIstandard during the period from 1933 to 1941. She1 admitted that herfather's name is Chidem Gowraiah. She stated that she has two youngersisters. Buchi Lalamma and Venkatapathi and two brothers, Narayanaand Venkataswamy. The entries in the Admission Register, Ex. A-4 atpages 45, 83, 136 and 72 relating to Buchi Lalamma, Venkatapathi, Nar-yana and Venkataswamy respectively are marked as Exs.- B-3, B-5, B-7and B-8. Under column 10 of the entries the caste of her brothers andsisters is mentioned as 'koya'. The entries at pages 61 and 94 of theAdmission Register relating to the witness are marked as Exs. B-4 andB-6. Under Column 10 of both these entries, the caste of the first res-pondent is shown as 'koya'. She also filed a certified copy of the judge-ment of the High Court in Writ Petition No. 933 of 1957 dated 10thMarch, 1961 which is marked as Ex. B-9. She relied upon the judgmentto show that her sister Vani Ramanarao was found to belong to 'koya'community. In the cross-examination the 1st respondent admitted thatthe caste of her brother Venkataswamy in the admission Register at page18 of Ex. A-4 is shown as 'doli (Koya)'. It is marked as Ex. A-4(c).She also admitted that her sister Venkatapathi is younger to her by aboutsix years and the husband of her sister Buchi Lalamma alias. VaniRamanarao is a 'Golla' by caste. One Appa Rao, the brother of. hersister's husband, was the Headmaster at Venkatapuram Elementary Schoollor sometime. It was suggested to the witness that the entries relating toher and her relatives in Ex. A-4 were altered at the instance of the said

E.L.R.] ELECTION LAW REPORT 87

Appa Rao to show that they belong to 'koya' community. But the wit-ness denied the suggestion. She also denied that the suggestion that shebelongs to 'doli' community and stated that there is no community like'doli' community in her cons til utency and people that carry on doli avo-cation, are called Dolis.

R. W. 2 is the Tahsildar of Nugur Taluk with headquaters at Ven-katapuram. He deposed that he issued the caste certificate, the true copyof which is Ex. B-l to the effect that the first respondent belongs to'Koya' community which is a Scheduled Tribe community. He statedthat he issued the certificate on the basis of the office records, namelyEx. B-10 the National Citizenship Register prepared in the year 1952 andthe local enquiries made by him from the village Patwari and the con-cerned Revenue Inspector. In the cross-examination he admitted that hehas been working as the Tahsildar, Nugur Taluk, only since 1-11-1977.He further admitted that Ex. A-3 was issued on the basis of the Birthsand Deaths Register maintained by the office of the Tahsildar, Nugurand it relates to the year 1930. It shows that a female child was bornto Chidem Gowraiah on 22-4-1930 and that the caste of Caidem Gowraiahis shown as 'doli' in column No. 6 which is marked as Ex. A-5(a). Healso stated that before issuing the original of Ex. B-l he did not verifythe Births and Deaths Register. He also admitted that Ex. B-10, theNational Citizenship Register, is prepared by the enumerators after en-quiring the inmates of houses about their caste and that the Patwari andthe Revenue Inspector have seat a report to him stating that the respon-dent belongs to 'Koya (Doli)' community. According to this witness, thelocal people say that 'doli' is a sub-caste to 'Koya' and that the 'doli'community is not mentioned in the brochure issued by the Governmentwhich contains all the Scheduled Castes, Scheduled Tribes and Back-ward Classes. The name of 'doli" according to the witness is only alocal name and there is no caste such as 'doli". He further stated thathis enquiries during the tours to the gudems revealed that there is nodifference between Koyas and Dolis and all of them are entitled to thesame caste privilege and that amongst the Koyas people who profes-sionally beat the drums on festive occasions are called 'dolis'. The wit-ness denied the suggestion that he was deposing in the case to help thefirst respondent and that he has no personal knowledge whether the'Koyas' who beat the drums on festive occasions are called 'dolis'. Healso filed Ex. A-6, file relating to the caste certificate issued to the firstrespondent, Ex. B-ll is the office copy of the caste certificate issued byhim to the first respondent. This in brief is all the evidence in the case.

Issues 1 to 3. Bhadarachalam Parliamentary Constituency in the stateof Andhra Pradesh is a Constituency reserved for Scheduled Tribes underthe Delimitation of Constituencies Order 1976. Under Part-I of theSchedule to the Constitution (Scheduled Tribes) Order 1950 (hereinaftercalled 'the order') made by the President under Article 342(1) of the Con-stitution, the following communities are specified as Scheduled Tribes inthe State of Andhra Pradesh:

THE SCHEDULE

Part I Andhra Pradesh

1, Throughout the State :—1. Chenchu or Chenchwar

13—3 ECF/ND/85

; S SUWARNA KUMAR V Srat. RADHABAI ANANDARAO [VOL. LXIII

2. Koy-i or Gond with its sub-sects—R yah, or R as tin Koyas, Lingadhari Koya3(ordinary), Kottu Koyas, Bhine Koya and Rajkoya;

2. Throughout the State except Hyderabad. M fhbubnagar, Adilabad, Nizamabad,Medak, Kprimnagar, War?.ngaL Khammim. and Nalgonda districts:—

1.

3.

4.

5.

6.

7.

8.

Baga'aGudabas

Ja'apus

K«nmiin>.

KfUtunayabm

Konda Dhorf.s

Ko.da KapusKo;idarc<Jd's

9. Ko .dos (KoJ: or Kodbu)D ,sava Ko ,dhs, Dodgria Ko;.dhs, Kutiiya KondhsTikira Kondhs and Qanity Kondhs

10. Kotia-Bjitho Orya, Bai-uki, Dhulia, or Dullia Holua, Paiko, PuliyaSanrona and S;dhoPaiko

! 1. Kulia

12. Malis

13. Manna D'.iora

14. Mukhy Dhora or Nooko Dhora

15. Porja Pdrangipcrja

16. R.-.ddi Dhoras

17. Eoraa, R;na

18. Savaras Kapu SavarasMal;a Savaras or Khutto Savaras

.19. Sugalis Lambad's

20. Yadadis

2!. Yerukulas

3. In the Districts of Hydrabad, Mahbubnagar, Adi!abad, Nizamabad, McdakKarimiagar, Warangal, Kham.Tiam and Nalgonda:

1. Andh

2. Bhii

3. Gond includuig Naikpod and Raigond

4. Hll Rcddis

5. Kolam including Mannemvarlu

6. Rardhan

7. Thoti

4. Tn ths Agency (racts

1. Goudu goud

2. Hayaks

3. Valmiki

[E-LR.] ELECTION LAW REPORT 89

It is clear from the aforesaid order that there is no community knownas 'doli' amongst the Scheduled Tribes in the State of Andhra Pradesh.'Koya' community throughout the State is a Scheduled Tribe community.

The first and foremost issue which requires decision in this petitionis whether the first respondent belongs to 'koya' community. At thisstage, it may be convenient to notice some of the undisputed facts. Thefirst respondent Radha Bai Ananda Rao is the eldest daughter of ChidemGowraiah of Venkatapuram Village. She has two younger sisters, BuchiLalamma and Venkatepathi and one elder brother, Venkataswamy, andanother younger brother, Narayana. The first respondent and her brothersand sisters studies in the Panchayat Samithi Elementary School, Venka-tapuram. Ex. A-4 is the Admission Register of the Panchayat SamithiElementary School, Venkatapuiram.

The entry at Serial No. 237 at page No. 18 marked as Ex. A-4(c)relates to the admission of Venkataswamy, the Elder brother of the firstrespondent. The date of his admission as entered in column No. 7 is2-6-24 and the date of birth is 1-6-1919. Under Column 10 of the casteis shown as 'Doli' (Koya). At the annual inspection by the Deputy In-spector of School on 25-3-1925, the entries in the Admission Rcgistrerwere directed to be re-written. The entry at serial No. 115 at page 28marked as Ex. A-4(a) relates to Radha Bai son of Chidem Gowraiah.Her date of birth is shown as 15-6-1922 and the date of admission intothe school is 2-2-1927. Her community is >hown as 'doli'. It is clearfrom the entry that she was admitted in the First Class or. 2-21927.There is an endorsement by the Headmaster to the effect that the registeris re-written from the next page onwards. The re-written entry is atSerial No. 26 at page 37 relating to the admission of Radha Bai and ismarked as Ex. A-4(a). Under column 10 of the entry the caste of RadhaBai is shown as 'doli' in the first instance; but subsequently the words'koya' are added beneath the word 'doli'. hi different ink. Otherwise theentries relating to her date of birth and the date of admission are thesame as those under Ex. A-4(a). Then there is Ex. A-3/, certified copy of theextract from the Register of Births and Deaths relating to VenkatapuramVillage, Nugur Taluk, issued by the Tahsildar, Venkatapuram village,which shows that a female child was born to Chidem Gowraiah on 22-4-1930and that the caste of Chidem Gowraiah is 'doli'. Ex. A-5 is the registerof Births and Deaths of Venkatapuram Village-for the year 1930. Theentry at serial No. 14 which is marked as Ex. A-5{a> shows that ChidemGowraiah is 'doli' and a female child was born to him on 22-4-1930. Sothe entries in Ex. A-4(a), A-4(b), A-4(c) and A-5(a) establish that ChidemGowraiah and his children, namely, the first respondent and her elderbrother are 'dolis'. The said entries were made in 1924, 1927 and 1930.

Edgar Tburston in his book "Caste and Tribes of Southern India"Vol. IV at Page 37 Observed as follows:

"The Koyis, Kois, or Koyas, are a tribe inhabiting the hills in thenorth of the Godavari District and are also found in the Malkangiritaluk of the Jaypore Zamindari. They are said to belong to thegreat Cond family, and, when a man of another caste wishes to beabusive to a Koyi, he calls him a Gondia. The Koyi language issaid by Grierson to be a dialect of Condi. Writing concerning theKoyis of the Godavari District, the Rev. J. Cain states that "in theseparts the Kois use a great many Telugu words, and cannot alwaysunderstand the Kois who come from the plateau in Bustar,"

90 S SUWARNA KUMAR V Smt. RADHABAI ANANDA RAO [VOL. LXIII

Again the author, dealing with the ancestral worship among Koyasobserved at page 62 :

"On arriving at a village where there are a sufficient number of Koisof the particular family to make it worth-while to stay, the priestin charge of the velpu and his attendant Doli due notice of theirarrival, and having planted the velpu in the ground, the night isspent by all the members of the family to which the velpu belongsin dancing and making merry to the sound of the drum, which isbeaten by the Doli only."

Again at page 63 the author observes:

"Dolivanslu or dolollu always attend the velpu and the present atall the marriage feasts. When they recite old stories, and sing na-tional songs. They are not Kois but really a section of the MalaCaste, although they will not mix with the rest of the Malas of theirown family, excepting when one on the Bastar Plateau among theHill Kois." (The underlining is mine).

P. W. 2 who is a caste elder of 'Koya' community has sworn thatthe communities of 'Koya' and 'doli' are different and that the 'dolis' aretreated as inferior to the 'koyas'. This evidence remains unchallenged.The learned counsel for the petitioner relying upon the decision of theSupreme Court in LAXMAN SIDDAPPA NAIK V. KATTIMANICHANDAPPA JAMPANNA (1) AIR 1968 Supreme Court, 929 submitsthat once the petitioner establishes that the first respondent belongs to'doli' community, that is sufficient to hold that the first respondent wasnot entitled to contest from the Bhadarachalam reserved constituency.

The question still is : Whether the 'doli' caste is a sub-cast of 'koya'caste? The Supreme Court in BA YA LAL V. HARIKISHAN SINGH(2) AIR 1965 Supreme Court, 1557 observed:

• "Incidentally, we may point out that the plea that the Dohar casteis a sub-cast of the Chamar caste cannot be entertained, in the pre-sent proceedings in view of the Constitution {Scheduled Castes) Order,1950. This order has been issued by the President under Article341 of the Constitution. Article 341(1) provides that the Presidentmay with respect to any State cr Union Territory, and where it isa State, after consultation with the Government thereof, by publicnotification., specify the castes, races or tribes or parts of or groupswithin castes, races or tribes which shall for the purposes of thisConstitution be deemed to be Scheduled Castes in relation to thatState or Union Territory, as the case may be, Sub-Article (2) laysdown that Parliament may by law include in or exclude from thelist of Scheduled Castes specified in a notification issued underclause (1) any caste, race or tribe or part of or group within anycaste, race or tribe, but save as aforesaid a notification issued underthe said clause shall not be varied by any subsequent notifiaction.It is thus clear, that in order to determine whether or not a parti-cular caste is a scheduled caste within the meaning of Art. 341, onehas to look at the public notification issued by the President in thatbehalf. In the present case, the notification refers to Chamar, Jatavor Mochi. and so, in dealing with the question in dispute between


the parties, the enquiry which the Election Tribunal can hold iswhether or not the applicant is a Chamar, Jatav or Mochi. The pleathat through the appellant is not a Chamar as such he can claim thesame status by reason of the fact that he belongs to the Dohar castewhich is a sub-caste of the Chamar caste, cannot be accepted. Itappears to us that an enquiry of this kind would not be permissiblehaving regard to the provisions contained in Art. 341."

The first respondent admits that there is no community like 'Doli'at all in the Bhadrachalam Parliamentary constituency and states thatwhoever that carry on doli vocation are known as 'Dolis'. The Tahsildarof Nugur Taluk as R. W. 2 also stated that amongst the Koya, peoplewho professionally beat the drums on festive occasions are called 'dolis'and that there is no difference in the caste between 'koyas' and 'dolis'and all of them are entitled to be the same caste privilege. But he tooadmitted that 'doli' community is not specified in the Brochure of Go-vernment of India on Scheduled Tribes and Castes as a Scheduled Tribe.'Doli' community is not also included as one of the Scheduled Tribecommunities in the Scheduled Tribes Order. As laid down by the Supre-me Court in Bhaiya Lai's case (supra), it is not permissible for this courtto enquire and find out whether 'doli' community also is a sub-casteamongest 'koyas' in view of the provisions contained in Article 341 of theConstitution.

On behalf of the first respondent, great reliance is placed upon theentries in the Admission Register of Venkatapuram Panchayet SamithiElementary School, Ex. A-4, relating to her younger sisters, Exs. B-3 andB-5 her e^der brother, Ex. B-8, and her younger brother, Ex. B-7. InEx. B-3 the date of birth of her younger sister, Buchi Lalamma is notedas 1-7-1925 and the caste under column 10 is mentioned as 'koya'. InEx. B-8, B-5 and B-7 also the caste of her elder brother, younger sisterand younger brother is shown as 'koya'. In Ex. B-4, relating to her ownadmisison, the date of birth is shown as 17-5-1926 and the caste is shownas 'koya'. But the date of birth of the first respondent under Ex. A-4(b)is shown as 15-6-1922. She was admitted in the school on 2-2-1927. InEx. A-4fa) also the date of birth of the first respondent is shown as15-5-1922 and the caste is shown as 'do]i' under both Exs. A-4(a) andA-4(b . The date of birth of Buchi Lalamma is shown as 1-7-1925 as en-tered in Ex. B-3 and she is admittedly the younger sister of the respon-dent. The efore, Exs. A-4(a) and A-4(b) definitely relate to the first res-pondent ;>nrt these entires clearly shown that the first respondentbelongs to Jo'i' community.

It is the consistent case of the 1st respondent that she belongs to'koya' community which is one of the Scheduled Tribe communities undertbc Scheduled Tribes Order, 1950. In support of her case, Ex. 13-1, acertificate dated 24-2-1978 which is a certified copy of Ex. B-ll , and Ex.

B-2 dated 4-2-1977 issued by the Tahsildar, Bhadrachalam, have beenrelied upon. In these certificates, the first respondent was certified tobe belonging to 'koya' community. She also started in her evidence thatshe studied in the Panchayat Samithi Elementary School, Venkatapuram,upto VjlII standard from 1933 to 1941. The entries in Ex. A-4, the Ad-mission Register of the said school. Exs. B-4. and B-6. relating to her ad-mission and school leaving are marked. In Ex. B-4, the date of admis-sion of the first respondent is shown as 17-5-1933 and the old admission

92 S SUWARNA KUMAR V Smt. RADHABAI AMANDA RAO [VOL. LXIII

number is shown as 245. These entries were re-written from 10-10-1933as per the endorsement of the Junior Deputy inspector of Schools at page56. In column 10 the community of the first respondent is noted as'Hindu? koya'. Again under Ex. B-6 also the first respondent is statedto have left the school on 10-5-1941 after passing VIM standard. Undercolumn 10 the community of the first respondent is entered as 'koya'.But the earliest entry in the admission register relating to the first res-pondent. Ex. A-4{a) at page 28 shows that the date of birth of the firstrespondent is 15-6-1922 and she was admitted into the school on 2-2-1927.Under column 10 she is shown to be belonging to 'doli' community. Soalso under Ex. A-4(c) the community of the brother of the first respon-dent, who was admitted into the school on 2-6-1924 is shown as 'doli'.Again in Ex. A-4(b) the date of admission of the first respondent is onlyshown as '2-2-1927' and the community is shown as 'doli, koya'. it is thusclear that after the entries were re-written under the endorsement of theJunior Deputy Inspector of Schools the date of birth and the date of ad-mission and brothers were admitted, the caste is shown as 'koya' underExs. B-3, B-5, B-7 and 13-8. But these are ail entries made subsequentto 1-9-1930 and moreover it is clear from the entry Ex. B-3 which ad-mitted into the school on 7-11-1930 and that her date of birth is 1-7-1925,while the date of birth of the first respondent under Ex. B-4 who is ad-mittedly relates to her younger sister, Buchi Lalamma, that she was ad-mitted in the school on 17-5-1933. It is obviously an obsurd entry. Inmy opinion these entries are not entitled to any weight. It is suggested tothe first respondent that the entries in the admission Register, Ex. A-4,made subsequent to 1930 relating to herself and her relatives to the effectthat they belong to 'koya' community were made on the advise of herrelative, Appa Rao, who was the Headmaster of that school for 5 or6 years. No doubt the suggestion was denied. There appears to be suffi-cient justification in the suggestion.

One other document that requires io be referred to is Ex. B-10, theNational Citizenship Register, prepared in 1952 wherein at page 16 atSerial No. 94 the caste of the first respondent is shown as 'koya' undercolumn No. 9. But it is clear from the cross-examination of R. W. 2that Ex. B-10 vas prepared by the enumerators after going from doorto door and enquiring the inmates of the houses about their caste. Thuswhatever caste was mentioned by the inmates of the houses was enteredby the enumerators in Ex. B-iO without any enquiry as to their caste.Therefore, no value can be attached to the entry relating to the caste ofthe first respondent in Ex. B-10 prepared in 1952. No doubt the firstrespondent contested and was elected as a Scheduled Tribe candidate fromthe same constituency in 1967 and 1971 and here election was not challeng-ed on both the occasions. But that cannot by itself alter her caste andmake 'doli' a Scheduled Tribe. Nor can that be a bar against the peti-tioner for questioning the right of the first respondent to contest and holdthe seat reserved for Scheduled Tribes. Nor can Ex. B-9, the judgementin Writ Petition No. 933 of 1957 dated 10-3-1961 prove fatal to the main-tain ability of this election petition. In that writ petition a writ of Quo-Warrant was sought to direct Vani Rama Rao, the sister of the firstrespondent, to show under what authority she holds the office of the Mem-ber of the legislative Assembly as a person belonging to the ScheduledTribe of the Bhadrachalani Assembly Constituency. The said writ peti-tion was dismissed without going into the maintain ability of the writ


petition in view of the bar enacted under Article 32')(b) of the Constitution.The Supreme Court in HARI VISHNU KAMATH V. AHMED ISHAQUE(3) AIR 1955 Supreme Court. 233 observed:

" the word" election "in Article 329(b) was used in a compre-hensive sense as including the entire process of election commencingwith the issue of a notification and terminating with the declarationof election of a candidate and that an application under Article 226challenging the validity of any of the acts forming oart of that pro-cess would be harried."

Reservation of seats to Scheduled Castes and Scheduled Tribes em-bodies in Article 330 of the Constitution is a political privilege grantedto the Scheduled Castes and Scheduled Tribes against the very essence ofthe democratic principle. Such a political right which is neither mutu-ally adjustable nor alienable must be vigilantly guarded and protectedagainst any unlawful claim of the constitutional privilege by those notreally privileged. A person who does not belong to the Scheduled Tribesis disqualified to contest or hold a seat reserved for Scheduled Tribes.But a member of the Scheduled Tribes is not disqualified under Section55 of the Representation of the People Act, 1951, to contest a seat notreserved for members of those Tribes if he or she is otherwise qualifiedto contest it under the Constitution. Under Article 342 of the Constitu-tion Power is conferred on the President to make an order specifying,the tribes or tribal communities or parts of groups within tribes or tri-bal communities which shall be deemed to be Scheduled Tribes in rela-tion to a State. Under the Constitution (Scheduled Tribes) Order 1950,only 'Koya' community has been specified as a Scheduled Tribe through-out the State of Andhra Pradesh. The 'Doli' community is not specifiedas a Scheduled Tribe. Under Article 342(2) of the Constitution it is onlythe Parliment that is empowered to make law either to include in or ex-clude from the list of Scheduled Tribes specified in the Order made underArticle 342(1) any tribe or tribal community or part of or gioup withinany tribe or tribal community and until such law is made, an order madejunder Article 342(1) the President cannot be altered or varied even byany subsequent notifications by the President. The object of Article 342is to provide protection to the members of the Scheduled Tribes havingregard to their social economical and educational backwardness. Beforea notification is issued under Article 342 of the Constitution,, an elabor-ate enquiry is made to ascertain the race, or tribes or castes that aresocially and educationally backward that justify their inclusion in the no-tification. This Court will not meddle with political rights and includeany community in the list of Scheduled Tribes specified by the Presidentin the public notification issued under Article 342(1) of the Constitution.Nor can this court enquire and determine whether 'Doli' community isa sub-caste of 'Koya' community and is included in the 'Koya' communityspecified as a Scheduled Tribe under the Notification issued by the Presi-dent. Vide : Bhaiya Lai's case (supra). It is really platonic to saythat in every growing Society there is as much need for the revision andreinterpretation of its rights as there is in the growing child for the altera-tion of its clothes. But it is up to the chosen representatives of the peopleto consider whether time was up for such revision and alteration of these'political rights having regard to the sweeping changes that the Indiansociety has undergone in the last nearly three decades. Therefore, thestatute drives and the precedent leads to the same conclusion, namely,

94 S SUWARNA KUMAR V Smt. RADHABAI ANANDARAO [VOL. LXHI

that a person who does not belong to any of the Scheduled Tribes speci-fied in the Order made by the President under Article 342(1) of the Con-stitution, cannot contest or hold a seat reserved for the Scheduled Tribes.

To sum up :

(1) The first respondent does not belong to 'Koya" Community, whichis a Scheduled Tribe;

(2) The first respondent belongs to 'Doli' community, which isdifferent from 'Koya' community,

(3) It is not permissible for this Court in view of Article 342 ofthe Constitution to enquire and find out whether 'Etoil' com-munity is a sub-caste of 'Koya' Community;

(4) Reservation of seats to Scheduled Castes and Scheduled Tribesunder Article 330 of the Constitution is a political privilegegranted to the Scheduled Castes and Scheduled Tribes againstthe very essence of the democratic principle and such a privi-lege should be vigilantly guarded and protected against anyunlawful claim of the constitutional privilege by those not re-ally privileged.

(5) The first respondent who is found to belong to 'Doli' communityis not entitled to contest and hold the seat reserved for Sche-duled Tribes.

Accordingly I find onIssue 1 :—that the first respondent does not belong to 'Koya' com-

munity which is a Scheduled Tribe :

Issue 2 :—that the acceptance of the nomination of the 1st respon-dent by the second respondent was illegal and the same was liable to berejected; and;

Issue 3 :—that the election of the first respondent is liable to bedeclared void.

In the result, the election of the first respondent, Radha Bai AnandaRao, as a member of the Lok Sabha from the Bhadrachalam (ScheduledTribes Parliamentary Constituency in the State of Andhra Pradesh, isdeclared as void. The first respondent shall pay the cost of the peti-tioner. Advocate's fee Rs. 500/-.

Petition allowed

IN THE HIGH COURT OF ORISSA AT CUTTACK

BEDPRAKASH MAHANAND

V

LALIT MOHAN GANDHI AND OTHERS

(B. K. RAY, J.)

September 25. 1978

Representation of the People Act, 1951—Sec. 83(1)(«)--Petition forinspection and recount of voles—requirements to he satisfied before courtcan so order.

The petitioner, a defeated candidate, challenged the election of res-pondent No. 1 to the Orissa Legislative Assembly on the grounds of im-proper reception and/or rejection of votes and demanded a recount. Dur-ing the actual counting of votes the petitioner had alleged irregularitieswith regard to counting on certain tables and had demanded a recountwith respect to them, which recount was allowed by the Returning Officer.The respondent opposed the petition on the ground that the petition didnot comply with the provisions of Section 83(l)(a) of the Act.

HELD : Dismissing the petition—

(1) When a prayer for inspection and recount of votes is made thecourt is to bear in mind Section 83(l)(a) of the Act which requires thatan election petition shall contain a concise statement of material factson which the petitioner relies. Vague or general allegations that1 validvotes were improperly rejected or' invalid votes were improperly acceptedwill not serve the purpose. In dealing with such a petition the import-ance of the secrecy of ballot papers has to be borne in mind. It has alsoto be remembered that statutory rules framed under the Act alreadyprovide adequate safeguards for examination of the validity or invalidityof votes and for their proper counting during the actual count. Beforesuch a petition is allowed two conditions are to be fulfilled, viz. (i) theelection petition has to contain an adequate statement of material factson which the petitioner relies and (ii) the court is to be prima facie satis-fied that in order to decide the dispute and to do justice between theparties inspection of ballot papers -and recounting are necessary.

The Court shall not exercise its power for ordering a recount unless itcomes to the definite conclusion that with the materials produced in courtin support, the allegations of irregularity in counting have been establish-ed. Serial numbers of ballot papers wrongly counted should be men-tioned in the p'etition or particulars of the bundles containing the im-pugned ballot papers should be given. Success of an elected Candidateby a narrow margin is not a sufficient ground to order a sample inspec-tion.

Smnitra Devi v Sfwo Shanker : AIR (1973) SC 215;

S Baldev Singh v Teja Singh : AIR (1975) SC 693;

9514—3 ECI/ND/85

96 BEDPRAKASH MAIIANAND V LALIT MOHAN GANDHI AND OTHERS s [VOL. LXIII

Ram Sewak v H K Kidwai : AIR (1964) SC 1249:

Bhabhi v Shea Gobind : ATR (1975) SC 2117

...relied upon

ELECTION PETITION No 4 of 1977

H Patel, B R Rao and A K Tripathy, for the Petitioner

G Rath, R K Rath and N C Panigrahi for Respondent No, 1

JUDGMENT

B. K. RAY, J.—The petitioner has filed a petition challenging theelection of respondent no. 1 to the Orissa Legislative Assembly from Ti-tilagarh (106) Assembly Constituency in the election held in June 1977under the provisions of the Representation of the People Act, 1951 (here-inafter called the 'Act') and the Rules framed thereunder mainly on thegrounds of improper reception, refusal or rejection of votes, of receptfonof votes which are void and of non-compliance with the provisions ofrules and orders made under the Act.

The facts giving rise to the petition as narrated therein are as follows:The petitioner and respondent Nos. 1 to 4 were candidates for electionto the Orissa Legislative Assembly from Titilagarh (106) Assembly Con-stituency. The polling in the said Constituency took place on 10-6-1977 andcounting was taken up on 14-6-1977 which continued up to 4 A.M. of15-6-1977 with lunch break of about half an hour at about 1 P.M. Therewere 10 counting tables in the counting hall and at each table there were twocounting assistants and one supervisor. Besides the counting staff, there wereagents of each of the live candidates at each table. The counting staffat each table were putting those ballot papers about which they weredoubtful into a separate pigeon hole. Those doubtful ballot papers werebundled together and taken to the table of the Returning Officer along-with the ballot papers which the counting staff had counted in favour ofdifferent candidates. The Returning Officer did not scrutinise the validvotes counted by the counting staff. So far as the doubtful ballot paperswere concerned, the Returning Officer looked into them and sorted outthose which he considered to have been validly cast in favour of anyone of the candidates. The ballot papers considered valid were simplyadded to the number of ballot papers already counted in favour of acandidate. The counting staff, while sorting out ballot papers candidate-wise, were found counting some votes in favour of either respondent no.1 or another respondent which should have been counted in favour ofthe petitioner. They were also found improperly rejecting votes cast infavour of the petitioner and putting them into doubtful bundles. Thecounting agents of the petitioner present at the tables on numerous oc-casions objected to the illegalities committed by the counting staff. Inspite of the objections the counting staff proceeded according to theirwhim and paid no heed to the objections raised by the petitioner's agents.When the agents of the petitioner were raising objections at the timeof counting before the counting staff, they were asking the counting staffto show them the backside of the ballot papers in respect of which they

E.L.R.] BEDPRAKASH MAHANAND V LALIT MOHAN GANDHI AND OTHERS 97

were raising objections in order to enable them to note down their num-bers. The counting staif were not paying any heed to the demand ofUie agents, and therefore, it was not possible for the petitioner to getthe numbers of the ballot papers in respect of which his agent had raisedobjections at the time of counting. Even the Returning Officer at thetime of scrutinising the doubtful votes did not allow the petitioner orhis counting agents to know the particulars of the ballot papers whichwere being rejected or counted in favour of the respondents improperly.After conclusion of final counting many of the counting agents of thepetitioner came to him and informed him that counting had not beendone fairly and that many votes which should have been counted in hisfavour had been improperly counted for respondent nos. 1 and 2; thatcounting agents of respondent no. 3 were supporting respondent no. 1and that with their support many votes had been improperly countedfor respondent no. 1. The petitioner being thus informed by his count-ing agents about the illegalities committed at the time of counting want-ed to claim recount when it was found that the difference of votes se-cured by the petitioner and respondent no. 1, the two top contestants,was only 17. The Returning Officer wanted to be satisfied that therewas a basis for the claim for recounting. At that time respondent no.1 and many of his supporters gathered near the counting hall, shoutedand tried to see that the Returning Officer did not entertain the petitioner'sclaim for recount. The petitioner, however, insisted for recounting andproduced his counting agents for table Nos. 3, 5, 6 and 10 who onlywere present by then. On the basis of information obtained from theagents of those tables the petitioner submitted in writing a petition beforethe Returning Officer praying for recount of votes in respect of thosetables. This prayer of the petitioner was allowed and recounting startedat about 11 P.M. on 14-6-1977. The petitioner wanted that the recount-ing should be taken up next day as the members of the counting stall aswell as the agents were feeling tired and were not in a fit and propercondition to work late at night. The Returning Officer turned down theproposal of the petitioner to have the recount on the following day onthe plea that it would delay counting of votes of Kantabanji Constituencywhich was to be taken up on the next day. Before recounting startedrespondent no. 1 supported by many others raised an objection beforethe Returning Officer that certain supervisors would not be engaged inrecounting as they had appeared not to be impartial. The ReturningOfficer obliged respondent no. 1, accepting his objection in respect ofsome supervisors and appointed new supervisors in their place for thepurpose of recounting. After recounting which was concluded at about4-00 a. m. the petitioner and respondent Nos. 1 to 4 were found tohave polled 7,810, 7,822, 1,778, 6,069 and 1,119 votes as against 7,811,7,828 1,787, 6,077 and 1,120 votes respectively polled by them previouslyin their favour. During recounting the crowd which at the instance ofrespondent no. 1 had collected near recounting was shouting aggressiveslogans and was demanding to stop recount. Many of the people fromthe crowd entered inside the counting hall and surrounded the ReturningOfficer and his staff. The atmosphere in the hall was such that the Re-turning Officer was not in a position to fairly scrutinise the rejected ballot

< papers. After conclusion of recounting in respect of the aforesaid fourtables the petitioner verbally demanded before the Returning Officer forrecount in respect of the remaining tables. The Returning Officer did notallow the prayer. The atmosphere at that time inside the hall was so noisyand violent that it was not possible for the petitioner to put in a second appli-cation in writing praying for recount of votes in respect of other tables. If

9 8 BEDPRAKASH MAHANAND V LALIT MOHAN GANDHI AND OTHERS [VOL. LX1II

recounting would have been allowed in respect of the remaining tablesthe petitioner was sure to win because he had reliable information fromhis agents of those tables that the counting staff had committed manyirregularities at the time of sorting out ballot papers. Respondent No.3 who had not faired well at the polling had instructed his countingagents to manipulate counting in such a way so that respondent no. 1•might get the largest number of votes. Many of the members of thecounting staff had been influenced by respondent no. 1 and were there-fore siding him at the time of sorting out the ballot papers candidate-wise.In many of the ballot papers counted as valid for respondent no. 1 thevoting marks were actually affixed for respondent no. 4. In those ballotpapers the voting marks cast for respondent no. 4 left their reflectionson the space allotted to respondent no. 1 due to wrong folding. These re-flections on the space allotled to respondent no. 1 were taken as genuinein those ballot papers and those ballot papers were wrongly counted forhim even though they should have been counted for respondent no. 4.

On these allegations it was asserted and prayed in the election peti-tion that in order to do complete and effectual justice between the partiesthere should be inspection of ballot papers, recounting of votes in tableNos. 1, 2, 4, and 7 to 9 and of the rejected votes or in the alternative re-counting of all the votes.

2. Of all the respondents, respondent no. 1 has only resisted the claimof the petitioner by filing a writtenstatement. He, while denying all theallegations in toto in the election petition relating to improper reception,refusal or rejection of votes, to reception of void votes and to non-compli-ance with the provisions of the rules and orders made under the Act, hasalso denied the allegations regarding the crowd entering into the* coun-ting hall, raising cry in his favour and demanding to stop recounting, alle-gations regarding petitioner's verbal demand to the Returning Officerfor recount of votes in respect of table Nos. 1, 2, 4 and 7 to 9 and alle-gations regarding absence of counting agents of those tables from the coun-ting hall at the time of presentation of the petition for recounting in res-pect of table Nos. 3, 5, 6 and 10. It has also been asserted in the writtenstatement that none of the counting staff was partial to respondent no. 1as alleged; that neither the counting staff nor the counting agents werefeeling tired at the time of recounting and that counting and recountingwere done properly as provided under the rules and order made under theAct, there being no irregularity of any kind whatsoever. Besides the above,respondent no. 1 in his written statement has challenged the maintainabilityof the election petition on several other technical grounds, such as. the electionpetition has not been accompanied by as' many copies thereof as there arerespondents, has not been properly presented, the averments in the electionpetition have not complied with the requirements of section 83(1) (a) of theAct. the election petition has not been properly verified and the election peti-tion is defective for non-joinder of parties.

3. On the aforesaid pleadings 13 issues have been framed which areas follows: —

Issues

1. Is the election petition as laid maintainable?

2. Has the election petition been accompanied by as many copiesas there arc respondents and is it presented in accordance withlaw?

t.L.R] BEDPRAKASH MAHANAND V LALTT MOHAN GANDHI AND OTHERS 99

3. Has there been any non-compliance with the provisions of sec-tion 81 of the Representation of the People Act and the petitionis liable to be dismissed on that score?

{ •

4. Whether the petition does not contain a concise statement ofmaterial facts, and so, liable to be dismissed?

5. Whether the verification and affidavit annexed to the petitionare not in accordance with law?

6. Was there any irregularity in the counting of votes and wasthere any improper rejection or reception of ballot papers?

7. Whether respondent no. 1 is disqualified to stand as a candidateinvolved as he is in some criminal cases of moral turpitudeand his election therefore is liable to be set aside?

8. Whether the petitioner has not furnished necessary particularsso as to disentitle him to challenge the counting?

9. Is the petition liable to be dismissed for non-joinder of the Re-furning Officer as a party?

10. Is the petitioner entitled to a 'recounting' of the ballot paperswithout marking a demand before the Returning Officer?

11. Is the petitioner entitled to an inspection of the ballot papers?12. Has the petitioner secured the majority of valid votes and is he

entitled to be declared elected?

13. What relief, if any?

On them, issue Nos. 1, 2, 5, 7 and 9 have not been pressed beforeme. It is, therefore, not necessary to deal with them. Issue Nos. 3, 4, 6,8, 10 and 11 relate to the petitioner's allegations regarding improperreception, refusal or rejection of votes and reception of void votes.These issues also involve questions as to whether the petitioner'sprayer for recount and. inspection has to be allowed and if theobjection of respondent no. 1 regarding non-compliance with theprovisions of section 83 (1) fa) of the Act is tenable. As the questionsinvolved in these issues are interconnected they are taken up together.

A; this stage it may be remembered that while hearing of the casewas in progress the petitioner on the 28th April 1978 filed a petitionmentioning therein several facts disclosed in evidence adduced on hisside with prayers that the District Election Officer be directed to produceall the rejected ballot papers and ballot papers counted in favour of therespondents: that the petitioner be allowed to inspect them and that theballot pipers produced and inspected be recounted. Respondent no. 1 oppo-sed the petition by filing a counter. On the 31st August 1978, when thepetition came up for disposal this Court by order of that date for reasonsrecorded therein directed that the petition would be disposed of in themain judgment of the case. As the questions involved in the petition aresubstantially the same which arise for determination while deciding issueNos. 3, 4, 6, 8, 10 and 11, the petition is taken up for considerationalong with the aforesaid issues.

4. On the question as to whether the prayer of the petitioner for ins-pection and recounting should be allowed, the true legal position is nolonger in doubt. Where such a prayer is made, the Court is to bear in

100 BEDPRAKASH MAHANAND V LALIT MOHAN GANDHI AND OTHERS '[VOL. LXIl!

mind section 83 (1) (a) of the Act which requires that an election petitionshall contain a concise statement of material facts on which the petitionerrelies. Vague or general allegations that valid votes were improperly re.-jected or invalid votes were improperly accepted will not serve the pur-pose. Sufficient material facts must have to be1 stated in the petition toenable the Court to consider whether the prayer for inspection and re-counting is to be allowed. In dealing with this question the importanceof the secrecy ,of ballot papers has to be borne in mind. It has also to beremembered that statutory rules framed under the Act are intended toprovide adequate safeguard for examination of the validity or invalidityof votes and for their proper counting. Care must also be taken to seethat the election petitioner does not get a chance to make a roving en-quiry to substantiate his case that the returned candidate's election is void.Thus, it is clear that an order for inspection and recounting is not tobe granted on vague pleas not supported by material facts orto fish out evidence to support vague pleas. Having regard to theinsistence upon secrecy of ballot papers before allowing inspectionand recounting, two conditions are to be fulfilled, viz., (i) the electionpetition has to contain an adequate statement of material facts on whichthe petitioner relies and (ii) the Court is to be prima facie satisfied thatin order to decide the dispute and to do justice between the parties inspec-tion of ballot papers and recounting are necessary. The provisions underthe Act and the rules made thereunder affording ample opportunity to acandidate or his agent to be present at every stage in the process of scru-tiny and counting of votes, to watch the proceedings of the ReturningOfficer arid to demand recount have to be kept in view before a prayerfor inspection and recounting is allowed. More allegations that on manyoccasions ballot papers cast in favour of the petitioner were either wronglyrejected as invalid or wrongly counted in favour of the returned candi-date or more allegations that void votes were wrongly counted in favourof the returned candidate cannot be said to fulfil the requirements of sec-tions 83 (1) (a) of the Act and on the basis of such allegations the claimfor inspection and recounting cannot be permitted. Judging the case inthe light of the settled position of law as indicated above, I have nodoubt in my mind that the petitioner has signally failed to make out acase for inspection and recounting as would be seen from the discussionsmade below.

5. In paragraph 4 of the election petition the procedure followedby the Returning Officer and the counting staff has been elaborately des-cribed. While describing the procedure followed in the present case theonly allegations which have been made are that the ballot papers whichthe counting assistants had counted as valid were not looked into by theReturning Officer who simply counted the bundles in favour of eachcandidate and that •the Returning Officer while scrutinising the doubtfulballot papers sorted out those which he considered to have been validlycast in favour of any one candidate and added the same to the numberof valid votes already counted by the counting assistants in favour of thatcandidate. In paragraph 5 of the election petition it has been stated thatat the time of counting on numerous occasions the counting agents of thepetitioner were objecting to various votes being counted in favour ofrespondent nos. 1 to 4 and were saying that those votes should be rejected;that on several occasions votes polled in favour of the petitioner werebeing put into doubtful bundles and that there were also objection by thepetitioner's agents that votes which should have been counted in favour

E.L.R.] BEDPRAKASH MAHANAND V LALIT MOHAN GANDHI AND OTHERS 101

of the petitioner were counted in favour of either respondent no. 1 orrespondent no. 2. In that paragraph here is general statement that ob-jections raised by the agents of the petitioner were not attended to by themembers of the counting staff. In paragraph 6 of the election petitionthere is a general statement that the members of the counting staff werenot allowing the agents of the petitioner to note down the particularsof the ballot papers in respect of which objections were raised. In para-graph 7 of the election petition there is also a general statement that atthe time of scrutiny of doubtful ballot papers the Returning Officer wasnot allowing the petitioner or his agents to note down the particulars ofthe ballot papers which were being rejected or counted in favour of therespondents improperly. In paragraph 9 of the election petition there isan averment that near about the time of conclusion of final countingmany of the counting agents of the petitioner who had finished countingat their tables came to the petitioner and informed him that counting-had not been fair and that many votes which should have been countedin favour of the petitioner had been improperly counted for respondentno. 1 and respondent no. 2 and that the counting agents of respondent no. 3were leaning in favour of respdt. no. 1 and with their support many voteswere improperly counted for respondent no. 1. It has been further statedin that'paragraph that the agents who informed the petitioner about theillegalities in counting left the counting hall after passing on the infor-mation; that when the petitioner found that the difference of votes polledby him and respondent no. 1 was only 17 he demanded recounting:that when the Returning Officer before entertaining the demand wantedto be satisfied about the basis of the claim for recount the petitioner pro-duced his agents for table Nos. 3, 5, 6 and 10, others having left thecounting hall by then and that on the basis of the information receivedfrom those agents recounting was allowed for table Nos. 3, 5, 6 and10 for which the petitioner put in a written application. This allegationappears to be an explanation given by the petitioner as to underwhat circumstances he filed a petition for recounting only in respectof table Nos. 3, 5, 6 and 10. In paragraph 11 of the electionpetition the petitioner has described under what circumstances he couldnot file another petition for recounting in respect of other tables after re-counting was over for table Nos. 3, 5, 6 and 10 and how the ReturningOfficer at the time of recounting could not fairly scrutinise the rejectedballot papers. It has also been mentioned in that paragraph that if therejected ballot papers would have been properly scrutinised by theReturning Officer at the time of recounting, the petitionerwould have got 10 to 11 more votes and that one valid vote countedin favour of the petitioner was wrongly rejected by the Returning Officerat the time of recounting. In paragraph 12 of the election petition thepetitioner asserts that immediately after recounting without a pause theReturning Officer announced the result thereby depriving the petitionerof an opportunity to file a petition for recounting once more. In para-graph 13 of the petition the petitioner says that on the basis of informationreceived from his counting agents for table Nos. 1, 2, 4 and 7 to 10and on the basis of his personal knowledge derived while supervisingcounting he is confident that if there will be a recount of votes in thosetables he will get about 300 more votes in the minimum and that, thenumber of votes counted in favour of respondent no. 1 will go down.There are further assertions in that paragraph that the petitioner hasinformation that some members of the counting staff who had beengained over by respondent No. 1 manipulated counting in favour of res-podent No. 1: that as a result of the manipulation respondent no. 1

102 BEDPRAKASK MAHANAND V LALIT MOHAN GANDHI AND OTHERS fvOL. LXIII

illegally secured about 300 to 400 more votes; that about 50 votes reallycast in"' favour of respondent No. 4 were wrongly counted in favour ofrespondent no. 1 as due to wrong folding of those ballot papers thevoting marks in favour of respondent No. 4 left (heir reflections on thespace allotted to respondent No. 1 and that the result of recounting intable Nos. 3. 5, 6 and 10 shows that there was truth in the informationreceived by the petitioner from his agents.

The question which arises for consideration is as to whether theaforesaid allegations of fact can be said to be a concise statement ofmaterial facts on which the petitioner relies as contemplated under sec-tion 83 (1) (a) of the Act or are more vague pleas in order to make outa roving enquiry and to fish out evidence for the purpose of getting theelection of respondent No. 1 declared void. While considering that ques-tion it is necessary to mention that it is not the case of the petitionerthat any written objection was filed during counting when the membersof the counting staff as well as the Returning Officer did not pay anyheed to verbal objections raised by the petitioner and his agents regardingimproper acceptance and improper rejection of votes. There is absolutelyno explanation for this omission. At some places of the election petition,no doubt, the petitioner has given the number of valid votes cast in hisfavour which were illegally rejected and the number of invalid votes castin favour of the returned candidate which were illegally accepted. But stillthen, that would not constitute an adequate statement of material factswhen the petitioner does not disclose in his petition the basis on whichhe has arrived at those figures. The bald assertion that he got those figuresfrom his counting agents does not afford the necessary basis. The peti-tioner has not said in his petition who those agents were from whom hereceived the information. It is not the case of the petitioner that hisagents were maintaining notes and that the figures given in the electionpetition were given on the basis of those notes. Under the rules, beforea vote is rejected by the Returning Officer during scrutiny, the agents ofthe candidates have to be permitted to examine the concerned ballotpaper. There is practically no allegation in the election petition that theReturning Officer was not allowing examination of ballot papers beforerejecting them at the time of scrutiny. As regards giving particulars ofballot papers improperly accepted or rejected due t ' change in the systemof printing of ballot papers introduced at present it is no longer possiblenow for a candidate or his agent to note down the number of any parti-cular ballot paper unless the same is specifically shown either by theReturning Officer or his staff. In the present case, according to the peti-tioner, when either he. or his agents wanted to note down the number orany particular ballot paper, neither the Returning Officer nor his staffwere complying with the demand. In these circumstances, therefore, nofault can be found with the petitioner for not giving the numbers of theballot papers which according to him were either improperly accepted orimproperly rejected. The names of the members of the counting staff who arealleged to have acted in a manner prejudicial to the interest of the petitionerhave not been disclosed. The numbers of counting tables, where illegalities arealleged to have been committed have not been mentioned. The explana-tion given by the petitioner that as by the time the petition for recountingwas filed in respect of table. Nos. 3, 5, 6 and 10. his counting agents inrespect of other tables had left the counting hall, he (Petitioner) couldnot demand recounting in respect of those, other tables has not been subs-tantiated in evidence. In the decision reported in A.I.R. 1973 S.C. 215

E.L.R.] BEDPRAKASH MAHANAD V. LALITMOHAN GANDHI AND OTHERS 103

(Sumitra Devi v. Sheo Shankar) it has been laid down that in the absenceof particulars recounting cannot be granted as a matter of right. Thesubsequent petition filed by the petitioner in this Court for inspectionand recount neither improves the position on the question of compliancewith the requirements of section 83 (1) of the Act nor the allegations madetherein have been proved to be true by adducing acceptable evidence. Inthe decision reported in A.I.R. 1975 S.C. 693 (S. Baladev Singh v. TejaSingh) it has been laid down that despite the statutory change in regardto the printing of the number on the back side of the ballot paper thelaw has been the same before and after as laid down in the decision re-ported in A.I.R. 1964 S. C. 1249 (Ram Sewak v. H. K. Kidwai). Therelevant portion from the decision reported in A.I.R. 1975 S.C. 693(Supra) is quoted herein below: —

"Nor can the reform in the numbering on the back of the ballot bea reason for recount."

In that very decision the Supreme Court has recommended a liberal ap-proach to recounting petition under rule 63 but has observed that Courtsshall sparingly use their power to order a recount as a certain amountof stability in the electoral process is essential. Merely because the differ-ence between the votes polled by the election petitioner and the returned.candidate is very small, it can not be said that a case for recount hasbeen made out. In the decision reported in A.I.R. 1975 S.C. 2117 (Bhabhi v.Sheo Govind) their Lordships after a review of all the decisions have laid downthat the election petition should contain an adequate statement of materialfacts and the power shall not be exercised with a view to fish out materials fordeclaring an election void unless the Court comes to a definite conclusionthat the materials produced in Court in support of the allegation forrecount have been established. It has been further held therein that un-less serial numbers of the ballot papers were mentioned in the petitionor the particulars of the bundles containing the ballot papers were giveneven sample inspection could not be allowed and that success of an electedcandidate by a narrow margin is not a sufficient ground in ordering sampleinspection. In these circumstances the inevitable conclusion is that nei-ther the election petition nor the subsequent petition dated 28-4-1978 ful-fils one of the basic requirements necessary for allowing the prayer forinspection and recounting.

Now coming to the actual evidence led by the petitioner regardingthe irregularities and illegalities committed by the members of the countingstaff including the Returning Officer, I must say that the petitioner hasnot satisfactorily discharged the onus which lies upon him to prove thesame. The allegation against the Returning Officer that he did not checkeach ballot paper contained in the bundles of different candidates andimproperly rejected votes from out of the doubtful bundles and impro-perly, allotted some to respondent no. 1 is not supported by any cogentand independent evidence. The Returning Officer himself has not beenexamined even though he is available. The only witnesses relating to thisallegation are the petitioner {P.W. 10) and his father (P.W. 9), P.W. 9has not noticed any irregularity other than the irregularity in respect offour tables which were recounted under rule 63. That apart P. W. 9admits that he did not know the scrutiny procedure by the ReturningOfficer till the date of his examination and was under the impression•that every ballot paper in each bundle was to be checked by the Re-

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104 BEbPRAKASH MAHANAD V. LALITMOHAN GANDHI AND OTHERS [VOL. LXIII

turning Officer. This is not required under the instructions which providefor check of 5 per cent of the votes. P.W. 10 admits that he was notaware of the counting procedure till 15-6-1977, the day following the coun-ting. In these circumstances, how can it be said that these witnesses arecompetent to depose about the alleged illegalities committed by the Re-turning Officer? Both these witnesses also admit that they made no com-plaint in writing to the Returning Officer during his scrutiny, P. W. 10further admits that he lodged no complaint either orally or in writingbefore the Returning Officer. These two witnesses are interested and par-tisan witnesses and their evidence is not supported by any other inde-pendent evidence. This being the state of evidence regarding the alle-gation against the Returning Officer it is very difficult for a Court toaccept the same and to come to a conclusion that the petitioner hasproved his case against the Returning Officer.

A very strong suspicious circumstances which stares in the face of thepetitioner is that if he was being told by his counting agents while coun-ting was going on regarding the illegalities alleged to have been commit-ted by the members of the counting staff in all the tables why he didnot include all the tables when he filed the petition for recounting (Ext.1). The explanation given by him is that by the time Ex. 1 was filedall the counting agents except for table Nos. 3, 5, 6 and 10 had leftthe counting hall after finishing counting and therefore, other tables werenot included in Ex. 1 as he was under an erroneous impression that whena prayer for recount is made in respect of any particular table the coun-ting; agent of that table must also be present. It is very difficult to acceptisuch an explanation. That apart, it appears that P.W. 3 who was thecounting agent of the petitioner in table No. 9 drafted the petition forrecounting (Ex. 1) and at that time evidence discloses that P.W. 8, ano-ther counting agent for the petitioner for table No. 2, was also present.It is the case of the petitioner that the irregularities and illegalities com-plained of by him in the election petition were committed in all thetables. That being so, when admittedly P.Ws. 3 and 8 were present whenithe petition for recounting (Ex. 1) was drafted, there is no reason whyat least table Nos. 2 and 9 were not included in Ex. 1. P.W. 3, theWriter of Ed. 1 is a responsible advocate and is expected to know the cir-cumstances under which a recount is claimed. The witness himself hasdeposed to have seen irregularities and illegalities having been committedat his table by the members of the counting staff. Can it be believed fora moment that P.W. 3, while himself writing out the petition for recounting(Ext. 1), could omit to include therein his own table? The petitioner, saysabout the erroneous impression he had whereas P.W. 3 does not say so.This being the state of affairs, the non-inclusion of table Nos. 1, 2, 4 and7 to 9 in Ex. 1 raises a strong suspicion about the petitioners' case thatirregularities and illegalities were also committed at those tables. P.W. 9states that he was informed by the petitioner that due to swift countingby the members of the counting staff it was not possible for his agents towatch counting closely. P.W. 10 admits that his agent (P.W. 3) told him(P.W. 10) that on account of swift counting it was not possible to keepclose watch on the counting. Tf the counting agents could not watch counting,how can their versions be believed that the counting supervisor andthe counting assistants erroneously put ballot papers in the compartmentof respondent No. 1 although the seal was on the elephant symbol or on thepetitioner's symbol. On the very face of it, the evidence of the countingagents who have.been examined in the case appears to be inherently im-

.EL.R.] BEDPRAKASH MAHANAD V. LALITMOHAN GANDHI AND OTHERS 105

probable. Further, P.W. 9 who is an ex-Minister and was a member ofthe Assembly continuously for 25 years admits in his evidence that aftersecond round of counting the petitioner (P.W. 10) told him inside the hallthat four of his agents were complaining that there had been improperrejection and reception of votes in large number and so saying the peti-tioner sought bis advice. According to the evidence of P.W. 9, he toldthe petitioner to keep a petition ready mentioning therein the irregularitiesalleged to have been committed during counting to be given after countingwas over. The witness further deposes that he also told the petitioner afterhearing from him (P.W. 10) about the objections of the counting agentsthat he must put those objections in writing and keep the writing withhim for future action and to file the same before the Returning Officer, ifnecessary. This being the evidence, the explanation given by the petitionerfor non-inclusion of all the tables in Ex. 1 can not at all be accepted.P.W. 10 admits that by the time he asked P.W. 3 to write out Ext. 1 heknew that irregularities were committed in counting in all the tables, but(Still he asked P. W. 3 to pray for recounting in respect of four tablesonly. The petitioner further admits that his brother (P.W. 8), Petitioner'scounting agent for table No. 2, was present inside the hall when P.W. 3drafted Ex. 1, Rule 63 of the Conduct of Election Rules does not requirecounting agent's presence for the purpose of psesenting a recount petition.The non-mention of table Nos. 1, 2, 4 and 7 to 9 in Ex. 1 and the absenceof a demand for recount of ballot papers relating to those tables lead tothe conclusion that there were no irregularities in those tables. True, anelection petition for inspection and recount can be filed even though no•recount petition under rule 63 has been filed. But where a recount isasked for during counting and allowed in respect of four tables and nodemand is made for recount in respect of the remaining six tables, it isreasonable to infer that no irregularity or illegality was committed onthe six tables excluded from Ex, I. The .official witnesses who have beenexamined on behalf of the petitioner are three in number, viz., P.W. 1,the Circle Inspector of Police in charge of law and order, P.W. 2, theB.D.O. who acted as supervisor for table No. 8 and P.W. 7, the AssistantReturning Officer. P.W. 1 deposes that the police staff under his leader-ship were watching the hall and the area surrounding it. The crowd was#t a distance of 20 yards from the counting hall on the }road and wasshouting. No unauthorised person ever entered into the counting hall. Thus,the petitioner's version that the crowd entered into the counting hall andoverpowered the Returning Officer while he was engaged in scrutiny dur-ing recounting has to be rejected. P.W. 2, the counting supervisor for tableNo. 8 and a B.D.O. emphatically asserts that there were no irregularitiesin the counting. He further says that none of the petitioner's countingagents raised any objection regarding any irregularity or illegality commit-ted by the members of the counting staff in any table. According to thiswitness, none of the counting agents of the petitioner ever claimed thata particular ballot paper should be put into a pigeon hole of any candi-date. P.W. 2 also assetrs that the counting was done in accordance withrules. P.W. 7 who was in the counting hall deposes that he was incharge of supervising counting on all the tables inside the hall; that hedid not hear any objection being raised by any of the counting agents ofany candidate on any account and that to his knowledge the counting staffwere counting as per the rules and instructions. The witness further de-poses that nobody raised any objection before him regarding any irre-gularity or illegality committed by the members of the counting staff. Thus,the story that the.counting agents of the petitioner were raising objectionsand that those objections were not attended to has to be rejected on the

106 BEDPRAKASH MAHAN^D V. LALITMOHAN GANDHI AND OTHERS [VOL. LXIII

basis of the versions of the; official witnesses examined on behalf of thepetitioner. Three counting agents have been examined on behalf of thepetitioner. They are in respect of table Nos. 2, 4 and 9, P.W. 3 is thecounting agent for table No. 9 and in his examination-in-chief he has spokenabout a number of irregularities alleged to have been committed at histable by the counting staff. According to him he objected to the irregulari-ties but the counting staff did not listen to the objections nor suppliedthe particulars of the ballot papers in respect of which objections wereraised. The witness admits to have reported about this to the s petitioner.He is an advocate who was consulted by the petitioner before filing of Ex.1. No explanation is furnished by P.W. 3 as to why he did not mention thenumber of his own table in the recount petition (Ex. 1) which he himselfdrafted. P.W. 3 does not give the same explanation as given by the peti-tioner for non-inclusion of table No. 9 in Ex. 1. Omission of table No. 9from Ex. 1 throws a great doubt on the evidence of P.W. 3. P.W. 5 is acounting agent for table No. 4. Besides working as a counting agent forthe petitioner, the witness was supporting the petitioner during election. Heis, therefore, an interested and partisan witness. His version that he wasprevented from noting down the numbers of the ballot papers in respectof which he raised objections before the counting staff cannot be acceptedas he did not file any written objection either before the counting staff orbefore the Returning Officer. His evidence is contrary to that of P.W. 7.The petitioner (P.W. 10) admits that P.W. 5 informed him (Petitioner)about two irregularities regarding improper rejection and improper accep-tance. The petitioner does not say that P.W. 5 reported to him that thecounting staff did not supply the numbers of the ballot papers in respectof which objections were raised. P.W. 5 met Bursava Naik (P.W. 4) out-sidei the counting hall when counting was going on. This P.W. 4 says thatP.W. 5 never reported to him about any irregularity. According to P.W. 4,P.W. 5 only informed him (P.Wv 4) that the petitioner was leading in thefirst round. Admittedly, ballot papers on the front side contain the namesof all the candidates and their symbols are printed against their names.P.W. 5 when asked in cross-examination says that there was no writingon the ballot paper on the front side except the symbol. That shows thatP.W. 5 was not at all watchful while acting as a counting agent,for thepetitioner. Therefore, no reliance can be placed upon his evidence. P.W. 8(is another counting agent for the petitioner in table No. 2. P.W. 9 isthe father of the petitioner and admits that P.W. 8 is his natural son. Thepetitioner (P.W. 10) also admits the fact. In spite of this, P.W. 8, a doubleM.A. and also a law student, tries to conceal his relationship with hisnatural father and the petitioner by denying in cross-examination thathe is the natural brother of the petitioner. This is a very strange conduct onthe part of the witness which is bound to lead to an inference that the witnessin his anxiety to support the petitioner was trying to suppress the truth inorder to pass off as an independent witness. P.W. 8 has spoken about severalirregularities committed at his table. He is alleged to have reported aboutthese irregularities to the petitioner. Curiously, table No. 2 does not findplace in the petition for recount (Ex. 1) although as has been indicatedabove, P.W. 8 was present inside the counting hall at the time when Ex.1 was drafted by P.W. 3. The explanation of the petitioner that as thecounting agents for the tables omitted from Ex. 1 were not available thosetables could not be included in the recount petition must be held to befalse, For these reasons it is very difficult to swallow the evidence of P.W.8 that he actually saw irregularities being committed during counting at histable.

E.L.R.] BEDPRAKASH MAHANAD V. LALITMOHAN GANDHI AND OTHERS 107

From the aforesaid discussion of the evidence regarding the allegedirregularities/illegalities committed during counting it is crystal clear thatas a matter of fact P.Ws. 3, 5 and 8 did not notice any irregularity/illegalityduring counting and only to support the petitioner's case for recount havecome forward to depose in his favour. This conclusion is fortified by theevidence of the three official witnesses referred to above. It transpires fromthe evidence of P.W. 9 that he was being informed by P.W. 10 aboutthe irregularities that were being committed by the members of the coun-ting staff during counting. P.W. 9 says that he asked the petitioner to notedown the irregularities so that a petition would be filed subsequently. Ifthis version is true, one would ordinarily expect that Ex. 1 would containthe numbers of the tables where irregularities had been committed. Thefact that Ex. 1 refers to only four tables leads to a conclusion that thepetitioner doubted the correctness of the counting in those tables only,and therefore, submitted a petition for recount in respect-of them. Theexplanation which the petitioner now gives in this context does not ap-pear to be true.

In the absence of a written application by the petitioner at the closeof recounting praying for recount of votes in respect of table Nos. 1, 2, 4and 7 to 9 and in view of the fact that there is no satisfactory explanationby the petitioner for non-inclusion of those tables in Ex. 1 it is not possi-ble to accept the petitioner's version that he made a verbal request forrecount of ballot papers in respect of those tables. The evidence regardingverbal request is very scanty and interested. Hence the same is not accep-table. The version of P.W. 9 that he saw certain irregularities being com-mitted at the time of recount also can not be relied upon when he isnot supported by any independent witness. P.W. 7 who was insidethe counting hall throughout and was supervising couting is very particularin saying that no objection was ever raised by any agent of the petitionerregarding irregularity/illegality in counting. Furthermore, the petitioner hasnot chosen to examine the Returning Officer. In this state of affairs, it cannot be said that any irregularity /illegality was committed by the Return-ing Officer at the time of recount. Regarding scrutiny of ballot papers bythe Returning Officer during recounting, the evidence of the petitioner isthat as the supporters of respondent No. 1 gathered round the ReturningOfficer near his table surrounding him and raised slogans to stop recoun-ting, the Returning Officer could not properly scrutinise the ballot papers.This evidence can not be accepted in view of the evidence of the, officialwitness (P.W. 1) who was incharge of maintaining law and order and wasguarding the counting hall. The assertion of the petitioner that immediatelyafter recount no opportunity was given by the Returning Officer to enablethe petitioner to file another petition for recount in respect of table Nos. 1,2, 4 and 7 to 9 is also not supported by any independent evidence. P.W. 7also does not support the case.

On the aforesaid analysis of the evidence even conceding that there hasbeen sufficient compliance with the requirements of section 83(1) (a) ofthe Act it is not at all possible to say that the petitioner has prima faciemade out a case that in order to do justice there should be a recount.Thus, the second requirement as laid down m the decision reported inA.I.R. 1964 S. C. 1249 and reiterated in the decision reported in A.I.R.1975 S.C. 2117 (Supra) has not been fulfilled. So, I reject the petition dated28-4-1978 by holding that the petitioner has not been able to make out a case

108 BEDPRAKASH MAHANAD V. LALITMOHAN GANDHI AND OTHERS [VOL. LXIIl]

for inspection and recount. Issue Nos. 3, 4 and 8 are decided in favour ofrespondent No. 1 and issue Nos. 6, 10 and 11 are decided against thepetitioner.

6. Issue No. 12—In view of the findings already arrived at and inview of the fact that the Returning Officer has declared respondent No. 1elected having secured the largest number of votes, this issue is decidedagainst the petitioner.

7. Issue No. 13—For the reasons given above the petitioner is notentitled to any relief.

8. In the result, the election petition is dismissed with costs.

Petition dismissed.

IN THE PATNA HIGH COURT

MEGHRAJ MEDHAVT

V

EKHLAKH AHMAD

(MtJNESHWARI SAHAY, J.)

September 28, 1978

Constitution of India—Article 173—Age prescribed for contesting theelection

Representation of the People Act, 1951—Section 36(2) (a) and (7)—Rejection of nomination paper—candidate's age specified in the electoraltoll filed along with the nomination—no objection raised before the Return-ing Officer as to the age—Whether the Returning Officer is required toconduct any enquiry.

Representation of the People Act, 1951—Election Petition—Pleadingsand proof—whether the age specified in the electoral roll is final and con-clusive—age of the candidate specified in the school records—whetheramounts to admission and is conclusive against the candidate—productionof proof regarding age.

The petitioner challenged the election of the respondent to the BiharLegislative Assembly from 226—Bikramganj Constituency on the groundthat the nomination paper of the respondent was improperly accepted onaccount of the fact that the respondent was below 25 years of age on thedate of the scrutiny of the nomination paper. It was also alleged thateven otherwise the election of the respondent was liable to be set aside onthe ground that the respondent suffered from the constitutional disqualifica-tion as to the age prescribed under Article 173. The petitioner contendedthat the Returning Officer should not have accepted the nomination papermerely on the basis of the age specified in the electoral roll. Furthermore,the admission made by the respondent in the school records wherein thedate of birth has been given is final and conclusive and that in any eventthe burden of proving that the respondent was of the prescribed age hadshifted to the respondent and the respondent had failed to discharge thatburden.


(i) As there was no objectioin to the nomination paper filed by therespondent along with the copy of the electoral roll specifying his age asover 25 years the Returning Officer had no option but to accept the nomi-nation paper. Therefore, there was no improper acceptance of the nomi-nation paper by the Returning Officer,

DURGA SHANKAR METHA v RAGHURAJ SINGH AND ORS:AIR (1954) SC 520 ... relied on

109

110 MEGHRAJ MEDHAVI v. EKHLAKH AHMAD [VOL. LXIII

(ii) The age specified in the electoral roll is not and conclusivefor the enquiry in the Election Petition as to the Constitutional disqualifi-cation of the candidate.

NRIPENDRA BAHADUR SINGH v JAIRAM VERM A & ORS:AIR (1977) SC4992

R CHANDRA v M V MARAPPAN: (1973) Bihar Bar CouncilJournal 369

DURGA SHANKAR MEHTA v RAGHVRAJ SINGH & ORS:AIR (1954) SC 520

BRUENDRA LAL GUPTA AND ANR v JW ALA PARSHAD &ORS: AIR (1960) SC 1049

... referred to

(iii) The respondent had satisfactorily explained the recording of hisdate of birth in the admission register of the school from where the datewas carried over to the records of all the subseauent educational institutionsand had also established that he was over 25 years on the date of thescrutiny of the nomination papers.

BRIJ MOHAN SINGH v PRIYA BRUT NARA1N SINGH A ORS:AIR (1965) SC 282

NARAYAN BHAGWANTRAO GOSAVI BALAJIWALE v GOPALVINAYAK GOSAVI AND OTHERS: AIR (1960) SC 100

THIRU JOHN v THE RETURNING OFFICER: AIR JEFSSI SC1724;

PREM EX-SERVICEMEN COOPERATIVE TENANT FARMINGSOCIETY

VERSUS

THIRU JOHN v THE RETURNING OFFICER: AIR (1977) SC

KISHORI LAL v CHALTI BAI: AIR (1959) SC 504

ALLURI VENKATAPATHI RAJU v DATALUI VENKATA-

NARASIMHA RAJU: ATR (1936) P C 264

... referred to


Ramchandra Prasad Sinha, Jageshwar Prasad Sinha and Rajendra PrasadVerma, for the petitioner.

B C Ghose and Yogendra Mishra, for the respondent.

JUDGMENT

MUNESHWARI SAHAY, J.~Petitioner Meghraj Medhavi and theRespondent Ekhlakh Ahmad had both contested the election to the BiharXegislative Assembly from 226-Bikramganj Constituency. The petitionerwas the candidate of the Soshit Samaj Dal and the respondent had been

E.L.R.] MEGHRAJ MEDHAVI F. EKHLAKH AHMAD 111

set up as a candidate by the Janata Party. There were 13 other candidateswho as well had. contested the election, but we are not concerned with them.The following was the election programme for the election in question: —

(0 The filing of nomination paper—from 11th May 1977 to 18tihMay 1977.

07) The scrutiny of nomination paper—19th May 1977.

07/) The last date of withdrawal of nomination paper—21st May 1977.

0*v) The date of poll—10th June 1977.

(v) The date of counting—16th June 1977.

2. The respondent secured 27,935 votes as against 16,751 votes polledby the petitioner, who was his nearest rival. Accordingly, the respondentwas declared elected by a margin of more than 11,000 votes.

3. The petitione* alleges that the respondent was born on 3rd November1952 and, therefore, on the date of the scrutiny of the nomination papers,he was below 25 years of age and, therefore, he was not qualified for beingchosen to fill a seat in the Legislative Assembly. The respondent is aresident of village Ghusiakalan within Bikramganj Police-Station. Thepetitioner has pleaded that the father of the respondent got him admittedin the Middle School at Ghusiakalan and on that occasion he had made adeclaration that the date of birth of the respondent was the 3rd November1952. On the basis of this declaration it is said that the same date ofbirth was entered in the admission register of that school. The same dateof birth of the respondent was recorded in the Multi-purpose Higher Secon-dary School at Madhepura and in the application for appearing at the BiharSecondary School Examination, the respondent himself is alleged to havefilled in the form mentioning therein the 3rd of November 1952 as his date ofbirth. The School Examination Board Certificate granted to the respon-dent also mentioned the same date of his birth. In the records of theS. P. Jain College at Sasaram and in Anugrah Narain Singh College atPatna where the respondent had subsequently prosecuted his studies wasmentioned the same date of his birth. The petitioner, therefore, pleadedthat the Returning Officer had improperly accepted the nomination paperof the respondent and the result of the election has been materially affectedby such improper acceptance of the nomination paper of the respondent.On these allegations the petitioner prays that the election of the respondentbe declared void.

4. In his written statement, the respondent has denied all the allega-tions of the petitioner. He has pleaded, inter alia, that he was born on17th December 1950, that, therefore, he was more than 25 years of age onthe relevant date, ie., the date for the scrutiny of the nomination papers;that his father had not made any declaration in the Middle School atGhusiakalan to the effect that the respondent was born on 3rd November1952; that the father of the respondent was in police' service and when hewas posted at Barajamdah and Kharsama in the district of Singhbhum, therespondent used to live with him; that the father of the respondent got himadmitted in the U. P. School at Barajamdah and the middle school atKharsama; that in those schools 26th June 1951 was recorded as the dateof birth of the respondent, at the instance of his father; that a reduced

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112 MEGHRAJ MEDHAVL V. EKHLAKH AHMAD [VOL. LXITI

age of the respondent was recorded in those schools as the father of therespondent thought that it would be advantageous to the respondent insecuring service in future; that one Reyazat Hussain, a distant uncle ofthe respondent had got him admitted in the middle school at Ghusiakalanand due to his ignorance, he mentioned '10th November 1952' as the dateof the respondent's birth in that school: that the respondent's father wasnot present when the respondent was admitted in the Middle School , atGhusiakalan that the wrong date of his birth recorded in the MiddleSchool at Ghusiakalan was carried over in the records of the other educa-tional institutions where the respondent had prosecuted his studies; thatthe maternal grandfather of the respondent used to record the dates ofbirths of the children of his family in his diary; and that in that diary aswell the date of the respondent's birth was noted as 17th December 1950.The respondent, therefore, pleads that his nomination paper was rightlyaccepted by the Returning Officer and he was fully qualified for beingchosen to fill in a seat in the Legislative Assembly.

5. On the pleadings of the parties, the following issues have beenframed: —

(1) Whether the respondent had attained the age of 25 years on thedate of nomination in the instant Assembly Election?

(2) Whether the respondent was disqualified to be elected for theLegislative Assembly?

(3) Whether the acceptance of the nomination paper of the respondentwas illegal and invalid?

(4) Whether the election of the respondent as a member of the BiharLegislative Assembly is fit to be set aside on account of the illegaland improper acceptance of his nomination paper?

(5) To what relief, if any, is the petitioner entitled?

6. Issues nns. 3 and 4.--The dispute in the present case is confinedwithin a narrow compass. It centres round the age of the respondent.The petitioner has come forward with a specific case that the respondentwas born on 3rd November 1952 at Ghusiakalan and, therefore, accordingto him, on the date of the scrutiny of the nomination papers, i.e., on 19thMay 1977, the petitioner was aged only 24 years six months and few days.Article 173 of the Constitution of Tndia lays down inter alia that a personshall not be qualified to be chosen to fill a seat in the Legislative Assem-bly unless he is not less than 25 years of age. The petitioner, herefore,contends that the respondent suffered from constitutional disqualificationand his nomination paper was improperly accepted by the ReturningOfficer.

7. The submission of the petitioner regarding the improper acceptanceof the nomination paper of the respondent is wholly untenable and isanswered completely by several decisions of the Supreme Court. It isthe admitted case of the parties that in the electoral roll the age of therespondent has been recorded as 32 years. The same age was mentionedin his nomination papers (Exts. 2 series). Although in his petition thepetitioner has pleaded thnt he had objected to the acceptance of the nomina-tion paper, the plea has been denied by the respondent in his written state-

E.L.R.] MEGHRAJ MEDHAVI V. EKHLAKH AHMAD 113

ment and no evidence has been led by the petitioner that any objectionwas really made against the acceptance of the nomination paper at thetime of the scrutiny of the nomination papers. Learned Counsel for thepetitioner has also not made1 any such submission. In the case of DurgaShankar Met ha v. Raghuraj Singh and others (A. I. R. 1954 SupremeCourt 520) similar question was raised. In that case as well the electoralroll described the returned candidate as having been of proper age andno objection was taken to his nomination' paper before the ReturningOfficer at the time of the scrutiny. The Supreme Court held that in suchcircumstance the Returning Officer was bound to take the entry in theelectoral roll as conclusive. It observed: —•

"It would have been an improper acceptance, if the want of qualifica-tion; was apparent on the electoral roll itself or an the face of thenomination paper and the Returning Officer overlooked that defector if any objection was raised and enquiry made as to the absenceof qualification in the candidate and the Returning Officer came to awrong conclusion on the materials placed before him. When neitherof these things' happened the acceptance of the nomination by theReturning Officer must be deemed to be a proper acceptance "

Therefore, in the instant case when the electoral roll showed that the res-pondent was of age and no objection was taken with regard to the samebefore the Returning Officer, the latter had no option but to accept thenomination paper of the respondent. The petitioner's plea regarding theimproper acceptance of the nomination paper of the respondent, therefore,must be rejected and these issues are, accordingly, decided against"him.

8. Issue nos. 1 and 2.—The petitioner next contends and perhaps thisis his main contention in this case that in any view of the matter as therespondent suffered from constitutional disqualification on the relevantdate the election of the petitioner was liable to be declared as void. Itmay be recalled that the petitioner has expressly alleged that the respondentwas born on 3rd November 1952. It would mean that on the date of thescrutiny of the nomination paper <!9th May 1977) he had not completedthe age of 25 years. The respondent had first tried to repel this plea bycontending that in view of the provisions of section 36(7) of the Represen-tation of People Act, 1951 (hereinafter referred to as-'the Act'), a finalitywas attached to the electoral roll. As the respondent was admittedlydescribed in the electoral roll as aged 32 years, it is said that it was notopen to the petitioner to challenge the correctness of that age in this elec-tion petition. A reference is made in this connection to the decision ofthe Supreme Court in the case of Nripendra Bahadur Singh v.. JairamVerma and others (A.I.R. 1977 Supreme Court 1992) where the SupremeCourt said: —

"Thus in a catena of cases this Court has consistently taken the viewthat the finality of the electoral roll cannot be challenged in an electionpetition even if certain irregularities had taken place in the preparationof the electoral roll or if subsequent disqualification had taken placeand the electoral roll had on that score not been corrected before thelast hour of making nomination."

Reference is also made to the following observation of the Supreme Courtin the case of R. Chandran v. M. V. Marappan (1973 Bihar Bar CouncilJournal 369) : —

114 MEGHRAJ MEDHAVI V. EKHLAKH AHMAD [VOL. LXIH

"This Court has, in numerous decisions beginning from the one inDurga Shunkar Mchta v. Thakur Raghuraj Singh [1955 (1) SCR 267]and down to its latest decision in S. K. Choudhary v. BaidyanathPanjiar [1973 (1) SCC-95] consistently held that when once a person'sname has been included in the electoral roll, his qualifications to beincluded in that roll cannot be questioned either when he tries to casthis vote or to stand for election or even after the election is over......"

The submission of the respondent is altogether untenable. It will appearfrom the decision in the aforesaid case itself that the Supreme Court pointedout that an exception is made in respect of the requirement under article173 of the Constitution. The Supreme Court has said : —

"The decisions of this Court which have held that in the case of anelection to the Legislative Assembly the question of age could be goneinto only where Article 173 of the Constitution was attracted and thecandidate was not over 25, it was a breach of the constitutionalprovision "

Learned Counsel for the petitioner has referred me in this conhection tothe decision in the case of Durga Shankar Mehta v. Raghuraj Singh andothers (supra) where while dealing with the conclusiveness of the electoralroll under section 36(7) of the Act. the Supreme Court observed that itwas certainly not final and the election tribunal might on evidence placedbefore it come to a finding that the candidate was not qualified at all. Insuch a case the Supreme Court said that the election should be held to bevoid on the ground of the constitutional disqualification of the candidateand not on the ground that his nomination was improperly accepted bythe Returning Officer.

9. This is apparent from the provision of section 36(7) of the Act,itself which lays down :— .

"For the purposes of this section a certified copy of an entry in theelectoral roll for the time being in force of a constituency shall be

- conclusive evidence of the fact that the person referred to in that entryis an elector for that constituency, unless it is proved that he is subjectto a disqualification mentioned in section 16 of the Representationof the People Act, 1950."

This sub-section was substituted by Act 27 of 1956 for the then existingsub-section (7). The change in the law was noticed by the Supreme Courtin the case of Brijendra Lai Gupta and another v. Jwala Prasad and others(A.I.R. 1960 Supreme Court 1049). The Supreme Court said: —

"It is also significant that in regard to the conclusive character of therelevant evidence the material provision as it stood originally has beensubsequently amended by Act 27 of 1956. Originally the provisionwas that the relevant entry shall be conclusive evidence of the right ofany elector named in that entry to stand for election or to subscribei thenomination paper as the case may be. The Legislature apparentlythought that the presumption authorised by these words was undulywide, and so, by the amendment, the prima facie and rebutt presump-tion is now limited to the capacity of the person concerned to be treat-ed as an elector and nothing more, and that too unless it is provedthat he suffers from any disqualification mentioned in S. 16."


The Supreme Court went on to observe further : —

" Thus when a presumption is raised under section 36 (7), it maymean prima facie that the person concerned is not less than 21 yearsof age and is ordinarily resident in that Constituency; but for thevalidity of the nomination paper, it has to be proved that the candi-date has completed 25 years of age... Thus it would not be correct toassume that a reference to the certified copy of the electoral roll wouldin every case decisively show that the age of the candidate satisfiedthe test prescribed by Article 173 of the Constitution; in other words,the requirement about the completion of 25 years of age is outside thepresumption under section 36(7), "

10. Thus section 36(7) of the Act is no bar to the challenge made bythe petitioner with regard to the constitutional disqualification of the res-pondent. Learned Counsel for the respondent has contented that even sothe burden lay on the petitioner to prove that the respondent suffered fromthe constitutional disqualification on the relevant date, and it is submittedthat the petitioner has utterly failed to discharge this burden. LearnedCounsel has referred me to the decision of the Supreme Court in the caseof Brij Mohan Singh v. Priya Brut Narain Sinha and others (A.l.R. 1965Supreme Court 282) where the Supreme Court observed :— ,

"On an examination of the entire evidence, oral and documentary,we therefore, reach the position that the petitioner-respondent has notbeen able to prove that the appellant Brij Mohan was below 25 yearsof age on the date of filing of nomination papers while the appellanthimself has also not been able to show that he was at least 25 yearsof age on that date. It cannot be disputed and is not disputed thatthe burden of proving that the appellant's age was below 25 years onthe date of his nomination was on the petitioner respondent. Thepetition in so far as it is based on the ground that the appellant wasbelow 25 years of age on the date of his nomination must thereforefail."

11. Learned Counsel for the petitioner has conceded that the initialburden no doubt lay with the petitioner to prove that the respondent wasbelow 25 years of age at the relevant date. His answer to the submissionsmade on behalf of the respondents are two-fold. Firstly, he contendsthat petitioner h:;s been able to discharge his burden successfully. Second-ly, it is said that although the initial burden lay with the petitioner in viewof the i'dmission made by the respondent himself regarding his age theburden has shifted on him and the respondent has utterly failed to dis-charge that burden. The evidence adduced by the parties, therefore, haveto be examined in the light of these submissions.

12. Only two witness have been examined by the petitioner in thiscase and he himself is one of them. He (P. W. 1) has expressly admittedin his cross-examination that he had no personal knowledge that the dateof Akhlak Ahmad's birth was 3rd November 1952. Tn his very examina-tion-in-chief he stated that he had learnt about the date of birth of therespondent by enquiry from educational institutions where the respondenthad studied as also from enquiries from other people. His evidence forobvious reasons, therefore, is of no worth in determining the age of therespondent. The remaining witness for the petitioner is one Ram Newas

116 MEGHRAJ MEDHAVI KEKHLAKH AHMAD [VOL. LXHI

Chaudhary of Ghusia-Khurd. The respondent is a resident of villageGhusiakalan. The witness stated that these are contiguous villages.The witness stated that Ekhlakh Ahmad was born in 1952 and on thatoccasion he had gone to the house of Ekhlakh Ahmad to offer his congra-tulations on the occasion of his birth. He stated further that he knewthe month and the year of Ekhlakh Ahmad's birth as one of his daughterswas also born in that very month. The statements which the witness hasmade in his cross-examination thoroughly discredit him. He has admittedthat he was still a student of Class Vll when Ekhlakh Ahmad was bornand his father was then alive. It does not appear reasonable that in thelife time of his father when the witness was himself a student at that limehe would be going to Ekhlakh Ahmad's house for offering congratulationson his birth. He admitted that he had not gone to the house of EkhlakhAhmad to offer his congratulations on the occasion of birth of any otherchild. He was not in a position to speak about the month or year ofbirth of any other person in the family of Ekhlakh Ahmad except that ofEkhlakh Ahmad. The grand-father of Ekhlakh Ahmad had died only sixyears ago, but the witness had not gone to his house on that occasion toexpress his condolences. His evidence makes it clear that he was alto-gether incompetent to depose in proof of the age of Ekhlakh Ahmad. Hisevidence further shows that he was deeply interested in the petitioner.The petitioner, it may be recalled, was a candidate set up by the SoshitSamaj Dal. The witness denied that he was a member of the Soshit SamajDal or that he had any connection with any political party. He alsodenied to have .worked for any candidate in the election. He stated fur-ther that he had not supported any political party in that election. Signifi-cantly enough he goes on to give the details of the election programme.For instance he stated that the nomination papers for the election were tobe filed from 15th May 1977 to 18th May 1977 and that he had gone toSasaram on the date of the filing of the nomination papers. He evenremembered the date on which Ekhlakh Ahmad had filed his nominationpaper. One is left with an unmistakable impression that the witness wasan active supporter of the petitioner during the election in question. Thusthe evidence adduced by the petitioner is as unreliable as it is in adequateto prove the allegation that the respondent was below 25 years of age atthe relevant date.

13. Let us, therefore, examine the admissions of the respondent on thisquestion on which the petitioner heavily relies in proof of his allegations.The petitioner has proved the application (Ext. 1) filed by the respondentfor appearing at the Secondary School examination. In this application,the respondent has mentioned his date of birth as 10th November .1952.The certificate of the Bihar School Examination Board granted to the res-pondent has also been proved on behalf of the petitioner (Ext. 6). In thiscertificate as well the date of birth of the respondent has been describedas 10th of November 1952. Tt is obvious that the age mentioned in theapplication (Ext.. 1) was carried over in the certificate (Ext. 6). The peti-tioner has also referred me to the evidence of the respondent (R. W. 1),in this connection. Particular reference is made to the following passagesfrom his deposition : —

"I had filled in the form for appearing at the Secondary School Exami-nation at Madhepura. A candidate is required to mention his dateof birth in that application form. T had noted the dale of birth in theform as November. 1952.

E.L.R.] MECHRAJ MEDHAVI V. EKjlLAKH AHMAD 117

After passing the Matriculation examination I had taken admissionin S. P. Jain College, Sasaram. In the year 1969. I had takenadmission the Pre-University class there. One has to fill in an appli-cation form for taking admission in any College. My date of birthin the records of the S. P. Jain College, Sasaram and the AnugrahNairain Singh College at Patna was November, 1952. I think that Imust have given this date of birth in my application form for admis-sion to these Colleges.

In my application form for appearing at the Pre-University Examina-tion 1 had shown my date of birth as November 1952. After passingthe Pre-University Examination I had taken admission in the I. Sc.Class at Sasaram. After passing the 1. Sc. Examination from Sasaram1 took admission in, the B. Sc. Class in the A. N. Singh College at Patna.T had appeared at the B. Sc. final examination. In every applicationwhich I had made in the College for admission or for appearing at theexamination I had mentioned November, 1952 as the date of my birth."

Learned Counsel for the petitioner submits on the authority of a deci-sion of the Supreme Court in the case of Narayan Bhagwantrao GosaviBalajiwale v. Gopal Vinayak Gosavi and others (A. I. R. I960 SupremeCourt 100) that an admission is the best evidence that an opposing partycan rely upon, and though not conclusive is decisive of the matter unlesssuccessfully withdrawn or proved erroneous. Learned Counsel for thepetitioner has also referred me to the following observations of the SupremeCourt in the case of Thiru John v.v. the Returning Officer and others (A.I.R.1977 Supreme Court 1724):

"It is well settled that a party's admission as defined in Sections 17 to 20fulfilling the requirements of section 21. Evidence Act, is substantiveevidence propriogigore. An admission if clearly and unequivocallymade, is the best evidence against the party making it and though notconclusive, shifts the onus on to the maker on the principle that "whata party himself admits to be true may reasonably be presumed to beso and until the presumption was rebutted the fact admitted must betaken to be established."

In this case as well a question with regard to the constitutional dis-qualification of a candidate had arisen on the ground of his age and thepetitioner relies heavily on this decision in support of his case. I shall,therefore, upon to it in a little more detail a little later. For the presentI wish only to refer to the observations made in this case regarding theeffect of admission in such a case.

14. Learned Counsel for the respondent, on the other hand, contendsthat an admission is not a conclusive evidence and it can be proved to beerroneous. Section 31 of the Evidence Act, itself makes it clear. It laysdown : —

"\dmission,s are not conclusive proof of the matters admitted, but theymay operate as estoppel under the provisions hereinafter contained."

Admittedly no question of estoppef arises in this case. Therefore, theadmissions relied i.ir>on by the petitioner are by no means conclusive. Inthe case of Prem Ex-Service-men Co-operative Tenant Farming SocietyLtd. v. State of Haryana and others (1974 S.C-1121), the Supreme Court

118 MEGHRAJ MEDHAVI V. EKHLAKH AHMAD [VOL. LXIII

pointed out that it was well settled that the effect of an alleged admissiondepended upon the circumstances in which it was made. In the case ofKishorilal v. Mt. Chalti Bai (A. T. R. 1959 S.C. 54), the Supreme Court wasconsidering the effect of certain admissions made in some documents.The Supreme Court observed: —

"In order to properly appreciate the effect of these admissions it isnecessary to consider the circumstances under which these variousdocuments were executed and the acts done or the admissions made.''

In the case of Alluri Venkatapathi Raju vs. Dantalui VenkatanarasirnhaRaju and others (A. I. R. 1936 Privy Council 264), their Lordships of theJudicial Committee observed that 'it sometimes happens that persons makestatements which serve their .purpose or proceed upon ignorance of thetrue position and it is not their statements, but their relations with theestate, which should be taken into consideration in determining the issue'.Their Lordships were considering the statements of two brothers that theywere divided from each other when they had made the aforesaid obser-vation.

15. Therefore, in the instant case it is necessary to ascertain the circums-tances in which the so-called admissions were made by the respondentregarding the date of his birth, Learned Counsel for the respondent has

N submitted that if examined in their proper context the statements of therespondent relied upon by the petitioner would not amount to admissionat all. For a proper appreciation of this submission one has to examinethe admission registers of the schools where the respondent had prosecutedhis studies. I will first refer to the admission register of the MiddleSchool at Ghusiakalan on which the petitioner relies. The relevant entryin the register has been proved as Ext. A/3. The data of respondent'sbirth in this register has been shown as 10th November 1952. The entriesshow further that the respondent was admitted in Class VI in that, schoolon 10th January 1961. In paragraph 13 of the election petition, thepetitioner has pleaded that the father of the respondent got him (the res-pondent) admitted in the Middle School at Ghusiakalan and en that occa-sion he made a declaration that the date of birth of the respondent was 3rdNovember 1952. The petitioner pleaded that on the basis of this declara-tion the date of the respondent's birth was entered in the admission registerof that school. The father of the respondent Mohammad Zubair Khan(R. W. 7) has denied this allegation and he has alleged that he was noteven present at Ghusiakalan when the respondent was admitted in thatschool. He stated that one Reyazat Hussain Khan a distant cousin of hishad got him admitted in that school and it was he who had got the ageof Ekhlakh Ahmad recorded in the records of the Middle School atGhusiakalan. Now the fact that the father of the respondent was notpresent at the time of the admission of the respondent in the Middle Schoolat Ghusiakalan is proved by the entry (Ext. A/3) itself. In column no.15 of the register meant for the signature of the father or the guardian appearsthe signature of Reyaza Hussain Khan. Tn column no. 16 the signatureof one Rajaqat Hussian Khan appears a witness. There can be no doubtwhatsoever that if the father of the respondent himself was present at thetime of admission of the respondent in that school his signature shouldhave appeared in column no. 15. Therefore, there is no-truth in thepetitioner's allegation that the respondent's father had got the respondentadmitted in the Middle School at Ghusiakalan and on that occasion he had

E.L.R.] MEGHRAJ MEDHAVI V. EKHLAK.H AHMAD 119

given a declaration regarding the age of the respondent. Both RayazatHussian Khan and Rajaqat Hussain Khan are dead, and, therefore, onedoes not know under what circumstances 10th November 1952 was recor-ded as the date of respondent's birth in the register at the instance ofReyazat Hussain.Khan.

16. Learned Counsel for the respondent submits that once 10thNovember 1952 was recorded as the date of the respondent's birth in theadmission register of that school, that date was carried over in the recordsof all the subsequent educational institutions where the respondent hadprosecuted his studies. The respondent has stated in his evidence thatafter passing his Middle School Examination from Ghusiakalan Schoolhe was admitted in the High School at Supaul in Class VIII on the basisof the transfer certificate granted to him from the Middle School atGhusiakalan. The respondent thereafter read for sometime in the SupaulSchool and he passed his Matriculation Examination from the High Schoolat Madhepura. At Madhepura as well the respondent said, he was admit-ted in the school on the basis of the transfer certificate granted to himby the Supaul School. Eventually when the time came for the respondentto submit an application for appea-ring at the Secondary School Examina-tion he mentioned the same date which stood recorded in his schoolrecords.

17. Learned Counsel for the respondent submits on.these facts thatthe so called admissions made by the respondent in his school and collegerecords could not be characterised as clear and unequivocal. I aminclined to agree with the submission. By admission, I understand, aconscious statement of the fact admitted and not a mechanical repetitionof an earlier statement mad© by someone less without any awarenessabout the truth of that statement. The facts mentioned above, clearlybring out the circumstances in which the so-called admissions were madeand I have no doubt in my mind that no effect can be given to them.

18. As it is. there are reliable materials on record to show that theso-called admissions were erroneous. Before the respondent was admit-ted in the Middle School at Ghusiakalan, he had prosecuted his studiesin some other schools as well the schools at Kharasama and Barajamdaand the Upper Primary School at Ghusiakalan. It is not disputed thatthe relevant period the father of the respondent was posted at Kharsamaand Barajamda. The respondent used to live there with his father whenhe was admitted in the school at those places, Ext. A/2 is the relevantentry, in the admission register of the Primary School at Kharsama. Imay point out that the genuineness of these registers has not been chal-lenged before me. The registers have a look of genuineness aboutthem. The entry (Ext. A/2> shows that 25th June 1951 was recorded asthe date of birth of the respondent in that entry. The entry also bearsthe signature (Ext. C) of the father of the respondent. The entry showsfurther that the respondent was admitted in Class III of that school.Similarly the entry (Ext. A/1) in the admission register of BarajamdaSchool shows that the same date of respondent's birth, namely, 25th June1951 is recorded there. This entry as well bears the signature (Ext. C/1Vof the respondent's father. Ext. A is the relevant entry of the admissionregister of the Upper Primary School at Ghusiakalan. In this entry aswell the respondent's date of birth is recorded as 25th June 1951; the

17—3 ECII/ND/85

120 MEGHRAJ MEDHAVI K. EKHLAKH AHMAD [VOL. LX1II

entry of course does not bear the signature of the respondent's father butit shows that the respondent had taken admission in that school afterhaving left Barajamda Upper Primary School. It is clear from theseentries that 25th June 1951 was recorded as the date of respondent'sbirth on the statement of his father in the schools at Kharsama andFurajamda.

19. Learned Counsel for the petitioner has submitted that 25th June1951 cannot be taken as the date of birth of the respondent as even accord-ing to the respondent that was not the date of his birth. Therefore, itL said that these entries in the admission registers of Kharsama and1

Barajamda Schools cannot come to the assistance of the respondent. Inmy view the entries aforesaid cannot be dismissed as summarily as thepetitioner would wish them to dismiss. The father of the respondent,R. W. 7 has given an explanation in his evidence as to why he got areduced age of the respondent recorded in those schools. He has statedthat he had done so in order that it might be of advantage to the respon-dent in future in securing Government Service. The fact that a reducedage of student is often recorded in his school records in. order that thesame may be 'advantageous to him in future was recognised even by theSupreme Court in the case of Brij Mohan Singh (supra). A referencemay be made to the following observation of the Supreme Court in thatcase:—

"His case is that this was an incorrect statement made at the requestof the person who went to get him admitted to the school. Therequest was made, it is suggested, to make him appear two yearsyounger than he really was so that later ins life he would have an advan-tage when seeking public service for which a minimum age for eligi-bility is often prescribed. The appellant's case is that once this wrongentry was made in the admission register it was necessarily carriedforward to the Matriculation Certificate and was also adhered to mthe application for the post of a Sub-Inspector of Police. Thisexplanation was accepted by the Election Tribunal but was rejectedby the High Court as untrustworthy. However much one may con-demn such an act of making a false statement of age with a view tosecure an advantage in getting public service, a judge of facts camotignore the position that in actual life this happens not infrequently.We find it impossible to say (hat the Election Tribunal was wrong iaaccepting the appellant's explanation "

Therefore, even though the date of respondent's birth recorded in theKharasama and Barajamda Schools might be incorrect, the error was inrecording a reduced age of the respondent and not an enhanced age. Ifreally the respondent was born in November 1952, as the petitioner wouldhave it, why would the father of the respondent get such a date of birthof the respondent recorded in those schools which would show him olderthan what he actually was. I have no doubt in my mind that the respon-dent was either born on 25th June 1951 or on some earlier date, but cer-tainly not en a date latter than 25th June 1951. Therefore, the statementregarding the date of birth of the respondent in the admission register ofthe Middle School at Ghusiakatan (Ex. A/3) was clearly wrong and thatsubsequent statements made by the respondent on the basis of that State-ment were certainly erroneous.

E.L.R.] MEGHRAJ MEDHAVI V. EKHLAKH AHMAD 121'

20. Learned Counsel for the petitioner lias submitted that in ThiruJohn's case (supra.) there were similar admissions by one of the returnedcandidates and the Supreme Court accepted those admissions in proof of theage admitted in various statements. Therefore, it is said that in this caseas well the admissions of the respondent should be accepted as proof ofthe age admitted by him in his various statements. In my view the factsof Thiru John's case were not quite similar to those before us. In thatcase the Supreme Court pointed out that there was overwhelming documen-tary evidence of a cogent and convincing character in proof of the factsadmitted. The documentary evidence not only included about a dozenprevious statements, declarations made by Thiru John himself, but several©ther documents to which reference was made by the Supreme Court. Oneof these documents was the marriage register. The High Court hadfound that to be of great evidentiary value. The Supreme Court alsopointed out that in that case the appellant had miserably failed to showthat the admissions were incorrect. In the instant case, I have pointedout that the so-called admissions have been proved to be erroneous. There-fore, I feel no hesitation in. saying that the petitioner cannot take advantagefrom Thiru John's case (supra) in support of his allegations.

21. Once the so-called admissions of the respondent are dislodged,there is hardly any material left on which the potitioner could contendthat the respondent was below 25 years of age on the relevant date. Ihave pointed out that the oral evidence adduced on behalf of the petitioner,was worthless and the entire case of the petitioner was build on the so-called admissions of the respondent. When the admissions are provedto be wrong, the petitioner's case naturally collapses.

22. It is true that the respondent has pleaded that he was born on17th December 1950. 1 have wondered as to why the respondent hadmentioned 17th December 1950 as the date of his birth. Was it to defeatthe election petition of the petitioner now? Obviously not; as it was notnecessary for him to put his date of birth beyond 25th June 1951 in orderto defeat .the election petition. It may be recalled that 25th June 1951was the date of the respondent's birth which was recorded in the Kharsamaand Barajamda Schools on the statement of his father. If that be takenas the date of the respondent's birth, he would still have completed 25 yearsof age on the date of the scrutiny of the nomination papers. In that casehe was also not required to oifer any explanation as to why a wrong dateof birth was recorded in the admission registers of Kharsama and Bara-jamda Schools. I am inclined to think that 17th December 1950 has beenstated as the date of the respondent's birth by him as that is the real dateon which he was born.

23. The respondent has proved an entry {Ext. B) in the diary (Ext. D)maintained oy the maternal grand-father of the respondent to show thathis maternal grand-father had noted down the date of his birth in hisdiary and that date was 17th December 1950. . Learned Counsel for thepetitioner has submitted that the entry in the diary has been fabricated andBO reliance should be placed on the same. There are no adequatematerials before me on which I can hold that the entry (Ext. B) has beenfabricated, but -due to certain facts which have come up in relation to thediary I do not consider it safe to act upon the same. Firstly the diary wasprodaced at a very late stage of the case and the explanation offered for,the same as it later on transpired from the evidence of Mohammad Saroor

122, MEGHRAJ MEDHAVI V. EKHLAKH AHMAD [VOL. L5OJ1

Ahmaa (R. W, 6) maternal uncle of the respondent does not appear to beconvincing. The diary is not found to have been maintained in regularcourse and haphazard entries have been made in the same. Except foithe few pages the entire diary is blank. It has also transpired that twoentries have been made in this diary with regard to the date of the respon-dent's birth, and there is no explanation as to why two entries were madetherein. The witness (R. W. 4) who proved the entry (Exhibit-B) in thediary stated that no entry appeared to have been made in that diaryregarding the birth of any brother or sister of the respondent. Besidesthe diary was not put either to the respondent or to his father (R. W. 7)or to his maternal uncle (R. W. 6) during their evidence, to prove itsgenuineness. For all these reasons I would not place reliance on theentry in the diary to hold that the respondent was actually born on 17thDecember 1950.

24. There is however, the oral testimony of the father of the respon-dent and of his maternal uncle in proof of the date of his birth. I wasparticularly impressed by the evidence of Mohammad Saroor Ahmadmaternal uncle of the respondent (R. W. 6). The witness stated thatEkhlakh Ahmad was bom in December 1950 at Giridih. There is over-whelming evidence to show that in December 1950, the father of therespondent was posted at Giridih in police service. This fact has notbeen challenged on behalf of the petitioner. The witness R. W. 6 statedthat he and his mother had gone to Giridih on that occasion. The evi-dence of the witness shows that his younger brother Matroor was living withhis sister at Giridih at that time. He had fallen ill and it was in thatconnection that the witness had gone there with his mother. The witnessstated that Ekhlakh Ahmad was born only five or six days after theirarrival at Giridih. It is true that the witness is a close relation of therespondent but his evidence cannot be rejected on this ground. I havenot been able to find any such infirmity in his evidence which could distincthis testimony.

25. The father of the respondent (R. W. 7) was certainly the mostcompetent person to speak about the respondent's birth. He as well hasstated that the respondent was born at Giridih on 17th December 1950.As pointed out earlier he has given an explanation as to why a reducedage of the respondent was recorded in the admission registers of Barajamdaand Kharsama Schools. It is remarkable that the petitioner himself inhis election petition has given a certificate or respectability to he respon-dent's father. In paragraph 25 of his election petition, the petitioner haspleaded that the father of the respondent is a very respectable man anda staunch muslim and has never believed in giving the incorrect date ofbirth of his children in educational institutions. If that was the opinionof the petitioner himself regarding the credibility of the respondent's father,I find no reason why his testimony in proof of the respondent's birth shouldbe disregarded.

26. Two other witnesses, namely R. W. 4 Abdul Mazid Khan andR. W. 5 Mohammad Lais Khan have stated about the date of the respon-dent's birth. R. W. 4 has stated that he lived at Giridih from 1940 to1962. His father was doing truck business there. The witness alsoserved as bus conductor at Giridih from 1956 to 1976. It is true that hehas not been able to give some details regarding grand-children of the


maternal grand-father of the respondent. The witness is also a residentof Ghusiakalan and if he was living at Giridih when the respondent wasborn, he was certainly competent to speak about the respondent's birth.His evidence did not give an impression that he was falsely speaking abouthis presence at Giridih at that period in order to give weight to his testi-mony. If two persons of the same village live away from home at thesame place, they naturally come close to each other to share their sorrowsand joys. I am inclined to think that the evidence of this witness in proofof the respondent's date of birth cannot be rejected. The evidence of theremaining witness R. W. 5 did not impress me. There are some obviousinaccuracies in his statements regarding the time of death of his elderbrother and the age of his nephew which affect his evidence adversely.The witness claimed that his elder brother was married to the sister of therespondent's father. He alleged that his elder brother had died in thesame month and year in which Ekhlakh Ahmad was born. Be thatas it may I am satisfied on the evidence of the respondent's father (R. W. 7),the respondent's maternal uncle (R. W. 6) and Abdul Mazid Khan (R W. 4)and on the others evidence and circumstances of the case discussed earlierthat the respondent was really born in December 1950.

27. 1 feel no hesitation, therefore, in coming to the conclusion thatthe respondent had attained the age of 25 yea:s on the date of the filing ofhis nomination paper and that he was not disqualified to be chosen totill a seat in the Legislative Assembly. These issues are accordinglydecided against the petitioner and in favour of the respondent.

28. Issue no. 5.—In view of my findings on the other issues 1 holdthat the petitioner is not entitled to any relief whatsoever. The electionpetition is, accordingly dismissed with costs. Hearing fee Rs. 500 (fivehundred).

Petition dismissed

IN THE COURT OF JUDICATURE AT BOMBAY

(NAGPUR BENCH)

GOB1ND PRASAD SH1VPRASAD CHAUDHARY

V.

RETURNING OFFICER AND ORS.

(GADGIL, J.)

August 3/September 22, 1978

Representation of the People Act, 1951—Section 100(1) {<!) (Hi) and(jv)—Improper reception and rejection oj votes—Non-compliance of theorders passed by the Election Commission—Allegation of irregularitiestnd mistakes in the counting of voies^—Recount of votes—Grounds for—Whether can be allowed even where no direct evidence suggesting improperacceptance or rejection of voles is shown—Circumstances suggesting factualflaws, margin oj votes small etc.—grounds for recount.

Conduct of Election Rules, 1961—Rules 22, 56 and 73(2) (d)--ElectionCommission's direction to print the postal ballot papers in English—PostalBallot paper printed in Dconagari script—Effect of—Whether electionmaterially affected —Counting—Scrutiny and rejection of votes—Ballotpapas containing incomplete marking; marking substantially in the shadedportions between the two columns containing candidates mimes and sym-bols smudge and other accidental marks in addition to regular mark;writings on the back of the ballot papers etc.—whether to be rejected—mark-ing of postal ballot papers—whether to be done in any prescribed manner.

Representation of'the People Act, 195!—Section 97—Notice of Recri-mination Petition—Election Petition, inter alia, chiiming a declaration that acandidate other than- the returned candidate has been duly elected—Recountorders on the allegation thai improper voles had been accepted in favourof the elected candid' te and p oper votes in favour of the candidate inwhose favour the declaration is sought have been rejected—failure to givenotice under Section 97—Efleet of—whether elected candidate can seekthe inclusion of valid votes cast in his favour hut counted in favour of anyother candidate at the original counting.

The petitioner, a voter and the election agent of the fifth respondent,(an unsuccessful candidate) challenged the election of the fourth respondentto the Maharashtra Legislative Assembly from 104 Chikhli Constituencyon the ground, inter alia, that the election was materially affected byimproper acceptance and rejection of votes and on account of non-compli-ance by the Returning Officer of the directions/orders issued by the ElectionCommissioner of India. The Postal Ballot papers relating to the aboveconstituency were printed in Deonagari script despita specific directionsof the Election Commission (under Rule 22 of the Conduct of ElectionRules, 1961) that the same should be printed in English. The petitioneralso alleged various mistakes and irregularities in the counting of votessuch as lighting arrangements at the place of counting were not good,sufficient police guards were not on duty, unauthorised persons were allowedentry, the counting staff was hostile to the defeated candidate, a number

E.I.R.] GOBIND PRASAD SHIVPRASAD CHAUDHARY F. RETURNING 125OFFICER AND OTHERS

of ballot papers were unaccounted and there was no tally of used andunused ballot papers etc. The petitioner contended that at the timeof counting of votes improper votes were accepted in favour of Respon-dent No. 4 arid also proper votes of Respondent No. 5 were rejected.The petitioner claimed recount of votes and further a declaration thatthe fifth respondent be treated to be elected in place of the fourth respond-dent, the returned candidate. During recount ordered by the court the

, fourth respondent requested for inclusion of 250 votes cast in his favourbut wrongly counted in favour of the second respondent, another candidateat the election. However, no notice as provided for by Section 97 ofthe Representation of the People Act, 1951 was sent by the fourth respon-dent specifying his intention to challenge the declaration sought for theelection of the fifth respondent.

HELD: Allowing the petition, setting aside the fourth respondent'selection and declaring the fifth respondent elected—

(i) Although there is no direct evidence suggesting improper accep-tance and/or rejection of votes, the circumstances enumerated by thepetitioner namely small or microscopic margin of 178 votes; incorrectfiling of Form No. 16 by the Returning Officer, finding of 25 excess/shortballot papers at the time of counting, disproportionately large number ofrejected ballot papers, the Returning Officer granting limited recount of therejected ballot papers etc. are sufficient for ordering recount of all the votes.

(ii) Although the printing of postal ballot papers in Deonagri scriptwas contrary to the specific direction of the Election Commission to printthe same in English, the result of the election had not been shown to bematerially affected by the said non-compliance. The material effect onthe election cannot be decided on mere assumptions. The petitioner hasnot made out any case for rejection of votes polled through the PostalBallot papers apart from the assertion of non-compliance of the directionof the Election Commission.

HARI VISHNU v. AHMAD ISHAQUE: AIR (1955) SC 233;

R. SUBBANNA v. S. R. GURU & ORS: 22 E.L.R. 201;

S. NARAYANASWAW \. G. PANNCO LUCAN: 48 E.L.R. 73

... distinguished

(iii) The test fo- determining whether a ballot paper should be countediri favour of any particular candidate is to determine whether the ballotpaper sufficiently discloses the intention of the voter to vote for a particularcandidate. If-the marking of the ballot paper is substantially in theshaded portion between the names of two candidates with an insignificantportion within the column of a particular candidate it is very difficult tocome to a definite conclusion that the voter intended to cost his vote infavour of that particular candidate.

In cases where there are some insignificant marks and smudges inaddition to a regular mark in favour of a particular candidate, these insigni-ficant marks and smudges might have been accidentally caused while hand-ling the voting instrument or the ballot papers and as such by itself cannotbe a ground for the rejection of the ballot paper.

126 GOBIND PRASAD SHIVPRASAD CHAUDHARY V. RETURN- [VOL. LX1IIING OFFICER AND OTHERS

(iv) Under Rule 73(2) (d) a vote will be invalidated only if there isa reasonable probability of identification of the elector by the mark orwriting made by him. The mere possibility of identification will notinvalidate the vote. The writing in question in the present case on theback of the ballot paper, in particular, considering the large size of theconstituency will not give any indication of the person who has cast thevote by the said ballot paper.

DR. ANUP SINGH v. ABDUL GHANI AND ORS: AIR (1965) SC185 ... relied on

(v) Without the filing of an application for recrimination under Section97 of the Act the returned candidate is not entitled to allege any groundagainst the declaration of any other candidate's election including theground that valid votes polled in his favour have been improperly rejectedor improperly counted in favour of any other person. -

P. MALAI CHAMI v. M. AND1 AMBALAM: AIR (1973) SC 2077

(vi) Upon recount it was found that the fifth respondent who wasdeclared as an unsuccessful candidate polled 96 votes more than the fourthrespondent, the returned candidate at the election. The fifth respondentwas therefore entitled to be declared elected in the election in place of thefourth respondent.

RAM AUTAR SINGH v. RAM GOPAL SINGH: ATR (1975) SC2182 ... referred to

ELECTION PETITION 1 OF 1978

P G Palshikar and V G Palshikar, V. S. Sirpurkar for the petitioner

G Panuikar, Assistant G P for Respondent No 1

G V Holey, for Respondent No 2

V P Salve and Miss Sarin for Respondent No 4

Mrs Sirpurkar, for respondent No 5

JUDGMENT

GADGIL J.—This is a petition by which the election of respondent No. 4Janardan Dattuappa Bondre to the Maharashtra Legislative Assemblyfrom 104, Chikhli Assembly Constituency is being challenged. Thepetition is filed by Govindprasad Shivprasad Chaudhary, who is the Voterand was the election agent of the defeated candidate Bharat RajabhauBondre, respondent No. 5. The general elections of the Assembly wereheld in February, 1978. The polling took place on February 25, 1978 andthe result for this constituency has been declared on February 27, 1978.

2. In the said election from 104, Chikhli Assembly Constituency, inall nine candidates, viz- respondents 2 to 10, had originally filed theirnominations. However, respondents 8 to 10 withdrew from the electionand thus the contest was amongst respondents 2 to 7. Respondent No.2 was a candidate belonging to the Janata Party. Respondent No. 4fought election as a candidate of Congress (I) Party, while respondent

E.L.R.] GOMND PRASAD SHIVPRASAD CHAUDHARY V. RETURNING 127OFFICER AND OTHERS

No. 5 belonged to Congress (R) party. It is not necessary to give thedetails as to whether the other candidates belonged to any party or theywere independents. The Returning Officer—Respondent No. 1—afterscrutiny and computation of votes, found that respondents 2, 4 and 5secured 27447, 27785 and 27607 votes, respectively. Thus, respondentNo. 4 had obtained the highest number of votes and he was declared elect-ed by a small margin of 178 votes. It is this election that is being challen-ged.

3. The petitioner contends that the election of respondent No. 4 isvoid for the following reasons:

(a) Respondent No. 4 was disqualified from being chosen as a Memberof the Legislative Assembly as he has been holding an office ofprofit under the Government of the State of Maharashtra. Res-pondent No. 4 is the Head Master of a Municipal High Schoolat Chikhli. The State of Maharashtra is paying grants to coverthe salaries of the teaching staff of this school and that, therefore,respondent No. 4 is holding an office of profit under the State;

(b) Under Rule 22 of the Conduct of Election Rules, 1961, the Elec-tion Commission had directed that the postal ballots of serviceVoters should be in English language. The Returning Officerhas committed a breach and has printed these postal ballots iriDevnagari script. About 259 such ballot papers were acceptedby the Returning Officer as valid. According to the petitioner,these ballot papers, not in conformity with the Rules, should havebeen ignored. The petitioner,—also alleges that the non-comp-liance of the directions of the Election Commission about printingthe postal ballot papers in English has materially affected theresult of the election, as contemplated by section 100(1) (d) (iv);

(c) The Presiding Officers are required to submit the ballot paperaccount in Form No. 16. Part I of that form is to be filled in bythe Presiding Officers, while part IT is to be filled in by the count-ing Supervisors at the time of the initial counting. In part I, thePresiding Officers has to mention

(i) the total ballot papers received;

(ii) (a) the unused ballot papers bearing the signatures of thePresiding Officers;

(ii) (b) unused ballot papers without the signatures of the Presi-ding Officer;

(iii) ballot papers issued to the voters,

(iv) cancelled ballot papers and

(v) Ballot papers used as tendered Votes.

Immediately after the close of the poll, every Presiding Officerhas to fill in this part I and then to submit to the Returning Officerall the relevant papers, more particularly the unused ballot papersin sealed covers. Form No. 16 of the following polling statiom

18—3 ECI/ND/85

Number ol ballotpapers notreturned

30

150

200

l.iO

Serial numberof the ballotpapers

—

020201 to020351

031850 to032050.

046001 to046150.

128 GOBIND PRASAD SHIVPRASAD CHAUDHARY V. RETURNING OFFICERAND OTHERS • |_VOL. LXIl'

show that the number of unused ballot papers mentioned againsteach of the polling stations have not been returned by the Presi-ding Officers of the respective polling stations:

Polling station No.

(1) 21

(2; 26

(3) tO

(1) 50

The petitioner further submits that these unreturned unusedballot papers were supplied to respondent No. 4 when they wereblank and that these ballot papers after recording votes in favourof respondent No. 4 were inserted in the head of ballot papers atthe time of the counting and that while doing so, an equal numberof ballot papers (from the heap of the ballot papers taken out fromthe ballot boxes) were surreptitiously removed;

(d) At the time of the initial counting of the ballot papers, from eachof the porting stations, it was found that there was shortage of oneor two ballot papers from the ballot boxes of some of the pollingstations and in a few cases, there wasi also an excess of one or twoballot papers. This shortage or excess is on the basis of the figuresof ballot papers actually issued to the votes in a particular pollingstation. There was some controversy as to what was the exactshortage or excess, but at the stage of arguments, the positionhas become certain as to how much shortage or excess wasfound at the time of the initial counting from each polling station;

(e) The petitioner's contention is that the number of ballot papersthat were available for scrutiny and computation were more thanthe number of the ballot papers that were initially countedimmediately before such scrutiny and computation. There wasdivergence in the pleading of the parties as regards the exact figureof this difference but at the stage of the arguments, the positionis clear that such an excess was of 25 ballot papers. This isrevealed form No. 20 (Ex. 50) and form No. 21 (E) (Ex. 51).Form No. 20 is the account of the ballot papers found at theinitial counting just before the scrutiny and computation. Itshows that there were in all 87,842 ballot papers, including 259postal ballot papers. Form No. 21-(A) is a Return of Election,which shows that the total number of ballot papers counted andscrutinised comes to 87,867. (This includes the rejected ballotpapers 2,250 in number). Thus, instead of 87,842 ballot papersthat were initially counted, the Returning Officer has taken intoaccount 87.867 ballot papers, the difference being of 25 ballotpapers;

(f) thai the counting and scrutiny has been faulty, defective andillegal and is also vitiated on account of the hostile attitude of thecounting staff. The Government servants, semi-government

E.L.R.] GOBIND PRASAI; SHIVPRASAD CHAUDHARY V. RETURNING 129OJFICER AND OTHERS

servants and teachers were on indefinite strike from 14-12-1977.About 90% of the staff was on strike. The administration hadpractically collapsed. The Election Commission issued a notifi-cation dated 18-1-1978 for holding these Assembly Elections.The attitude of the striking staff was stern. They aid not payany heed to the statement issued by the President and the PrimeMinister to withdraw the strike. The Ministry in the State wasof the Congress Party. In January 1978, there was rift in thatparty, on account of the leadership of Mrs. Indira Gandhi, sheformed a separate party from the Indian National Congress.Mr. N. K. Tirpude. who was a Cabinet Minister in the Govern-ment, resigned from the Ministry as he was a follower of Mrs.Indira Gandhi. Mr. Tripude extended his whole-hearlcd supportto the demands of the strikers. Respondent No. 4 was a candi-date of the Congress (1) party, while respondent No. 5 belongedto the Congress (R) party. Thus, the entire counting staff washostile and disgruntled. It had a definite animosity against theCongress candidate (i.e. respondent No. 5);

(g) There was a chaotic condition in the counting pandal. The policeguard was inadequate. In addition no police guard was keptnear the wooden receptical where the ballot paper bundles (pre-pared after the initial counting from the ballot boxes) were kept.Unauthorised persons were allowed entry in the counting pandal.There was no check on the entry in an exit from the countingpandal. Suspicious characters were seen inside the countingpandal. The lighting arrangements were far from satisfactory.The counting and scrutiny was made in a hurry. The countingSupervisors alone did not do this job, but their assistants also carriedon the work. The counting agents had no opportunity to seeeach ballot papers. The "counting staff arbitrarily decidedabout the validity of the ballot paper. The valid votes recordedin favour of respondent No. 5 were not counted in this favourand some of the valid votes of respondent No. 5 were wronglyrejected. Invalid votes of respondent No. 4 have been treatedas valid. All this was done as respondent No. 4 was a leaderof the striking employees and, as such, the counting staff inten-tionally favoured the respondent No. 4.

(h) The .petitioner, therefore, submits that the result of the electionhas been materially affected by the improper acceptance or rejec-

tion of votes. After the evidence was recorded, the petitionerhas filed an application Ex. 94 praying that he has made out aprima facie case for the fresh scrutiny and counting of the ballotpapers and that this be done.

It is with these allegations, that the petitioner claims that the electionof respondent No. 4 be declared void and that respondent No. 5 be declaredas validly elected in the said assembly Elections.

The Returning Officer is made a party to this proceeding. He isrespondent No. 1. He has filed his return (i.e. written statement Ex. 6).The Returning Officer denied that respondent No. 4 was disqualified asholding office of profit on account of his post as the Head Master of aMunicipal School. He admitted .nat the service ballot papers were

130 GOBIND PRASAD SHIVPRASAD CHAUDHARY V. RETURNING OFFICERAND OTHERS [VOL. LXIII

wrongly printed in Devnagari script and that to that extent there was aviolation of the direction of the Election Commission. He, however,contended that this has not materially affected the result of the electionin as much as the service voters were all knowing Marathi language. Healso pleaded that there .were in all 230 valid service votes. Out of these124 votes had gone to respondent No. 4 and 60 votes to respondent No. 5.According to his, the result of the election will not be materially affectedeven if these votes are excluded, as the margin would still continue to bein favour of respondent No. 4, though it may be reduced to 114 votes. He hadfurther stated that in all 1,12,950 ballot papers were printed bearing c. nos.000001 to 1,12,950. Out of them 31 were rejected as not properly printed.Last three ballot papers, viz., S. No. 1,12,948 to 1,12:950 were sent to theElection Commission, while 62 ballot papers (Nos. 1,12,886 to 1,12,947) weresent as postal ballots not for service voters, but for voters on election duly.In all 1,11,569 ballot papers (i.e. S. No. 0,00,001,11,620 excluding 31 cancell-ed ballot papers) were issued to the various polling stations. The ReturningOfficer has produced at the time of evidence the register Ex. 62 showingall these details and there is no controversy in this respect. The Return-ing Officer denied that the Presiding Officers from polling station Nos. 24,26, 40 and 56 did not in all return 530 unused ballot papers, as alleged.He contended that the sealed-packets (containing unused ballot papers)received from the polling Officers of these four polling stations are in tactand that these sealed packets must be containing in all 530 unused ballotpapers.. He pleaded that the Presiding Officers of these four pollingstations have written incorrectly the ballot paper account in form No. 16and that the petitioner is trying to take advantage of the irregularities inthe form for the purpose of contending that 530 ballot papers were notissued. He has given the details as to how these forms contain mistakesand which can be verified even without opening of the sealed covers.For example, the contention of the petitioner is that the Presiding Officerof polling station No. 24 returned 114 ballot papers though in fact therewere 144 ballot papers which were not used. The Returning Officer hascontended that in the ballot paper account in S. No. 2(b) the PresidingOfficer has mentioned that ballot paper Nos. at s. no. 18,607 to 0,18,750were unused ballot papers but while giving the total of these ballot papers,he has mentioned it as 114. According to the Returning Officer, thistotal is incorrectly written as counting of 0,18,607 to 0,18,750 would cometo 144. It is alleged that the petitioner-has thus wrongly pleaded thatthe Presiding Officer of polling station No. 24 returned 114 unused ballotpapers instead of 144. The Returning Officer has also pleaded that similarmistakes have arisen in connection with the filling of form No. 16 of pollingstation Nos. 26, 40 and 56. At this stage it is not necessary to give themistakes said to be existing in the forms and the clarification given by thePresiding Officers in respect thereof. The Returning Officer denied thatthere were any 600 unused ballot papers available at the time of countingand those ballot papers were used in favour of respondent No. 4 and theninserted in the wooden receptical at the time of counting after removingequal number of votes from that tray.

The Returning Officer admitted that at the time of the initial counting,one or two ballot papers were found in excess in the ballot boxes of someof the polling stations and that in a few cases, one or two ballot paperswere found in short. He contended that the shortage might be on accountof a particular voter not inserting the ballot paper in the box after havingtaken it from the polling staff. Tt appears that his contention is that thisshortage or exr'ss has not materially affected the result of the election.

E.L.R.] GOBIND PRASAD SHIVPRASAD CHAUDHARY V. RETURNING 131OFFICER AND OTHERS

The Returning Officer admitted that at the time of the initial scrutinyand computation there were 25 more ballot papers as compared to theballot papers that were initally counted before scrutiny.

The Returning Officer denied that there was any irregularity at thetime of counting. He denied that the lighting arrangement were notgood. There were proper arrangements of police guard. No unautho-rised person was allowed entry. There was no hurry as pleaded. Accor-ding to him, the counting and the scrutiny has taken place in legal andproper manner. and that the petitioner has not made any complaint tohim. It was denied that there was any hostility of the counting staff, asalleged. After the evidence was over, the respondent No. 1 made anapplication Ex. 99 praying that the sealed packets containing unusedballot papers may be opened to verify the contents.

Respondent No. 2 filed his return Ex. 16 and practically admitted allthe allegations made in the petition.

Respondent No. 4 filed his return at Ex. 8. It is not necessary toreiterate the contentions—raised by him. Suffice it to say that he deniedeach and every allegations that has been made by the petitioner. Thus,his return is similar lo the return of respondent No. 1 Respondent Nos.3, 6, 7, 8 and 10 are absent, though duly served. Respondent Nos. 5 and9 appeared through their advocate, but they have not filed any return.

On the above pleadings, issues were framed by me. Later on with theconsent of the parties, I have recast and re-arranged them without modi-fying or changing the import of the issues. These issues include theadditional issues that were framed after the petitioner and respondent No.1 made applications Ex. No. 94 and 99. Thus, the issues that arise formy decision are:

1. Whether the petitioner proves that respondent No. 4 was dis-qualified on account of he being the Head Master of the MunicipalSchool? Whether the grant by the State Government to themunicipal school (of which respondent No. 4 is a Head Master)would make respondent No. 4 a person holding office of profitunder the State?

2. Whet'-'-r use of Devnagari script ballot papers in place of Englishserin1 (for postal ballot) makes those ballot papers void and in-valid ?

3. Whether the petitioner proves that 530 unused ballot papers werefound missing at the time of the scrutiny and computatioin ofvotes?

4. Whether the petitioner proves that 530 unused ballot papers(either Signed or unsigned) from polling booth Nos. 24, 26, 40 and56 have not been re'Mrned by the Presiding Officers to the Return-ing Officer, as alleged in paragraph 11 of the petition?

5. Whether respondent No. 1 proves that the ballot paper accountin Form No. 16 submitted by the various Presiding Officers con-tained some arithmetical and counting mistakes and that no un-used ballot paper (signed or unsigned) was missing?

132 GOBIND PRASAD SHIVPRASAD CHAUDHARY V. RETURNING.OFFICERAND OTHERS w [VOL. LX1I1

6/ Whether the petitioner proves that on account of gross negligenceof the Presiding Officer 600 ballot papers remained unaccounted?

7. Whether respondent No. 1 proves that all the allegations containedin issues 3 to 6 are incorrect and they are made on the basis ofihe obvious mistakes appearing in the ballot paper account in thereturn in Form, No. 16?

8. Whether the petitioner proves that the Presiding Officers suppliedin all 600 blank ballot papers to respondent No. 4, and that theseballot papers were put in the heap of the ballot papers at the timeof counting after removing equal number of ballot papers fromthat heap and that all this was done at the connivance and withthe co-operation of the staff who was present at the time of count-ing and scrutiny?

9. Whether the petitioner proves that at the lime of scrutiny andcomputation of votes 54 ballot papers were found in excess ofthe ballot papers that have been issued to and used by the votersat the time of polling?

10. Whether the petitioner proves that at the time of counting 21ballot papers were found in excess then the number of ballotpapers used for voting?

11. Whether the petitioner proves that at the time of counting andscrutiny it was found that 10 ballot papers were received lessfrom 10 booths and 2 ballot papers were received in excess fromtwo booths?

12. Whether the petitioner proves that from booth Nos. 12 and 30,one ballot paper each was received in excess of the ballot papersissued to those booths?

13. Whether the petitioner proves that the Presiding Officers weremotivated to defeat respondent No. 5?

14. Whether the petitioner proves that the whole process in—

(i) the issue of ballot papers to the Presiding Officers and thento the Voters?

(ii) casting of votes,

(iii) rettirn of unused ballot papers etc.

shows that there was an active effort made to temper the processwith a view to defect respondent No. 5?

15. Whether the petitioner proves that the process of counting andscrutiny was defective on account of absence of sufficient policeguard and on account of allowing suspicious characters to movein the counting pandal?

16. Whether the petitioner proves that the lighting arrangements in.the pandal were far from satisfactory and that at the time ofcounting untraceable 550 ballot papers were put in the countingtray and equal number of ballot papers were taken out duringthe course of counting and thai during this process, 25 less ballotpapers were taken out?

E.L.R.] GOBLMD TRASAD SHIVPRASAD CHAUDHARY V. RETURNING 133OFFICER AND OTHERS

17. Whether the petitioner proves that chaotic condition prevailed inthe counting pandal and that the petitioner and his agents were notgiven opportunities to inspect the votes for the purpose of findingout as to whether any of them were void?

18. Whether the petitioner proves that a number of votes which havebeen in fact cast in favour of respondent No. 5, have not beenaccounted in his favour?

19. Whether the petitioner proves that there was an improper rejec-tion of valid votes cast in favour or respondent No. 5?

20. Whether the petitioner proves that immediately after the scrutinyof votes he has made unequivocal allegations about the foul playand that the Returning Officer has wrongly rejected the prayerfor recounting made by the petitioner?

21. Whether the petitioner proves that only 19 tendered votes werereceived by the Returning Officer, though the Presiding Officersin all sent 20 such tendered ballot papers?

22. Whether the petitioner proves that it was necessary for the Return-ing Officer to take into account the tendered votes while countingand scrutinising the ballot papers?

23. Whether the petitioner proves that there was any non-compliancewith the provisions of the Constitution or of the Representationof the People Act, 1951, or of any rules or orders made thereunderand that such non-compliance has materially affected the resultof the election so far as the Returned Candidate (i.e. RespondentNo. 4) is concerned?

24. Whether the petitioner proves that a corrupt practice as contemp-lated by section 123(7) of the Representation of the People Act,1951 has been committed either by the returned candidate, or byhis election agent, or by any person with consent of either ofthem, as alleged? .

25. Whether the petitioner proves that a corrupt practice as contemp-lated by section 123(7) of the Representation of the People Act,1951, has been committed in the interest of the returned candidate(i.e. respondent No. 4) by an agent other than his election agentand the result of the election has been materially affected in so faras it concerns the returned candidate?

26. What orders about the result of the election?

27. Whether the petitioner is entitled to fresh counting and scrutinyof votes as prayed in Ex. 94?

28. If yes, what order?

29. If fresh scrutiny and counting is allowed and done, what is theresult thereof?

30. Whether respondent No. 1 makes out a case for opening thesealed packets (said to be containing unused ballot papers) andfor inspecting the contents thereof?

31. If yes, what order?

134 GOBIND PRASAD SHIVPRASAD CMAUDHAR.Y V. RETURNING OFFICER

AND OTHERS • [VOL. LXIII

32. If the prayer in issue 30 is granted, what is the result thereof?

My findings are:

1. Not pressed

2. No

3. No

4. No

5. Yes

6. No

7. Yes

8. No

9.1%11.

One ballot paper was found less at the time of initial counting in eachof the ballot boxes pertaining to polling station Nos. 21, 33, 35, 46,68, 69, 70, 83, 89, 115, 122 and 129. One ballot paper was found in

12. }• excess in the ballot box of polling station No. 56 at the time of initial| counting. 25 ballot papers were found more at the time of final| counting as compared to the ballot papers found in the ballot boxes

J at the time of initial counting.

13. No

14. No

15. No

16. No

17.118. j Findings reserved till the recount is made.19. i-20.J21. No

22. No

23. No

24. No

25. No

26. Orders will be passed after the recount is made.

27. Yes

28. as detailed below

29. Findings will be given after the recount is made.

30. Yes

31. Inspection was made at the close of the arguments.

32. There was no> shortage of 530 ballot papers, as alleged.

E.L.R.] GOBIND PRASAJ3 8tfIYA?RA8AI3 CHAODHARY (/.RETURNING 135

OFFICER AND OTHERS

REASONS

At the time of arguments, Mr. Palshikar for the petitioner franklystated that he would not be pressing issue no. 1 as being a Head Masterof a Government aided municipal school would not constitute holdingan office of profit under the State, as contemplated by Article 191 (l)(a)of the Constitution. I, therefore, record my finding in the negative on issueNo. 1.

There is no dispute that the ballot papers for service voters wereprinted in Devanagri script though the Election Commission has issueddirections that it should be in English script. Obviously, there would, there-fore be non-compliance with the relevant rule and the orders in that respect.It was contended by Mr. Palshikar that this breach would render all theserivce ballot papers void and that the Returning Officer should haverejected them at the time of the counting. 197 service voters have exercisedthe;r right to vote though in all such ballot papers issued to voters were745 in number. In addition, 62 service voters, who had been on electionduty, have exercised franchise. The Returning Officer (respondent No. 1)has given candidate-wise breakup of these 259 service votes. 29 ballotpapers were rejected and out of the remaining 230, respondent No. 4polled 124 votes, while respondent No. 5 secured 60 votes. Thus, if allthese 124 and 60 votes are taken into account, there would still be a leadof 114 votes in favour of respondent No. 4 Mr. Palshikar submitted thatthe margin is, therefore, -still reduced and that this may be taken intoaccount while considering his request for recount. I will not be able toaccept his contention of totally ignoring the postal ballot papers fromcounting as it would tantamount to holding the service ballot papers asinvalid. Rule 56(2) of the Conduct of Election Rules, 1961 lays downvarious circumstances under which the Returning Officer is bound to rejectthe ballot papers. Clause (g) of that Rule says that a ballot paper of adesign different from the design authorised for use shall be rejected. Re-liance was placed by Mr. Palshikar on the decision of the Supreme Cou,rtin, Han Vishnu v. Ahmad Ishaque (A.I.R. 1955 S.C. 233). At that timetn'e Assembly and the Parliament elections were held at one and the sametime. The Election Commission had prescribed a green bar on the ballotpapers meant for Parliament election. At the time of the counting, 301votes having a brown bar on the ballot papers were treated as valid. Inthe election p_etition, this was objected to and the Supreme Court held thata rule prescribing distinguishing mark of the Assembly vote and the Par-liamentary vote is a mandatory one and that, therefore all these 301 votes

' should be omitted while counting. Another case reported in R. Subbanav. R. Guru & others (XXII Election Law Reporter 201) has been re-lied upon. It is the decision of the Election Tribunal, Bangalore, and itdealt with the question of the validity of the postal ballots which were notattested by an authority prescribed by he Rules. Similarly, the serial num-bers on all the ballot papers did not agree with the number of ballotpaper entered on the envelope in which it was placed. Rule 92, whichwas then in force, has made a provision fhat these type of ballot papersshould be treated as invalid. The Election Tribunal relying upon thisRule, recorded a finding that all the postal ballots were invalid and thatthey should be ignored. It may be noted that in both the above cases,there was a specific provision which rendered that particular ballot paperinvalid. Here the position is different. Rule 56(2) (g) so far as it k

. 19—3 ECI/ND/85

136 GOBIND PRASAD SHIYAPRASAD CHAUDHARY V. RETURN- [VOL. LXIIIING OFFICER AND OTHERS

applicable in this case, says that if the ballot paper is of a design notauthorised by the Election Commission, should be rejected. It will be verydifficult to accept the contention of the petition that printing a ballotpaper in Devanagri instead of the English would change the design ofthe ballot paper as contemplated by the Rules. What is meant by designor form is considered by the Supreme Court in S. Nctrayanaswami v. G.Pcmnco Luean (48 Election Law Reporter 73). There the name of one ofthe candidate was 'Uday Pratapsingh'. However, the ballot paper waswrongly printed so far as this name was concerned. The name wasprinted as 'Udaybhan Pratapsing'. This candidate was defeated in theelection and a contention was raised by him that the election is totallyvitiated as the ballot papers were invalid on account of this mis-printing.When the matter went to the Supreme Court, it was held that such a mis-printing would not constitute difference in the design as required by Rule56 (2) (g) and, as such, the ballot paper cannot be treated as invalid.The Supreme Court further held that the effect of this mis-printing was thatthere was an irregularity falling under section 100 (l)(d) (iv) of the Rep-resentation of the People Act. It would thus be non-compliance and theSupreme Court held that such a non-compliance alone would not besufficient to invalidate the election unless there is a proof that the resultof the election has been materially affected. Here the petitioner has notled any evidence in that respect. The argument based on some assump-tion was advanced by Mr. Palshikar, RuFe 24 and 25 deal with the re-cording of votes of postal ballots. Rule 25 provides as to liow an illiterateor infirm voter can take assistance while recording his vote. It was arguedthat it may some time happen that a service voter posted in differentState may be illiterate and infirm and that an assistance for recordinghis vote could be properly given if the person who has to render assistancewould be able to rend the ballot paper in order to record the vote asper the desire of the service voter. It was further argued that the servicevoter would not be able to record such vote (particularly when he isposted out of Maharashtra) if the ballot paper is printed in Devanagri and ifthere would be no one knowing that language whose help or assistancethe voter takes. It appears to me that all this submission is based onan assumption and the question as to whether the result of the electionhas been materially affected or not cannot be decided on the basis ofsuch assumption basis. I would, therefore, hold that the petitioner doesnot make out any case for leaving out of consideration these service votessimply because the ballot papers were printed in'Devanagri-Issue no. 2decided accordingly.

Issue No. 3, 4, 5, 6, 7 and 8 can conveniently be considered to-gether. The contention of the positions is that the Presiding Officers ofIhe polling station Nos. 24, 25, 40 and 56 after the polling was over,failed to return un-used ballot papers Nos 30, 150, 200 and 150, respectivelyand that these ballot papers were misused by receiving then as votes infavour of respondent No. 4. ft is further alleged that they were thrownin the heap of the ballot papers at the time of counting and equal numberof ballot papers were removed from that heap. This entire submissionis based upon the entries in the ballot paper account (form No. 16) filledin by the Presiding Officers. The contesting respondent alleged that thePiesiding Officers have committed some mistakes including the arithme-tical mistakes while filling in the said forms No. 16. However, they have

E.L.R.] GOBINb PRASAD S H I Y A P R A S A D CHAUDHARY V. RETURN- 137

ING OFFICER AND OTHERS

returned all the unused ballot papers. It will oe convenient to reproducethe columns of Part I of Form No. 16 and then discuss the rival con-tentions. These columns are as follows :—

Serial numbers Total numbers

1. Ballot papers received

2. Ballot papers unused—

(a) With the signature of the Presidingofficer, if any; and

(b) Without the signature of the Presidingofficer.

3. Ballot papers issued to voters.

4. Ballot papers cancelled

(a) for violation of Voting procedure underrule 39; and

(b) for any other reason

5. Ballot papers used as tendered ballotpapers:

Dale : Signature of the Pressing officer.

The total of serial numbers 2(a) and 2(b) should cover all the unusedballot papers either signed or unsigned by the Presiding Officer. Thistotal should correspond with the difference of the ballot papers receivedby the Presiding Officer and the ballot papers used (i.e. the ballot papersissued to the voters including the cancelled ballot papers and the tend-ered vote ballot papers. Thus, the total of s. no. 2 should tally with thedifference of total of s. no. 1 on the one hand and the total of s. nos. 3,4and 5 on the other. I will now take for discussion all these form Nos.1.6 of the four concerned polling stations.

Form No. 16 of polling station No. 24 is at Ex. 63/24. It statesthat the total number of ballot papers received by the Presiding Officerwas 1149, while 1003 ballot papers were issued to the voters. The totalof unused ballot papers would come to 144. However, in Ex. 63/24,the Presiding Officer has given this total against s. no. 2 as '114'. It ison this basis that the petitioner alleges that tiie Presiding Officer hasreturned 114 unused ballot papers though in fact he should have returned144. He, therefore, contends that the Presiding Officer did not leturn 32 un-used ballot papeis. This again is based upon an incorrect entry of thefigure 114 against s. no. 2. This can be very well seen if the total num-ber of returned ballot papers are counted on the basis of the serial num-bers of the ballot papers mentioned against s. no. 2. These s. nos. are8, 18, 607 to 750. The total comes (o 144. The Returning Officer in hisevidence at Ex. 61 has given the evidence about this mistake. Toascertain extent, the petitioner Govindprasad Choudhari (P.W.I) hasadmitted this position in his evidence at Ex. 23. This can be seenfrom the statements made by him in paragraph 15. Of course, stillthe question would arise as to what exact position is. The ReturningOfficer has stated to the effect that the position can be further verified

138 GOBIND PRASAD SHTVAPRASAD CHAUDHARY V. RETURN- [VOL. LXIIIING OFFICER AND OTHERS

by opening the sealed packet Ex.72 which contains the unused ballotpapers returned by the Presiding Officer of polling station No. 24. Atthis juncture I may add that there is no dispute that the unused ballotpapers were sealed immediately after the poll was over. The petitionerin paragraph 24 of his deposition admitted that he had given instruc-tions to his election agents that they should see that the Presiding Officerkeep in sealed covers all the unused ballot papers. He has given noticeEx. 15 in this proceeding calling upon the Returning Officer to produce thesealed cover containing the unused ballot papers. He has also statedthat such a notice was given so that there could be a verification to as-certain as to how many ballot papers are returned. Respondent No. 1 hasmade an application Ex.99 to this Court for opening the sealed packetin order to verify as to whether it contains 144 unused ballot papers ornot. Similar request for opening and physically verifying the contents ofthe Sealed packets of the unused ballot papers of polling station Nos. 26,40 and 56 has also been made. I will consider that request later. How-ever, at this juncture, it can be safely stated that there is much substancein the contention of respondent at the petitioner is intending to take anundue advantage of the mistakes made by the Presiding Officer whilefilling in Ex.63/24.

I will now consider the contention about non-return of 150 unusedballot papers from the polling station no. 26. Form No. 16 of thispolling station is at Ex.63/26. In all 750 ballot papers were receivedby the polling officer, while 591 ballot papers were issued to the voters.Thus, the Polling Officer should have returned 159 unused ballot paperswhether signed or unsigned. In S. no. 2(a), he has mentioned the numberof unused signed ballot papers as '9'. The serial numbers of those ballotpapers are also given. But against s. no. 2(h), he has written the word"nil' to suggest that no unsigned ballot paper has been returned. By ap-plying the arithmetical rule of additions and deductions, the petitionersays that the Presiding Officer was possessing 159 unused ballot papersand that by returning only 9 of them, he has not returned the remaining150. The contention of the Returning Officer is that the Presiding Officernas committed mistakes in writing 'nil' against s. no. 2(b). According tohim, he should have written the total number of ballot papers againstthis item as '150' by giving serial numbers of the ballot papers as 0,20,201to 0,20,350. The Returning Officer has reproduced 2 sealed packets Exs.65 and 66. Ex. 65 bears the printed endorsement 'for signed but unusedballot papers with counter foils'. While Ex. 66 has an endorsement 'forunused ballot papers with counterfoils without signatures of the Pre-siding Officer'. Polling station no. 26 is also written on both these enve-lopes. The Returning Officer has stated that these two packets must becontaining 9 and 150 unused ballot papers, respectively. As far as poll-;'ing station No. 40 is concerned, the total number of the ballot papersreceived by the Presiding Officer was 1050. Form No. 16 of this pollingstation is at Ex. 63/40. Against S. No. 2(b), the Presiding Officer hasgiven the figure '13' as unsigned unused ballot papers. The ReturningOfficer has stated that this figure should have been written against s. no.2(a) that is meant for signed unused ballot papers. He has also statedthat the Returning Officer has committed a mistake in not mentioningagainst s. no. 2(b) as 200 ballot papers with s. no. 031851 to 032050. TheReturning Officer has produced at Ex.67 a sealed envelope with a printedendorsement 'for signed unused ballot papers'. He has also producedEx.68 another sealed cover with a printed endorsement showing that it

E.L.R.] GOBIND PRASAD SHIYAPRASAD CHAUDHARY V. RETURN- 139


contains unused signed ballot papers. Ordinarily there would not havebeen two such sealed covers if the Presiding Officer has returned only onesealed cover as per ostensible reading of Ex.63/40. I would, therefore,think that there is much substance in the contention of the ReturningOfficer that in all 213 unsigned ballot papers have been returned.

The position of polling station no. 56 also does not appear to befavourable to the petitioner. Form No. 16 of this polling station is atEx.63/56. Here the Presiding Officer in all received 950 ballot papers.Against s. no. 2(a), there is an entry of 18 ballot papers. There is nodispute about the correctness of this entry. The Returning Officer hasproduced at Ex.69 a sealed cover and according to him, it must be con-taining these 18 ballot papers. As far as entries in s. no. 2(b) are con-cerned, the Returning Officer has stated that these entries are incorrectlywritten by stating 782 ballot papers bearing serial numbers 045201 to045982. The ballot papers with similar serial numbers (excluding s. no.045539 and totalling 781) have been mentioned against s. no. 3 also.According to the Returning Officer, what is written against s. no. 3 iscorrect, while incorrect statement is made against s, no. 2(b). This obvi-ously appears to be worth accepting. If we take into account the diffe-rence between s. nos. 1 and 4, it would come to 168. Thus, the unusedballot papers (whether signed or unsigned) would in all come to 168.Against that, the entries in s. nos. 2(a) and 2(b) is that the PresidingOfficer possessed 500 unused ballot papers. If the existing entry in s. no.2(a) and 2(b) is correct, the ballot papers issued to the voters would cometo 150, (i.e. 950 received by the Presiding Officer, minus 800 that remainedunused as per. s. no. 2). But at the time of the initial counting (videpart II of Ex.63/56) in all 782 ballot papers were found in the box. Thiswould be another indication showing that the entries against s. no. 2(b)have been incorrectly made. The Returning Officer produced two sealedpackets containing unsigned and signed unused ballot papers of this poll-ing station at Nos. 69 and 70.

The petitioner has admitted in paragraph 14 of his deposition thathe has no personal knowledge about the shortage of the return of unusedballot papers, he was asked as to whether he made enquiries with the Re-turning Officer about this shortage. He replied that no such enquiry wasmade us the Returning Officer himself could not have replied about it asall the pt;p.:rs were in sealed covers. The Returning Officer has statedin his evidence, that the exact position can be verified after opening thesealed covers of these four polling stations. As stated earlier, the peti-tioner has admitted that he has got those sealed covers produced in orderthat actual position can be physically verified. This much therefore, iscertain that the entries in form no. 16 cannot be implicitly relied uponfor the purpose of holding that there was any shortage in the return ofthe unused ballot papers. This is more so when there are on lecordthe sealed packets which are said to be containing the unused signed orunsigned ballot papers. In this background, I think that respondent no. 1has made out a case for inspection of the contents of sealed packets. Bythe close of the arguments, I have told the advocates that, I have formedas opinion that such a case for opening the sealed covers has been pro-perly made out and that it would be desirable to open those sealed coversin order to verify the contents. This was done in the presence of the learnedadvocate Mr. Palshikar for the petitioner Mr. Pennikar, Assistant Gov-

140 GOBIND PRASAD SHIYAPRASAD CHAUDHARY V. RETURN- {VOL.ING OFFICER AND OTHERS

eminent Pleader and Mr. V.P. Salve, advocate for respondent No. 4. Thecontents were verified in their presence and they show that what theReturning Officer has alleged is correct. The order and note of inspec-tion is made and maintained by me that very time. It was made in thepresence of the Advocates. It is at Ex.100. The net result is that therewas no shortage of 530 unused ballot papers, as alleged by the petitioner.As far as the petitioner's application Ex. 94 is concerned, I told the ad-vocates that the orders thereon will be passed along with this Judgmentand hence I will be considering that application later in this judgment.

In addition to the above mistakes, appearing in part 1 of FormsNo. 16 of polling stations Nos. 24, 26, 40 and 56, there were also someother mistakes to which a reference will again be made while discussingissues 9 to 12. But as far as issues 3 to 8 are concerned, it can safelybe said that there was no shortage in the return of 530 unused ballotpapers. Consequently, the imputation or allegation covered by issue no.8 becomes all the more improbable. The contention of substitution of600 ballot papers at the time of counting oy replacing them with the al-ledged unused, unreturned ballot papers, cannot be accepted as thereexisted no excess unused, unreturned ballot papers, which could be madeuse of for this substitution. Hence my findings on issues 3 to 8.

The petitioner has alleged that 54 ballot papers were found in excessat the time of the initial counting and that there were also some otherexcess and shortage. In addition, it is alleged that 21 ballot papers werefound in excess at the time of scrutiny and counting. These contentionsare raised primarily on the basis of the calculation of the figures givenin form no. 16. At the time of the arguments, Mr. Palshikar give detailsabout these shortage or excess; for example, he has stated that as per therecord as it stands, one ballot paper was found short at the time of thecounting and—scrutiny in each of the polling station Nos. 21, 35, 46. 68,69, 70,"83, 111, 115, and 129. He also submitted that at the time of theinitial counting (i.e. before the actual counting and scrutiny), one ballotpaper was found is excess in polling station Nos 20, 40, 42, 43. 45, 67,80, 88, 89, 94, 101, 103, 105, 110, 113, 116, 118. 120,121, 124, 128. In addi-tion, according to the cakulat'ons. two ballot papers were found in excessat the time of initial counting in polling station Nos. 16, 56, 62 and 125.He has given a few more details in that respect. However, he franklystated that all these figures would not necessarily be correct if a findingis recorded that there was no shortage of 530 unused ballot papers. Healso stated that some of the excess or shortage worked out by him wouldbe reduced if the correct calculations are made after making necessarycorrections in forms No. 16 statements. At the stage of the arguments,it is now admitted position that one ballot paper was found less at thetime of the initial counting in each of the ballot boxes pertaining to poll-ing station Nos. 21, 33, 35. 46, 68, 69, 70, 83, 89, 1)5, 122, and 129. In addi-tion, one ballot paper in excess in the ballot box of polling station no. 56,there is one more item of excess. It pertains to 25 ballot papers. Asper form No. 20, there were in all 87842 ballot papers (including thepostal ballot papers) at the time of the initial counting. However, thecounting staff made scrutiny and computation of 87867 ballot papers.This means that 25 ballot papers were in excess at the time of scrutinyand computation as compared to the ballot papers when they were ini-

E.LR.] GOBIND PRASAD SHIYAPRASAD CHAUDHARY V. RETURN- 141


tially counted. The Returning Officer ha.', also admitted this positionabout all the types of excess and shortage. In view of this discussion, Irecord my findings on issues 9 to 12.

Issue Nos. 13 and 14 involve an allegation about the electionstaff having tampered the election process on account of the staff beingmotivated to defect respondent No. 5. The petitioner, in paragraph 2 ofhis evidences, has stated that in December 19 77, the Government employees,local self Government servants and the teachers went on an indefinitestrike from 14-12-1977 for getting increase in pay and emoluments. Butthe then Chief Minister of the State of Maharashtra Mr. Vasantrao Patil(who belonged to the Congress (R) party) was not ready to accede tothese demands. Later on there was a rift or split in the Congress party.Two parties were formed, viz., Congress (Reddy) and Congress (Indira).Mr. Tirpude resigned from the Government. Congress (I) took a standin support of the striking employees and the said party gave a promisethat it would definitely try to satisfy the demands of the striking employeesin case that party is voted to power. Purushottam Culve (P.W. 3) hasstated that respondent No. 4 was a leader of the striking employees.There used to be daily meetings and morchas. It is this evidence whichhas been relied upon by the petitioner. Mr. Palshikar submitted thatthe Government employees had animosity against the Government (i.e.Congress (R) party) and that these employees were in favour of the Con-gress (R) party as that party had supported the demands of the strikingemployees. There is no dispute about the strike. However it will be verydifficult to accept this contention of Mr. Palshikar that the election staff(which principly consisted of the Government and semi-governmentservants) had decided to vitiate the election process by taking favourableactions in favour of the Congress (1) party candidates. Another importantfactor is that the allegation in this respect is of a vague character. Theonly basis is the fact of the Government employees' strike. No detailshave been pleaded or proved for the purpose of showing as to how theelection staff was motivated against the Congress (R) candidate, viz.,respondent No. 5. Issues 13 and 14 are, therefore, answered in negative.

Issues 15 and 16 are based on an allegation of want of sufficientpolice guard and absence of sufficient lighting arrangements in the count-ing pendal. Before discussing these issues. I would like to give the ge-neral picture about the counting pendal and the arrangements made there-in. The pendal was erected in the open space in the compound of theTahsil office buildings at Chikhli. The petitioner has produced a roughsketch Ex.54, while the Returning Officer has filed a rough map Ex. 73.There is no much difference in these two maps. The only contraversy inthe maps is about the exact location of the electric lamp or the tubelights in the pendal. I would refer to this aspect later. But as can beseen from the evidence, the pendal was measuring about 80' north-southand 40' east-west. It was erected in the open space that was surroundedby the buildings of the tahsil office, on the eastern, western and northernside, there was verendahs and thereafter there would be the walls of(be buildings. On the southern side there was no such verendah but onlya wall. The Returning Officer's table was placed on the northern varendah.It was facing south. There was a north-south row of table Nos. 1 to 6on the western side and another north-south row of table Nos. 9 to 14

142 GOBIND PRASAD SHIYAPRASAD CHAUDHARY V. RETURN- [VOL. LXIIIING OFFICER AND OTHERS

on the eastern side. Table Nos. 7 and 8 were near the southern wall. Awooden receptacle or a big tray, where the ballot papers were initiallykept after initial counting, was placed just in front of the ReturningOfficer. The entrance to this pendal was in the southern wall. To thesouth of the pendal, there was again an enclosure made up of bamboostrips. There was a door to the south of this enclosure, which was leadingto the main road to the west.

1 have already stated that the petitioner's evidence is at Ex. 23.In addition, he has examined his counting agent Vinod Mahajan (P.W.2, Ex. 53). A news paper reporter Puroshottam Galve (P.W.3. Ex. 55)Ramesh Kothari (P.W. 4 Ex. 56). Balasaheb Ratnaparkhi (P.W. 5 Ex. 57)and Mukund Popat (P.W. 6 Ex. 59). Respondent No. 1 has entered thewitness-box. His evidence is at Ex. 61, while the deposition of respon-dent No. 4 is at Ex. 90. It is this evidence that would be relevant forthe purpose of deciding issues 15 and 16 as also some of the remainingissues. The contention of the respondent is that Ramesh Kothari andBalasaheb Ratnaparkhi were not at all in the counting pendal and thattheir evidence should be totally left out of consideration. It is not indispute that the entry in the pendal Was restricted to certain persons.The petitioner initially made out a case that Kothari and Ratnaparkhiwere the counting agents of respondent No. 5, and that therefore theywere present in the pendal in that capacity. Kothari and Ratnaparkhihave also made statements in their depositions that they were the countingagents of respondent No. 5 and appointed so by the petitioner. Underthe Rules, counting agents are required to be appointed in the pres-cribed form No. 18. The petitioner states that in his capacity as theelection agent of respondent No. 5, he has appointed 14 countingagents. During the cross-examination the form under which he madethe appointments was put to the witness. That form is at Ex. 52. Itshows that the petitioner has appointed only 10 counting agents and thatthe names of Kothari and Ratnaparkhi do not find place in the list ofcounting agents appointed under Ex. 52. This would therefore, suggestthat Ratnaparkhi and Kothari were not at all the counting agents of thepetitioner or respondent No. 5. The matter is clarified in paragraph 25 ofthe petitioner's evidence wherein he has stated that Ratnaparkhi andKothari were the counting agents of respondent No. 3 and that it is theywho told the petitioner that they were the counting agents of respondentno. 3. With these statements made by the petitioner in the cross-exami-nations, it will be very difficult to accept the version of the petitioner asalso of Kothari and Ratnaparkhi that Kothari and Ratnaparkhi were thecounting agents of the petitioner. It is true that they have made specificstatements in the evidence about their status as such counting agents. Toget over the absence of their names in Ex. 52, a case was sought to bemade out that the petitioner had filled in another form under which fourmore counting agents were appointed and that this form includes the namesof Kothari and Ratnaparkhi. It may be noted rhat the petitioner hadnot made any such statement in this evidence about making appointmentsunder two different forms. Under the rules, the appointment is made bythe candidate or his election agent. The candidate has to sign that formin token of his consent. He also makes a declaration in the presenceof the Returning Officer. The place for making signatures by the count-ing agents is after the list of the counting agents. Thus, the countingagent is not expected to sign the form against his name. This positionis material while appreciating the evidence of Ratnaparkhi. In paragraph

GOBIND PRASAD SHIVPRASAD CHAUDHARY V. RETURNING OFFICER 143

E,L.R.] AND OTHERS

14 he has stated that he put his signature opposite the namewritten in the form and not below the list of names- He hasstated that he did not sign on the second page of that formas, according to him, the form which he signed consisted of onlyone sheet. However, the form Ex. 52 would show that it consists of morethan one sheet. The case of the petitioner that Kothari and Ratnaparkhiwere the counting agents of respondent No. 3 is not acceptable for thesimple reason that the form Ex. 18 filled in by respondent No. 3 doesnot contain these two names. Mr. Palshikar has made an applicationfor recount of votes before the Returning Officer. That application wasdecided by passing an order Ex. 79. In that order the Returning Officerhas stated that all the fourteen counting tables were represented by thecounting agents of the petitioner (Chaudhari Bondre respondent No. 5)—Similar observations also appear in Ex. 78 which is a note of the pro-ceedings of the counting. Much reliance was placed by Mr. Palshikar onthese statements for the purpose of submitting that there .were countingagents of the petitioner on all the 14 tables and that necessarily meansthat there were 14 counting agents. The Returning Officer has explainedthis position by saying that he made the above statements on the basisof what ths petitioner told him. Before deciding the application, the Re-turning Officer made enquiries with the petitioner as to whether he haucounting af.ent on all the tables. The petitioner replied in the affirmative.The Returning Officer has stated that he made the above statement onthe basis of this reply. The question as to whether he had countingagents on all the tables or that 14 counting agents were really appointedby the petitioner cannot be decided on the basis of deductions from cer-tain statements made in Exs. 78 and 79.

Mr. Palshikar submitted that the question of Kothari and Ratna-parkhi being the counting agents of the petitioner may not be decidedsimply on the basis of Ex. 52 and that the probability of the petitionermaking as appointment of these two witnesses under a separate formneed not be over-looked. Mr. Palshikar's submission ,about there being14 counting agents of the respondent No. 5 including these two namesof Kothari and Ratnaparkhi suffers from an inherent lacuna inasmuchas the petitioner has not made out any such case of Kothari and Ratna-parkhi having been appointed under a form different form Ex. 52. TheReturning Officer has produced all the forms under which the * variouscandidates had appointed their counting agents. I have already madea mention of ex. 52 and the remaining forms are at Exs. 52 and 81 to 84.The total of the counting agents appointed under all these forms comesto 63. The Returning Officer, immediately after the election, is requiredto submit his report as per form No. 30 (Ex. 97). A copy of such reporthas been brought on record during the cross-examination. There is acolumn No. 32 in that report, in which the total number of countingagents appointed by the candidates is required to be filled in. The Re-turning Officer has given the number as 63. This tallies with the appoint-ment order Exs. 52, 81 to 84. This figure includes 14 counting agentsappointed by respondent no. 6 under Ex. 84 Mr. Palshikar submittedthat actually in Ex. 84, only three counting agents have signed the dec-laration and, as such, the respondent No. 6 should be presumed to haveappointed only three counting agents. Tn this case the question as tohow many counting agents were appointed by respondent No. 6 is notat all directly in issue. It appears, figure '63' has been mentioned by

20—3 ECI/ND/85


the Returning Officer on the basis of the names as they appeared inthe above exhibits. It will not be possible for me ot accept the caseof the witnesses Kothari and Ratnaparkhi that the petitioner had filledin two forms, viz. Exs. 52 and one'more. The question as to howmany counting agents were appointed was an innocent circumstance whenthe report Ex. 9.7 was sent. The Returning Officer could not have imaginedthat later on any election petition would be filed and that the questionof Kothari and Ratnaparkhi would become relevant and that he shouldpurpose fully not include the 4 counting agents which are now allegedto have been appointed under another from. The fact that the numberof counting agents mentioned in that report tallies with the total of allthe counting agents under Ex. 52 and Exs. 81 to 84 would be a strongcircumstance against the say of Kothari and Ratnaparkhi that they wereappointed by any different form. All this discussion would, therefore,mean that Kothari and Ratnaparkhi were not at all in the counting pendaland on that count, their evidence needs no considerations.

The contention of the petitioner is that unauthorised persons se-cured entry in Ihe pendal as there was." no proper police guard. Issue No. 16covers a contention about the insufficiency of light. The petitioner hasdeposed that there was only one police guard and that he saw some personsin the pendal but who were not connected with the process of counting.They were coming in and going out of the pendal occasionally. Tn thecross-examination he admits that these 5 or 6 persons were serving tea,water and lunch etc. He has further stated that he made enquiries withthe Returning Officer as to who those persons were and that he wasinformed that they were from amongst the counting staff. Vinod Mahajanhas also given a similar deposition that there were 8 or 10 persons with-out any badge and that on enquiries it was learnt that they were fromamongst the counting staff. Purushottam Culve in his examination-in-Chief does not make any such reference about any unauthorised personswithout badge being present. However, in the cross-examination he states thatthere were 5 to 7 persons without any badge and that they were servingwater, tea, lunch etc. Mukund Popat has not stated anything in thisrespect in his deposition. The Returning Officer has made the positionclear. He has deposed that entry in the pendal was restricted only tothose who could enter the pendal. The counting staff appointed underappointment orders Exs. 74, 75 and 76 were given separate badges. Thebadges were of four types. One was meant for the Assistant ReturningOfficer, the other for the Counting Supervisors and the third for theCounting Assistants. The fourth categroy of badge was only with words"Counting Staff" and it was meant for the remaining staff. In addition tothis, candidates, counting agents and the election agents were permitt-ed to enter the pendal. He has also stated that certain persons like pressreporters etc. who were possessing permission from the Election Com-mission were permitted to enter the pendal. As regards the police guards,he has stated in paragraph 13 that one constable was on watch duty inthe pendal and he was near the wooden recepticle. One or two cons-tables were kept on the outer side to the entrance of the pendal. Thisentrance was to the south. To the south of the entrance again therewas a bamboo strip enclosure where the police force consisting of policeinspector and some policemen was posted. In addition, there were somepolicemen outside the southern enclosure. The fact that there was onepoliceman near the wooden rececticle has been admitted by the peti-

GOBIND PRASAD SH1VPRASAD CHAUDHARY V. RfiTURNING OFFICER 145E.L.R.] ANDOTHERStioner. I am satisfied that the provision of the police guard made bythe Returning Officer was quite sufficient and no grievance can be madein that respect. As far as the presence of unauthorised person's is con-cerned, the evidence is to the effect that in the group of persons, whowere serving tea, water, lunch, etc. there were certain persons who werewearing badges while others did not have any. The Returning Officerhas denied that there was any unauthorised person present in the pendal.He has, however, stated that he would not be certain as to whether a fewpeons (who were serving tea, water, lunch etc.) might not have actuallyworn badges. He has added that he was knowing all those persons per-sonally and there was no question of any unauthorised person enteringthe pendal. It is not in dispute that no complaint has been made at anystage of the counting about the presence of unauthorised persons exceptthe alleged oral query. A cogent reply was given by the Returning Offi-cer that those persons were from amongst the staff. With this state ofevidence, it would be very difficult to hold that the police guard was in-sufficient.

1 have already stated that another contention of the petitioner isthat lighting arrangement was insufficient as three or 4 tube lights nearthe table Nos, 4 to 6 had gone out of order after about 4.30 P.M. Thisis the substance of the evidence led by the petitioner and his witnessesVinod Mahajan, Purushottam Gulve and Mukund Popat. All of themhave deposed that there were in all 13 to 14 tube lights. The ReturningOfficer has in paragraph 11 and 12 given the detailed picture about thecounting pendal, the arrangement of tables as also the lights that wereavailable. He has produced the map Ex. 73. I have already stated thatthe Pendal was surrounded by the verendahs on the eastern, northernand western sides. The evidcence of the Returning Officer and the mapshow that there were 3 tube lights on the arches on all the three sides,meaning thereby that there were in all 9 tube lights. Adjoining thewestern verendah and to its east there was a north-south row of table Nos.1 to 6. To the east of that row again there was a row of five pillars andeach pillar had two tube lights. To the east of these pillars, there wasan open space in which a tree was standing. There was two tube lightsaffixed to the trunk of the tree. To the east of this tree and at some dis-tance there was another north-south row of five pillars each of which hadtwo tube lights. Then came the north-south row of table nos. 8 to14. In the southern wall of the pendal, two tube lights were affixed. Inaddition there was a mercury lamp near the northern verendah. The pet-tioner and his witnesses have n»t accepted this evidence and their case isthat there were only 13 or 14 tube lights. However, the matter hasbecome somewhat clear in the cross-examination of the witnesses. Thepetitioner has admitted in paragraph 20 that it was not his say that therewas no light at all. But his grievance is that the light was somewhat in-sufficient. He has admitted that there was one tube light in between twotables and there were also some tube lights above the table. Thedistance between the two tables was about 7' to 8'. This can be seen fromparagraph 22. Vinod Mahajan has given evasive answers by saying thathe did not remember whether there were over-hanging lights in the pendal.When he was asked as to whether there was any tube light on the trunkof the tree, he has given a queer reply that he did not go there to see thetube lights and that he Was unable to say anything in this respect.In paragraph 14 he has stated that there was no tube light in theverendah. According to him, the pillars of the pendal were just ad-


joining the verendah. He denied that the sequence from east to west wasverendah, table row, pillar rows. But Purushottam Gulve has contradict-ed him in paragraph 17 of his deposition. He states that the pillars of thependal were about 6' to 7 away from the outer edge of the verendah andthat there was a row of six tables placed in between the outer edge of theverendah and the row of the pillars. This was so on the eastern and west-ern sides of the pendal. This evidence means that the sequence from eastto west was verendah, table rows, pillars, open space, the row of pillars, rowof table and the western verendah. It is this position that has been deposed toby the Returning Officer. There is some evidence that in addition to the pen-dal pillars, there were tube lights in the verendah proper. Thus the inconsis-tency in the evidence led by the petitioner Would suggest that there is no muchsubstance in the contention of there being only 13 or 14 tube lights, and outof which 3 or 4 tube lights went out of order. The returning Officer in para-graph 32 of his deposition, has admitted that the construction of the pendaland the installation of electric lights was done through the Public WorksDepartment and a sketch was sent to that Department for carrying out thework. He has. also stated that he has paid the bill thereof out of the electionfunds. Mr. Palshikar relied upon this statement and contended that omissionon the part of the Returning Officer to produce the concerned record aboutthe sketch etc. may be interpreted in favour of the petitioner. I do notthink that such an adverse inference can be drawn. This is more so, whenthe Returning Officer has stated in the examination-in-Chief that as a stand-by arrangement, the generating set and four petromaxes were kept ready.There is no serious cross-examination on this part of the evidence. This isnot a case where the petitioner has pleaded absence of light. His contentionis that the light was insufficient near table Nos. 4, 5 and 6. Mukund Popat,who was working on table No. 4, no doubt stated that there was insuffici-ent light on this table. However, when a complaint was made to the Count-ing Supervisor, a reply was given that he (i.e., the Counting Supervisor)was able to see the votes on the ballot papers very well. This reply woulditself suggest that there was sufficient light. Otherwise, the CountingSupervisor would have himself taken steps to report to the ReturningOfficer his inability to proceed with the work on account of insufficiencyof light. It is needless to say that no written complaint has been made atany time during the counting about the insufficiency of light. This factoralso goes against the petitioner. For all these reasons, issues 15 and 16are decided against the petitioner.

Issues No. 17 to 20 cover a pleading about the alleged irregularityin the actual counting and scrutiny. The same evidence of the petitionerand his witnesses Vinod Mahajan, Purushottam Gulve and Mukund Po-pat is relied upon for proving these contentions.

The counting began from 8 a.m. Up to 1.30 noon there was an initialcounting. Ballot papers from each box were actually counted and noted.These ballot papers were thereafter converted into bundles of 25 eachand they were placed in the wooden tray or recepticle which was in frontof the Returning Officer. There is no dispute about this procedure. Thegrievance is about the actual counting of votes in favour of the candidates,this work began sometime after 2.30 p.m.

There were in all seven rounds of counting. In every round 1,000votes were counted on each of the fourteen tables. The 7th round wasonly restricted to 4 tables as the ballot papers were not sufficient for dis-

GOBIND PRASAD SH1VPRASAD CHAUDHARY V. RETURNING OFFICER 147E.L.R.] AND OTHERS

tributing them on all the 14 tables. The contention of the witnesses isthat the first round went on smoothly with the detailed procedure of thetwo counting assistants placing the ballot papers after unfolding thembefore the Counting Supervisor. The Counting agents inspected the ballotpapers. There were separate compartment-wise boxes for each of thecandidates and one box for objected ballot papers. The ballot paper, ifobjected to by any of the counting agents, was kept in the concernedcompartment and the other ballot papers were placed in the compartmentof the candidate in whose favour there was a vote in a particular ballotpaper. The objected ballot papers were taken to the Assistant ReturningOfficer and if necessary, to the Returning Officer. They gave their deci-sions either treating them as valid or invalid and these ballot papersthereafter were processed accordingly. After the working in connectionwith 1,000 ballot papers was over, the ballot papers were converted intobundles of 50 ballot papers each. The result of this counting was notedon a sheet of paper. The grievance of the petitioner and his witnessesis that since about the second round, this detailed procedure was not atall followed. Vinod Mahajan has deposed that the counting supervisorand his two assistants started seeing the ballot papers simultaneously andplacing those ballot papers in the compartment of the concerned candi-dates. He has stated that it was not possible to see all the ballot papersminutely as at one and the same time three persons were handling them.He informed orally to the counting staff about this. A reply was giventhat the counting would continue even till the next day if the procedureof handling the ballot papers by three was to be stopped. He also madea general statement that the counting staff used to keep ballot papersin wrong compartments, i.e., in the compartment of a candidate in whosefavour the vote has not been recorded. No heed was paid even thoughobjection was raised. He has then stated that after the second round wasover, the counting agent Ratnaparkhi told him that while preparing thebundles of 50 ballot papers, the bundle of respondent No. 4 was foundto contain 49 ballot papers, while that of the respondent No. 5 was having51 ballot papers. Vinod Mahajan has deposed that after this information,he was careful and that on one occasion he asked the counting officersto recheck the bundles and at that time it was found that the bundle ofrespondent No. 4 was found containing 49 ballot papers and that of-res-pondent No. 5 containing 51 ballot papers. Purushottam Gulve was notthe counting agent but he was a reporter of the news papers and in thatcapacity he was present. The respondent disputed his presence. How-ever, I am not ready to accept this plea. Gulve has stated that.from3rd round onwards, he heard the counting agents of respondent No. 5telling witness Chaudhari that the counting staff was making hurry andcounting agents were not able to see whether any ballot paper was doubtfulor objectionable and whether the ballot paper was correctly placed in thecompartment of the concerned candidate. He has also referred to a talkbetween Ratnaparkhi and Kothari on one hand and Chaudhari on theother about the incorrectl preparation of bundles by having 49 or 51 ballotpapers as mentioned above. Mukund Popat, who was the counting agent,has made a statement that on account of insufficient light, he was notable to see the ballot papers properly. I have already discussed this partof the evidence. He has added that at the beginning of the 3rd round,Chaudhari told him that he (Cnaudhari) was receiving complaints aboutthe incorrect preparation of bundles. The petitioner Chaudhari had madea general statement that the detailed procedure was not continued afterthe first round, and that the ballot papers were being seen by all, the count-

148 GOBIND PRASAD SIHVPRASAD CHAUDHARY V. RETURNING OFFICERAND OTHERS [VOL. LXIII

ing staff members simultaneously in hurried manner and it was not possi-ble for the counting agents to see as to, whether the ballot paper was inorder or was liable to be objected. He has also stated that Kothari andRatnaparkhi complained about the incorrect preparation of bundles. Theevidence of Chaudhari is mainly based upon the complaints that are saidto have been made to him by his counting agents. He has stated thathe has made complaints to the Returning Officer in this respect from timeto time. According to him, those complaints were not properly attendedto and an evasive reply was given that everything will be done at the timeof the final counting.

Ramesh Kothari and Balasaheb Ratnaparkhi have given evidence insupport of the petitioner. In their deposition, they have mentioned irre-gularities as stated by other witnesses. However, I have come to the con-clusion that these two witnesses were not at all present in the countingpendal as they were not the counting agents of any of the candidates.Hence their evidence needs no serious consideration. It is the rest of theevidence that has to be scanned.

As against the above evidence, the Returning Officer and respondent•No. 4 Janardan Bondre (Ex. 90) have deposed that there was nothingirregular and that no complaints were made, as alleged by the petitionerand his witnesses. It was contended by Mr. Palshikar that the evidenceled by the petitioner should be accepted. However, there are certain in-firmities which cannot be lost sight of. In the first place, the petitionerhas admitted in paragraph 25 that the pleading is somewhat vague. Thiscan be seen from the following, admissions made by the petitioner in para-graph 25 of his deposition:

"I have not stated in the petition that I have received complaints thatwhile making the bundles of the ballot papers after counting, 51ballot papers in favour of respondent No. 5 were bundled as a bundleof 50 and that 49 ballot papers in favour of respondent No. 4 werebundled as a bundle of 50 ballot papers. I have not stated in thepetition that Kothari and Ratnaparkhi had made any complaint tome. Vinod Mahajan and Mukund Vanmali Popat are two of mycounting agents who had made complaints to me. I have not statedin the petition that they have made any complaints. I have not men-tioned the names of these two persons as well as of Kothari and Ratna-parkhi in the application Ex. 48. I have no reason to offer as towhy I have not mentioned their names in Ex. 48. I felt that itwas not necessary to mention their names in the petition in this courtas I thought that their names can be given later."

Another point that cannot be lost sight of is that in the entire process ofcounting, there has not been any written complaint either by the pollingagents Vinod Mahajan, Mukund Popat or the petitioner to the ElectionAuthorities. It was contended by Mr. Palshikar that the counting agentswere not expected to rush to the Returning Officer and that their normalresponsibility would be to make complaints to the candidates or theirelection agents. He also argued that the. written complaints by the count-ing agents need not be expected as ultimately the petitioner (the electionagent) was to convey those complaints to the Returning Officer. To someextent this argument is plausible. But there is no reply from the petitionerabout the grievance made by Mr. Paunikar and Mr. Salve that at least

GOBIND PR AS AD SHIVPRASAD CHAUDHARY V. RETURNING OFFICER 149E.L.R.] AND OTHERS

the petitioner should have made the written complaints to the ReturningOfficer. The petitioner has filed an application for recount at Ex. 48. Thatapplication also does not contain any such allegation of the complaints.It is in evidence that one Mr. Kolhatkar was appointed by the ElectionCommission as an observer and that he had visited the counting pendalat least for sometime. No oral or written complaint was made to him byanybody. Absence of such complaints carries more weight, particularlywhen the press reporter Gulve was present. He has admitted in para-graph 18 of his deposition that the complaints and irregularities were ofa serious nature. Ordinarily, it is expected that he should have told theReturning Officer about them. However, he has not stated anything inthat respect. Similarly, he should have told Chaudhari that he should givea written complaint to the Returning Officer. But that has not been done.This omission on the part of Gulve would be important in the backgroundof another factor. He has stated that he had made report to the newspapers which he represented and that in that report, the irregularitiesdeposed to have been mentioned. It was expected that Gulve would nothave failed to make any complaint to the Returning Officer if the irregu-larities really existed. Secondly, as the irregularities were of a seriousnature, the news paper editors would not have chosen not to publish thosereports. According to Gulve, his reports were not published in the newspapers. Mr. Salve urged that they were not so published because, in factno such reports were even sent. Gulve admitted that he has not main-tained any office copies of the reports. According to him, those reportswere sent to the news papers by ordinary post. Thus there is no postalacknowledgement in support of his say that he has submitted the reportsto the news papers. The evidence of Gulve suffered for one more reason.He himself is a teacher in the Municipal High School of which the return-ed candidate respondent No. 4 is the Head Master. Gulve has admitted•that respondent No. 4 had made a complaint against him and hencecharges of disobediance and irregularity in conducting the classes wereframed. Not only that, but Gulve was under suspension for 13 months.These factors cannot be lost sight of while deciding as to whether theallegations made in the petition can be said to have been substantiatedby the evidence of Gulve. 1 think that it will be very difficult for me tohold the allegations proved on the basis of his testimony.

It would thus be clear that the points involved in issue Nos. 17 to 20cannot be decided affirmatively in favour of the petitioner on the basisof the evidence led in this Court.

Mr. Palshikar submitted that the petitioner is entitled to a recount fortwo reasons. In the first place, his argument is that the allegations cover-ing issues 17 to 20 should be held proved and that on that basis thepetitioner has a right to claim recount. His second argument is that evenif the above contentions covered by issues 17 to 20 are not accepted, thepetitioner has, on account of certain peculair circumstances available here,a good case for getting recount. I have already made a mention of thefact that the petitioner has made an application Ex. 94. In that applica-tion a number of grounds have been given, but certain grounds cannot beconsidered in view of my findings that the evidence is not sufficient tohold these grounds proved. Mr. Salve for the respondent No. 4 submittedthat the—allegations in the petition (covered by issues 17 to 20) are toovague and general and that the law as to recount lays down that a peti-tioner is not entitled to any recount with such type of allegations. He


relied upon two Supreme Court decisions. The first case is in Ram SewakYadav v. Hussain Kamil Kidwai (A.I.R. 1964 Supreme Court 1249). Therelevant head note reads as under:

"An order for inspection may not be granted as a matter of course;having regard to the insistence upon the secrecy of the ballot papers,the Court would be justified in—granting an order for inspection pro-vided two conditions are fulfilled:

(i) That the petition for setting aside an election contains anadequate statement of the material facts on which the peti-tioner relies in support of his case; and

(ii) the Tribunal is prima facie satisfied that in order to decidethe dispute and to do complete justice between the partiesinspection of the ballot papers is necessary".

In that case general allegations about improper—acceptance or rejectionof votes was made. In addition there were some discrepancies in FormNos. 16 and 20. Then the allegation was that the light was insufficient atthe time of counting and that on a true account, the petitioner would begetting more votes. There was no evidence to prove these allegations.The Tribunal rejected the application for .recount or inspection. Thematter went to the High Court, where inspection was granted. In anappeal against the High Court order, the Supreme Court held that no ins-pection and recount should have been granted as the plea was vague andthat a mere fishy enquiry is not permissible. A similar view is taken inDr. Jagjit Singh v. Giani Kartar Singh (A.I.R. 1966 Supreme Court 773).Mr. Salve relied upon the following head note:

"Vague or general allegations that valid votes were improperly rejected,or invalid votes were improperly accepted, would not serve the purposewhich S. 83(l)(a) has in mind. An application made for the inspectionof ballot boxes must give material facts which would enable the Tri-bunal to consider whether in the interests of justice, the ballot boxesshould be inspected or not. In dealing with this question, the impor-tance of the secrecy of the ballot papers cannot be ignored, and itis always to be borne in mind that the statutory rules framed underthe Act are intended to provide adequate safeguard for the examina-tion of the validity or invalidity of votes and for their proper counting.It may be that in some cases, the ends of justice would make itnecessary for the Tribunal to allow a party to inspect the ballot boxesand consider his objections about the improper acceptance or impro-per rejection of votes tendered by voters at any given election; but inconsidering the requirements of justice, care must be taken to see •that election petitioners do not get a chance to make a roving orfishing enquiry ".

A similar view has been taken by the Supreme Court in the case of JitendraBahadure Singh v. Krishna Bihari and others {A.I.R. 1970 Supreme Court276).

In view of my discussion about the evidence led by the petitionerbeing not acceptable, I need not consider in details as to whether thepleading is vague or not.

E.L.R.] GOBIND PRASAD SHIYAPRASAD CHAUDHARY V RETURNING 151OFFICER AND OTHERS

Mr. Palshikar, however, contended that even if this aspect is decidedagainst the petitioner, the petitioner would be entitled to a recount foranother reason: He argued that the law as to recount has undergonea change at least with respect to some important aspect and that theSupreme Court as laid down that recount is permissible in certain cir-cumstances though there may not be direct evidence suggesting improperacceptance or improper rejection of votes. In the present case he reliedupon the following circumstances:

(i) a small or microscopic margin of 178 votes by which respondentno. 4 was elected;

(ii) the fact that form no. 16 has been incorrectly filled in at a num-ber of polling stations so as to include even arithmetical or cal-culational mistakes;

(iii) finding of 25 excess ballot papers at the time of actual, countingas compared to the ballot papers taken out from the ballot boxes;

(iv) finding of some excess or shortage of ballot papers at the timeof initial counting;

(v) the disproportionately large number of rejected ballot papers, viz.2250, and

(vi) the fact that the Returning Officer has granted at least limitedrecount of the rejected ballot papers and it has not been carriedout.

He relied upon a decision of the Supreme Court in Chanda Singh v. Ch.Shiv Ram Verma and others (A.I.R. 1975 Supreme Court 403). T wouldlike to reproduce the relevant portion of the head note.

"If the counting of the ballots are interfered with by too frequent andflippant recounts by courts and new threat to the certainty of the pollsystem is introduced through the judicial instrument. Moreover, thesecrecy of the ballot which is sacrosanct becomes exposed to dele-torious prying if recount of votes is made easy. The best surmise,if it be nothing more than surmise, cannot and should not induce thejudge to break open ballot boxes. If the lead is relatively little and/orother legal infirmities oi* factual flaws hover around, recount is proper,not otherwise. In short, where the difference is microscopic, the stageis set for a recount given some plus point of clear suspicion or legallacuna militating against the regularity, accuracy, impartiality or ob-jectivity bearing on the original counting. Of course, even if the diffe-rence be more than microscopic, if there is a serious flow or travestyof the rules or gross interference, a liberal repeat or recount exercise,to check in mistake is fair exercise of power".

Mr. Palshikar submitted that there should not be any frivolous or un-reasonable refusal of; recount by the Returning Officer. According to him,the scope of such recount is laid down by the Supreme Court in S. BaldevSingh v. Teja Singh Swatantra (A.I.R. 1975 Supreme Court 693), whereinit is held as follows: —

"The Court frowns upon frivolous and unreasonable refusals ofrecount by Returning Officer who forget the mandate of Rule 63 thatallowance of recount is not the exception and refusal is restricted to cases

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152 GOBIND PRASAD SHIYAPRASAD CHAUDHARY V RETURN- [VOL. LXlUING OFFICER AND OTHERS

where the demand itself is frivolous or unreasonable. Where the marginof difference is minimal, the claim for the fresh count cannot be sum-marily brushed aside as futile or trumpery. If. a uniform view, found-ed in legal error, has led to wrong rejection of votes, rectification bya recount on the spot, when a demand was made, would have beenreasonable. If formal defects had been misconstrued as substantialinfirmities, or vice versa, resulting in wrongful reception or rejection,the sooner it was set right the better, especially when a plea for asecond inspection had been made on the spot. Many practical cir-cumstances or legal misconceptions might honestly affect the legal orarithmetical accuracy of the result and prestige or fatigue should notinhibit a fresh, may be partial, check. Of course, baseless or con-cocted claims for recount or fabricated grounds for inspection ofspecious complaints of mistakes in counting when the gap is huge areobvious cases of frivolous and unreasonable demands for recount.Malafide aspersions on counting staff or false and untenable objec-tions regarding validity of votes also fall under the same category.This illustrative, not exhaustive, but underlines the need, in appro-priate cases, to be reasonably liberal in re-check and recount by Re-turning Officers. After all, fairness at the polls must not only bemanifest but misgivings about the process must be erased at the earliest.Indeed, the Instructions in the Handbook of Instructions to officers arefairly clear and lay down sound guidelines. Judicial power to directinspection and recount is undoubted but will; be exercised sparingly.A judicial recount is not a matter of right and convincing, not con-clusive, specificity is of the essence".

Mr. Salve submitted that mere small margin would not be a decisivefactor and that a petitioner has no right to claim recount on that basis.He drew my attention to the decision of the Orissa High Court inMochiram Triva v. Lalmohan Nayak (46 Election Law Reports 563).There the margin was of 169 votes. However, in this case, the aspect asto whether the recount should be granted on account of the small margindoes not appear to have been specifically considered. That matter wasmainly decided on the basis that the allegations about the improper ac-ceptance and rejection of votes were vague and general and that they havenot been proved. Apart from that, the said decision of the Orissa HighCourt would hot normally prevail particularly when the Supreme Courthas specifically laid down that ordinarily a recount would, be granted ifthe' margin is minimal or microscopic. It would, therefore, be necessaryto consider as to whether in the present case there was such a marginand there existed other circumstances which coupled with such marginwould enable the petitioner to get recount. In this case the margin isof 178 votes. Mr. Salve urged that this cannot be said to be a minimalor microscopic margin as is required and, as such, there is no case forthe petitioner for claiming recount. Mr. Palshikar contended that the ques-tion as to whether the margin is minimal or microscopic would alwaysbe a relative one and that it has got to be considered after taking intoaccount the total number of votes and the total number of rejected ballotpapers. As per form No. 21 (E), the total votes were 87867. The pro-portion of 178 votes to this total comes to less than 1%. To be specific,it is 0.2%. He also argued that this percentage may be considered in thebackground of a large number of 2250 rejected ballot papers. There ismuch substance in the contention of Mr. Palshikar that the margin in thepresent case cannot be said to be large or huge. In fact, it would be

E.L.R.] GOBIND FRASAD SHIYAPRASAD CHAUDHARY V RETURNING J 53OFFICER AND OTHERS

microscopic and minimal. This fact gathers more weight as there is suffi-cient evidence to show that the Election Officers at the stage of pollingand also at the stage of counting have committed serious errors.

Forms No. 16 have been filled in such an inaccurate and incorrectmanner that if one implicitly relies upon then, arithmetical results wouldbe surprising; for example form as they stand* show that 530 ballot paperswere not returned. There would have been one ballot paper in excess atthe time of initial counting in the ballot boxes of each of the followingpolling station Nos. 20, 40, 42, 43, 45, 67, 80, 88, 89, 94, 101, 103, 105,110, 113, 116, 118, 120, 121, 124 and 128. In addition there would havebeen two ballot papers in excess at the time of the initial counting in theballot boxes of polling station Nos. 16, 56, 62 and 125. However, thisexcess or shortage as revealed from forms No. 16 does not appear to becorrect as the forms themselves were not accurately and properly filledin. Thus, in addition to the small margin, there exist enough material toshow that Presiding Officers, while submitting the form No. 16, have com-mitted mistakes. Even if these mistakes are left out and the correct posi-tion is arrived at, there would still remain some shortage, or excess. Thisposition has been admitted by the Returning Officer in Paragraph 8 of hisdeposition. He has stated that there was shortage of one ballot paper atthe time of the initial counting from 12 polling station Nos. 21, 33, 35, 46,68, 69, 70,, 83, 89, 115, 122 and 129 and there was excess of one ballotpaper in polling station No. 56. The Returning Officer has further submit-ted that there were 25 ballot papers more at the time of the final count-ing. This excess is in relation to the ballot papers which were actuallyfound at the time of the initial counting. None of the respondents hasbeen able to give any explanation for this excess or shortage. The excessof above mentioned 25 ballot papers is such that no explanation can evenbe imagined. Of course, the Returning Officer tried to explain it by sayingthat at the time of the counting at other Assembly Constituency elections,there was such an excess. In the first place, there is no evidence in thatrespect. Apart from that, the existence of such excess somewhere else wouldnot minimise the pravity which the petitioner wants to attach to thatexcess here. Mr. Palshikar submitted that all this must be the result ofthe staff having been over worked on account of the process going on formore than 12 hours, and there must be some haste. Mr. Salve for res-pondent No. 4 submitted that this excess of votes might have arisen outof counting mistakes or arithmetical or calculational mistakes. Accordingto him the element of human error and mistake alone would not entitlethe petitioner to get recount. Mr. Palshikar contended that the above sub-mission of Mr. Salve -would itself suggest that the process of counting andscrutiny was not free from mistakes' and that in that background, it is ab-solutely necessary that the matter should be set right by having a recount,I feel that Mr. Palshikar is right when he contents that at least unexplained•excess of 25 ballot papers is a circumstance which should be construedin favour of a case of recount.

Another factor on which Mr. Palshikar relies is that even the Return-ing Officer, to whom the application for recount was made, was satisfiedthough partly, about the genuineness of the petitioner's case. The Return-ing Officer has allowed recount and re-scrutiny of 2250 rejected ballot papers.He was asked about the reason as to why the recount • was granted. Inparagraph 36 of his deposition, he replied as follows: —

154 GOBIND PRASAD SHIYAPRASAD CHAUDHARY V RETURN- [VOL. LXIIIING OFFICER AND OTHERS

"My reply is that this was done as there was a large number ofrejected votes and also as just a consolation of Chaudhari."

I am not able to understand exactly the second reason about consolation,which the Returning Officer has given. At any rate, the Returning Offi-cer found it necessary to have a recount of the 2250 rejected ballotpapers but the recount was not made and the reason given was that thepetitioner informed the Returning Officer, that he was not ready to havesuch a limited recount.

Various circumstances which have got to be considered while deci-ding the prayer for recount have been discussed and referred to by theSupreme Court in P. Malm Chami v. M. Adai Ambalam (A.I.R. 1973Supreme Court 2077). In paragraph 2, the Supreme Court has enumera-ted some of the grounds on which the High Court has granted recount.There, amongst other circumstances, it is held that the fact that theReturning Officer directed recount of invalid ballot papers lands supportto the contention of the petitioner that the votes were not properly scru-tinized. Another factor that is referred to as relevant is that failure ofthe Returning Officer to implement his order to recount, has vitiated thedeclaration of the result. Thus, after taking an over-all view of the variouscircumstances that are relied upon by Mr. Palshikar, 1 hold that thepetitioner would be entitled to a recount of all the votes. The result isthat findings on points or issues 17 to 20 will have to be held up till thisis done.

Issues 21 and 22 are not pressed and as a matter of fact, the peti-tioner has not made out any case for counting the tendered votes. Hencethey are answered in the negative.

Issue No. 23 does not survive.

As far as issue No. 24 is concerned, my findings would be in thenegative as the petitioner has not proved that there was any corruptpractice on the part of the returned candidate. Corrupt practice as con-templated by section 123 (7) is pleaded and the allegation is that res-pondent No. 4 obtained and procured an assistance in furtherance of hisprospects from the Government servants, who were 'on election duty.1 have not accepted this contention of the petitioner. Mr. Salve arguedthat the question of corrupt practice should not be accepted for anotherreason. Proviso to section 123 (1) lays down that when the petitioner makesan allegation about the corrupt practice, such a petition shall be accom-panied by an affidavit in a prescribed form in support of the allegation ofcorrupt practice and the particulars thereof. The petitioner has not filedany affidavit. It was contended by Mr. Salve that in the absence of suchan affidavit, the petitioner's plea about the corrupt practice should bethrown out. He relied upon the decision of the Madhya Pradesh HighCourt reported in (A.I.R. 1964 M.P. 278). However, this aspect neednot be gone into in further details as after appreciating the evidence, Ihave come to the conclusion that the petitioner has not proved theallegations made. Hence my finding in the negative on issue No. 25.

Issues 27 to 29 have already been decided by me immediately afterthe close of the arguments and the result of these findings have beenconsidered by me while deciding issues 3 to 8.

E.L.R.] GOBIND I'RASAD SHTYAPRASAD CHAUDHARY V RETURNING 155OFFICER AND OTHERS

As discussed in this judgment, issues 30 and 31 are decided in theaffirmative, while the finding on issue No. 32 has to be reserved till therecounti and re-scrutiny is completed.

The only question that would now remain at this stage is whatorder should be passed as regards the recount and re-scrutiny. Here thepetitioner has prayed that the election of respondent No: 4 should be setaside and that in his place respondent No. 5 be declared as elected. Whatshould be done in such a contingency has been considered by the SupremeCourt in the above mentioned case reported in Malani Chami Vs. M. Andi.(A.T.R. 1973 S.C. 2077). Before the Returning Officer there the returnedcandidate had secured 37337 votes as against the defeated candidate get-ting 37210 votes. 3381 votes were rejected by the Returning Officer. TheHigh Court granted recount of votes of both the returned and the defeatedcandidates and the final analysis after such a recount was the -returnedcandidate's votes were increased to 37372. while the defeated candi-date's votes were determined at 37297. Thus, the margin still remained infavour of the returned candidate though it was reduced from 127 to 75votes. However, at the time of arguments, the High Court came to theconclusion that the recount of votes of the returned candidate was notpermissible as it was the duty of the successful candidate to have filed arecrimination application under section 97 of the Representation of thePeople Act. This can be seen from the observations in paragraph 5 of theJudgment, it was field that section 97 of the Act could come into forcein a case where the petitioner applies for setting aside the election of thereturned candidate and also prays for a declaration that he (Petitioner)or some other candidate is declared elected. Ft is needless to say that arecrimination contemplated by section 97 is permissible only if within 14days from the date of the commencement of the trial, the concerned par-ties give a notice to the High Court of their intention to do so and alsogive scrutiny and further scrutiny contemplated by sections 117 and 118.The provisions of section 97 make this position clear. The High Court{which decided the case against which the matter went in Supreme Courtin P. Malani Chami V. M. Andi Ambalam (A.l.R. 1973 S.C. 2077), there-fore, made arithmetical calculations by not having any recount of thevotes of the returned candidates so as to increase them. This analysisgave a result that the defeated candidate got 96 votes more than thereturned candidate. The petition was, therefore, allowed by setting asidethe election of the returned candidate and by declaring the petitioner(defeated candidate) as duly elected. Correctness of this decision wasbefore the Supreme Court, which upheld the High Court decision. Therelevant head note reads as

"In a case where an election petitioner prays not merely for settingaside the successful candidate's election but also for declaring him-self as elected, the only ground on which he can be so declared isthat in fact he had received a majority of valid votes. Tt is in deci-ding as to who has got the majority of valid votes that S. 97 comesinto play. In such a case it is the duty of the successful candidateto file a recrimination petition as contemplated by section 97. Ifhe does not do so, he will not be allowed to lead any evidencearising any plea against the validity of the claim of the election peti-tioner Where an election petitioner prayed for recount ofall the votes on ground of breach of election rules, it could not besaid that there was no need for filing recrimination petition when


the recount was asked for the purpose o£ obtaining a declaration thatthe successful candidate's election was void and a further declarationthat the petitioner himself had been elected."

1 may at this state state that the above mentioned principle wouldnot in any way be altered simply because the main election petition isnot filed by the defeated candidate but by a voter. Under section 98,the High Court has a power, even in such a petition, to declare the elec-tion of the returned candidate to be void and also to declare that thepetitioner or any other candidate is duly elected. Section 97 comes intopicture when a declaration is claimed that any candidate other than thereturned candidate is duly elected. The order of recount will have, there-fore, to. be issued after bearing in mind the principles laid down by theSupreme Court in A.I.R. 1973 S.C. 2077.

For all these reasons, 1 pass the following Order:

ORDER

A prayer lor recount as also the application Ex. 94 in that respect isgranted. There should be a fresh scrutiny and recount of the votes on thebasis of the following directions:

(a) The voles recorded in favour of respondents 2, 3, 4, 6. 7 and 8should be gone into only for the following purposes, viz.,

(j) in order to see as to whether these votes include, the voteswhich are actually cast in favour of respondent No. 5, andwhether any invalid votes of respondent No. 4 has beencounted as his valid votes, and

(ii) in order to physically count these votes with a view to seeas to whether those votes were really less'than those declar-ed to have been secured by these respondents;

(b) the votes declared to have been recorded in favour of respon-dent No. 5 should be physically counted only with a view to iindout as to whether those votes ars actually more than the figuredetermined by the Returning Officer. It will not be open to anyparty to raise any objection to any of such votes on the groundthat the vote is not valid in favour of respondent No. 5;

(c) the rejected votes should be again scrutinised only with a viewto see as to whether any valid'votes in favour of respondent No..5 has been wrongly rejected. While doing so, it will not beopen for any party to, allege that there was any valid vote infavour of any other candidate and that such vote has beentreated as invalid by the Returning Officer-.

(d) All the above mentioned work will be done by the Special Offi-cer, High Court of Judicature at Bombay, Bench at Nagpur,with the help of eight counting clerks from the High Court officeat Nagpur. Their names are as follows and they are finalised inconsultation with the learned advocates appearing on behalf ofparties:

(1) Mr. R. C. Deo(2) Mr. V. G. Pisputhar

E.L.R.] GOBIND PRASAD SH1YAPRASAD CHAUDHARY V RETURNING 157OFFICER AND OTHERS

(3) Mr. V. M. Gawali

(4) Mr. M. M. Telmasre

(5) Mr. V. M. Baviskar

(f) Mr. N. S. Tidke

(7) Mr. D. R. Hedge

(8) Mr. A. M. Vadhudhe

In addition, the Special Officer will be entitled to the help offour peons, viz.,

(1) Mr. Manohar Chavhan

(2) Mr. Gulam Abhas

(3) Mr. Kavadu Thangode

(4) Mr. Durgaprasad Dahake

whose names have been finalised in consultation with the advo-cates of the parties.

All these clerks would carry on the work separately but as maybe assigned to them by the Special Officer and under the super-vision of the Special Officer. The parties would be entitled toraise before then only such objections as are permissible underclauses (a), (b) and (c) above. Such objected ballot papers wouldcome before me along with the report from the Special Officeras regards the actual counting. These objected ballot papers willbe decided by me after hearing parties and their advocates andthereafter the final order will be passed.

(c; At the time of the above counting, only the following personswill have a right of entry:

(i) the parties to this petition and their advocates, and

(ii) each party will have a right to give a list of eight personsso that the party may be represented by one person on, eachtable. These persons as also the parties and their advocateshave only a limited right of raising objections which arepermissible under clauses (a), (b) and (c). above. This listmay be given at any time till before the work begins

(f) The work should begin on 26-8-78 at 9 A.M. in the High Courtbuilding in Court Room No. D. The date, lime and place is fix-ed in consultation with the parties and their advocates and henceon special or individual notice of such counting is necessary tobe given to the parties or their advocates.

(g) The Special Officer may adjourn the work to another date, pre-ferably to next day if it cannot be completed on 26-8-78.

(h) The petitioner in the first instance to deposit Rs. 750/- on orbefore 22-8-78 .

158 GOBJND PRASAD SHIYAPRASAD CHAUDHARY V RETURN- LVOL. LXIflING OFFICER AND OTHERS

The matter is adjourned to 30-8-78 for further hearing on the reportof the Special Officer and the points that would arise therefrom.

Further Judgement: 22-9-1978.

In terms of the above order, the scrutiny and counting of thevotes was made by the Special Officer with the help of the membersmentioned in the order. In addition, services of Mr. K. S. Behere, Clerkwere also utilised by him. The learned advocates stated that they had noobjection for taking this help.

The reports of the Special Officer (Exs. 102 and 104) show that therewas no dispute that respondent No. 4 secured 27565 votes and that res-pondent No. 5 secured 27608 votes. Of course, these figures do not con-tain the objected ballot papers about which I will have to give a decision.Those objections pertain to 476 votes. Out of them 226 votes are to be in-dividually dealt with, while the remaining 250 votes form a separategroup. In addition, there are 71 ballot papers which were rejected by theReturning Officer and Mr. Palshikar wants to say that they should betreated as valid.

When the question of considering these objected votes was arguedbefore me, Mr. Palshikar for the petitioner frankly stated that he doesnot press his objections so far as the 77 ballot papers bearing serial numbers

074149,

038443,

017293,

011975,

011411,

033402,

088581,

102364,

017179,

098742,

090754

079113,

050650,

045958,

045802,

017124,

012683,

011397,

• 027306,

098706,

095425,

011400,

101458,

077352,

097783,

058211,

045703,

037047,

013007,

000602,

033829,

002047,

078595,

095813,

081684,

077741,

078529,

0 "9 5.15,

105120,

041258,

045458,

008184,

006714,

029240,

029212,

078796,

103464,

087918,

100354,

078950,

109755,

105013, and

045912,

045411,

033304,

013691,

034060,

045271,

082211,

103034,

074481,

086298,

078820,

072126,

079193 are

967314,

045344,

033543,

015983,

017112,

045260,

086778,

106149,

079127,

100751,

081936,

064537,

concerned.

The remaining 149 ballot papers can be conveniently divided intoseparate groups on the basis of the natinv of the objections.

Group No. 1 (30 ballot papers)

The first group would be of those ballot papers, which are objected"on the ground, that these ballot papers were marked with otherwise thanthe instrument for the purpose. The said mark consists of a cross withanti-clockwise arrows at the four tipe of the cross. Rule 56(2)(b) of theconduct of Election Rules, provides, that the ballot papers without such

E.L.R.] GOB1ND PRASAD SHIYAPRASAD CHAUDHARY V RETURNING 159OFFICER AND OTHERS

marks are liable to be rejected. There are 30 ballot papers which are(subject to this kind of objections. At the time of arguments, Mr.Palshikar for the petitioner gave up his objection with respect to thefollowing eight ballot papers bearing serial numbers 110573, 067878,078098, 090198, 025432, 'O458I8, 069791 and 097558.Ballot paper Nos. 000003, 028912, 026401, 083915, 033427,056318, 063554, 087397, 091297, 108165, 028653, 028784, 072418,and 029928 can be conveniently decided together. On aclose scrutiny of these ballot papers, it appears that each of thembears a mark with the instrument supplied for the purpose. However,these marks are not full and complete. In other words, the marks areindistinct. But, in my opinion, the ballot papers are not liable to be re-jected on that count, particularly when the second proviso of rule 56 laysdown that a ballot paper is not to be rejected simply because the mark isindistinct, provided, of course, the intention is to vote in favour of aparticular candidate. Ballot paper No. 100917 has an indistinct markwhich appears to have been made by the proper instrument. A portion ofthat mark is in the column meant for respondent No. 4, while some por-tion is on the lined portion in between the names and the symbols of thetwo candidates. However, the fact that the portion of the mark is inthe column meant for respondent No. 4, is an indication that the voterintended to cast his vote in favour of respondent No. 4. Hence these 14ballot papers are accepted in favour of respondent No. 4.

Ballot papers Nos. 047912, 028928 and 028753, Mr. Salve franklystated, need not be counted in favour of respondent No. 4 as the markingsof them are not with the help of the instrument supplied for the purpose.The ballot paper Nos. Q88648, 063951, 019631, 055591 and 070574 can beconveniently dealt with together. From perusal of each of them, I amsatisfied that they do not bear any work with the instrument supplied forthe purpose. Of course, Mr. Salve stated that ballot paper No. 088648should be held as having such an authorised mark. That mark is likea smudge but it is not possible to decipher that it is made with the instru-ment supplied for the purpose. As far as ballot paper No. 019631 is con-cerned, Mr. Salve submitted that it bears a mark with the proper ins-trument and that thereafter there is a smudge. However, it appears thatthe mark consist of a thumb impression though the print is not very clearand hence it is liable to be rejected.

The net result of the scrutiny of these ballot papers from group No.1, is that 22 ballot papers should be treated as valid and 8 as invalid.

2-10-1978.

Group No. 2 (18 ballot papers):

The second group consists of 18 ballot papers bearing serial numbers

45620, 061406, 054510, 049904, 088287, 086205, 099796 086380,

080978, 1Q6556, 008384, 087142, 086944, 0^7148, 071249, 077971

037539, and 040383.

22—3 ECI/ND/85


There is no dispute that these 18 ballot papers show that each ofthe vote has been cast in favour of respondent No. 5, and not in favourof respondent No. 4. The fact that the voting is correctly made, is notchallenged. Mr. Salve for the respondent No. 4 frankly stated that thesevotes cannot be counted in favour of respondent No. 4. He, however, urgedthat this does not mean that they should be counted in favour of res-pondent No. 4. For this proposition, he relies upon the head note of theSupreme Court decision in A.l.R. 1975 S.C. 2182 {Ram Autar Singh v.Ram Gopal Singh) It reads as follows: —

"The scope of the inquiry in a case under Section 100 (1) (d) (iii)is to determine whether any votes had been improperly cast in favourof the returned candidate or any votes had been improperly refusedor rejected in regard to any other candidate. These are the only twomatters which would be relevant for deciding whether the election ofthe returned candidates had been materially affected or not. At suchan enquiry the burden is on the petitioner to prove his allegations. Infact section 97(1) of the Act has no application to' a case falling undersection 100 (1) (d) (iii). The scope of the enquiry is limited for the sim-ple reason that what the clause requires to be considered is', whetherthe election of the returned candidate has been materially affected andnothing else. It is true that in a composite election petition whereinthe petitioner claims not only that the election of the returned can-didate is void but also that the petitioner or some other person bedeclared to have been duly elected. Section 97 would also come intoplay and allow the returned candidate to recriminated and raise coun-ter pleas in support of his case, "but the pleas of the returned candi-date under section 97 have to be tied after a declaration has been madeunder section 100 of the Act. The first part of. the enquiry in regardto the validity of the election of the returned candidate has thereforeto be tried within, the narrow limit prescribed by the section 100 (1)(d) (iii) and the latter part of the enquiry governed by section 101 (a)will have to be tried on a broader basis permitting the returned can-didate to lead evidence in support of the pleas taken by him in hisrecriminatory petition; but in such a case the enquiry necessary whiledealing with the dispute under S. 101(a) will not be wider if thereturned candidate has failed to recriminate and in a case of thistype, the duty of the Election Tribunal will not be to count andscrutinise all the votes cast at the election."

I do not think that the Supreme Court has laid down a propositionthat during fresh scrutiny and computation of votes, the votes actuallycast in favour of respondent No. 5 but counted in favour of respondentNo. 4 should not be counted in favour of respondent No. 5. As a matterofj fact, such a contingency is covered by the improper refusal or rejectionof a vote in favour of respondent No. 5. It is material to note that section100(1) (d) (Hi) contemplates improper reception, refusal or rejection ofany vote: The fact that the vote actually cast in favour of one candidateis counted in favour of some other candidate would necessarily mean thatthe said vote has been improperly refused or rejected against the concernedcandidate. Under these circumstances, I think that it will not be open forrespondent No. 4 to contend that these 18 votes should hot be countedin favour of respondent No. 5. Hence these votes would be accordinglycounted in favour of respondent No. 5.

E.L.R.] GOBRJD PRASAD SHIYAPRASAD CHAUDHARY V RETURNING 161OFFICER AND OTHERS


The third group is of six ballot papers consisting of serial numbers045229, 088498, 091537, 044810, 015173, 066595. Out of these the firstballot paper 045229 shows that the vote is cast in favour of respondentNo. 3, while the remaining five ballot papers show that the votes are castin favour of respondent No. 2. But at the time of the scrutiny and com-putation by the Returning Officer, these votes were counted in favour ofrespondent No. 4. Mr. Salve frankly stated that these votes ought notto have been counted in favour of respondent No. 4 and hence the objec-tion of the petitioner in that respect is upheld:


The fourth group consists of 33 ballot papers. Out of them, 18ballot papers serial numbers 051670, 005932, 011333, 092482, 055891,094181, 099892, 088478, 076850, 098013, 065513, 055584, 065058,032455, 023146, 033350, 006938, and 028920 are objected on asimilar ground.

In each of these ballot papers, there is a mark with the instruments suppliedfor the purpose. The ballot paper is printed in such a manner, that thename and the symbol of a particular candidate are printed against eachother. The name and the symbol of the second candidate is printed below•the name of the first. In between the name and the symbols of the twocandidate, there is a shaded portion made up of lines with a width ofabout 1.4 cm. The authorised mark is of such a size that if it is putin this open shaded space correctly, no part of it would go out of theshaded portion. In all these 18 ballot papers, the mark has been put subs-tantially in the shaded portion, but a part of it appear in the open spacemeans for respondent No. 4. The contention of Mr. Palshikar is, thatthese ballot papers have been wrongly counted in favour of respondentNo. 4 as a major part of the mark is in the shaded portion. However, thefact that a significant part of the mark appears in the open space meantfor respondent No. 4 would be indicative of the fact, that the voter inten-ded to vote in bis favour. Hence, these 18 votes should be counted infavoured of respondent No. 4.

The 12 ballot papers bearing S. Nos. 024644, 084122, 060853, 059914,044387, 073704, 110955, 068346, 096449, 027968, 083096 and 029286 havebeen objected by Mr. Palshikar, on the ground that though these ballotpapers have a mark, still that mark is placed at such a place, that it isdoubtful as to which candidate the voter has given his vote. I may statethat all these marks are in the shaded portion in between the marks oftwo candidates but Mr. Salve for respondent No. 4 submitted that at leastsome part of the mark falls in the open space meant for respondent No. 4.The portion of the maxk so falling in the open space of respondent No. 4is so insignificant and insufficient that it would be very difficult to cometo a definite conclusion that the voter intended to cast his vote in favourof respondent No. 4. One has to look to the over-all position of the markfor the purpose of determining as to whether that mark given an indi-cation as to in whose favour the vote is cast. As stated earlier, practicallythe entire mark is in the open shaded space which is not meant for anyof the candidates. In view of this position, the objection of Mr. Palshikar


is sound when he contends that these ballot papers should not Have beencounted in favour of respondent No. 4. The three ballot papers bearingS. Nos. 036542, 061081 and 013507 bear mark in the shaded portion andMr. Salve frankly stated that these ballot papers cannot be counted infavour of respondent No. 4.

The net result, therefore, of the 33 ballot papers in group No. 4 is,that 18 ballot papers will have to be counted in favour of respondent No. 4,while 15 ballot papers should be treated as invalid.


The fifth group consists of 41 ballot papers. Objection to the follow-ing 27 ballot papers is, that each of them contains marks in favour ofmore than one candidates S. Nos. 062439, 079664, 059694, 071060,056545,074210, 000287, 098682, 072944, 041617, 040225, 030174, 034166,012091, 010893, 013371, 007373, 013439, 044921, 050714, 037007,054041, 044459, 045335, 026848, 008013, and 00020.

At the time of arguments, Mr. Salve for respondent No. 4frankly stated that the first 23 ballot papers beginning from S. No. 062439.and ending with S. No. 044459 in the above serial order admittedly havetwo marks against the names of more than one candidate. Hence, theseballot papers are invalid and they should not be counted in favour ofrespondent No. 4.

Ballot papers bearing S. No. 045335, 026848, 008013 and 00020 areobjected on the same ground. Mr. Salve for respondent No. 4 submittedthat the ballot papers properly bear a complete mark in favour of res-pondent No. 4. According to him, the other marks appearing against thenames of some other candidates are not the votjng marks. He contendedthat they are the smudge marks which might have been accidentally causedwhile handling the voting instruments or the ballot papers. It will notbe possible to accept this argument with such reasoning, particularly whenthe other marks appear to have been made with the help of the prescribed.instrument. Hence, these four ballot papers will have to be treated asinvalid.

The next 12 ballot papers bearing S. No. 088703, 012692,102545, 011103, 015400. 045349, 054047, 045471, 054719, 045484, 057303and 091533 were initially objected by Mr. Palshikar, but at the time ofarguments, he frankly stated that all these ballot papers are valid in favourof respondent No. 4. (Hence they would be counted in his favour. Thennow remain two ballot papers Nos. 086427 and 007751. These ballotpapers contain clear mark in favour of respondent No. 4. In addition,there are some smudge marks in favour of respondent No. 6 Vidwansa.Mr. Palshikar submitted that these smudge marks are by the prescribedinstruments. However, mere look at these voting papers would show thatthey are not by the prescribed instruments but they appear to have beencaused accidentally while handling the ballot papers. Hence, these twoballot papers are valid and should be counted in favour of respondentNo. 4.

The net result is that in this group, 14 ballot papers should be treatedas valid in favour of respondent No. 4. while 27 as invalid.

E.L.R.] GOB1ND PRASAD SHIYAPRASAD CHAUDHARY V RETURNING 163OFFICER AND OTHERS


The sixth group consists of the category not covered by the earliergroups. It is of two ballot papers with S. Nos. 059960 and 054046. Thefirst one is a blank ballot paper in which vote is not cast in favour ofanyone and hence it cannot be counted in favour of respondent No. 4.The second ballot paper No. 054046 bears a vote in favour of respondentNo. 4. Mr. Palshikar, however, objects the validity of this ballot paperon the ground that on the back thereof, there is a writing by which thevoter can be known. According to him, under rule 56 (2) (a) of the con-duct of Electipn Rules, 1961, such a ballot paper cannot be accepted. Itwill, be convenient to reproduce the writing on the back of the ballotpaper. It is in Devnagari script. It reads: —

"Devi Mata Prasanna. Indira Gandhi Age Badho. Garib TumhareSath Hai." (Mother Goddess be favourably disposed. Indira Gandhi,proceed ahead. Poor are with you.

Mr. Palshikar urged that this writing is such by which the voter can beindentified. As against this, according to Mr. Salve, the writing is too filmsfor such a purpose. This question has been considered by the SupremeCourt in Dr. Anup Singh v. Shri Abdul Shani and others (A.I.R, 1965Supreme Court 815), wherein it is laid down:

"A vote will be invalidated under R. 73(2) (d) if there should be areasonable probability of identification of the elector by the mark orwriting (other than that permitted by R. 37 A). The mere possibilityof identification will not invalidate the vote under the rule. Nor is itnecessary that there should be certain identification before the voteis invalidated."

In the case before the Supreme Court, the words 1, 2 or 3 were found writ-ten and it was held that such writing was sufficient to make a ballot paperinvalid as the constituency was of 152 voters. Mr. Salve submitted that herethe total strength of the voters in the constituency was of more than 87,000and, as such, it will be very difficult to hold that the writing was sufficientto disclose to identify of the voter. Mr. Palshikar urged that the nature of thewriting would give an indication which would enable identification of thevoter. Taking into consideration the large size of the constituency, I thinkthat the contention of Mr. Palshikar that the writing is such, which would,in all probability, identify the voter, is not worth acceptance. This ballotpaper will have, therefore, to be treated as valid.

Group No. 7 (12 postal ballot papers)Then now remain 12 postal ballot papers. Out of them, 7 are service

ballot papers. Their numbers are: 648, 048, 477, 445, 654, 159 and 681.The first four ballot papers bear the mark consisting of a circle and a cross-in them, Mr. Palshikar -submitted that this mark would not constitute validvote. It is, however, clear that the rules do not prescribe that the postalvoting should be made by a particular mark. The above mark does indicatethat the voter intended to cast his vote in favour of respondent No. 4. Thesevotes are, therefore, valid. The fifth vote in serial order bearing No. 654is also of the same category. The only difference is that the mark does notconsist of a circle and a cross. It consists of a Swestik. This mark wouldsufficiently indicate that the voter intended to give his vote in favour of res-pondent No. 4.


The remaining five ballot papers are postal ballot papers of electionduty staff. Ballot paper No. 112897 bears a tick mark and also a circle toge-ther with a cross in it in the space meant for respondent No. 4. This isobviously a valid ballot paper. Ballot paper 112930 bears the cross nearthe symbol of respondent No. 4. However, two tips of the cross are joinedby one line, while the third and the fourth tips of the cross have someextensions. Mr. Palshikar urged that this would not be a mark intended torecord a vote. I am not able to accept this contention. The ballot paper isvalid. Ballot paper No. 112936 has a sort of lines drawn on it. In my opin-ion, this would be a sufficient marking. Ballot paper Nos. 112933 have somedrawing of lines near the symbol of respondent No. 4. Mr. Palshikar urgedthat the lines are so casual that they would not constitute recording of votes.However, the fact that the voter has drawn those lines near the symbolof Respondent No. 4 would be indicative of the fact, that they have recor-ded votes in favour of respondent No. 4. The remaining two ballot paperswith serial numbers 159 and 681 have a tick mark at the space meant forrespondent No. 4 as also respondent No. 3 Kharat. Thus, there would betwo marks, or at least marking is doubtful. Hence these ballot papers willhave to be treated as invalid.

The result is that, out of these 12 ballot papers, 10 arc valid in favourof respondent No. 4, while two arc invalid.

Group No. 8 .

There are four more ballot paper Nos. 109402, 000728, 024789, 072027.which were counted in favour of respondent No. 2 and the objection is thatthey should have been counted in favour of respondent No. 5. There is nodispute that on all these four ballot papers, the voters have recorded votesin favour of respondent No. 5. Mr. Salve, however, contended that theseballot papers cannot be counted in favour of respondent No. 5 as initiallythey were not counted in his favour. 1 have already discussed this objectionand rejected it. Hence, these ballot papers are to be counted as votes infavour of respondent No. 5. The three ballot paper Nos. 072720, 024590 and065988 are objected to by the respondent No. 4. However, as he has notfiled any recrimination application, the above objection is not tenable.Hence they have been properly counted in favour of respondent No. 2.

71 ballot papers {rejected by the Returning Officer and now contendedas valid).

1 will now consider the question as to whether 71 rejected ballot papersare really valid. According to Mr. Palshikar, those 71 ballot papers showthat the voter has recorded vote in favour of respondent No. 5 and thatinspite of it, the Returning Officer has rejected them. However; at the timeof arguments Mr. Palshikar frankly stated that 50 ballot papers have beenrightly rejected Their serial numbers are: 092994, 068364, 109816, 078899,101981, 104142, 106747, 102339, 109077, 088192, 107504, 090141, 026739,005515 015204 032752, 007997, 013544, 008984, 000070, 010063, 020524,029317' 031132 013370, 011402, 029745, 014473, 035964, 043136, 078985,090982 033779, 077443, 077329, 083307, 103754, 023925, 034138, 026737,046399, 111105, 068627, 030214, 070949, 005630, 076616, 009015 and 107340.Hence there is no question of these ballot papers being counted in favourof respondent No. 5. Ballot papers No. 029292 and 072404 have the votingmark in the open shaded portion Mr. Palshikar submitted that a part of

E.L.R-] GOBIND PRASAD SHIYAPRASAD CHAUDHARY V RETURNING 165OFFICER AND OTHERS

that mark is in the space meant for respondent No. 5 and as such theyshould have been treated as valid. However, that part is very insignificantand insufficient. Practically the entire mark is in the shaded open spaceand it will be doubtful whether the voter wanted to vote in favour of res-pondent No. 5. The Returning Officer, therefore, rightly rejected them.

Ballot paper No. 028055 contains indistinct marks in favour of respon-dent No. 5 as well as respondent No. 6. Obviously, this would be case ofhaving double marks and hence it will have to be rejected.

The following seven ballot papers show that each of the voter hasrecorded his vote in favour of respondent No. 5. Their serial numbersare 066837, 035886, 109145, 024994, 066708, 103785, and 095560. Theseseven ballot papers will have, therefore to be counted as valid in favourof respondent No. 5. Nine ballot papers bearing serial numbers 036814,048721, 075163, 006745, 071425, 077758, 008769, 108309, and 014002 canbe grouped together. They bear the marks on the symbol of respondentNo. 5. However the marks are not complete. They are indistinct. Butthe nature of the mark would show that they have been made by the in-struments provided for the purpose. No doubt, Mr. Salve urged that themarking is indistinct and it cannot be certainly said that they are madeby the prescribed marking instrument. I am, however, not able to ac-cept his contention. Hence these ballot papers are wrongly rejected andthey should be counted in favour of respondent No. 5. Ballot paper No.076138 has a number of marks in the open shaded portion between thespace meant for respondent No. 4 and respondent No. 5. However a partof some of these marks are in the open space meant for respondent No.5. In addition, there is practically one complete mark in that space. Mr.Salve submitted that one of the marks in the shaded portion has pretrudedin the open space meant for respondent No. 4 and, as such, this ballotpaper should be treated as containing two marks in favour of two candi-dates. What is required to be seen is the intention of the voter. Themanner in which these marks have been placed gives an indication thatvoter intended to vote in favour of respondent No. 5, and hence it shouldbe treated as valid. The ballot paper No. 060580. has a clear mark onthe symbol of respondent No. 5. Mr. Salve, however, urged that there isalso a mark in the open space meant for respondent No. 6 and as suchthe ballot paper is invalid. Mr. Palshikar submitted that there is nomark as such in favour of respondent No. 6 and that it appears to beaccidentally caused while handling the marking instrument. Comparing.the distinct mark in favour of respondent No. 5 with the slippery markat the corner of the spate meant for respondent No. 6, it appears thatthe voter intended to vote respondent No. 5, and the other mark is notmeant for voting respondent No. 6. Hence, this ballot paper will haveto be counted in favour of respondent No. 5. Thus, there are in all 18valid ballot papers of respondent No. 5 which were wrongly rejected.

3-10-78.

At the time of counting and scrutiny before the Special Officer, 27rejected postal ballot papers were not but before him. Respondent No. 4,by his application Ex. 108 has prayed that respondent No. 1 should beordered to produce those ballot papers. Accordingly, respondent No. 1produced a sealed packet containing these 27 rejected ballot papers. That

166 GOBIND PRASAD SHIYAPRASAD CHAUDHARY VRETURN- [VOL, LXIIlING OFFICER'AND OTHERS

packet was opened in the presence of the advocates and that franklystated before me that they do not intend to raise any contention aboutthe validity of the rejection of these ballot papers.

The net result of the above scrutiny and computation on the basisof the figures given by the Special Officer would be as follows : The un-objected votes as per the Special Officer's resport of respondent No. 4Janardah Bondre comes to 27565 and the unobjected votes as per theSpecial Officer's report of respondent No. 5 Bharat Rajabhau Bondre is27608. The analysis of the objected votes which are decided by me asdiscussed above—is that there are 142 valid votes in favour of respondentNo. 4 and 40 valid votes in favour of respondent No. 5. Adding thesevotes to the above figures, respondent No. 4 would get 27707 while res-pondent No. 5 would get 27648 votes. There would thus be margin of59 votes in favour of respondent No. 4. Of course, this would be sub-ject to the contention about additional 250 votes. It is this aspect whichI will now consider.

Mr. Palshikar, submitted that the margin of 59 votes in favour ofrespondent No. 4 would not be correct. This contention has to be con-sidered along with certain submissions made by Mr. Salve. In terms ofmy order dated 19-8-1978, the Special Officer has done the necessary count-ing and scrutiny. His report is at Ex. 102. Along with that report, hehas produced certain applications that have been made to him e.g., ap-plication Ex. 102/5-5 is made by respondent No. 4, while application Ex.102/5-6 is made by respondent No. 2. It seems that when the countingwas in progress, in one of the packets, containing ballot papers of res-pondent No. 4, there were in all 408 ballot papers. However, all the ballotpapers did not show that the votes were cast in favour of respondent No.4. Only 158 ballot papers were in favour of respondent No. 4, while on250 ballot papers, votes were cast in favour of respondent No. 2. Inanother packet containing votes of respondent No. 2, there were 278 ballotpapers, out of which 28 ballot papers showed that the votes were castin favour of respondent No. 2, while 250 ballot papers were in fact infavour of respondent No. 4. It is with respect to these 2 packets, thatthe two applications were made. In Ex. 102/5-5, it is alleged as follows:

"That in our (sic. one) packet marked in the name of Shri Bahekarrespondent No. 2, 250 ballot papers cast in favour of respondent No.4 was found while, the exact number of ballot papers i.e. 250 ballotpapers found in the paper packet containing ballot papers of res-pondent No. 4 which are cast in favour of respondent No. 2.

It is therefore submitted that the votes cast in favour of respon-dent No. 4 but counted in favour of other candidates except respon-dent No. 4, may be counted in his favour with the reservation thatthe votes cast in favour of respondent No. 4, may be counted in favourof respondent No. 5, would be a matter of debate before the Hon'blecourt."

Respondent No. 4, had made two applications Ex. 106 and 107 butMr. Salve has frankly stated that he would be restricting these two appli-cations only with respect to the 250 ballot papers and also shortage of 25ballot papers as mentioned in Ex. 102/5-5.

E.L.R.] GOB1ND PRASAD SHIVA I'RASAD CHAUDHARY V 167RETURNING OFFICER AND OTHERS

The two applications made by respondents 2 and 4 have been con-sidered by the Special Officer in paragraph 5 of his report in the followingwords :

"While the counting was in progress, it was found that in one envelopefrom Box. No. 2 of candidate No. 4 Shri Bahekar. there were 278ballot papers noted by the Returning Officer on the envelope but atthe time of actual counting, it was found that from them 28 ballotpapers were of Shri Bahekar, while the remaining were of votes, cast,in favour of candidate No. 3 Shri Janardhan Bondre. Similarly inthe envelope of Shri Janardhan Bondre there were 408 ballot papersnoted by the Returning Officer but at the time of a:(ual counting ofthat envelope it was noticed that from out of 408 ballot papers, 158only were of Shri Janardhan Bondre and the remaining were of ShriBahekar. It would be, therefore clear that there was some mistakecommitted by the Returning Officer while packing the ballot papersin the two envelopes of Shri Bahekar and Janardhan Bondre."

The Special Officer, while submitting a report, took into account 250votes of respondent No. 4 found in the packet of respondent No. 2 andsimilarly the same number of votes found in the packet of respondent No.4 were counted as votes of respondent No. 2. Mr. Palshikar submittedthat the Special Officer should not have done this as it is not permissibleby law. He contended that my order dated 19-8-1978 clearly shows thatit was a limited recount with a view to find out as to whether any im-proper votes have been accepted in favour of respondent No. 4 or whetherany proper votes of respondent No. 5 have been rejected. While passingthe order, I had taken into account the principle laid down by the Su-preme Court in P. Malai Chani v. M. Andi Ambalan (A.l.R. 1973 S.C.2077). Mr. Palshikar again relied upon that decision for the purposesof submitting that what the Special Officer has done is in derogation withthe principles enunciated in that case. The main proposition laid downin that case is that without filing any application for recrimination undersection 97 of the Representation cf the People Act, 1951. the returnedcandidate will not be able to allege that any of his valid, votes are im-properly rejected or are improperly counted in some one else's favour.Mr. Palshikar relied upon the following observations from the SupremeCourt Judgment:—

"In this connection the returned candidate is required to comply withthe provisions of S. 97(1) and S. 97(2) of the Act. If the returnedcandidate does not recriminate as required by S. 97, then he cannotmake any attack against the alternative claim made by the petitioner.Tn other words, the returned candidate will not be allowed to leadany evidence because he is procluded from raising any please againstthe validity of the claim of the alternative candidate

"If the respondent desires to contest this claim by leading evidenceto prove that the election of the other candidate would have beenvoid if she had been the returned candidate and an election, petitionhad been presented calling in question his election, the respondentmust give a formal notice of recrimination and satisfy the other con-ditions specified in the proviso to section 97. The notice of recrimi-nation is thus in substance a counter petition calling in question the

23—3/ECI/ND/85

168 GOBI NO PRASAD SHIVA PRASAD CHAUDHARY V | VOL LXIIlRETURNING OFFICER AND OTHERS

claim that the other candidate has been duly elected. In this back-ground, it is not surprising that the legislature provided that noticeof recrimination must be accompanied by the statement and parti-culars required by Sr. 83 in the case of an election petition and sign-ed and verified in like manner and the reciiminatcr must give thesecurity and the further security for costs required under S. 117 and118 in the case of an election petition

'The only ground on which the defeated candidate could be declaredto be elected is under S. 101 (a) that in fact he had received a majorityof valid votes. But it is in deciding who has got the majority ofvalid votes that S. 97 comes into play. When in an election petitiona declaration that any candidate other than the returned candidatehas been duly elected is claimed, the returned candidate or any otherparty may give evidence to prove that the election of such candidatewould have been valid if he had been the returned candidate and apetition had been presented calling in question his election. Thisright the appellant had but this right is subject to the provisionthat he shall not be entitled to give evidence to prove that the elec-tion of the petitioner in this case i.e. the respondent would have beenvoid if he had been the returned candidate and the petitioner hadpresented petition calling in question the election unless he hadgiven notice of his intention to give such evidence and also givessecurity and the further security referred to in S. 117 and 118 res-pectively, and every such notice has to be accompanied by thestatement and particulars required under S. 83 in case of an elec-tion petition and shall be signed and verified in the like manner—

"The question still remains whether the requirements of S. 97 haveto be satisfied in this case. It is argued by Mr. Venugopal that thegravanon of the respondent's petition was breach of many ofthe election rules and he asked for a total recount, a request towhich the appellant had no objection and that there was, therefore,no rule or need for fulfilling, a recrimination petition under section 97."The Election Tribunal had no jurisdiction to go into the questionwhether any wrong votes had been counted in favour of the electionpetitioner, who had claimed the seat for himself unless the successfulcandidate had filed a petition under section 97. The law reports arefull of cases where parties have failed because of their failure strictlyto conform to the letter of the law in regard to the procedure laiddown under the Act and the rules."

Mr. Salve for respondent No. 4 relied upon the decision of the SupremeCourt in Ram Autar Singh Vs. Ram Go pal Singh (A.T.R.) 1975 S.C. 2181).However, on going through that decision 1 find that it as reiterated theprinciple laid down in A.T.R. 1973 S.C. 2077.

It is, therefore, necessary to consider as to what was to be the effectof the failure of respondent No. 4 to make any recrimination, contemplat-ed under section 97. Mr. Salve submitted that this controversy about250 votes would not form the subject matter of recrimination. Accordingto him, the Special Officer has corrected the mistake that was found inthe packet of votes of respondents 2 and 4. As against this, Mr. Palshikarargued that the report of Special Officer does show that in the packet con-taining votes of respondent No, 2 there were certain votes of respondent

E.L.R.] GOBIND PRASAD SHIVA PRASAD CHAUDHARY V 169RETURNING OFFICER AND OTHERS

No. 4, while in the packet of respondent No. 4 there were certain votesof respondent No. 2. He argued that this would mean that while arrivingat the figure of 408 votes in favour of respondent No. 4, what was actuallydone was that 250 votes cast in favour of respondent No. 2 were countedas votes of respondent No. 4. According to him, this was improper ac-ceptance of 250 votes in favour of respondent No. 4 and that the SpecialOfficer cannot say that the votes which were found in the packet of res-pondent No. 2 should be substituted so as to make the votes of respondentNo. 4 as 408. He further submitted that this in substance would constitutethe claim that 250 votes that were really counted in favour of respondentNo. 2 should have been counted in favour of respondent No. 4. Accord-ing to him, this would not be permissible in the absence of any iecrimina-tion application under section 97. I have already stated that the case ofMr. Salve is that there was a mistake in packing and that what had happen-ed was that while actually packing the votes, these 250 votes which shouldhave been packet in the bundle of respondent No. 2, wrongly went in theenvelope of respondent No. 4. In the absence of recrimination application,respondent No. 4 would not be able to show that some votes have beencounted as these of other candidates and that they should have been count-ed in favour of respondent No. 4. It will be very difficult to hold thatthis proposition requires modification simply because in one packet thereare 250 votes of respondent No. 2 which are counted as that of respon-dent No. 4, while in the other packet there were votes which were countedas of respondent No- 4- I think that respondent No. 4, would not be ableto have such a recount by simply alleging that there was a mistakein the packing as such. In substance, what he wants me to do is that thevotes that were mistakenly treated as that of respondent No. 2 should betreated as of respondent No. 4 and that his mistake should corrected.As stated earlier, this will not be possible without there being any recri-mination.

It was next urged by Mr. Salve that the objection as regards count-ing of 250 votes in favour of respondent No. 4 (which were in fact count-eel in favour of respondent No. 2) has not been taken by respondent No.5 before the Special Officer. No. written opposition to the special officer'sreport has been filed by respondent No. 5 in this Court. That, however,will not make any differences everything will depend upon as to whetherthe matter is such which is governed by the arbit of the recriminationproceedings. If the answer is in the affirmative, the counting made bythe Special Officer has to be modified.

Then there is one more application Ex. 102/5-7 regarding the shortageof 25 ballot papers in the packet of respondent No. 5. It appears thaton table No. 9. in round No. 5, there was a packet showing 386 votes asthat of respondent No. 5. These votes were taken by the Returning Officeras correct figure. The contention of Mr. Salve is that actually in thatpacket the votes were 361 and as such, the votes of respondent No. 5should be reduced by 25. Here also, respondent No. 4 will be faced withthe difficulty arising out of the omission in making recrimination undersection 97. What respondent No. 4 wants to say is that the votes of res-pondent No. 5 should be counted in such a manner, that they should be361. This could be done if there was recrimination. In its absence, itwill be very difficult to accede to the request of Shri Salve that therean error and it should be corrected.

170 GOBIND PRASAD SHIVA PRASAD CHAUDHARY V [VOL. LXI11RETURNING OFFICER AND OTHERS

In view of the above discussion, the position, therefore, is than onthe basis of the report of the Special Officer, respondent No. 4 would havea margin of 59 votes. However, the Special Officer has taken the figureof votes of respondent No. 4 on the basis that 250 votes counted in favourof respondent No. 2 should be counted in favour of respondent No. 4.This is not permissible. If those 250 votes are deducted, there would bea margin of 191 votes in favour of respondent No. 5. On that basis, thepetition succeeds.

Mr. Holay for respondent No. 2 has submitted that while making, re-count, votes in favour of respondent No. 2 should have been ascertainedafter taking into account as to whether any valid votes in favour of res-pondent No. 2 have been improperly rejected. However, respondent No.2 has not filed any election petition. Similarly, there is on recriminationon his behalf, and I do not think that in a petition filed by some one else,the respondent No. 2 can claim such a relief. In fact, it is after takinginto account this position, that I had ordered a limited recount. For ob-vious reasons, the prayer made by respondent No. 2 for an order of freshelection is not tenable. Hence I pass the following order.

ORDER

Election of respondent No. 4 Janardhan Bondre from 104-ChikhIiLegislative Assembly Constituency is declared to be void, and it is furtherdeclared that respondent No. 5 Bharat Bondre is duly elected as a Mem-ber from that Constituency, as he has received 191 votes more than hisnext rival (respondent No. 4).

Respondent No. 4 should pay the costs of the petitioner. Thesecosts would include the costs as incurred, inclusive of the Advocates fees.The Advocates fees are quantified at Rs. 2,000/-. The rest of the res-pondent to bear their own costs.

An intimation of the substance of this decision be given to the Elec-tion Commission and also to the Speaker of the Maharashtra LegislativeAssembly immediately. An authentic copy of this judgment should besent to the Flection Commission.

Petition allowed

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

NAGPUR BENCH

1SHAQ MOHAMAD

VDEVAJJ

(JOSHI, J.)

October 5, 1978

Representation of the People Act, 1951—Sections 81, lOO(l)[d){iv),82—Election Symbols (Reservation and Allotment) Order, 1968—application for allotment of symbol reserved for a party—requirements tobe satisfied—result of election materially affected due to misallotment ofsymbol—quantum of proof required—joinder of parties to an electionpetition—whether Returning Officer is a necessary party.

The petitioner, an elector, challenged the election of the respondentto the Maharashtra Assembly from the Gadchiroli constituency on theground that the wrongful refusal of the Returning Officer to allot thesymbol 'Haldar' to one Atrani, a candidate in the election, had materiallyaffected the result of the election. The respondent in his defence deniedthat that candidate could rightly claim to be allotted the symbol 'Haldar'which was the reserved symbol of the Janata Party, as that candidate wasa member of the Nag Vidarbha Andolan Samiti, a local party which merelyhad the support of the Janata Party in this election. The respondent furthercontended that the non-allotment of the symbol had not materially affectedthe result of the election and that further the election petition was liableto be dismissed for non-joinder of the Returning Officer who was a necessaryparty.


(i) Section 82 of the Act does not provide that the Returning Officerof the constituency has to be joined as party to an election petition. TheReturning Officer is not a necessary party to an election petition and apetition is not liable to be dismissed for his non-joinder as a party to theelection petition.

(ii) For obtaining an election symbol reserved for a national party thecandidate has to fulfil all the requirements of paragraph 13 of the ElectionSymbols (Reservation and Allotment) O* der, 1968. All the requirementsunder the three sub-clauses (a), (b) and (c) of para 13 have to be strictlycomplied with. These are—

(a) the candidate has to make a declaration to the effect that he isa candidate, set up by a particular party; the provision does notrequire that the candidate set up by a party must be a member ofthat party;

(b) the Returning Officer must receive a notice to that effect beforethe last clay of withdrawal, and

171

172 iSHAQ MOHAMAD V DEVAJI [VOL. LXI11

(c) the notice must be signed by an authorised officer of the party.The signature of the authorised officer must be a personal markactually put by the officer. A rubber stamp facsimile of thesignature of the officer will not suffice.

In the absence of any of the above requirements a candidate cannotclaim to be allotted a symbol reserved for a party.

(iii) The fact that the result of an election had been materially affectedby the non-allotment of an election symbol to a candidate has to be provedby positive evidence. The burden of proving that the result of an electionhas been materially affected by a circumstance is on the person who challen-ged the election. The burden is to be discharged by positive proof andnot by leading evidence of persons who speculate about the possibilities ofthe election result being different in the absence of that circumstance.VASHISHT NARAIN SHARMA v DEV CHANDRA : AIR (1954) SC

513;

PAOKAl HAOK1P v RISHANG: AIR (1954) SC 663

SHIV KIRPAL SINGH v V V GIRI: AIR (1970) SC 2097

SAMANT N BALAKRISHNAN v. GEORGE FERNANDES: AIR(1969) SC 1201/(1969) SCR 603

...relied upon(iv) The burden imposed upon the challenger by Section 100(l)(d)(iv)

may be an impossible burden to discharge. The burden placed by law isvery strict; even if it is strict it is for the courts to apply it. It is for theLegislature to consider whether it should be altered.

PAOKAl HAOKIP v RISHANG: AIR (1969) SC 663DHULABHAI AND ANR v STATE OF MADHYA PRADESH ANDANR: AIR (1969)SC 78HEMRAJ v RAMJ1 LAL: (1975) 4 SEC 671

R M SESHADRl v G V PA I: AIR (1969) SC 692

MANUBHAl NANDLAL AMERSEV v POP AT LAL MAN1LALJOSHI: (1969) 3 SCR 217/AIR (1969) SC 734

CAMMISS1ONER OF AGRICULTURAL INCOME TAX, WESTBENGAL

v.KESHAB CHANDRA MONDAL: AIR (1959) SC 265

HINDUSTAN CONSTRUCTION COMPANY LIMITED v U. O. I.AIR (1967) SC 526

MOHESH LAL v BUSUNT KUMAREE: (1881) ILR 6 Cal 340

IN AYATULLAH v D1WAN CHAND MAHAJAN: (1958) ELR 219referred to


M S.Choudhary and V Y Nilawar, for the petitioner

K H Deshpande, S G Aney, R R Kayande and P C Khajanchi, for therespondent

E.L.R.] ISHAQ MOHAMAD V DEVAJI 173

JUDGMENT

JOSHI J.—This is an election petition presented under section 81 ofthe Representation of the People Act, 1951, by the petitioner, challengingthe election of the respondent to the Maharashtra Legislative Assembly,from the Gadchiroli (Scheduled Tribes Reserved) Constituency No. 152in Chandrapur District.

The Gadchiroli (Scheduled Tribes Reserved) Constituency was calledupon to elect a member to the Maharashtra Legislative Assembly by anotification published in that behalf. The programme of the election wasannounced as under:

L a s t d a t e o f filing n o m i n a t i o n . . . . . . . . . 1 - 2 - 1 9 7 8 .

D a t e o f s c r u t i n y . 2 - 2 - 1 9 7 8 .

D a t e o f w i t h d r a w a l 4 - 2 - 1 9 7 8 .

D a t e o f p o l l - 2 5 - 2 - 1 9 7 8 .

D a t e o f c o u n t i n g a n d d e c l a r a t i o n o f r e s u l t . . . . . . 2 7 - 2 - 1 9 7 8 .

In response to the notification about 8 persons filed nomination papers.After the date of withdrawal, five persons remained in the filed as candi-dates for the said election. The names of these candidates with theirelection symbols are as under:

Name Symbol

1. Alram, Kirtimantrao Bluijangrao. . . . . . Swastik in Circle.

2. Atram, Satyavanrao s/o Raje Vishwesliwarrao . . . I.ion.

3. Kunjam, LakhanshahOhhattarsha Elephant.

4. Madavi, Devaji s/oTanu (Respondent). . . . . . . . Hand.

.r>. Sajam, Raje Fatelalshah .Raje Ranshah. . . . . . . . . Cow and Calf.

The poll was held on 25-2-1978 and votes were counted on 27-2-1978.The contesting candidates polled votes as under:

Name No. of valid votes.

1. A t r am, K i r t i m a n t r a Bhujangrao . . . . . . 1,097

2. A t r a m , Sa tyavanrao s/oRa je Vishweshwarrao . . . . . . . . 24,396

3. K u n j a m , I . akhanshahChha t t a rehah . . . 3,3r>9

4. M a d a v i , Devaji s/o T a n u(Respondent ) . . . . . . . . . 26,48.r>

5. Sayam, Ra je FatelalshaJi. Raje R a n s h a h . . . 4,435.

The respondent Devaji s/o Tanu Madavi was declared elected, theresult was so declared on 27-2-1978. All these facts are not in dispute.

174 r.SHAQ MOHAMAD V DEVAJ1 [VOL. LXIII

The petitioner claims to be an elector in the Gadchiroli (ScheduledTribes Reserved) Constituency No. 152. The electoral number of thepetitioner is no. 77 of village Dhanora which forms part and parcel of theconstituency. The petitioner claims to be a citizen of India and has presentedthe petition as an elector from the Gadchiroli (Scheduled Tribes Reserved)Constituency. He also claims that Satyavanroa Vishwashwarrao Atram, acandidate at the election, had appointed the petitioner as his Election Agent.

It may be observed here that the petitioner challenged the election ofthe respondent on two different counts. First, that Satyavanrao Vishwesh-warrao Atram had claimed as his election symbol the "Haldhar" symbol ofthe Janata Party and the Returning Office'" of the constituency wronglyrejected that prayer and allotted instead to Satyavanrao Atram the electionsymbol "Lion". This has materially affected the election of the respondent,the returned candidate. The second ground of challenge was certaincorrupt p-actice alleged to have been committed by the respondent. Afterissues were framed in this election petition, the respondent, before the com-mencement of recording of evidence, presented the application Ex. 26 pray-ing for striking off certain issues relating to the alleged corrupt practice, onthe ground that the allegations in the petition about the said corrupt prac-tice were very vague, they did not disclose any cause of action at all, and sothese issues about the corrupt practice did not really arise at all. Afterhearing arguments of both sides on the said application Ex. 26, T have allow-ed the said application vide order Ex. 28. dated 23/24-3-1978, and for thereasons stated in the said order, have struck off issues No. 6, 7, 8 and 9(b).No evidence was naturally recorded in respect of the corrupt practice whichformed the subject matter of these issues, which were ordered to be struckoff. As that aspect of controversy is fully discussed in the order Ex. 28dated 23/24-8-1978, those allegations in the petition and the replies theretoin the written statement of the respondent are not being mentioned in thisjudgment.

Accord:ng to the petitioner, af the time of allotment of symbols, Satya-vanrao Vishweswarrao Atram claimed the symbol "Haldhar" which is thereserved symbol of Janata Party. While claiming this symbol. Satyavanraohas complied with all the necessary formalities and had given the necessarydeclaration as required by the Election Symbols (Reservation and Allotment)Order, 1968. In fact since a Satyavanrao was a candidate who was set upby the Janata Party and was supported by the Nag Vidarbha AndolanSamiti and also by the Republican Party of Tndia (Khowragede), he rightlyclaimed this symbol. For the purpose of election, especially in Vidarbhaarea, there was an understanding reached between the Janata Party andthe Nag Vidarbha Andolan Samiti, which is" a local Party, and also theRepublican Party which is another All India Party, in the matter of settingup the candidates for the election and contesting the same. These threeparties had, in pursuance of this understanding, given the Gadchiroli(Scheduled Tribes Reserved) Constituency seat to the said Satyavanrao,and on making the necessary declaration, he *was entitled to contest theelection on the Janata Party symbol viz. "Haldhar". As per rule 13(b) ofthe Election Symbols (Reservation and Allotment) Order, 1968, the GeneralSecretary of the All India Janata Party. Shri Ramkrishna Hegde had givena notice to the affect that the said Satyavanrao Atram was a candidate setup by the Janata Party. This notice was siven at the appropriate timeafter fulfilling all the requirements of the rules. This should have in factleft no doubt in the mind of the said Returning Officer in allotting thesymbol of "Haldhar" to Satyavanrao Atram.

E.L.R.j iSHAQ MOHAMAD K. DEVA;rr 175

According to the petitioner, the Janta Party a wide following in theGadchiroli (Scheduled • Tribes Reserved) Constituency. ' I n the election tothe Parliament from Chandrapur Parliamentary Constituency which com-prised, among others, Gadchiroli (Scheduled Tribes Reserved) Constituency,Raje Vishweshwarrao (father of Satyavanrao) who had contested the saicrparliamentary election with ''Haldhar" symbol, in similar circumstances,had got a lead of about 14,000 votes in Gadchiroli constituency against theCongress candidate even in 1977 when the Congress Party was undivided.There was no other candidate in the Gadchiroli (Scheduled Tribes Reserved)Constituency who was claiming the "Haldhar' symbol nor was that symbolallotted to any one.

However, the Returning Officer refused to allot to Satyavanrao Atramthe symbol "Haldhar". Satyavanrao hid, therefore, no alternative butto contest the election on the symbol "Lion" which was then allotted tohim. The. refusal of the -Returning Officer to allot the symbol. "Haldhar"to Satyavanrao Atram had deprived him of a good number of votes, whichwould have been in thousands, which would have been polled on the symbol"Haldhar". This has also. opened a new avenue- for the respondent toopenly canvass that there was no candidate of the Janta Party in the field,and thus to mislead the voters. Such a propaganda was actually carried outby the other contesting candidates against Satyavanrao. Thus, as a resultof the refusal of the Returning Office.'- to allot the symbol of "Haldhar"to Satyavanrao. the result of the election has been materially affected inso far as the returned candidate (i.e. the respondent) is concerned. TheReturning Officer has acted contrary to the provisions of the Representa-tion of the People Act 1951, and the rules and orders made thereunder,particularly the . provisions of the Election Symbols (Reservation andAllotment) Order 1968, by not following the mandatory provisions thereof.The election of the returned candidate i.e. the respondent is therefore,liable to be set aside on this ground under section 160(1) id) (iv) of theRepresentation of the People Act 1951. The petitioner, therefore, prayedthat the election of the respondent should be declared.as void and illegaland it may be set aside.

All these contentions of the petitioner were denied by the. respondentby his written statement Ex. 7. The respondent contended that the con-tentions made against the Returning Officer could not be decided behindthe back of the Returning Officer who is not a party" to the petition. Theelection petition was liable to be rejected in limine oh the" ground of non-joinder of necessary party i.e. the Returning Officer. .The refusal of theReturning Officer to allot "Haldhar" symbol to Satyavanrao had notmaterially affected the result of the election so far as it concerned the res-pondent i.e. the .returned candidate. The petitioner was not entitled tomake a grievance of non-allotment of "Haldhar" symbol to Satyavanrao—Atram. The election of the respondent was not liable to be set aside onthe ground alleged in the petition, under section 100(1) (d) (iv) of the Re-presentation of the People Act. 1951. The respondent denied that Satyavan-rao Atram had appointed the petitioner as his election agent.. The petitionwas liable to be rejected for non-compliance with the provisions of section83 of the Representation of the People Act 1951. The petition did not,disclose any cause of action and was therefore liable to be dismissed withcosts. The affidavit filed by the petitioner was false. .The petitioner hasnot given the source of information regarding the contents of paragraph8(i), (ii) and (Hi), Tt is no affidavit in the eye of law. The said affidavit

24—3 ECI/ND/85

176 ISHAO MOHAMAD V. DRVAJI |VOL. I,XIII

not having been sworn before the Magistrate of the First Class, or a notaryor Commissioner of Oaths, it does not satisfy the requirements of theRepresentation of the People Act. 1951 and the rules thereunder. Thepetition is false, frivolous and vexatious. It deserves to be dismissedwith compensatory costs Rs. 5,000/-.

On these pleadings the following issues came to be.framed:

1. Does the petitioner prove that he was an elector in the Gadchiroli(Scheduled Tribes Reserved) Constituency bearing No. 152. havingelectoral No. 77 of village Dhanora?

2. (a) Does the petitioner prove that the candidate SatyavanraoVishwashwarao Atram, at the time of allotment of symbols,claimed the symbol "Haldhar" which is the reserved symbolof Janta Party?

(b) Does the petitioner prove that while claiming the said symbol,Satyavanrao Atram had complied with all the necessaryformalities and had given the necessary declaration as requiredby the Election Symbols (Reservation and Allotment) Order1968?

(c) Does the petitioner prove that Satyavanrao Atram was acandidate set up by the Janta Party?

(d) Does the petitioner prove that as par paragraph 13(b) of theElection Symbols (Reservation and Allotment) Order 1968,the General Secretary of the All India Janta Party, ShriRamkrishna Hegde has given a notice to the effect that thesaid Satyavanrao Atram was a candidate set up by theJanta Party?

2-A. Does the petitioner prove that the Returning Officer of theGadchiroli (Scheduled Tribes Reserved) Constituency wronglyrefused to allot the symbol of "Haldhar" to Satyavanrao Atram?

3. Docs the petitioner prove that the refusal of the Returning Officerto allot the "Haldhar" symbol to Satyavanrao Atram has material-ly affected the election so far as the respondent is concerned?

4. Docs the petitioner prove that the election of the respondent isliable to be set aside on this ground under section 100(1) (d) (iv)of the Representation of the People Act, 1951?

5. Docs the respondent prove that the election petition is not main-tainable on the ground of non-joinder of the Returning Officer,

6. * *7. * *8. * *9. Does the petitioner prove that the election of the respondent is

liable to be set aside—

(a) under section 100(1) (d) (iv) of the Representation of thePeople Act, 1951?

and/or

**

***

***

***

E.L.R] tSHAQ. MOHAMAD V. DEVAJl 177

10. Does the respondent prove that—

(a) the petition is liable to be rejected for non-compliance withthe provisions of section 83 of the Representation of thePeople Act, 1951?

(b) the petition is liable to be dismissed as it does not discloseany cause of action?

11. (a) Docs the respondent prove that the petition is false, frivolousand vexatious?

(b) If so, does the respondent prove that he is entitled toRs. 5000/- as compensatory costs?

12. What order?

My findings are: —

I. Yes.

2 (a) Yes.

2 (b) Not proved.

2 (c) Not proved.

2 (d) Not proved.

2-A. Not proved.

3- Docs not arise- Alternative finding on as assumption of error vnthe part of the Returning Officer in allotment of symbol toSatyavanrao Atram is "not proved".

4. Not proved.

5. Not proved. The election petition is maintainable.6_ * * * * * *

y * * * * * •

u * * * * * •

9. (a) Not proved.

9. (b) * * * * • *

10 (a) Not proved.

10. (b) Not proved.

11. (a) Not proved.

11. (b) Not proved.

12. Election petition dismissed with costs.

17cJ 1SHAQ, MOHAMAD: V. DEVA-J1 [VOL. LXlli

REASONS

The petitioner Ishatj Mohmad (P. VV. 1) examined himself at Ex. 30and he .examined eight other witnesses including Ramkrishna Hegde,(P. W. 8), one of the General Secretaries of the All India Janta Party.The petitioner has not examined Satyavanrao A tram, but he examinedas his witness Raje Vishweshwarrao (P. W. 2.}, the father of SatyavanraoAtrarri. The respondent has examined himself at Ex. 40, as the onlywitness examined for the respondent. Neither party has chosen to examinethe Returning Officer of the constituency.

Issue No. 1: —

The petitioner Ishaq Mohmad (P. W. 1) has stated on oath that hisname was recorded in the vote's' list of the election of the MaharashtraState Assembly held in Tebruary 1978, from the Gadchiroli (ScheduledTribes Reserved) Constituency. The petitioner Ishaq Mohmad (P. W. 1)has further stated that his name is entered in the said list for village Dhanoraat serial No. 77, the petitioner's name being shown there as "MohmadIshaq s/o Sujan Mohmad", resident of "House No. 23"', of Dhanora. Thepetitioner Ishaq Mohmad (P. W. 1) has stated on oath that in the saidentry in the Voter's list the name of the petitioner's father is wronglyrecorded as "Sujan Mohmad", it should correctly have been "Sujat Mohmad".The petitioner Ishaq Mohmad (P. W. 1) has further stated that there is noperson in village Dhanora by name "Isaq Mohmad s/o Sujan Mohmad".The relevant entry of the petitioner's name is at serial No. 77 in the voter'slist of village Dhauora produced on record at Ex. 31. ' This evidence ofthe petitioner so supported by the entry S. No. 77 in the voter's list Ex. 31,will have to be accepted as there is no challenge to all this evidenceadduced on the side of the petitioner, and also because no evidence tothe contrary has been adduced by the respondent." The learned counselfor the respondent conceded that the petitioner was an elector in theGadchiroli (Scheduled Tribes Reserved) Constituency bearing No. 152,having his electoral No. 77 of village Dhanora. I, therefore, find that thepetitioner has proved issue No. 1.

Issue No. 5 : — .

The respondent has taken an objection that the election petition isbad for non-joinder of necessary parties since the Returning Officer of theGadchiroli (Scheduled Tribes Reserved) Constituency has not been joinedas a party to this election petition though the decision of the said ReturningOfficer about the allotment of the symbol to Satyavanrao Atram is beingchallenged in this election petition. The provision in -the Representationof the People Act 1951 governing the joinder of parties to the petition issection 82. That provision is. as follows: —

"82. Parties to the Petition: —A petitioner shall join as respondent tohis petition (a) where the petitioner, in addition to claiming adeclaration that the election of all or any of the returned candidatesis void, claims a further declaration that he himself or any othercandidate has been duly elected, all the contesting candidates otherthan the petitioner, and where no such further declaration is claimed,all the returned candidates; and : *

(b) any other candidate against whom allegations of any corruptpractice are made in the petition,"

E.L.It.] 1SHAQ. MOHAMAD V. DEVAJI 179

The lirst part of sub-clause (a) docs not apply to this election petitionas no further declaration in respect of any other candidate has been claim-ed in this election petition declaring him to be elected. Therefore, thiselection petiiion is governed by the latter part of sub-clause (a) of section82. Since only one candidate was to be elected from the Gadchiroli(Scheduled Tribes Reserved) Constituency, and since the respondent is theonly -returned candidate, he alone has been properly joined as a respondentto this election petition. The allegations of corrupt practice were initiallymade only as against the respondent. Section 82 of the Representationof the People Act, 1951, does not provide that the Returning Oiiicer of theConstituency has to be joined as party to an election petition. So, it isclear that the Returning Officer is not a necessary party to an electionpetition and the petition is not liable to be dismissed for non-joinder of theReturning Officer as a party to the election petition. Either party, could,if so desired, examine the Returning Officer as a witness in proof or dis-proof of any particular allegation in the election petition.

Issues No. 2(a), (b), (c), Ui) ami 2-/4: —

Ex. 20 is the certified copy of the nomination form dated 1-2-1978died by Satyavanrao Atram before the Returning Officer of the GadchiroliConstituency No. 152. This document has been admitted by the respon-dent. It shows that Satyavanrao Atram had indicated his choice for theelection symbols in order of preference as follows: —

1. Haldhar.

2. Lion.

3. Cycle.

The fact that Satyavanrao Atram had indicated his lirst preference for theelection symbol "Haldhar" is also reflected in the order Ex. 22 passed bythe Returning Officer in the matter of allotment of Symbols. It is notin dispute that the election symbol ''Haldhar" was "the reserved symbolof Janta Party which is a national party. I, therefore, find that thepetitioner has proved issue No. 2(a). The order of the Returning OfficerEx. 22 dated 4-2-1978 also shows that the Returning Officer did not allotthe election symbol "Haldhar" to Satyavanrao Atram, instead he allottedto Satyavanrao Atram. the election symbol "Lion."

It is contended by the petitioner that Satyavanrao Atram had compliedwith all the necessary formalities and had given the necessary declarationas required by the Election Symbols (Reservation and Allotment) Order1968., Satyavanrao Atram was a candidate set up by the Janta Party,and Mr. Ramkrishna Hegde, the General Secretary of the Janta Partyhad given the requisite notice to the effect that Satyavanrao Atram was acandidate . set up by Janta Party. In these circumstances SatyavanraoAtram was entitled to be allotted the "Haldhar" election symbol which wasthe reserved election symbol of the Janta Party. Therefore, it is contendedon behalf of the petitioner that the Returning Officer committed an errorin refusing to allot the "Haldhar" symbol to Satyavanrao Atram. Mr.K. H. Deshpande for the respondent, has in his argumentsraised an objection that this question about the allotment ofsymbols is really not jusiiciable in an election petition. It is necessaryltrst to dispose of this objection of Mr. K. H. Deshpande. For that purposeit is necessary to refer to the relevant provisions of (he Representation -ofthe People Act, 195/, the'Conduct of Election- Rules 1961 and (he Allot-ment of Svmbols (Reservation and Allotment) Order 1968.

180 1SHAQ, MOHAMAD K DEVAJI [VOL. LXI1I

The challenge to the decision of the Returning Officer regarding theallotment of election symbols to Satyavanrao Atram in this electionpetition has been based on the provisions of section 100(1) (d) (iv) of theRepresentation of the People Act 1951. That provision is as follows:

"100. Grounds for declaring election to be void.—

(I) Subject to the provisions of sub-section (2) if the High Court isof opinion.

(a) xx xx xx

(b) xx xx xx

(c) xx xx xx

(d) that the result of the election, in so far as it concerns a returnedcandidate, has been materially affected—

(i) xx xx xx

(ii) xx xx xx

(iii) xx xx xx

(iv) by any non-compliance with the provisions of the Constitu-ency or of this Act or of any rules or orders made under thisAct, the High Court shall declare the election of the returnedcandidate to be void."

Section 169 of the Representation of the People Act 1951 empowersthe Central Government to make rules for carrying out the purposes of thesaid Act. Under this rule-making power the Central Government hasframed the Conduct of Election Rules 1961. The provisions of sub-clauses (4) and (5) of Rule 10 of the Conduct of Election Rules 1961 areas follows:

"(4) At an election in a parliamentary or assembly constituency,where a poll becomes necessary, the returning officer shall considerthe choice of symbols expressed by the contesting candidates in theirnomination papers and shall, subject to any general or special direc-tion issued in this behalf by the Election Commission.

(a) allot a different symbol to each contesting candidate in confor-mity, as far as practicable, with, his choice; and

(b) if more contesting candidates than one have indicated theirpreference for the same symbol, decide by lot to which of suchcandidates the symbol will be allotted.

(5) The allotment by the returning officer of any symbol to a candidateshall be final except where it is a inconsistent with any directionsissued by the Election Commission in this behalf in which case theElection Commission may revise the allotment in such manner as itthinks fit."

Rules 5 and 10 of the Conduct of Election Rules 1961 authorise theElection Commission to give any special or general directions in respectof election svmbols and allotment thereof. In exercise of the powers

E.L.R-! 1SHAQ MOHAMAD r. DFVAH 181

conferred on the Election Commissioner by article 324 of the Constitutionread with Rules 5 and 10 of the Conduct of Election Rules 1961, theElection Commission has made the Election Symbols (Reservation andAllotment) Order 1968. It is necessary to reproduce here the provisionsof paragraphs 8 and 13 of the Election Symbols (Reservation and Allot-ment) Order 1968:

"8. Choice of symbols by candidates of National/State parties andallotment thereof.—

(1) A candidate set up by a National party at any election in anyconstituency in Tndia shall choose, and shall be allotted, thesymbol reserved for that party and no other symbol.

(2) A candidate set up by a State party at an election in any consti-tuency in a state in which such party is a State Party shall choose,and shall be allotted the symbol reserved for that party in thatState and no other symbol.

(3) A reserved symbol shall not be chosen by, or allotted to, anycandidate in any constituency other than a candidate set up bya National party for whom such symbol has been reserved or acandidate set up by a State party for whom such symbol has beenreserved in the State in which it is a State party even if no candi-date has been set up by such National or State party in thatconstituency."

Paragraph 13 is as follows:

"13. When a candidate shall be deemed to be set up by a politicalparty. For the purposes of this Order a candidate shall be deemedto be set up by a political party if, and only if,—

(a) the candidate has made a declaration to that effect in his nomina-tion paper;

(b) a notice in writing to that effect has not later than 3 p.m. on thelast day of withdrawal of candidates, been delivered to the return-ing officer of the constituency; and

(c) the said notice is signed by the president, the secretary, or anyother office-bearer of the party and the president, secretary orsuch office-bearer is authorised by the party to send such noticeand the name and the specimen signature of the president, thesecretary or such other office-bearer are communicated in advanceto the returning officer of the constituency and to the Chief Elec-toral Officer of the State."

It has to be noted that since paragraph 13 of the Election Symbols(Reservation and Allotment) Order 1968 provides the deeming definitionof the expression "candidate deemed to be set up by a political party",and since paragraph 8 contains the same expression "a candidate set upby a (National or State) party", it is clear that paragraph 8 is subordinateto and is completely controlled by paragraph 13 of the Election Symbols(Reservation and Allotment) Order, 1968.

On this background, the objection of Mr. K. H. Deshpande may nowbe examined. Shortly put his contention is like this. Under section100(1) (d) (iv) of the Representation of the People Act 1951, Ihe Hish

182 JSIIAQ MOIIAM.vD V. DiSVAjl [VOL. LX1II

Court has power to declare an election to be void on the ground of non-compliance with the provisions of the Constitution or of the~R.epresenta.tiohof the People Act 1951, or of any rules or orders made under the said Act.Rgle 10(5) of the Conduct of Election Rules 1961 specifically makes theallotment of symbol by the Returning Officer to a candidate final, exceptto the extent that the Election Commission may revive the allotment whereit is inconsistent with any directions issued by the Election Commission.In the present case Satyavanrao Alram did not approach the Election Com-mission for revising the order of the Returning Officer when the ReturningOfficer refused to allot to Satyavanrao Atram the symbol "Haldhar" claini"-ed by him. and instead allotted to him the symbol "Lion". The result isthat the allotment of the said symbols by the Returning Officer to Satya-vanrao Atram has become final and is not now justiciable in an electionpetition presented under section 81 of the Representation of the PeopleAct 1951, on the grounds specified in section 100(l)(d)(iv) of the Represen-tation of the People Act, 1951 because "there is no non-compliance" withthe piovisions of the Conduct of Election Rules 1961. The finality of theorder of the Returning Officer regarding allotment of symbol is actually inconsonance with the provisions of Rule 10(5) of the Conduct of ElectionRules 1961, and not in breach of the same. In this respect Mr. K. H.Deshpande has placed reliance on the observations in Dhidabhai ... Vs ...Slate of Madhya Pradesh: (A.I.R. 1969 S.C. 78).

It is not possible to accept this argument of Mr. K.H. Deshpande.Obviously the Conduct of Election Rules 1961 were framed for the limitedpurpose of providing the detailed procedure for the conduct of the elections.The finality to the decision of the Returning Officer in the matter of allot-ment of election symbols, contemplated by the provisions of Rule 10(5) ofthe Conduct of Election Rules 1961 is primarily for the purpose of con-ducling the elections, and for that limited purpose the decision of the Re-turning Officer has been made final subject to a possible revision by theElection Commission of the decision of the Returning Officer, where thatdecision is inconsistent with any directions issued by the Election Com-mission in the matter of allotment of election symbols. Such a proceduralfinality to the decision of the Returning Officer would be necessary in theinterest of speedy holding of elections in accordance with the election pro-gramme announced. The finality to the decision of the Returning Officercontemplated under rule 10(5) of the Conduct of Election Rules 1961 isthus merely a procedural finality, and not finality in respect of the substan-tive right of a petitioner in an election petition presented under section 81of the Representation of the People Act 1951. Any other interpretationwould lead to the absurd result that an erroneous decision of the ReturningOfficer in the matter of allotment of election symbols, or an erroneous deci-sion of the Election Commission in revision of the order of the ReturningOfficer, would become binding on all persons and for all time, so as notto make it justiciable even in an election petition presented under section81 of the Representation of the People Act 1951, although the said deci-sion of the Returning Officer or the Election Commission may be contraryto the provisions of the Election Symbols (Reservation and Allotment)Order 1968. There is no provision in the Representation of the People Act1951 curtailing the wide amplitude of the power and jurisdiction of theHigh Court in an election petition presented under section 81 of the Repre-sentation of the People Act 1951, of declaring the election to be void underthe . provisions of section I00(l)(d)(iv) of the Act. Thesubstantive power and jurisdiction cf the High Court under sec-section! 00(1) (d) (iv) of the Representation of the People Act 1951, cannot

E.L.R.] ISHAQ MOHAMAD V. DEVAJI 183

be construed to be limited or curtailed by reason of the provisions of anyrule in the Conduct of Election Rules 1961, when those rules themselveshave been framed in exercise of the Rule-making power conferred on theCentral Government by section 169 of the Representation of the PeopleAct 1951. Rules framed under an enactment cannot limit the provisionsof the enactment itself, to the extent of such inconsistency the rules them-selves will become void. An order of the Returning Officer in the matterof allotment of election symbols, which is in contravention of the provisionsof the Election symbols (Reservation and Allotment) Order, 1968, willclearly come within the ambit of High Court's jurisdiction to enqiure intothe question of.its validity, under section 100(1) (d) (iv) of the Representa-tion of the People Act 1951, as such an order of the Returning Officer willbe clearly amounting to a non-compliance of the provisions of an orderor rule issued under the Representation of the People Act 1951. Theobservations of the Supreme Court in Dhulabhai's case (A.I.R. 1969 S.C.78) are not applicable to the instant case because in the present case thefinality to the decision of the Returning Officer is given not by the Statutei.e. the Representation of the People Act, 1951, but by rule 10(5) of theConduct of Election Rules 1961 framed under the Representation of PeopleAct, 1951, and there is nothing in the statute itself i.e. in the Representa-tion of the People Act 1951 to indicate any curtailment of the jurisdictionof the High Court under the provisions of section 100(1) (d) (iv) of theRepresentation of the People Act 1951 when entertaining an electionpetition presented under section 81 of that Act.

Tt is now necessary to ascertain if the petitioner has proved that thecandidate Satyavanrao Atram while claiming the election symbol "Haldhar"hud complied with all the necessary formalities and had given the necessarydeclaration as required by the Election Symbols (Reservation and Allot-ment) Order 1968, as is claimed by the petitioner. As observed earlier,these are the requirements specified in paragraph 13 of the Election Sym-bols (Reservation and Allotment) Order 1968. It has to be noted herethat all the requirements under the three sub-clauses (a), (b) and (c) ofparagraph 13 have to be strictly complied with, which is emphasized bythe expression "If, and only if," in the opening words of paragraph 13.The first requirement under sub-clause (a) is:

"the candidate has made a declaration to that effect in his nominationform."

The declaration obviously has to be to the effect that he is a candidateset up by a particular party. For an election to a Legislative Assemblyof a State, the prescribed form for the nomination paper is Form 2-Bprescribed under rule 4 of the Conduct of Election Rules 1961. Theportion of this form required to bt filled in by the candidate under hissignature is as follows:

"I, the above mentioned candidate assent to this nomination and herebydeclare—

(a) xx xx xx xx

(b) that I am set up at this election by the PaI"ty,

(c\ xx xx xx xx"

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184 1SHAQ MOHAMAD K. DF.VAJI [VOL. LXJ1T

In the instant case Saiyavanrao Adam, ihc candidate concerned, has notbeen examined as a witness, Ex. 20 is (he certified copy of Ihc originalnomination form of Satyavanrao Alram, and the same has been admittedin evidence as a document admitted by the respondent. !n the requisiteportion of this nomination form Ex. 20 filed in by (he candidate Satyavan-rao Alram under his signature, he has mentioned in clause (b) in theMarathi printed form:

(a) ITT Pw^qfr m& ^mr f;?T<f srro

The English translation would be:

(supported by the Janata party)

"(ft) that I am set up at this election by the Nag Vidarbha As. Sa.Party"

(The underlined portions in both the Marathi and English rendering abovebeing the printed words, and the rest being the filled up writing in ink).

The Marathi ink written words "Nag Vidarbha As. Sa." are in line withthe printed Marathi words before and after, while the Marathi ink writtenwords "Janata Paksha samartheet" are written above the line and are withinbrackets. This is also so in the original nomination form and I have seenand confirmed this. The question is whether this declaration amountsto a declaration by Satyavanrao Atram that he was a candidate set up bythe Janata party within the meaning of clause (a) of paragraph 13 of theElection Symbols (Reservation and Allotment) Order 1968? Theobvious answer will have to be "No". The plain reading of this declara-tion in the nomination form Ex. 20 would be that Satyavanrao Atram wasmaking a declaration that he was a candidate set up by the Nag VidarbhaAndolan Samiti and that he was also supported by the Janata Party. Itwould not be possible to read this declaration to mean that SatyavanraoAtram was declaring that he was a candidate set up by the Janata Party.It may be observed that alongwith the certified copy Ex. 20 of the nomi-nation form of Satyavanrao Atram, the petitioner himself has filed onrecord of this election petition an English translation of the said nomina-tion form (which is required to be filed under rule 26 of the ElectionRules framed by this Court) and in that translation, the relevant declara-tion is translated as:

"(B) Tn this election I am the candidate of Nag Vidarbha AndolanSamiti supported by Janata Party."

In para 10 of his deposition the petitioner Ishaq Mohamad (P. W. 1) hasstated:

"I have studied upto Marathi Vllth standard. I understand thedifference between a candidate set up by a party and a candidatesupported by a party."

Similarly Ramkrishna Hegde (P. W. 8) who is one of the General Secre-taries of the All India Janata Party has stated in para 10 of his deposition:

"I do know the difference between those who are set up as candidatesset up by Janata Party and those who are supported by Janata Party.I can read Marathi us well. By "Samarthit" is meant "supported"."

E.L.R.J ISHAQ MOHAMAD V. DEVAJ1 185

It is not difficult to see how or why such a declaration should havebeen made by Satyavanrao Atram in his nomination form (Ex. 20). ThisSatyavanrao Atram is the son of Raje Vishweswarrao (P. W. 2) who isthe sitting member of the Loksabha, having been elected to Loksabha fromChandrapur constituency is the election held in March 1977, as a candidateof the Janata party with the election symbol "Haldhar". Raje Vishwesh-warrao (P. W. 2) has admitted in para 10 of his deposition:

"Till now, I have not jointed the Janata party. It is true that evenmy son Satyavanrao has not joined the Janata party. We arefriends of Janata Party."

This Raje Vishweshwarrao (P. W. 2) is the President of (he Nag VidarbhaAndolan Samiti (See Raje Vishweshwarrao P. W. 2, para 4). In para 5of his deposition Raje Vishweshwarrao (P. W. 2) has stated :

"According to the understanding arrived at between the Janata Party,Nag Vidarbha Andolan Samiti and the Republican party of India(Khobragade) it was decided to set up Satyavanrao as a candidatefor the Assembly from Gadchiroli constituency. It was also decidedthat Saiyavanrao was to contest the election as a candidate of Janataparty with the symbol "Haldhar" of Janata party."

Further in para 11 of his deposition, Raje Vishweshwarrao (P. W. 2) hasstated:

"U. In 1978 Assembly elections I was present when the allotmentof tickets in diiferent constituencies by Janata party took place. Thiswas sometime after the election was announced. The allotment oftickets by Janata party took place at Bombay, and T think it was 20days before the last day for filing nomination papers which was 1-2-1978.That allotment took place at Bombay under the presidentship ofS. M. Joshi who is the president of the Maharashtra State Janataparty. Rajebhau Khobragade who is president of the Republicanparty of India (Khobragade) was also present at Bombay in that meet-ing. In that meeting Dajiba Desai, the president of the peasentsand workers' party was also present. It is not true that that meetingin Bombay was not an exclusive meeting of Janata party. It wasa meeting of Janata party and its allied parties. I did not belong toJanata party or to the Republican party (Khobragade) or to peasantsand Workers parly. I attended that Bombay meeting as a representa-tive of Nag Vidarbha Andolan Samhi. It is true, in that meetingthe Gadchiroli seat was allotted to Satyavanrao for the Nag VidarbhaAndolan Samiti. It is thus true that the Gadchiroli seat was allottedto Nag Vidarbha Andolan Samiti and it was decided that Satyavan-rao should contest that seat from Gadchiroli constituency. (The wit-ness volunteers) Even before that it was settled between these partiesthat the symbol of Janata party would be allotted and the contestwould be on behalf of Janata party because the Nag Vidarbha AndolanSamiti not being a political party had no symbol of its own. Actuallyfour seats were allotted to Nag Vidarbha Andolan Samiti from Chandrapur District. They were (1) Rajura (2) Sironcha (3, Armori, and (4)Gadchiroli. It is true that the candidates who were given tickets forthese 4 seats were selected by the Nag Vidarbha Andolan Samiti.These four candidates were not selected by Janata party. They wereselected by me in my capacity as; the president of Nag Vidarbha

186 1SHAQ MOHAMAD V. DEVAJI (VOL. LXII

Andolan Samiti. 1 was not present at the time of filing of the nomina-tion form in these four constituencies, and I had seen these nomination

forms. These four candidates were :

(1) Satyavanrao from Gadchiroli constituency,

(2) Baburao Musale from Rajura constituency,

(3) Bhagwanshah Neshram from Sironcha constitutency, and

(4) Rajendrasingh Thakur from Armori constituency."

Similarly Ramkrishna Hegde (P.W. 8) one of the General Secretariesof the All India Janata party has stated in paras 8, 9 and 10 of thisdeposition:

"8 It is true that for the elections to the State Assembly heldin February 1978, the Janata party had entered into alliances withother national parties. They were either alliances or understandings.An alliance is a complete agreement in regard to co-operation betweentwo parties in fighting elections, on the basis of concrete terms. Anunderstanding is an agreement by which two parties either agree notto oppose each other in the whole State or in the part of the Stateand agree to disagree in respect of a few constituencies.

9. So far as the Maharashtra State Assembly elections of 1978 Feb-ruary are concerned, we had only understandings and no alliances.It is true, we had understandings in that election in Maharashtra Statewith Communist party of India (M), Peasants and Workers' partyand Republican party of India (Khobragade), because these three werepoiltical parties, 1 do not recollect if we had any understanding withthe Forward Block party in Maharashtra. The Nag Vidarbha AndolanSamiti group approached the Janata party with a proposal that someof the constituencies should be left for them and that they were pre-pared to contest the election on the symbol of Janata party. Thesetalks had taken place between these groups and the State Units of theJanata party and the recommendations of the State units were ap-proved with certain changes. It is true that certain constituencies wereaccordingly left for the candidates of the Nag Vidarbha AndolanSamiti, on the basis of this understanding. Though these candidatesso contested the election on the Janata party symbol and were elected,they did not become the members of the Legislature Janata parly.They were only associate members. Our whip does not operate againstthem, as of right, but we hope it would be respected by them. Simi-larly those elected candidates are not subject to our party's disciplinarycontrol.

10. It is true for the Gadchiroli constituency in Chandrapur District,we had arrived at such an understanding with Nag Vidarbha AndolanSamiti ".

On the background of the arrangement arrived at as revealed by thisevidence, it is not surprising that Satyavanrao Atram described himselfin the nomination from Ex. 20 as a candidate set up by the Nag VidarbhaAndolan Samiti and supported by the Janata party.

E.L.R.] JSHAQ MOHAMAD V. DEVAJI 187

Raje Vishweshwarrao (P.W. 2) (the father of Satyavanrao Atram) hasstated in para 13 of his deposition:

"13. It is true that 1 had not received written intimation that Satya-vanrao was selected as official candidate of Janata party, till the filingof the nomination paper. It is true that I received the written inti-mation about Satyavanrao being selected as the official candidate ofJanata party, I received it before two days of the withdrawal. Thatwas the letter shown to me in my examination-in-chief (i.e. the authori-zation letter in Form B dated 31-1-1978-Ex. 19). This letter wasthe only written intimation I had received. No such intimation wasreceived by Satyavanrao directly. It was received by me and I sentit to him."

JSo, on the date of filing the nomination form Ex. 20 i.e. on 1-2-1978,Satyavanrao Atram did not know whether the Parliamentary Board ofthe Janata Party at Delhi had or had not decided finally to set him upas a Janata party candidate on the basis of the understanding reachedbetween the Nag Vidarbha Andolan Samiti and the Maharashtra Stateunit of the Janata Party. This is also admitted in very clear terms bythe petitioner Ishaq Mohamad (P.W. 1) at the end of para 12 of his de-position. On this count also it may not have been possible for Satyavan-rao Atram to make a positive declaration in the nomination form Ex. 20on 1-2-1978 that he was a candidate set up by the Janata party.

Mr. K. H. Deshpande for the respondent contended that secting upof a candidate belonging to another party as a candidate of one's ownparty for the election on the basis of such "understanding" between thetwo parties, represented an illegal arrangement, amounting to a fraud onthe Statute. This contention cannot be accepted. The provisions of para-graph 13 of the Election Symbols (Reservation and Allotment) Order 1968,do not require that a candidate "set up" by a party, has to be a memberof that party. As long as the requisite conditions specified in the threeclasses of paragraph 13 are fulfilled, the candidate put up by a partyfor eleation would be considered as a candidate set up by that party forthe election. It is actually a "deeming" definition. In such an arrange-ment when by reason of an understanding between two political partiesone political party agrees to set up a member of the other political partyas its own candidate for the election to be contested by the candidate onthe election symbol of the political party so setting him up as a candidate,there would be no breach or contravention of any provision of the electionlaw, and therefore, such an arrangement cannot be dubbed as a fraud onthe statute.

Mr. Choudhari for the petitioner pointed out that Raje Vishwesh-warrao (P.W. 2) has stated that the Nag Vidarbha Andolan Samiti is nota political party, it has no political, economic, social or educational pro-gramme. It has no constitution for itself. It came to be formed as anad-hoc body. (See Raje Vishweshwarrao P.W. 2, para 4.) Not being apolitical party the Nag Vidarbha Andolan Samiti did not have an electionsymbol of its own. (See Raje Vishweshwarrao P.W. 2, para 11). On thisbasis Mr. Choudhri built up the argument that the particular part of thedeclaration in the nomination form Ex. 20 of Satyavanrao Atram, that hewas a candidate set up by the Nag Vidarbha Andolan Samiti party wasa meaningless superfluity, and had simply to be ignored. Then whatremained operative was the other part of (he declaration that he was a

188 ISHAQ MOHAMAD V. DEVAJI [VOL. LXtll

candidate supported by the Janata party which would be the same thingas saying that he was a candidate set up by the Janata Party. Mr. Chou-dhari urged that this particular declaration portion in clause (b) of thenomination form was not really an essential or material declaration forthe validity of the nomination form. Even if in a particular nominationform this particular part of the declaration in clause (b) was left blank,that would not invalidate the nomination itself. Therefore, it was urged,a strict rigidity in construing this part of the declaration in the nominationform was not called for.

None of these contentions of Mr. Choudhari can be accepted. Merelybecause the Nag Vidarbha Andolan Samiti is not a political party, itwould not mean that that part of the declaration in the clause (b) ofthe nomination form Ex. 20 has to be ignored. Nor does it follow thatthe said declaration in clause (b) of the nomination form Ex. 20 can thenbe read as amounting lo a declaration that Satyavanrao was a candidate"set up" by the Janata Party. The positive assertion that he was a candi-date set up fonthe election by another party (i.e. Nag Viclarbba AndolanSamiti), made by Satyavanrao A tram in clause (b) of his nomination formEx. 20. itself precludes the implied construction of the remaining portionof the declaration to mean that he was a candidate set up by the Janataparty. The positive assertion cannot simply be ignored because it maybe unmeaning in reference to the existing facts. Even then, it does therequisite damage by indicating the intention in the mind of the declarer.That necessarily precludes the construction of the remaining part of thedeclaration to mean that the declarer intended to say that he was a candi-date set up by the Janata party. !t may be that the recitals of the decla-ration in clause (b) in the nomination form may or may not have anybearing in the matter of rendering the nomination form invalid. Butwhen the said declaration is to be construed for the purposes of the pro-visions of paragraph 13 of the Election Symbols (Reservation and Allot-

' ment) Order 1968. a rigid and strict construction of the said declarationis necessarily called for.

That brings me to the alternative argument of Mr. Choudhari. Heurged that a declaration by Satyavanrao Atram saying that he is a candi-date "supported" by the Janata party ( -sr-Tfii q«T m?m ) is the samething as saying that he is a candidate, "set up" by the Janata Party. Forthis purpose Mr. Choudhari placed reliance on the meaning of the verb"support" given in the Webster's Third International Dictionary at page2297. The meanings given there are : "Support" 2(a) (1) to uphold byaid, countenance, or adherence; actually promote the interest or causeof; (2) to uphold or defend as valid, right, just or authoritative." Mr.Choudhari invited me to accept here the alternative meaning given in 2(a)above i.e. "to uphold or defend as valid, right, just or authoritative". Iam unable to accept this argument or Mr. Choudhari. A word can havedifferent shades of meaning in different contexts, yet the dictionary maygive all the meanings together at one place. The proper meaning ofthe word used will always have to be ascertained from the context inwhich the word is used. In this particular case, it has to be seen thatthe declarer himself has used the word in juxtaposition to the declara-tion that he was a candidate set up by another party. =rm f^fT- 3Tt° ToTSTR ^ T ^ T T ) . In that context, the use of the word "supported" in thephrase "supported by Janata party" ( 3R?TT q r Trf'spr ) cannot beread as equivalent to meaning that he was a candidate sel up by the Janataparty.

LU..R.I IS11A0 MOHAMAD V. DI.VA.M \\\c)

1 find that the petitioner has not proved that Satyavanrao Atram hadcomplied with the provisions of paragraph 13(a) of the Election Symbols(Reservation and Allotment) Order, 1968.

The provisions of clauses (b) and (c) of paragraph 13 of the ElectionSymbols (Reservation and Allotment) Order 1968 may be considered to-gether. These provisions are as follows:

"13 When a candidate shall be deemed to be set up by a politicalparly. For the purposes of this Order a candidate shall be deemedto be set up by a political party if. and only if.-

(a) xxx xxx xxx

(b) a notice in writing to that effect has not later than 3 p.m. on thelast day of withdrawal of candidates, been delivered to the re-turning officer of the constituency: and

(c) the said notice is signed by the President, the secretary, or anyother office-bearer of the party and the president, secretary orsuch other office-bearer is authorised by the party to send suchnotice and the name and the specimen signature of the president,the secretary or such other office-bearer are communicated inadvance to the returning officer of the constituency and to theChief Electoral Officer of the State".

Ex. 19 is the certified copy of the original notice dated 31-1-1978in form B given by Ramkrishna Hegdc (P.W. 8), one of the GeneralSecretaries of the All India Janata Party to the Returning Officer of theGadchiroli (Scheduled Tribes Reserved) Constituency No. 152, intimat-ing that Satyavanrao Atram was the candidate set up by the Janata partyfor the election to the Maharashtra State Assembly from that Consti-tuency. The original notice has been proved from the record of the elec-tion papers, by Ramakrishna Hegde (P.W. 8). Ex. 43 is the certifiedcopy of the original notice dated 17-1-1978 in form A signed by Chandra-shekhar, the president of the All India Janata Party, issued to the ChiefElectoral Officer of Maharashtra State, informating that RamakrishnaHegde, the General Secretary of the party, had been authorized by theparty to intimate the names of candidates proposed to be set up by theparty for the State Legislative Assembly Elections of 1978. This noticealso contains three specimen signatures of Ramakrishna Hegde. Thisoriginal notice has also been proved by Ramakrishna Hegde (P.W. 8)from the record of the election papers, of the Gadchiroli (Scheduled TribesReserved) Constituency. Thus according to the petitioner, there has beencomplete compliance with the provisions of paragraph 13(b) and (c) of theElection Symbols (Reservation and Allotment) Order 1968.

However, there are certain difficulties. Mainly these are: (1) Therequisite notice under clause (b) of paragraph 13 of the Election Symbols(Reservation and Allotment) Order 1968 has to be delivered to the Re-turning Officer of the Constituency not later than 3 P.M. on the last dayof withdrawal of candidates. (2) The said notice has to be "signed" bythe president, Secretary or other office-bearers of, the party, and (3) the"specimen signatures" of the president, Secretary or other officer bearerhave to be communicated in advance to the returning officer. The con-tentions raised by the respondent are; (1) there is no proof to show thatthe original notice Ex. 19 was delivered to the returning officer before

190 ISHAQ MOHAMAD V. DEVAJI (VOL. LX1I

3 p.m. on 4-2-1978, the last day of withdrawal, (2) The said notice bearsthe rubber stamp signature of Ramakrishna Hegdc (P.W. 8) the Secretaryof: the party, so it cannot be said to be "signed" as required by clause (c)of paragraph 13 of the Election Symbols (Reservation and Allotment)Order 1968, and (3) Even the specimen signature sent under originalnotice in form A, Ex. 43 are the rubber stamp specimen signatures ofRamakrishna Hegde, the secretary, and even the original notice Ex. 43bears the rubber stamp signature of Chandrashekhar the president of theJanata Party.

The original notice of which Ex. 19 is the certified copy does not bearon it any endorsement of the date and time of its presentation to the re-turning officer. This, I have checked from the original. The returningofficer has not been examined as a witness by any party to this electionpetition. The petitioner has not .adduced any direct evidence of presen-tation of this original notice to the Returning Officer by examining anywitness who delivered it to the Returning Officer. It does not appearthat the original notice Ex. 19 was sent directly by post to the returningofficer. That is clear because, Raje Vishweshwarrao (P.W. 2) has statedin para 5 of his deposition that he had received the original notice Ex. 19,he had received it 2 or 3 days before the date of withdrawal, and thathe had sent it with Bhagwanshah Meshram to Gadchiroli for giving thatletter to the Returning Officer. Bhagwanshah Meshram has not been exa-mined as a witness in this election petition. The petitioner Ishaq Mohmad(P.W. 1) has not said anything on this point. However, he has stated hewas not present before the Returning Officer on the last date for with-drawal. (See Ishaq Mohmad P.W. 1, para 14). On the other hand therespondent Devaji Tanu Madavi (D.W. 1) has specifically stated in hisevidence that on the date of withdrawal i.e. on 4-2-1978 from 11 a.m.to 3 p.m. he was present in the office of the Returning Officer, and thaton that date Satyavanrao did not present to the Returning Officer anyauthorisation from the Janata Party, nor had such authorization reachedthe Returning Officer on the date of withdrawal till 3 p.m. (See DevajiMadavi, D.W. 1, para 1, also paras 7 and 8).

ft was contended on behalf of the respondent that the petitioner hadalleged in the petition that Satyavanrao Atram had complied with all thenecessary formalities for allotment of the "Haldhar" symbol to him. There-fore, it was for the petitioner to prove proper compliance by SatyavanraoAtram of all the requisites under paragraph 13 of the Election Symbols (Re-servation and Allotment) Order 1968. The petitioner should have therefore,examined either Bhawanshah Meshram or the Returning Officer to provethat the original nontice £x. 19 was delivered to the Returning Officer anytime prior to 3 P.M on 4-2-1978. As the petitioner had not cared loexamine either Bhagwanshah Meshram or the Returning Officer, the peti-tioner had not discharged the burden whxh lay on him.

On this point Mr. Choudhari contended that the evidential materialon record was sufficient to show that the original notice Ex. 19 had beendelivered to the Returning Officer within the prescribed time i.e. before3 p.m. on 4-2-1978 Mr. Choudhari emphasized that the original notice Ex.19 does appear in the original election paper i.e. in the record of the Re-turning Officer. That itself shows that it was actually delivered to theReturning Officer. The very fact that the Returning Officer has not notedon the original noiice the date and time when it was delivered to him

E.L.R.] ISHAQ MOHAMAD V. DEVA.TI 191

shows that it must have been delivered to him within the prescribed time,for, otherwise, surely the Returning Officer would have noted on the originalnotice that it was delivered to him on a particular date and at a particulartime, beyond the prescribed time. It was contended that the statementof the respondent that he was present in the office of the Returning Officeron the last day of withdrawal i.e. on 4-2-1978 from II a.m. to 3 p.m. andthat during that period the original notice Ex. 19 had not been deliveredto the Returning Officer would not conclude the point, the original noticecould have been delivered to the returning officer any time earlier i.e. sayon 3-2-1978. 1 am afraid it is futile to make any such conjectures. If thepetitioner made the allegations of complete compliance of all requisite for-malities, it was for the petitioner to strictly prove the same. Having failedto adduce direct evidence on the point the petitioner cannot ask the Courtto draw inference in his favour. If inferences have to be drawn at all,they would be adverse inferences drawn against the petitioner, on whomthe burden of puoof lay, and who has failed, without any explanation toexamine the necessary witnesses.

The next contention of Mr. Choudhari is that a perusal of the orderEx. 22 about allotment of symbols passed by the Returning Officer on4-2-1978 itself clearly shows that he must have received before then therequisite original notices Ex. 19 and Ex. 43. The circumstances on thebasis of which Mr. Choudhari wants such inference to be drawn from theorder Ex. 22 may be enumerated as follows:

(i) In the relevant paragraph of the order relating to SatyavanraoAtram, the Returning Officer himself has mentioned that Satyavan-rao was "sponsored by Janata Party."

(ii) In the paragraph of the order Ex. 22 pertaining to Kunjam LakhanShah, the Returning Officer has made a specific mention that"though in his nomination paper he has stated that he belongsto Janata party, but he is not authorised and sponsored by Janataparty". Therefore, if the requisite original notices Ex. 19 andEx. 43 had not been delivered to the Returning Officer by them,surely the Returning Officer would have made a similar mentionin the part of the order relating to Satyavanrao Atram, specifi-cally saying that he was not authorised and sponsored by theJanata party.

(iii) In the two subsequent paragraphs relating to Madavi, Devaji Tanuand Sayam Raje Fattelalshah, also in respect of each of thesetwo candidates the Returning Officer has specifically said in hisOrder Ex. 22 that each of them was "duly authorised and spon-sored by the said party." So if the authority under originalnotices Ex. 19 and Ex. 43 in respect of Satyavanrao Atramhad not been delivered to the Returning Officer by then, the Re-turning Officer would have specifically stated that Satyavanraowas not "authorized by the Janata party". He has not said soin respect of Satyavanrao Atram in the order Ex. 22. That meansthe original authority notices Ex. 19 and Ex. 43 had been deli-vered to the Returning Officer before he passed the order Ex. 22.

It is not possible to accept these contentions of Mr. Choudhari. Itis. first necessary to note that the order Ex. 22 passed by the ReturningOfficer on 4-2-1978 says "Out of the above five candidates only two candi-dates Shri Kunjam Lakhanshah Chattarshah and Shri Madav. Devaji Tanu

26—3 ECI/ND/85

192 ISHAQ. MOHAMAD K. DRVA.ll |VOI. LXlil

arc present". That means, Satyavanrao Alram had not even cared to bepresent when the Returning Officer passed the order Ex. 22 about theallotment of symbols. The porlion of the order Ex. 22 relating to Satyavan-rao Alram is as follows:

"As regards [he candidate Shri Atram Satyavanrao Raje Vishwesh-warrao who has given (wo preferences to Haldhar and Lion. ThisHaldhar is reserved symbol for Janata party. This cannot be allottedto him as he belongs to Nag Vidarbha Andolan Samiti even if he issponsored by Janata Party. Hence he is allotted the symbol Lion whichis of second preference."

Now reading the entire order Ex. 22 passed by the Returning Officer,it is clear that the Returning Officer makes a distinction between "autho-rized" and "sponsored" by a party. That is clear from the last two para-graphs of the order where in respect of Madav. Devaji Tanu and SayamRaje Fattalalshah the Returning Officer has used the expression "he isduly authorised and sponsored by the said party". So the expression used inrespect of Satyavanrao Atram "even if he is sponsored by Janata party"cannot necessarily be read as leading to the inference that the original noticesEx. 19 and Ex. 43 had been delivered to the Returning Officer before hepassed the order Ex. 22. If he had received those notices, probably theReturning Officer would have used the expression "authorized by the saidparty" in respect of Satyavanrao Atram also. The want of authority fromthe party had to be specifically noted by the Returning Officer in respectof Kunjam Lakhan Shah, because, the Returning Officer says, in his nomi-nation paper Kunjam Lakhansha had stated that he belonged to the Janataparty. That was not necessary to be stated in respect of SatyavanraoAtram, because the Returning Officer clearly stated:

"This Haldhar is reserved symbol for Janata party. This cannot beallotted to him as he belongs to Nag Vidarbha Andolan Samiti evenif he is sponsored by Janata party."

Probably, by the expression "sponsored by Janata party" the ReturningOfficer is referring to the declaration of Satyavanrao Atram in his nomi-nation form Ex. 20 that he is "supported by Janata party" ( Rar <rsr 3rai«RT).He that as it may, the recitals in the order Ex. 32 passed bythe Returning Officer do not necessarily lead to the conclusion that theoriginal notices Ex. 19 and Ex. 43 had been delivered to the ReturningOfficer before he passed that order. To repeat, where the burden of prooflay on the petitioner, and it was possible to adduce direct evidence todischarge the burden, but that has not been done, it is not proper for thepetitioner to invite the Court to draw inference and conjectures in hisfavour.

Towards the close of his arguments Mr. Choudhari put forth a feebleoral request: If the Court is not satisfied with the material on record,the Court may decide to examine either the Returning Officer or Bhagwan-shah Meshram as a Court witness. This is surely not a case where theCourt would choose to intervene in that manner. After even the argu-ments were over, the petitioner filed application Ex. 50 under Order 10,Rule 14 of the Civil Procedure Code, read with section 151 of the CivilProcedure Code, praying for examination of the Returning Officer as aCourt witness. This application was rejected by the order Ex. 43 dated3-10-1978, in view of the observations of the Supreme Court in Bishwanath,,....vs Sachhidanand: {A.I.R. 1971 S.C. 1949).

E.L.R.] rSHAQ MOHAMAD V. DEVAJI 193

Clause (c) of paragraph 13 of the Election Symbols (Reservation andAllotment) Order 1968 uses the words "signed" and "specimen signature".What is found in the original notice Ex. 19 and Ex. 43 are rubber stampsignatures of Ramkrishna Hegde (P.W. 8). Would these be proper? Mr.Choudhari for the petitioner attempted to draw assistance from the defini-tion of the term "signed" in section 2 (20) of the Civil Procedure Code:

"Signed gave in case of a judgment or decree; includes stamped "

It is true section 87 of the Representation of the People Act, 1951 pres-cribes that subject to the provisions' of the said Act and rules thereunder,the procedure governing the trial of an Election Petition in the High Courtshall be, as nearly as may be, in accordance with the procedure underthe Civil Procedure Code. But the signing of notices under paragraph13 of the Election Symbols (Reservation and Allotment) Order 1968 forbeing delivered to the Returning Officer could hardly be said to relate tothe procedural part of the trial of an election petition in the High CourtSection 87 of the Representation of the People Act, 1951 not coming intooperation, it would not be proper to draw assistance from the definitionof the term "signed" in section 2(20) of the Civil Procedure Code. TheRepresentation of the People Act, 1951, itself defines the expression 'sign'in section 2(1 )(i) as follows:

"sign" in relation to a person who is unable to write his name meansauthenticate in such manner as may be prescribed."

This definition has no application to the present case, because RamakrishnaHegde (P.W. 8) is not a person who is unable to write his name. Thedefinition of the term 'sign' in sectioin 3(56) of the General Clauses Act,1897; is again in almost similar terms:

"Sign" with its grammatical variations and cognate expression, shallwith reference to a person who is unable to write his name include"mark with its grammatical variations and cognate expressions."

This definition is again of no assistance in the instant case. The wholedefining field thus explored, one must necessarily come back to the plainmeaning of the term. In Commissioner of Agricultural Income Tax, WestBengal ... vs ... Keshab Chandra Mandal: (A.].R. 1950 S.C. 265), theSupreme Court observed in para 22:

"If a statute requires personal signature of a person, which includesa mark, the signature or the mark must be that of the man himself.There must be physical contact between that person and the signatureor the mark put on the document."

In Hindusthan Construction Co. Ltd. ... vs ... The Union of India: (A.l.R.1967 S.C. 526), the following observations appear in paras 6 and 7 ofthe report:

"(6) That brings us to the meaning of the word "sign" as used inthe expression "signed copy". In Webster's New World Dictionarythe word "sign" means "to write one's name on, as in acknowledgingauthoriship, authorising action, etc.. "To write one's name is signature.Section 3(56) of the General Clauses Act No. 10 of 1897, has notdefined the word "sign" but has extended its meaning with referenceto a person who is unable to write his name to include "mark" withits grammatical variations and cognate expressions. This provision

194 1SHAQ. MOHAMAD V. DEVAJI [VOL. LXIlT

indicates that signing means writing one's name on some document orpaper. In Mohesh Lai ... vs. ... Busunt Kumaree (1881) I.L.R. 6Cal. 340, a question arose as to what "signature" meant in connectionwith S. 20 of the Limitation Act No. IX of 1871. It was observedthat^ "where a party to a contract signs his name in any part of it insuch a way as to acknowledge that he is the party contracting, that isa sufficient signature." it was further observed that the documentmust be signed in such a way as to make appear that the personsigning it is the author of it, and if that appears it does not matterwhat the form of the instrument is or in what part of it the signatureoccurs.

(7) We accept these observations and are of the opinion that so longas there is the signature of the arbitrator or umpire on the copy of theaward filed in Court and it shows that the person signing authenticatedthe accuracy or correctness of the copy the document would be asigned copy of the award...".

From the observations in these two cases the following principlesemerge: (1) To sign means to write one's name. (2) The signature mustbe that of the person himself, there must be physical contact between theperson and the signature on the document.

In the instant case, Ramakrishna Hegde (P.W. 8) did not write hisown name on the original notices Ex. 19 and Ex. 43. What appear assignatures of Ramkrishna Hegde (P.W. 8) on these original notices (Ex. 19and Ex. 43) are rubber stamps of the signature of Ramkrishna Hegde(P.W. 8). Nor did he himself put these rubber stamps of his signatureon these original documents. On his own showing, they were put by oneBalkrishna, the Permanent Secretary of the Janata party, though in thepresence of Ramkrishna Hegde (P.W. 8). (Sec P.W. 8) para 8. So boththe tests fail, Ramkrishna Hegde did not write his own name, nor wasthere a physical contact between Ramkrishna Hegde (P.W. 8) and thedocuments. It cannot then be said that these original documents were"signed" by Ramkrishna Hegde, or that they bore his "signatures".

It is true, Ramkrishna Hegde (P.W. 8) has stated in para 7 of hisdeposition:

"1 think the total number of candidates set up by the Janata partyat that time for elections to various State Assemblies was more than1000. It is true, it was not possible for me to sign myself every formin Form A and Form B for each of the candidate set up. That wasalso the experience by the President of the party. I got the rubberstamp of my signature specially prepared for this purpose."

However, it has been observed in Commissioner of Agricultural IncomeTax, West Bengal ... vs. ... Keshab Chandra Mandal: (A.T.R. 1950 S.C.265) in para 20 of the reported judgment.

"There is an argument based on hardship or inconvenience. Hard-ship or inconvenience cannot alter the meaning of the language emp-loyed by the Legislature if such meaning is clear on the face of thestatute or the rules."

I, therefore, find that the petitioner has not proved that SatyavanraoAtram had complied with the provisions of paragraph 13(b) and (c) ofthe Election Symbols (Reservation and Allotment) Order, 1968.

E.L.R.] ISHAQ MOHAMAD V. DEVAJI 195

For lhe aforesaid reasons 1 find that the petitioner has not provedissues No. 2(a), 2(b), 2(c) and 2(d). The deeision of the Returning Officerrefusing to allot the election symbol "Haldhar" to Satyavanrao Atramcannot then be said to be wrong or incorrect. I, therefore, find issue No.2-A also not proved.

Isi'ues No. 3, 4 and 9(a): —

Since I have held that the decision of the Returning Officer in refusingto allot the "Haldhar" symbol to Satyavanrao Atram has not been provedto be an erroneous decision, these issues do not really arise for considera-tion. However, if it were to be held that the decision of the ReturningOfficer was erroneous, and he should have properly allotted the "Haldhar"symbol to Satyavanrao Atram, then these issues would arise for conside-ration. Even in that case the election would not be declared to be voidunless the petitioner proves that the erroneous decision of the ReturningOfficer had materially affected the result of the election so far as the re-turned candidate i.e. the respondent is concerned. For completeness ofrecord 1 would also record that finding on the hypothetical assumptionthat the decision of the Returning Officer was erroneous.

In an attempt to discharge this burden, the petitioner has examinedeigth witnesses inclusive of himself. These witnesses arc:

(1) The petitioner Ishaq Mohmad, (P.W. 1) who was the election agentof Satyavanrao Atram.

(2) Raje Vishweshwarrao {P.W. 2), the sitting member of the parlia-ment, who is the father of Satyavanrao Atram.

(3) Chanshyam Salve (P.W. 3) an agriculturist and cloth shop ownerof Dhanora in Gadchiroli tahsil of Chandrapur district. He isalso the President of the Panchayat Samiti, Dhanora Block.

(4) Alibhai Pirani (P.W. 4), a shop owner of Gadchiroli, who was apropaganda worker for Satyavanrao Atram in the election.

(5) Habibkhan Wasirkhan (P.W. 5), a bamboo contractor of Gadchi-roli who was a propaganda worker of Satyavanrao Atram.

(6) Nagorao Ramteke (P.W. 6) an agriculturist of Gadchiroli who isthe president of the Republican Party (Khobragade) for the areaof the Gadchiroli Panchayat Samiti.

(7) Tulshiram Karpe, (P.W. 7), an agriculturist and tobacco dealer ofGadchiroli who is the President of the Janata party for the Gadchi-roli town.

(8) Smt. Kamalabai Dube, (P.W. 9). an agriculturist of Chanorshi inGadchiroli Tahsil, she also claims to be the President of the Janataparty at Chanorshi.

The evidence of these witnesses is in very general terms. They speakof having moved about for propaganda work for Satyavanrao at the elec-tion time, they moved about at Gadchiroli proper and in interior villages,they speak of their experience during these propaganda movements, whenthey told the people that Satyavanrao Atram was a candidate of the Janataparty. They say the people would not believe them, the People doubted

196 1SHAQ. MOHAMAD K DEVAJ1 [VOL. LXIII

because the election symbol of Satyavanrao was 'Lion' and not the Janataparty symbol "Haldhar". It is also claimed by some of these witnessesthat the workers of the rival Indira Congress party took advantage of thissituation by making a propaganda that there was no candidate of theJanata party contesting the election from Gadchiroli constituency, thoughon this point it must be noted that this evidence is mostly of a secondarynature, these witnesses tell about what the people in the villages told themand not from their own personal knowledge. On this basis, these witnesseshave opined that if the "Haldhar" symbol had been allotted to SatyavanraoAtram, the respondent would not have got as many votes as he actuallydid got, in that case Satyavanrao Atram would have got more votes thanhe actually got, and he would have been elected. This is the generalpattern of the evidence of these witnesses of the petitioner. Another at-tempt made to prove this point is by showing that in the Parliamentaryelection held in March 1977, Raje Vishweshwarrao (P.W. 2), the fatherof Satyavanrao Atram contested the election to the Parliament from theChandrapur constituency as a Janata party candidate with the electionsymbol 'Haldhar'. He was elected with a majority of 88000 votes asagainst the Congress candidate Abdul Shafee. The area of the GadehiroliAssembly constituency formed part of the larger Chandrapur ParliamentaryConstituency, and in the area of the Gadchiroli Assembly constituency,Raje Vishweshwarrao (P.W. 2) registered a majority of 14000 votes overhis immedidate next rival Abdul Shafee of Congress party. This wasthe picture even when the Congress party was a single party, the split inthat party came about later, but before the Assembly Election held inFebruary 1978. At Ex. 18 the petitioner has filed on record of this peti-tion the certified copy of the resuit sheet of the Parliamentary election ofMarch 1977 to support these facts. The witnesses examined by the peti-tioner in this petition speak of their coverage of a total number of about61000 voters during their propaganda work. The argument is: if Satyavan-rao had been allotted the "Haldhar" symbol of Janata party he wouldhave easily got 2089 more votes to cover the gap between his votes andthose of respondent, and the respondent would have got even lesser num-ber of votes than he got in the election. The sheet-anchor of Mr. Chou-dhari's argument has been: This evidence of these witnesses of the peti-tioner has not been seriously challenged in their cross-examination, and noevidence in rebuttal worth the name has been adduced by the respondent.Therefore, argued Mr. Choudhari, the evidence of these witnesses shouldbe accepted. The simple reply of Mr. K. H. Deshpande for the respondentto this argument is: This is speculation and not proof, and so the burdencast on the petitioner by the provisions of section 100{ I )(d)(iv) of theRepresentation of the People Act 1951 has not been discharged. Mr. K. H.Deshpande relies on the observations in V as hist Narayan Sharma vs. DevChandra: (A.l.R. 1954 S.C. 513); Paokai Haokin vs. Rishnag: (A.l.R.1969 S.C. 663); Samant N. Balkrishna vs. George Fernandas: (A.l.R. 1969S.C. 1201): and S. K. Singh vs. V. V. Gin: (A.l.R. 1970 SC 2097).

It has to be conceded at once that the evidence on this point adducedby the petitioner is speculation and not evidential proof. It is almostentirely evidence of speculative opinions of the witnesses examined. Itwould be wrong to draw comparisons with the Parliamentary election ofRaje Vishweshwarrao (P.W. 2) from the Chandrapur Parliamentary Cons-tituency in March 1977. That election could have been the result ofjseveral factors. The effect of the name and impact of the personality ofRaje Vishweshwarrao (P.W. 2) as a possible cause leading to his successfulelection cannot be ruled out. After all he had been successfully elected to

E.L.R.] 1SHAQ MOHAMAD K. Df.VA.U ,197

the Maharashtra Legislative Assembly from Chandrapur district tor acontinuous period of 20 years i.e. from 1957 to 1977. The feelings of theelectors against the Congress party on account of the oppressions duringthe period of Emergency could have also been a possible contributoryfactor. It would be improper to assume that the same situation prevailedat the time of the Maharashtra State Assembly Elections held in February1978. If the resuils of the said State Assembly Elections of February 1978could be a pointer, those results appear to preclude such assumption, atany rate in respect of Chandrapur district. In the State Assembly Elec-tions of 1978 February, out of 9. constituencies in Chandrapur district, in7 constituencies the candidates belonging to Indira Congress party weredeclared successful. This is admitted by Raje Vishweshwarrao (P.W. 2) inpara 10 of his deposition. In India the result of an election can be in-fluenced by several factors. The result of an election on the basis ofhypothetical circumstances cannot be predicted with any certainly. Itwould entirely be speculation.

Vashisi Narayan Sharmds case: (A.I.R. 1954 S.C. 513) insists of proof,not speculation:

"We are of opinion that the language of section 100(l.)(c) is tooclear for any speculation about possibilities

It is impossible to accept the "ipse dixit" of witnessescoming form one side or the other to say that all or some of thevotes would have gone to one or the other on some supposed orimaginary ground.

The question is one of fact and has to be proved by positiveevidence. If the petitioner is unable to adduce evidence in a casesuch as the present, the only inescapable conclusion to which theTribunal can come is that the burden is not discharged and that theelection must stand. Such result may operate harshly upon the peti-tioner seeking to set aside the election on the ground of improperacceptance of a nomination paper, but neither the Tribunal nor theCourt is concerned with the inconvenience resulting from the opera-tion of the law.

How this state of things can be remedied is a matter entirely forthe legislature to consider. "

The same view has been followed by the Supreme Court in PaokaiHctokip vs. Rishnag: (A.I.R. 1969 S.C. 663) where Hidayatuilah, C.J. hasobserved in para 10 of the reported judgment:

"Therefore, what we have to see is whether this burden has beensuccessfully discharged by the election petitioner by demonstratingto the Court either positively or even reasonably that the poll wouldhave gone against the returned candidate if the breach of rules hadnot occurred and proper poll had taken place at the polling stationsincluding those at which it did not."

Mr. Choudhari for the petitioner has emphasized the words "by demonstrat-ing to the Court either positively or even reasonably " occuringin the above passage. He, therefore, argues that these observations of theSupreme Court make his burden a .little lighter. Even so it has to beevidential proof by which the burden is to be discharged, and not by

198 ISHAQ,MOHAMAD KDEVAjr [VOL. LX1JI

mere speculation of witnesses examined in the case, In para 11 of thesame case, Hidayatullah, C.J. proceeded to observe:

"The evidence in this case which has been brought by the electionpetitioner is the kind of evidence which was criticised by ths Court.Witnesses have been brought forward to state that a number of votersdid not vote because of the change of venue or because of firing andthat they had decided to vote en-bloc for the election petitioner,this kind of evidence is merely an assertion on the part of a witness,who cannot speak for- 500 voters for the simple reason that as thisCourt said the casting of votes at an election depends upon a varietyof factors and it is not possible for anyone to predicate how many orwhich proportion of votes will go to one on the other of the candidates.We cannot therefore accept the statement even of a Headman that thewhole village would have voted in favour of one candidate to theexclusion of the other. "

Tn para 12 of the same case the following observation appears:" . but that does not alter the position with regard to section100(l)(d)(iv) of the Act. That section requires that the election peti-tioner must go a little further and prove that the result of the electionhad been materially affected. How he has to prove it has alreadybeen stated by this Court and applying that test, we find that he hassignificantly failed in his attempt and therefore the election of thereturned candidate could not be avoided. It is no doubt true that theburden which is placed by law is very strict; even if it is strict itis for the Courts to apply it. It is for the Legislature to considerwhether it should be altered. If there is another way of determiningthe burden, the law should say it and not the Courts "

The same view has been reiterated by the Supreme Court in Samant N.Balkrishan vs. George Fernandes; (A.I.R. 1969 S.C. 1201), where the fol-lowing observations appear in para 58 of the reported judgment:

"In our opinion the matter cannot be considered on possibility. VashistNarayan's case insists on proof. If the margin of votes were smallsomething might be made of the points mentioned by Mr. Jethmalani.But the margin is large and the number of votes earned by the re-maining candidates also sufficiantly huge. There is no room, there-fore, for a reasonable judicial guess. The law requires proof. Howfar that proof should go or what it should contain is not provided bythe legislature: In Vashist's case (A.I.R. 1954 S.C. 513) and Jnava-tullah vs. Diwanchand Mahajan (1958) 15 Ele, L.R. 219 at pp. 235-236 (M.P.) the provision was held to prescribe an impossible burden.The law has, however remained as before. We are bound by therulings of this Court and must say that the burden has not been suc-cessfully discharged. We cannot overlook the rulings of this Courtand follow the English ruling cited to us."

The matter came up for consideration again in Shiv Kirpal Singh vs. V. V.Giri: (AIR. 1970 S.C. 2097). The Supreme Court refused to over rulethe earlier decisions which were cited with approval. In para 153 of thereported judgment it was observed:

"The learned counsel invited us to overrule this decision. It is toolate in the day to do this. This view was taken ve'.y early by variousElection Tribunals "

E.L.R.j ISHAQMOHAMADF.DEVA.il 199

And again in para 154:

"Parliament, knowing of the views held by various Commissionersand Judges have failed to intervene, and it is not for us to legislate."

My alternative finding on issue No. 3, even on the assumption of mis-take committed by the Returning Officer in not allotting the "Haldhar"symbol to Satyavanrao Atram, is that the petitioner has failed to provethat the said decision of the Returning Officer has materially affected theresult of the election of the respondent. T find issues No. 3, 4 and 9 (a)not proved.

Issues No. 10(a) and 10(6): —: The allegations in this respect towards the end portion of para 8 and in

para 13 of the written statement are mainly in respect of the corrupt prac-tice alleged and the affidavit filed in respect of the same. As the issues inrespect of the corrupt practice alleged have been struck off, issue No.10(a) does not really arise for consideration. Even after the issues rela-ting to corrupt practice have been struck off, the other allegations about theerror of the Returning Officer is not allotting the "Haldhar" symbol toSatyavanrao Atram and this error having materially affected the result ofthe election in respect of the respondent, still remain. So it cannot besaid that the petition is liable to be dismissed as it does not disclose a caiiseof action.

Issues No. 11 (a) and (b): —

There is no evidence to show that the petition is false, frivolous andvexatious to the knowledge of the petitioner. No compensatory costsrequired to be awarded to the respondent.

The result is that the election petition fails and is dismissed.

The election petition contained allegations of corrupt practice againstthis respondent. However, the issues relating to the alleged corruptpractice having been struck off vide order Ex. 28 dated 23/24-8-1978, itis recorded here that no corrupt practice can be said to have been properlyalleged. The election petitioner shall pay to the respondent an amountof Rs. 5861.50 p. as the costs incurred by the respondent and the petitionershall bear his own costs Rs. 5385-20 p. (as per schedules of costs attached).

Under section 103 of the Representation of the People Act, 1951, the. substanc: of the decision of this election petition shall be immediatelyintimated to (1). The Election Commission, and (2) The Chairman of theMaharashtra State Legislative Assembly. An authenticated copy of thisjudgment together with an authenticated copy of the order Ex. 28 dated23/24-8-1978 shall also be forwarded immediately to (he Election Com-mission as required by section 103 of the Representation of the PeopleAct. 1951.

Petition dismissed.

•l~l -?> ECI/NO/85

IN THE'HIGH COURT OF JUDICATURE AT BOMBAYNAGPUR BENCH

SUKHEDEO BABUy

DADA.1I AND OTHERS

(GlNWALA, J.)

October 12, 1978

Representation of the People Act, 1950—55. 5, 27, 28, 30 and 36—qualification for contesting an election—requirement of being an electorin the state—electoral roll—finality—Registration of Electors Rules, I960—Rule 26—requirement of inviting objection to the application for trans-position of the name of elector—transposition of the name made withoutinviting objection and in violation of the rules—jurisdiction of the civilcourt to entertain disputes relating to entries made in the electoral roll.

Constitution {Scheduled Tribes) Order, 1950—Part IX entry 18—entry relating to Gonds community—whether Mana community specifiedin entry 18 includes only Mana sub tribes of Gonds and not other Mnnacommunities.

Interpretation of Statutes—Constitution of India—Article 141 —Supreme Court's judgment on a provision in the Statute—subsequentchanges made in the provision—New legislation not materially different fromthe old one—whether original interpretation of the Supreme Court holdsgood and is binding.

The petitioner challenged the election of the first respondent to theMaharashtra Legislative Assembly from Amrori, a reserved constituencyfor Scheduled Tribes, on the grounds inter alia that the first respondentwas not a member of any of the tribes specified in Part IX (the applicablepart) of.the Schedule to the Constitution (Scheduled Tribes) Order, 1950.at the relevant time and further that the acceptance of the nomination paperof the second respondent was illegal as the said respondent's name wasentered in the Electoral Roll in violation of the provisions of law. Thename of the second respondent was transposed from one segment of theconstituency to another segment of the same constituency but in doing sothe procedure prescribed under Rule 26 of the Registration of Electors'Rules 1960 namely the procedure of inviting objections to the proposedtransposition was not followed.

The petitioner contended that the first respondent belonged to theMana community which was not a sub-tribe of Gonds mentioned in Entry18 of Part-IX of the above Order. O.-iginaily Entry 12 dealt with theGond community and it inter alia provided 'Gond includins ....Mana'The Supreme Court on interpreting the said entry held in DINA v NARA-YAN SINGH (38 E L R 11) that a Mana who is a member of the sub-tribe of Gond alone is covered under the said Entry 12. By section 6 ofthe Scheduled Castes and Scheduled Tribes (Amendment) Order 1976

E.L.R.] SUKHEDEO BABU V. DADAJI AND OTHERS 201

(passed after the above decision of I lie Supreme Court of Tndia) the Cons-titution (Scheduled Tribes) Order, 1950 was amended and in place of theoriginal Entry 12 Entry 18 was substituted dealing wilh Gond tribes. Theexpression Mana finds a place in this entry.

The (list respondent contended inter alia that the interpretation whichthe Supreme Court gave in the above mentioned decision would not bebinding in the present case as there had been an amendment of the pro-vision subsequent to the decision of the Supreme Court.

HELD: Allowing the petition and setting aside the first respondent'selection—

(i) The first respondent did not belong to the Scheduled Tribes speci-fied in the Constitution (Scheduled Tribes) Order 1950 since he did notbelong to a Mana sub-tribe of the Gond tribe.

(:i) There has been no material change between the original entry 12and the new Entry 18 and as such the interpretation which the SupremeCourt made, viz only a Mana which is a sub-tribe of Gond is coveredholds good even after the amendment of the Constitution (ScheduledTribes) Order, 1950. The interpretation given by the Supreme Court isbinding under Article 141 of the Constitution of India.

(iii) Even if the transposition of the name of the second respondentwas in violation of the rules it would not materially affect the electioninasmuch as the transposition was from one segment to another segmentof the constituency and the second respondent was entitled to contest theelection even on the basis of the original entry.

B M Ramaswamy v B M Krishnamurthy : AIR (1963) SC 458

Han Prasad Mulshankar Rivedi v V B Raju : 1974 (3) SC 416

Bhuiyyaram v Aniruddin : AIR (1971) SC 2544

L Siddappa v K Chandappa : AIR (1968) SC 929

Basaviilingappa v Minichinnappa : AIR (1965) SC 1269

Bhaiya Lai v Harikrishna Singh : AIR (1965) SC 1557

Prakash Chandra v State of U P : AIR (I960) SC 195;

Amritsar Municipal Committee v Hazara Singh : AIR (1975) SC1087

Keshav Laxman Borkar v Dev Rao Laxnian Ananda : AIR (1960)SC 131

Vishwanalh v Konappa : AIR (1969) SC 604:

referred to

202 SUKHEDEO BABU V. DADAJI AND OTHERS [VOL. LXIII


C G Madholkar and V C Daga, for the petitioner

V P Salve, K A Choubey, Khajanchi and Miss N Sarin for RespondentNo 1

M S Choudhari and G D Patil, for Respondent No 2

M M Qazi, Additional Govt Pleader and R B Masodkar Hony Asstt toAdditional Govt Pleader for Respondent No 5

JUDGMENT

GINWALA J.—This petition under section 81 of the Representationof the People Act, 1951 (hereinafter referred to as 'the Act') has been filedfor challenging the election of respondent No. 1 (Dinaji) from the ArmoriConstituency of the Maharashtra Legislative Assembly.

The general Election to the Maharashtra Legislative Assembly washeld in February 1978. The Programme for this election was asfollows: —

(1) Last date for filing nomination papers. 1st February 1978.

(2) Date of sciutiuy of nomination papers • • • • 2nd. February 1978.

(3) Lasi date of withdrawal " • . • * ' • 4th Febiuary J978.

(4) Dale of Polling. • ' • • • • • • • 25th February 1978.

(5) Date for counting of votes and declaration of electionresults 27th Februr.ry 1978.

The Armori constituency, numbered as Constituency No. 151, was reservedfor Scheduled Tribes. The Deputy Collector of Chandrapur wasnominated as Returning Officer for this constituency. The petitioner andrespondent Nos 1 to 4 amongst others duly filed their nomination papers.fn these nomination papers, the petitioner and respondent Nos. 2 and 4declared themselves to belong to Pardhan community, respondent No. 1declared that he belonged to Mana community and respondent No. 3 saidthat he belonged to Raj Gond community. At the time of scrutiny ofthe nomination papers on 2nd February 1978, the petitioner raised anobjection to the nomination of respondent No. 2 on the ground that he wasnot a voter and was, therefore, not ari elector who could be validly nomi-nated as a candidate at the election. The details on which this objectionwas founded would be stated at the appropriate place in this judgment.At this stage suffice it to say that the Returning Officer by his order record-ed on the nomination paper rejected the objection. The petitioner andrespondent Nos. 1 to 3 were sponsored by the Janata Party, Congress (I),Tndian National Congress and Nag Vidarbha Andolan Samiti, respectively.Respondent No. 4 contested the election as an independent candidate. Thepetitioner and respondent No. 1 were, however, nof allotted symbols reser-ved for their respective parties. The petitioner and respondent Nos. 1

B.L.R.J SUKHEDEO BABU V, DADAJI Al>ID OTHERS 203

to 4 who were the only contesting candidates in the field, polled votes asfollows: —

T h e P e t i t i o n e r • • • ' 1 9 , 3 8 4 3 i d R e s p o n d e n t •' • • • 2 , 3 2 2

1 s t R e s p o n d e n t . • • 3 0 , 3 7 4 4 t h R e s p o n d e n t . ' • ' • ' 3 . 4 2

2 n d R e s p o n d e n t 1 2 , 8 7 3

On 27th February 1978, respondent No. 1 was declared as elected to theMaharashtra Legislative Assembly from the Armori Constituency as hepolled the highest number of votes. It is this election which is beingchallenged in this election petition.

The petitioner has levelled a two-pronged attack. He firstly contendsthat respondent No. 1 not being a member of any of the Tribes specified inPan IX of the Schedule to the Constitution (Schedule Tribes) Order, 1950,as it stood at the time of the election (hereinafter referred to as 'the Order'),was not qualified to be chosen to fill the seat which was reserved forScheduled Tribes. Secondly he contends that the Returning Officer hadillegally accepted the nomination paper of respondent No. 2 and thus hadmaterially affected the result of the election.

With regard to respondent No. I the case of the petitioner, in short,is that he belongs to the Kshatriya Bidwaik Mana community which isa sub-caste of the Maratha or Kunbi community and as such he (respondentNo. 1) does not belong to the Mana community which is specified inentry 18 of Part IX of the Order (hereinafter referred to as 'the newentry'). According to the petitioner, the Mana community specified inthis entry is a sub-tribe of the Gond Tribe and since respondent No. 1 doesnot profess to belong to this sub-tribe of the Go-nds, hs is not that Manawhich is contemplated by this entry. The petitioner maintains that theKshatriya Bidwaik Mana community to which, according to him, respondentNo. I belongs is quite distinct and different from the Mana communitywhich is a sub-tribe or sub-caste of the Gond tribe and one has nothingto do with the other. They differ in dress, form of worship and customsand manners with respect to marriages and funerals. Hence the petitioneralleges lhat respondent No. 1 was not qualified to contest the seat reservedfor the Scheduled Tribes.

As regards respondent No. 2 the petitioner alleges that originally thename of respondent No. 2 was registered in the electoral roll of Desaiganj.He gave an application to the Collector of Chandrapur for registering hisname in the electoral roll of Koregaon. On 6th December 1977, theCollector forwarded that application to the Electoral Registration Officer,Gadchiroli who is impleaded herein as respondent No. 5. The petitionersubmits that respondent No. 5, without complying with the relevantprovisions of law in this respect notified the change in the registrationof the name of respondent No. 2 on 8th December 1977, by deleting it fromthe electoral roil of Desaiganj and by including it in that for Koregaon.The petitioner further alleges that respondent No. 5 wrote a note-sheet tothis effect on 6th January 1978 though in fact he had already notifiedthe change on 8th December 1977. The petitioner suggests that the note-sheet dated 6th January 1978 had been put on record by respondentNo. 5 with some ulterior motive. The petitioner further avers that on 21stJanuary.' 1978 he had objected in writing to the change, but respondentNo. 5 rejected his objection by his order dated 31st January 1978. Thus

204 SUKHEDEO BABU V. DADAJI AND OTHERS [VOL .LXIII

according to the petitioner, after the name of respondent No. 2 wasdeleted from the electoral roll of Desaiganj it was not entered in theelectoral, roll of Koregaon in accordance with the relevant provisions andhence he was not an elector for any Assembly Constituency ia this State.It was in this way that the petitioner contends that respondent No. 2 wasnot qualified to contest the seat for the Maharashtra Legislative Assembly.

Thus'according to the petitioner, both respondent Nos. 1 and 2, werenot qualified to be chosen to fill the seat and. he was "the only qualifiedcandidate" to be so chosen. He, therefore, prays that the election ofrespondent No. 1 should be set aside and he himself should be declared aselected. In the alternative he prays that election of respondent No. 1be set aside and it be declared that nomination paper of respondentNo. 2 was wrongly accepted which has materially affected the election.

Respondent No. 1, by his written statement at Exhibit 7, has repelledthe challenge of the petitioner to his election, on both the counts. Hedenies that he is a member of the Kshatriya Bidwaik Mana Community.He maintains that he belongs to that Mana community which is recognisedas a Scheduled Tribe under the above said, entry of the Order. He deniesthat the Mana community is specified in the said entry in relation to thesub-caste of Gonds. In fact he denies that there are two types of Manasas alleged by the petitioner, viz. one a sub-caste of Gonds and anotherKshatriya Bidwaik Manas. In short his case is that he belongs to thetribe known as Mana which finds place in the said entry of the Order andhence he is qualified to contest the seat reserved for the Scheduled Tribes.He also disputes the allegation of the petitioner that the Returning Officerhad wrongly accepted the nomination paper of respondent No. 2 andcontends that this petitioner is not maintainable, in the absence of the Return-ing Officer as a party to it. According to him, even if it is assumed thatthe nomination paper oC respondent No. 2 ought to have been rejected, itcannot be said to have materially affected the election as the voters who:voted for respondent No. 2 would have voted for him and thus in anycase he would have polled more votes. Hence he submits that his electionis perfectly legal and valid and the petition is liable to be dismissed.

By his written statement at Exhibit 11, respondent No. 2 denies theallegation of the petitioner against him that he was not qualified to contestthe election as his name was not validly registered in the electoral rollof Koregaon. He submits that his application for transfer of his name fromelectoral roll of Desaiganj to that of Koregaon had been duly notified byrespondent No. 5 on 8th December 1977 and that the latter had orderedthe transposition on 6th January 1978 when no objection was raised tothe transposition within the prescribed period. He also submits that hehad paid the requisite fees on 8th December 1977. Thus according tohim, respondent No. 5 had transposed his name in conformity with theprovisions of law obtaining in this respect and hence validity of the samewas not open to challenge. He further contends that the electoral rollfor the Armo'i Constituency had become final and conclusive and the samecould not be challenged in this petition. In short, therefore, respondentNo. 2 contends that his nomination paper had been properly and validlyaccepted..

Respondent No. 2, however, joins the petitioner in his challenge to theelection of respondent No. 1. He also c o n ^ n ^ that respondent No. 1

.L.R.] SUKHEDEO BABU V. DADAJ] AND OTHERS • 205

was not qualilied to stand for the election as he does not belong to any ofthe Scheduled Tribes. He entirely supports the petitioner in this respectand even goes a step further by alleging that in view of the decision of thisCourt in Election Petition No. 6 of 1967, which was confirmed by the Sup-reme Court, "'respondent No. 1 is now stopped from claiming to be a memberof any 'Mana' community as such and to contend that he belongs toa community other than the Mana community amongst the Maraths, andthus to contend that he is eligible to stand as a candidate for the ArmoriScheduled Tribes Constituency, No. 151." According to him, therefore,the petition is liable to succeed only against respondent No. 1.

Respondent No 5 by his written statement at Exhibit 15, has refutedthe allegations made by the petitioner against validity of the transpositionof the name of respondent No. 2 from the electoral roll of Desaiganj tothat of Koregaon. In sum and substance he has to say the same thingas has been said by respondent No. 2 in this connection. He maintainsthat the transposition was done after strict adherence to the iclevantprovisions.

On these pleadings 16 issues were framed. Issue Nos. 1 to 7 and 13relate to the case against respondent No. 1 and Issue Nos. 8 to 12 and 16has bearing on the contentions of the petitioner against respondent No. 2.

Tt would be convenient first to deal with the case against respondentNo. 2 petitioner's case in this respect has been stated in paras. 4, 12 and 13of the petitioner. Reading these paras, together the petitioner's contention,as far as it can be gathered, is like this. Respondent No. 2 was registeredin the electoral roll for Desaiganj. He submitted an application inForm 8A prescribed under Registration of the Electors Rules 1960 {herein-after referred to as 'the Rules'), to the Collector of Chandrapur and notto the concerned Electoral Registration Officer, viz. respondent No. 5, fortransposing his name from Desaiganj to Koregaon. This application didnot bear any date and was not accompanied by the fee of 10 paise asrequired by Rule 26. The Collector forwarded this application torespondent No. 5 under his letter, dated 6th December, 1977, though it wasnot accompanied by the requisite fee because of the pressure which wasbrought to bear upon him as that time respondent No. 2 happened to beMinister of State ,cor Social Welfare and Tribal Welfare. RespondentNo. 5 might have received this letter with the application at the earlieston 7th December 1977. On 8th December 1977 respondent No. 5 transpos-ed the name of respondent No. 2 from Desaiganj to Koregaon by deletingit from the part of electoral roll for Desaiganj and entering it in the partfor Koregaon, without inviting objections to the application within sevendays as required by Rule 26(3), However, on 6th January 1978 respondentNo. 5 prepared a note sheet falsely to show that this transposition was madeon that day. The petitioner after coming to know of this transpositiontook objection on 21st January 1978 raising three grounds, namely (i) thatthe declaration made by respondent No. 2 in Form 8A was false, (ii) thatthe transposition was not made in accordance with law and (iii) thatRu'e 26 was in terms breached. By his order passed on 31st January1978, respondent No. 5 rejected the ground that the declaration was falsebut did not record and finding on the ground of breach of Rule, but heldthat the objection was taken after the requisite time limit and was notentertainable. On these allegations the petitioner summarised his case

206 SUKHTEDEO BA8U V. DADAJI AND OTHERS [VOL. LXIII.

against respondent No. 2 in para. 13 of the petition in the followingwords: —

"Therefore, in the eye of law and Rule, as the procedure laid downunder the Rule was not followed and statutory period of invitingobjections was not given, objections were not heard, deletion of thename of Baburao Madavi from Desaiganj and entry of his name atKoregaon were bad in law and, therefore, the second respondent wasnot validly registered voter of any of the constituencies of the Stateof Maharashtra or for that purpose of India. As such, he was notentitled to be nominated as a candidate at the election".

Tn support of his case the petitioner examined .only himself and statedhis case in paras. 12 to 14 of his deposition. He was cross-examined inthis connection by respondent Nos. 1, 2 and 5 and this cross-examinationis recorded at paras. 16 to 19, 30 and 33. This is the oral evidence onrecord. Though respondent Nos. 2 and 5 in their written statementsrepudiated the allegations in the petition, they did not enter the witness-box and did not examine any witnesses in support of their contentions.Some documentary evidence has been put on record.

From what has been stated above it would be clear that the contentionof the petitioner as against respondent No. 2 is that on the date of hisfiling the nomination paper he was not an elector for any of the Assemblyconstituencies in the State and hence was not qualified to be chosen tofill a seat in the Legislative Assembly within the purview of clause (a)of section 5 of the Act. The reason given by the petitioner for his allega-tion that respondent No. 2 was not an elector is that the transposition ofthe entry in his name from the part of the electoral roll for Desaiganj tothat of Koregaon was not in accordance with the provisions of the Rules,particularly Rule 26 thereof. It may be mentioned here that Desaiganjand Koregaon are situated in the same Assembly constituency namelyArmori Scheduled Tribes Constituency No. 151, and there is one electoralroll for whole constituency though it is prepared in parts as providedby section 15 of the Representation of the People Act, 1950 (hereinafterreferred to as the Act of 1950> read with Rule 5 of the Rules. A copy of theapplication which respondent No. 2 had made for transposition of this namefrom Desaiganj to Koregaon is at Exhibit 35. It would appear that thisapplication has been made in Form 8A which has been prescribed underRule 26 of the Rules and is meant for transposition of an entry fromone part of the electoral roll to some other part of it. Clause (b) ofsection 22 of the Act of 1950 empowers the Electoral Registration O^cerfor a constituency to transpose an entry in the electoral roll to anotherplace in the roll on the ground that the person concerned has changed hisplac° of ordinary residence within the constituency. This n o w r given tothe Electoral Registration .Officer is subject to such general or specialdirections as may be given bv the Election Commission and is ilso subjectto the satisfaction of the said officer concerned. Rule 26 of the Rulesprescribes the procedure which has to be followed bv the sa;d officer inexercising his power under section 22 of the Act of 1950. Sub-Rule 01of Rule 26 provides that every application made under section 22 shouldjbe in duplicate and in such one of the Forms 6. 8. 8A and 8B as mavbe appropriate ard shall be accompanied bv a fee of ten paise. Sub-'ule (21then provides as to how the fee has to be paid. Sub-rule (2A> provides thatwhere the fee is deposited- in a Government treasury, the applicant shouldenclose with the application a Government treasury receipt in proof of


the fee having been deposited. Then sub-rule (3), which is relevant forthe purpose of the contention raised by the petitioner, lays down that theElectoral Registration Officer, shall, immediately on receipt of the applica-tion under section 22. direct that one copy thereof be posted in someconspicuous place in his office together with a notice inviting objectionsto such application within a period of seven days from the date of suchposting. Lastly sub-rule (4) provides that the electoral registration officershould, as soon as may be, after the expiry of the period specified in sub-rule (3), consider the objection, if any, received him and should direct thename of the applicant to be included in the electoral roll as requested, if heis satisfied that the applicant is entitled to be registered in it. It wouldthus appear that Rule 26 not only p-ovides that the application for trans-position of any entry should be in the prescribed Form and accompaniedby' the prescribed fee but it also requires the electoral registration officerto give publicity to the application by directing a copy of it to be postedin some conspicuous place in his office (say the notice board) and alsoto give public notice inviting objections to the application within sevendays. It is after these formalities are completed with that the said officercan give his decision on the application. The petitioner mainly complainsof the breach of these provisions. He contends that apart from non-payment of the prescribed fees, the application of respondent No. 2 wasnot given due publicity and objections to it were not invited and respondentNo. 5 took action under sub-rule (4) of rule 26 without complying with theprovisions of sub-rule (3) the-eof. According to the petitioner, the entryin the name of respondent No. 2 in the part of the electoral roll forKoregaon was not legal and hence he was not qualified to stand for theelection.

Now before entering into the enauirv as to whether respondent No. 5had in fact followed the procedure laid down in rule 26 when he directedtransposition of the entry, it would: be necessary to decide if such an enquirycan be undertaken in an election petition in view of certain provisions ofthe Act of 1950 and the Rules and the contention raised by respondentNo. 2 in this behalf.

Section 24 of the Act of 1950 makes provision for an appeal againstany order of the electoral registration officer under section 22. Rule 27prescribes the time within which and the manner in which such appealhas to be preferred. It would thus appear that the Act of 1950 providesits own machinery for correcting <v rectifying orders made bv the electoralregistration officer. Tt is true that the Act does not lay down that theorder so made would be final subject to appeal, but section 30 bars thejurisdiction of a Civil Court inter alia to auestion the legality of anv actiontaken by or under the authority of an electoral registration officer orof anv decision given by any authority appointed under the Act forrevision of an electoral roll for a constituency. There cannot be anvdispute that when the electoral registration officer directs transposition ofan ent'y in an electoral roll from' one part to another, he takes an actionor makes a decision under section 22 of the Act of 1950 read with Rule 26of the Pules. The legality of such an action or decision cannot be Question-ed' in a Civil Court because of the bar enacted in section 30. It is true thatsuch a bar would not preclude the Hisrh Court from ouestionina the legalityof such an action or decision, in exercise of its writ i'.risdiction underthe Constitution. But subject to that it appears that the entry in anelectoral roll is final and conclusive nnd is not open to chpllenjK in anyforum.

23 S ECI/ND/85

200 SIJKHCDHO BAHU V. DADAJI AND OTHliRS [VOL. LXTII

Mr. Madkholkar for the petitioner submitted that only those entriescan be deemed to be final and conclusive which are made in acco'dancewith the Rules. He contended that if the electoral registration officercauses an entry to be made without complying with the Rules, his actionwould be without jurisdiction and hence a nullity. He further submittedthat conclusivcness cannot attach to an entry which is made fraudulently.His submission that I he transposition of the entry in the name of respondentNo. 2 is made fraudulently, is based on the allegation that respondent No. 5had prepared a false note-sheet dated 6th January 1978 though in factthe transposition had been made on 8th December 1977 without invitingobjections and that this note-sheet had been prepared only to show thatrule 26 had been complied with. Assuming that the note-sheet had beenprepared with the motive as alleged by the petitioner, it docs not go furtherthan the case of the petitioner that the transposition had been made ineach of rule 26. According to the petitioner, respondent No. 5 had direc-ted the transposition on 8th December 1977 itself and even if a false note-Sheet is prepared on 6th January 1978 as alleged by the petitioner, it cannothe said that the entry which had been made such earlier was made fraudu-lently. At the most it can be said that respondent No. 5 made the allegedfalse note-sheet in order to cover up his omission to follow the rules. Henceon the very basis of the allegations made by the petitioner it is notpossible to say that the transposition was done fraudulently. If these alle-gations are held proved, it can at best be said that the transposition wasmade without complying with the provisions of Rule 26 and hence it wasillegal. As already seen, section 22 of the Act of 1950 confers jurisdictionon the electoral registration officer to transpose an entry in the electoralroll. He does not lose this jurisdiction simply because he does not adhereto the procedure laid down in Rule 26 while carrying out the transposition.Hence the transposition in such circumstances cannot amount to a nullitywhich can be ignored. Tn this connection reference can usefully be hadto the decision of the Supreme Court in B. M. Ramaswamy v. B. M.Krishna Munhy (A.I.R. 1963 Supreme Court 458). The facts of that caseare practically on all fours with the case of the petitioner in the present case.The appellant in that case was elected to a village Panchayat and hiselection was challenged inter alia on the ground that his name was notincluded in the authenticated list of voter. The Munsif who heard theelection petition upheld this contention. On appeal the High Court didnot agree with the finding of the Munsif that the name of the appellantwas not included in the authenticated voters' list but it held that thoughhis name was included in the electoral roll of Legislative Assemblyconstituency before the prescribed date, it was so included in direct violenceof rule 26 of the Rules and hence the said inclusion was void. Tt was onthis ground that the High Court upheld the order of the Munsif settingaside the election. Tn appeal before the Supreme Court it was urged onbehalf of the appellant that the High Court went wrong in considering thequestion of legality of the inclusion of the appellant's name in the electoralroll of the Legislative Assembly as under section 30 of the. Act thejurisdiction of Civil Courts to question the legality of an action taken bvor under the authority of the electoral registration officer was barred.Upholding the contention the Supreme Court observed as follows: —

"It is not disputed that an application was filed before the registra-tion officer for the inclusion of the appellant's name in the electoralroll: it is also common case that the electoral registration officer didnot follow the procedure prescribed in Rule 26 relating to the postingof the application in a conspicuous place and inviting objections to

E.L.R.] SUKHEDEOJBABUJKDADAJI AND.OTHERS 209

such application. It cannot, therefore, be denied that the inclusion ofthe name of the appellant in the electoral roll was clearly illegal.Under section 30 of the Representation of the People Act, 1950, noCivil Court shall have jurisdiction to question the legality of any actiontaken by, or under the authority of, the electoral registration officer.The Terms of the section are clear and the action of the electoralregistration officer in including the name of the appellant in the electoralroll, though illegal, cannot be questioned in Civil Court, but it cculdbe rectified only in the manner prescribed by law, i.e., by preferring anappeal under Rule 24 (Sic-277) of the Rules, or by resorting to anyother appropriate remedy. But it was contended before the HighCourt that the action of the electoral registration officer was a nullityinasmuch as he made the order without giving notice as required bythe Rules. We find it difficult to say that the action of the electoralregistration officer is a nullity. He has admittedly jurisdiction toentertain the application for inclusion of the appellant's name in theelectoral roll and take such action as he deems fit. The non-compli-ance with the procedure prescribed does not affect his jurisdiction,though it may render his action illegal. Such non-compliance cannotmake the officer's act non-est, though his order may be liable to beset aside in appeal or by resorting to any other appropriate remedy.".

This decision has been cited with approval by the Supreme Court in sub-sequent cases. In Hari Prasad Mulshankar Trivedi v. V. B. Raju [(1974)3 Supreme Court Cases 416] the Supreme Court, after referring to its decisionin Ramaswamy's case (supra), observed,

"This Court in effect held that the Court trying an election petition hasno jurisdiction to go behind the electoral roll and find out whether thename of any person entered therein was illegally entered."

Again in Shri Shreewant Kumar v. Shri Baidyanath (A.I.R. 1973 SupremeCourt 717) the Supreme Court observed: —

"The only question is whether the entry of the names of the 3.1

Commissioners appointed by the Minister in pursuance of his order inthe electoral roll of the constituency was legal or not. That question,we think, cannot be gone into a petition challenging the validity of theelection. In other words, even assuming that the inclusion of thenames of these persons was illegal as their appointment as commis-sioners of the Area Committee in question was in contravention of theprovisions of the Bihar Municipality Act, it was not open to the HighCourt, when trying an election petition, to go behind the electoral rolland enquire into the question whether these persons were vaiidlyappointed as commissioners and the inclusion of their names in theelectoral roll was legal. Besides, the decision of this Court in(1957) SCR 68-(A.I.R. 1957 SC 304) ibid was in an appeal from anorder in a writ petition directly challenging the validity of the electoralroll and can have no application here."

With this clear exposition of law on the subject by the Supreme Court it isnot permissible for me to enter upon an enquiy whether the transpositionof the name of respondent No. 2 from the part of the electoral roll forDesaiganj to that of Koregaon was not done in accordance with the provi-sions of Rule 26. For the purposes of this petition the entry will have tobe taken as it is.

210 SUKHEDEO^BABU V. DADAJI^AND OTHERS [VOL, LXlil

However, the matter can be looked at from another angle. Assumingthat the transposition was illegal as alleged by the petitioner, its effect at themost would be that it is no transposition at all and the name of respondentNo. 2 would continue to be included in part of electoral roll for Desaiganjas before. This certainly cannot result in completely wiping out the nameof respondent No. 2 from the electoral roll for an Assembly Constituencyin the State. Clause (c) of section 22 of the Act of 1950 does empower theelectoral registration officer to delete an entry in the electoral roll, but thathe can do only in certain specified contingencies. Respondent No. 5 hasnot acted under this clause and hence it cannot be said that the entry in thename of respondent No. 2 in the electoral roll for Desaiganj also ceasedto exist because the transposition was illegal as alleged. It is true thatrespondent Nos. 2 and 5 have not raised any such contention. But the legaleffect of the very allegations made by the petitioner, on the assumptionthat they are true, cannot be lost sight of, simply because it has not beenpleaded by the concerned respondents.

The fact, therefore, remains that at the time of tiling the nominationpaper, the name of respondent No. 2 was registered in the electoral roll ofthe Armori Assembly Constituency and hence he was an elector for thatconstituency. There is no dispute that he is a member of a ScheduledTribe. Hence he was qualified to be chosen to fill the seat from the ArmoriScheduled Tribes Constituency, within the meaning of section 5 of the Act.It cannot, therefore, be held that the nomination paper of icspondent No. 2was improperly accepted and that it has materially affected the result of theelection. In the view which I have taken I would answer Issue Nos. 8, 9and JO in the negative and the second part of issue No. '6 in the affirma-tive. Issue No. 11 does not survive for consideration.

This then brings me lo (he case of the petitioner against respondentNo. I, I have already summarised above as to what are the rival conten-tions of the petitioner and respondent No. 1 in this respect. In order toappreciate these contentions in their proper perspective, it would benecessary to note a few facts about which there is hardly any dispute.Respondent No. 1 is resident of Kadnoli which is situated in Gadchirolitaluka of Chandrapur district. Up to 1st November 1956, Chandrapurdistrict was part of Madhya Pradesh. On the re-organisation of the Statesin 1956, this district formed pavt of the erstwhile Bombay State upto 1stMay 1960. From 1st May I960 this district now is part of the State otMaharashtra.

Part IV of the Schedule of the Order originally promulgated by thePresident in 1950 related to the Scheduled Tribes in Madhya Pradesh.This part consisted of 12 items, each item relating to a specified area ofthat State. Item 6 of that part related to Sirencha and Gadchiroli tahsilsof Chanda district which now is known as Chandrapur. The entry atserial No. 12 in item 6 of this part was as follows: —

"12. Gond (including Madia) ("Maria") and Madia ("Muria")."Extensive amendments were carried out to the Schedule of the Order bythe Scheduled Castes and Scheduled Tribes (Amendment) Order, 1956.This amendment came into effect at the time when Chanda district wasstill part of Madhya Pradesh. Now by this amendment the scope ofentry No. 12 was enlarged and the names of several other tribes orcommunities besides those which had been already specified (herein

E.L.R.j SUKHEDEOBABU V. DADAJI AND OTHERS 211

was added. It may be pertinent to note that Maim was included inthis entry for the first time by this amendment, as it did not find placein any entry before that. Under the Bombay Re-organisation Act,I960, Fart V1I-A was added to the Schedule of the Order in respect ofthe State of Maharashtra. This part, namely, part VJI-A consistedof 6 items for different areas of the State. Item 6 of this part relatedto Melgahat Tahsii of Amraoti district, Gadchiroli and SiionchaTahsils of Chanda District and Keiapur, Wani and Yeotmal tahsils ofYeotmal district. Entry 12, which was amended by the ScheduledTribes (Amendment) Order, 1956 in its application to the State ofMadhya Pradesh, was repeated as Entry 12 of Item 5 of Part VII-A.Thus in 1967 when respondent No. I contested the ejection (o theMaharashtra Lcgisiative Assembly from the Armori Scheduled TribesLegislative Assembly Constituency, Entry 12 of item 5 of part VII-Aof the Schedule to> the Order in so far as it is relevant for our purpose,stood as follows:—

"12, Gond,

incl u d i ng: — Mana,

The Order has further been amended by the Scheduled Castes andScheduled Tribes Orders (Amendment) Act 1976. Under section 4 of theAmending Act, the Constiiution (Scheduled Tribes) Order, 1950 wasamended in the manner and to the extent specified in the Second Sche-dule to the Amending Act. Under the Order as it stood prior to theAmendment in 1976, some tribes had been specified as Scheduled Tribesonly in certain areas of the State concerned and not in respect of thewhole State. The Amending Act sought to remove these area restrictionswith the result that when originally the part of the Scheduled to the Orderrelating to a particular State was sub-divided into several items relating toparticular areas of the State under the Schedule as amended by the AmendingAct of 1976 the part relating to a particular State is not divided intoregions or areas except in a few cases. The original Schedule to the Orderhas been wholly substituted by the Amending Act of 1976 and now PartIX of the substituted Schedule relates to the State of Maharashtra. TheMana Community finds place in entry 18 of this part and this entry is nowin the following form : —

"18. Gond Rajgond Arakh. Arrakh, Agaria. Asur, Badi Maria. BadaMaria, Bhatotal, Bhimma, Bhuta, Koilabhuta, Koilabhuli Bhar,Bisonhorn Maria, Chota Maria, Dandami Maria, Dhura, Dhurwa,Dhoba. Dhulia, Dbrla, Gaiki, Gatta. Gatti, Gaita, Gond Gowari, HillMaria, Kandra, Kalanga, Khatola, Koitar, Koya, Khirwar, Khirwara,Kucha Maria, Kuc.haki Maria. Madia. Maria, Mana, Mannewar,Moghya, Mogia. Monhya, Mudia, Muria, Nagarchi, Naikpod. Nag-wanshi, Ohja, Raj, Sonj hari. Jhareka, Thatia. Thotya, Wade Maria.V;ide Maria,"

It would appear that this entry 18, which is being referred to as thenew entry, differs from entry 12 in item 5 of Pan Vll-A of the Schedule

212 SUKHEDEO BABU V. DADAJI AND OTHERS [VOL. LXITI

to the Order as it stood before the amendment in certain respects to which1 would subsequently refer. it may be mentioned at this stage that theMana Community is not specified in any of the entries in Part IX of theSchedule except in the new entry. Hence in order to determine if res-pondent No. J was qualified to be chosen for this seat from the constituencyreserved for the Scheduled Tribes, it will have to be seen if he is a memberof that Mana Community which is specified in the new entry, since in hisnomination paper respondent No. 1 has declared himself to be belongingto the Mana tribe.

Respondent No. I was elected to the Maharashtra Legislative Assem-bly from this very constituency, namely, Armori Scheduled Tribes Legis-lative Assembly Constituency, declaring himself to be Gond (Mana) in thenomination paper which respondent No. 1 had then filed. The election ofrespondent No. 1 was challenged by one Naayansingh Sampatsingh inElection Petition No. 6 of 1967 of this Court. The case of Narayansinghwas that respondent No. 1 did not belong to a Scheduled Tube butbelonged to Kshatriya Badwaik Mana caste which is sub-caste of Marathasor Kunbis and which has no relationship with the Gonds. According toNarayansingh, a person belonging to Kshatriya Badwaik Mana Communitycould not claim to bs a member of the Scheduled Tribe and would not beentitled to contest the seat reserved for that tribe. Respondent No. 1contested that petition by denying that he was a Kshatriya Mana. Heclaimed to be a member of the Scheduled Tribe because, according tohim, Mana community is one of the original races in Chandrapur districtand was specified as such in the Orde . His case then was that in theChandrapur district there is only one caste or community known as Manaand there are no tv/o castes such as Gond (Mana) and Kshatriya BidwaikMana or Kshatriya Mana. The question, therefore, which principally fallfor consideration in that election petition was. whether respondent No. !was disqualified from filing the nominal ion paper in the said constituencybecause he did not belong to the Scheduled Tribes within the meaning ofthe Order. As ancillary question which arose in that election petition waswith regard to the interpretation of entry 12 as it stood then. This Courtheld that that entry mainly related to the Gond community and the othercommunities o tribes which were specified in it came under the samegenus though they may be of different species. In other words, this Courtwas of the view ihat any independent tribe which has nothing to do withthe Gonds was not intended to be included in entry No. 12. Since respon-dent No. 1 then did not claim to belong to a sub-tribe of Mana, which,according to this Court, was a part of or was included in the Gond com-munity under the said entry, it was held that he was not qualified to contestthe election and consequently his election was held void. Respondent No. 1prefcrcd an appeal io the Supreme Court against the decision of thisCourt in the said election petition. The Supreme Court held that the formin which entry No. 12 was made, prima jade indicated that in the view ofthe Legislature Mana was a sub-tribe of Gonds and a Mana who was amember of the sub-trib; of Gonds alone was entitled to the privilege con-ferred by the Schedule to the Orde1". The Supreme Court therefore, upheldthe decision of this Court and dismissed the appeal of respondent No. 1(See Dina v. Narayansingh, 38 Election Law Reports, 211).

It would thus appear that in the case referred to above the SupremeCourt interpreted enty 12 of Hem 5 of Part VITA of the Schedule to theOrder as if stood before its substitution in 1976, to mean that the Mana

E.L.R.] SUKHLDLO BABU V. DADAJI AND OTHERS 213

community specified in the said entry was intended to be sub-tribe ofGonds and only a member of this sub-tribe of Gonds namely, Mana wasentitled to the privileges conferred by the Schedule to the Order and notany o:her Mana community. Had this entry . ein;>ined as it was when itcame up for interpretation before the Supreme Court and if respondentNo. I had again contested the election relying on such entry, he wouldhave been perhaps not in a position to do so in the face of the decision ofthe Supreme Court. The interpretation of the said entry by the SupremeCourt would be a law declared by it under Article 141 of the Constitutionand would be binding on all Courts. In other words, if the entry hadremained the same at the time when respondent No. i contested the elec-tion in February 1978. it would not have, been difficult to hold on the basisof the said decision of the Supreme Court that the Mana community speci-fied in the said entry was intended lo be a sub-tribe of the Gonds. Thequestion, however, is whether this decision of the Supreme Court wouldalso operate on the new entry which has been substituted with the sub-stitution of the Schedule by the Amending Act, of 1976. No doubt, Article141 of the Constitution states that the law declared by the Supreme Courtshall be binding on all Courts in India and it gives a Constitutional effi-ciency to the decisions of the Supreme Court as a Precedent. However,when the Supreme Court interprets a particular statute and declares as towhat it is, this declaration would obviously be operative under Article 141of the Constitution only so long as that statute in the same from as hadbeen interpreted by the Supreme Court is in existence. If the statute ceasesto exist or is altered by an amendment, the earlier decision of the SupremeCourt declaring the law on the Statute as it existed at that time wouldnot be operative after the change of the statute. In this connection I wouldrefer to a similar view which has been taken by a learned Single Judge ofthe Allahabad High Court in Chandramohan v. State (A.I.R. 1969 Allaha-bad 230). It is true that the decision of the learned Single Judge in thiscase has been subsequently reversed by a Full Bench of that Court inBehardas v. Chcmdramohan (A.T.R. 1969 Allahabad 594). But the viewof the learned Single Judge with regard to the operation of Article 141 ofthe Constitution has not been disapproved by the Full Bench. In thepresent case since the entry which has been interpreted by the SupremeCourt in the above said decision is not in existence and though it has beenrepeated as entry 18 of Part II of the substituted Schedule, it is slightlyin a different form than it was before the Supreme Court in the carlie-case. Strictly speaking, therefore, the interpretation which had been putby the Supreme Court on entry 12 may not govern the new entry and thisnew entry may have to be interpreted afresh. However, at the same time,the principles which the Supreme Court, applied in interpreting entry 12cannot be lost sight of while inte preting the new entry and the latter willhave to be construed and interpreted in the light of the said principles !a;ddown by the Supreme Court.

As already pointed out, in recnacting the new entry certain changeshave been made by the Legislature on entry 12 which existed nrior to theamendment. A comparison of the two entries would make it at once clearthat the wcrd "including" which occurs after the word Gond in entry 12has been dropped from the new entry. Again the word "Rajgond" hasbeen added after the word "Gond". Similarly, the word "or" occurringin entry 12 at various places has also been deleted and substituted bycomma. As a matter of fact, after each name a comma has been insertedwhich was not so in entry 12. Further it would appear that some nameswhich had been inserted into brackets have been opened by deleting the

214 SUKHLULOCABU V. DADAJJ AND OTHJLRS [VOL. LXIJI

brackets and "Naikpod" has been added to the list. These are the mainchanges which have been brought about by renacting entry 12 as entry 18.It would, therefore, have to be seen if these changes or alterations makeany difference to the interpretation which the Supreme Court had put onentry 12. In other words if these alterations are not material and do notmaterially change the Form of the entry from what it stood before, the prin-ciples adopted by the Supreme Court in the abovesaid decision and theinterpretation put by it on entry 12 would safely be applied to the newentry also. Al this stage it may be mentioned that Rajgond has beenadded to the new entry because under the scheme of the substituted Sche-dule, the area restrictions within a Stale have been removed by the amend-ment and a tribe specified as Scheduled Tribe for a State would be deemedas such throughout the territory of the State irrespective of any particularregion or area as was done before the amendment of 1976. In Part VIIAof the Schedule as it stood before the amendment Rajgond was includedin entry 9 of item 1 which !elated to certain districts of Maharashtra, butnot to the districts mentioned in item 5 of that Part. Entry 9 of the ItemI was "Gond or Rajgond". Now, since the areawise restrictions had tobe removed and since Gond was already mentioned in entry 12, Rajgondwas brought in the consolidated entry, namely the new entry. This is howRajgond figures in the new entry. At this stage it may be mentioned that theScheduled Castes and Scheduled Tribes Orders (Amendment) Act, 1976has been published in Part II of the Gazette of India, on 20th September1976 at page 1371. The new entry appears at page. 1392. The new entryhas been reproduced above as it appears in the Gazette at page 1392. Thereis no comma between the words "Gonds" and "Rajgond" and it was arguedon behalf of respondent No. 1 that the absence of comma indicated that"Gond Rajgond" was intended to be a community or a tribe by itself andno separate tribe by the name of Gond finds place in the new entry. Onthe other hand, it is submitted on behalf of the petitioner that there oughtto be a comma after the word "Gond" so as to separate it from "Rajgond"and this omission of the comma is an inadvertant error on the part of theprinter as in (he bill which was subsequently enacted as the ScheduledCastes and Scheduled Tribes Orders (Amendment) Act, 1976 and publishedin Part 11 of the Gazette of India on 21st May 1976 at page 896 there hasbeen a comma between the words "Gond" and "Rajgond". Section 78 ofthe Evidence Act provides the mode of proving the text of an Act-Under itthe Acts may be proved by any document purporting to be printed by(vders of any such Government, namely, the Central or the State Govern-ment. Hence the Text of an Act as published in the Gazette of Indiamust be taken to be the authorised text of the Act and must be followed.However, if a doubt arises as to the intention of the Legislative becauseof some error in printing, it would be open to the Court to resolve thatdoubt by interpreting the provision as it is published. As has been seenabove, in the previous Schedule in Part V1IA, Rajgond was mentioned inEntry 9 of item 1 as a separate entity and not as Gond Rajgond. Thewords "Gond and Rajgond" were separated by the word "or" which clearlymeant that these were two separate words though they might connote thesame thing. As already pointed out, Rajgond was brought in the newentry because of the abolition of areawise restrictions. Tt would, there-fore, appear that though there is no comma separating the words "Gond"and "Rajgond". the Legislature did not intend to specify Gond Rajgondas a separate community o~ tribe by itself. In the-context of the entiresin the earlier Schedule it does not appear that the Legislature wanted todelete the word "Gond" altogether and replace it by the phrase "GondRajaond", because that would be the effect if the submission on the part


of respondent No. 1 is accepted. In other words, if Gorid Rajgond isread as reference to one community or tribe, the inevitable result wouldbe that Gond as such would not find place anywhere in any entry in PartIX of the substituted Schedule. It does not appear that the Legislatureintended to deprive the Gond tribe of the privileges under the Order bydeleting a reference to it in the new entry, particularly when this tribeforms a bulk of the aboriginal tribes in this part of the country. In thisconnection reference may usefully be had to Entry 9 of Part VI of the newSchedule which relates to Karnataka. This ent'y reads, "Gond, Naikpod,Rajgond". It would appears that here also Rajgond is treated apart fromGond. In the circumstances, therefore, it is not possible to accept thecontention urged on behalf of respondent No. 1 that GJond is not treatedas a separate entity in the new entry and Gond Rajgond is a tribe by itself.In this connection it may be noted that in his evidence the petitioner hassaid in his examination-in-chisf us well as cross-examination that there isno community known as Gond Rajgond. It is true that in his examina-tion-in-chief respondent No 1 has deposed to the existence of Gond Raj-gond as one of the Scheduled Tribes. But in his cross-examination he hasdeposed that Rajgond is a sub-caste of Gond. That there exists a tribalcommunity by name Rajgond is admitted by his witness Vinayak, whosays that there are two houses of Rajgonds in his village. RespondentNo. 3 is a Rajgond. In my opinion, therefore, in the new entry Gond willhave to be read as a separate from Rajgond and it would not be possibleto read Gond Rajgond indicating a tribal community by itself.

As already seen, another change which has been brought about in thenew entry is to drop the word "including". It appears that in the previouselection petition in this Court as well as in the Supreme Court much em-phasis was led on this word on behalf of respondent No. 1 to suggestthat the use of this word in Entry 12 would indicate that the tribes orcommunities which were specified after that word would not normally bepart of Gonds but for the use of such word. In other words, the conten-tion was that by the use of word "including" the connotation of the word'Gond' was sought to be expanded by bringing in its fold other communi-ties and tribes which normally would not come in it. Such a contentionwas adopted to show that the communities or tribes specified after theword "including" in Entry "12" were not sub-caste or sub-divisions of theGond tribe, but were sought to be included in it by a statutory fiction.This contention on the part of respondent No. 1 did not find favour ineither of the Comts. Referring to this contention the Supreme Courtobserved as follows: —

"It is true that the expression 'including' may be a statutory fictionconfer certain rights, privileges or status for the purpose of the statuteupon a class which does not normally fall within the principal head.But when the Parliament included amongst the 32 items in Entry 12several tribes or tribal communities which arc recognised as sub-tribesof Gond, an inference that it was intended to include Mana, which isa sub-tribe of Gonds alone and not Mana as a community which isa section of the Marathas may readily be made."

It would, therefore, appear that despite the use of the word "including)"in Entry 12 the Supreme Court was of the view that the tribes or tribalcommunities included in Entry 12 were the sub-tribes of Gond. Now ifat all the omission of the word "including" in the new entry has anyeffect, it would be to make it more comprehensive and less expensive.

29—3 ECI/ND/85

216 SUKHEDEO BABU V: DADA.1I AND'OTHERS [VOL. LXIIT

With the omission of this wo'd a rigidity is imported in the new entry.At any rate the contention which had been advanced in the previouselection petition in this Court as well as in the Supreme Court based onthis word is done away with by omission of (he word from the new entry.In other words, when (he word "including" appeared in the old entry, itcould be urged at least that some t'ibal communities which had nothingto do with the Gonds were sought to be included in it by the saidstatutory fiction. By the omission of this word now such an argumentsis not available.

Another difference which as has been noted above between the old andthe new entry is the omission of the word "or" wherever it occurs andinserting comma a'ter each name. A perusal of the various entries in theparts of substituted Schedule would show that the Legislature has thoughtfit to omit the words like "or" and which occurred in the old entries. Thesame has been done with the word "including". It would, therefore,appear that in the changed pattern of the new Schedule all these wordshave been generally omitted and an entry, if it consists of more namesthan one, is written by putting a comma after each name. It appears thatthis pattern was adopted to put an end to a controversy as to what thesewords were meant to indicate wherever they occurred in the old entries.It does not appear that omission of these words or inserting of commaafter each name in an entry makes any material difference to distinguishit materially from the corresponding entry in the earlier Schedule. In myopinion, therefore, by re-enacting Entry 12 of item 5 to Part VILA of theold Schedule as Entry 18 of Part IX of the Schedule, the Legislature didnot intend to bring about any material change. In my view, therefore, theinterpretation which the Supreme Court put on Entry 12 would apply withequal force to the new entry as the Form of the new entry does notmaterially differ from Entry ~]2 except for the alterations which I havepointed out above and which, in my view, ave not very material. In thisview of the matter, therefore, there is no difficulty in holding that theLegislature, when it specified the several tribal communities in Entry IS,intended to do as the sub-tribes of the Gond tribe.

Mr. Salve, the learned counsel for respondent No. 1 submitted that thenew entry should be construed as it is without recourse to the decision ofthe Supreme Court in the previous election petition, since, according toMr. Salve, the new entry is materially different from Entry 12 which hadbeen interpreted by the Supreme Court in the abovesaid case. T havealready pointed out that the new entry is not materially different fromEntry 12. However, let us see what the position would be if the newentry were to be construed and interpreted de hors the decision of theSupreme Court assuming it is materially different Mr. Salve, referringto the preamble of the Scheduled Castes and Scheduled Tribes Orders(Amendment) Act, 1975. submitted that the Act was meant for not only in-clusion but also exclusion of certain castes and tribes from the list of Schedu-led Tribes. Mr. Salve, therefore, submitted that the Gonds were excludedfrom the part relating to Maharashtra as in the new entry reference was toGond Rajjond. I have already pointed out above that such could not havebeen the position and the words Gond Rajgond would have to be read sepa-rately, Mr. Salve then drew my attention to certain entries in Part IX rela-ting to Maharashtra in the substituted Schedule. He pointed out1 that in entries3 and 8 of item 1 of Part VITA of the old Schedule Vasava and Vasave werementioned in both the entries. He pointed and that in the new Schedulein Part IX Entry 8 corresponds to enfy 3 of item 1 of Part VIIA of the

E.L.R.] SUKHEDEO BABU V. PADAJI AlsD OTHERS 217

old Schedule and in this new Entry 8, Vasava and Vasave have been re-tained while in Entry 17 in the new Schedule which corresponds to Entry8 in the old Schedule, Vasava and Vasave which were specified in theold Entry 8 have been dropped from. Now Mr. Salve submits that ifVasava and Vasave were included in the old entry as sub-tribes of Bhilsand in old Entry 8 as sub-tribes of Gamit or Gamta, they would have been re-peated as such in the new entries 8 and 17. In other words, Mr. Salve submitsthat the scheme followed in the new Schedule is that the communitieswhich were mentioned twice are specified only at one place. In short, Mr.Salve, relying on the above said old and new entries, submitted that theomission of Vasava and Vasave in new entry 17 would show that they werenot tieated as sub-tribes of Gamit or Gamta nor of the Bhils but were men-tioned as independent tribes and hence were included only at one place,namely in new Entry 8. Jn other words, Mr. Salve submits that in the newEntries the names of the various communities which are mentioned at oneplace are not necessarily sub-tribes of a head tribe specified at the begin-ning of the entry. It is difficult to uphold this argument of Mr. Salve.It is true that while re-enacting old Entry 8 'as new Entry 17 Vasava andVasave have been omitted and those two names have been placed onlyin new Entry 8 which appears to be reproduction of old Entry 3 except forthe omission of the word '"including'', occurring therein. However, fromthis it is not possible to say that Vasava and Vasave specified in new Entry8 would also include the sub-tribes by name Vasava and Vasave of the headtribe Gamit or Gamta which was included in old Entry 8. It is possiblethat Vasava and Vasave were not sub-tribes of Gamit or Gamta and whilere-enacting old entry 8 the Legislature thought it fit to omit these two com-munities fiom the" new Entry 17. In this connection reference may behad to the report of the Advisory Committee on the revision of the list ofScheduled Castes and Scheduled Tribes constituted by the Government ofIndia. This report is dated 25th August 1965. Appendix VII of this reportpurports to be a complete list of Scheduled Castes and Scheduled Tribes asrevised by the Committee. The Scheduled Tribes in Maharashtra arementioned at pages 103 to 108 of this report. In this appendix the list ofthe head tribes with its sub-tribes is given. Now item 5 in the list relatingto Maharashtra is about head-tribe Bhil and Vasava is mentioned as sub-tribe of Bhils. Again at item 5 Gavit is mentioned as the head-tribe withits synonym as Gamta and the only sub-tribe mentioned against it is Gamit.It, therefore, appears that Vasava or Vasave were not sub-tribes of Gavit.Gamta and hence they were not included in the new Entry 17.

Mr. Salve has also drawn my attention to Entries 28, 29 and 30 in thenew Schedule which refers to different types of Kolis. Mr. Salve submittedthat though the communities mentioned in these entries are Kolis, they areseparately listed. Mr. Salve submits that this would show that even diffe-rent sub-castes or sub-divisions of a community are mentioned underseparate entries. According to Mr. Saive, this would show that the schemeof the new Schedule is not that all sub-castes or sub-tribes or communitieshaving an affinity are necessarily mentioned in one entry only. He submitsthat there is no set pattern in specifying the communities in the differententries and, according to him,, an independent tribe may find place in anentry along with other tribes, though it is not a sub-division or a sub-tribeof any of the tribes mentioned thereunder and several sub-tribes of a headtribe may find place in independent or separate entries. Now all this isbased on the assumption that the tribal communities specified in entries 28,to 30 are the sub-tribes or sub-divisions of Kolis. There does not appear to

2 18 SUKHEDEO BABU V. DADAJI AND OTHERS [VOL. LXIII

be any foundation for this assumption. Reference to Part V11A of theold Schedule would show that new Entry 28 is repetition of eld Entry 12in item 1 of the old part VI1A and new Entry 29 is repetition of the oldentry in item 3 of the Part VIIA. However, new entry 30 appears to bea new addition as there is no corresponding entry in the old Schedule. Itappears that the communities mentioned in new Entries 29 to 31 aredistinct from each other, and that is why they are placed in separate en-tries. It may be that Koli is a common appellation in some of them. Butthat does not necessarily mean that all the communities with appellationof Koli are related to each other or are sub-tribes or sub-divisions of Kolis.

Mr. Salve then pointed out that Koya finds place in two separateentries in Part IX of the new Schedule relating to Maharashtra. Koya isspecified in the new Entry 18 as well as in new Entry 33. According toMr. Salve, the mention of the same community in two different entrieswould establish that there is no set pattern in specifying the tribal com-munities. In my view the mention of Koya in Entry 18 as well as inEntry 33 cuts against the interpretation which is sought to be put by Mr.Salve on Entry 18. According to Mr. Salve, the tribal communities men-tioned in Entry 18 are not necessarily intended to have reference to the,,sub-castes or sub-tribes of Gonds. His case is that even tribal communi-ties which have nothing to. do with the Gonds have been mentioned inEntry 18 and it is in this sense (hat Mana finds place there. Now thissubmission is repelled by the very mention of Koya in Entries 18 and 33.If what Mr. Salve says is correct, and if Koya has been specified in Entry 18independently of the Gonds, there would not have been any necessity ofrepeating it in Entry 33. It is well known that the Legislature does notwaste its words. The mention of Koya at two places, namely in Entries18 and 33 can be explained only on one hypothesis and it is that Koyais the name of the sub-tribe of the Gonds as well as it is name of an inde-pendent tribal community. When it is specified in Entry 18, it is meantto signify it as a sub-tribe of Gonds and its mention in Entry ?3 signifiesa separate community. In other words, wherever there is a sub-tribe andan independent tribe of the same name, we find two different entriesand not one entry. This, in my view, clearly rules out the propositionput forth on behalf of respondent No. 1 that Mana is specified in thenew entry independently of the Gonds and not as its sub-tribe, I wouldpresently show that there is a sub-tribe of Gonds by name Mana. Assum-ing that Mana is the name of a sub-tribe of Gond and as well as the nameof an independent tribe, then the legislature would have specified Mana notonly in the new entry under the head of Gond but also specified it in aseparate entry, as has been done by it in the case of Koya.

Mr. Salve then drew my attention to Entry 9 of Part XV of the newSchedule relating to Tripura. This entry reads as follows: —

"9. Kuki, including the following sub-tribes: —

(0 Balte,

07) Belalhut,

Mr. Salve submitted that this clearly indicates that whenever the Legislaturewanted to include a sub-tribe in a head tribe, it has specifically said so.

fi.L.R.] SUKHEDEO BAKU V. DAD.AJ1 AND OTHERS 219

Similarly, he drew my attention to Entry 7 in Part XI relating to Meghalaya.This entry reads as follows: —

"7. Any Kuki Tribes including: —(0 Biate, Biete,(Ji) Changsan,

Mr. Salve wanted to read Entry 7 in Part XI with Entry 9 in Part XV toshow that whenever the Legislature wanted to include a tribe or sub-tribein a head tribe, it specifically said so. Mr. Salve wanted to contrast thesetwo entries with new Entry 18 to point out the omission of the word"including" and the absence of the words "tribes" or "sub-tribes". It maybe mentioned here that Entry 7 in Fart XI is identical with Entry 7 insection 1 of Part 11 relating to Assam. Now the Form in which theseentries are made docs not necessarily mean that wherever the Legislaturewanted to include a sub-tribe or a tribe in a head tribe, it specifically usedwords to that effect. It may be that for abundant caution the abovesaidentries have been stated in that Form. It' 1 were to hold that whereverthe Legislature has not used the words "including sub-tribes" or "includingtribes", it would necessarily mean that all tribal communities clubbedunder one head are deemed to be independent of each other. Now ifthis was so, the question which stares us in the face is as to why theLegislature should put tribal communities entirely independent of eachother in one entry when it has divided the parts relating to the States intoseparate entries. No plausible explanation came-forth from Mr. Salve tothis question. If several tribal communities, are clubbed together in oneentry it would normally mean that they are co-related to each other andare not independent. This clubbing together cannot be explained reaso-nably on any other hypothesis. It would not be proper to say thatthough a few independent tribal communities are clubbed together in oneentry, other independent communities find place in separate entries. Inspecifying the communities in the Schedule there appears to be a definitepattern. Tribal communities with their cognate sub-divisions or sub-tribesare put together in one centre and a tribal community which is indepen-dent of another community finds a separate entry for itself. This patternis very much evident if a close scrutiny of the various parts and entries ofthe Schedule is made. In my opinion, therefore, even if I were to inter-prete entry 18 as it is, I would not hesitate to hold that Mana is specifiedin it as a sub-tribe of the Gonds and not as in independent tribe.

There is sufficient evidence on record to show that there is a tribalcommunity by name Mana which is sub-caste of Gond community. Thepetitioner in his evidence has said that there are several sub-castes amongstGonds some of them being Rajgond, Madiya Gond, Maita Gond, DhruvaGond and Mana Gond and according to him, Manas among Gonds arealso known as Waze Mana and according to him, this sub-caste followsthe profession of preparing ornaments out of old aluminium vessels andmaking articles out of empty tins. In his cross-examination by respon-dent No. 2 he has said that the Mana among Gonds follow the same cus-toms and manners which are followed by the Gonds. His evidence in thisrespect has not been shattered in the cross-examination by respondent No. 1.His cross-examination is mostly devoted to demolishing his evidence tothe effect that there is a community known as Kshatriya Bidwaik Mana orMaratha Mana in Chandrapur district and that respondent No. 1 belongsto this community. As already seen, respondent No 1, denies the existence

220 SUKUEDEO BABU V. DADAJI AND OTHERS [VOL.

of any community known at Kshatriya Bidwaik Mana or Maratha Manaor Mana as sub-caste of Gond. According to him, there is only one Manacommunity which is a tribal community though it is not a sub-tribe ofGonds or related to it.

Vishwanath Akhare is a witness examined by the petitioner. He wasSurpanch of the Kadholi Gram Panchayat for 20 years prior to 1967. Hewas also Sabhapati of the Kurwheda Panchayat Samiti from 1962 to 1972.He belongs to Teli Community. He has also deposed that Gond Manais a sub-caste of Gonds like the Rajgond, Arakh, Gond Gowari, etc. Healso says that Gand Manas are known as Waze Manas and the customsand traditions of the Gonds and Mana Gonds are the same. He has alsodeposed that respondent No. 1 does not belong to the Mana sub-caste ofGonds. He has also cross-examined at length by respondent No. I. Asin the case of the petitioner his cross-examination is also devoted mostlyto demolish his version that respondent No. 1 belongs to Kshatriya Bid-waik Mana community. He has said that in Armori constituency no otherManas reside except Kshatriya Bidwaik Manas or the Gond Manas. Hewas emphatic m saying that, according to him, Manas means only KshatriyaBidwaik Mana or Gond Mana. He did not accept the existence of anyother Mana community. Now this witness, as already seen above, isassociated with the public life of Kadholi in his capacity as a Surpanchand also as Sabhapati of the Panchayat Samiti at least for the last 30 years.His knowledge, therefore, of the various communities residing in his areacannot be lightly brushed aside. He impressed me as a straight forwardwitness. The evidence of Ihe petitioner and his witness Vishwanath,therefore, did establish (hat there is a community known as Mana whichis sub-caste of Gonds.

As against this, respondent No. 1 has examined himself and his mater-nal uncle Vinayak Raiidive. Both of them have tried to establish thatthey belong to a tribal community known as Mana. According to res-pondent No. 1, the community to which he belongs has about 20,000 soulsin the Armori constituency and is also found in other parts of theChandrapur, Yeotmal and Warclha districts. According to him, the popu-lation of this community in this area would be about three lakhs. He hasalso deposed about the deities which this community worships. He hasspecifically stated iha-i that his community has no concern with the Gondcommunity and the customs and traditions of his community are differentfrom those of the Gonds. He said that there is no community by thename Kshatriya Bidwaik Mana or Gond Mana or Waze Mana. Accord-ing to him. there is only one community by name Mana which neither isakin to the Marathas or Kunbis not to the Gonds. He also said specificallythat he did not belong to Mana community which is alleged to be a sub-caste of the Gonds. Now it has come in his cross-examination that whenhe had filed his nomination paper in 1967, he had described himself asGond (Mana). When he was asked as to why he had described himself soat that time, he came out with a reply that he did so because Manas areon par with the Gonds and according to him, they were included in theGonds. He admitted that whatever he had stated in the nominationpaper of 1967 was true though in the next breath he denied that there wasany community by the name of Gond (Mana). He maintained that he haddescribed himself as Gond (Mana) only to mean Mana. It is difficult toaccept this explanation on the part of respondent No. 1. If in fact he didnot admii the existence of Mana as sub-caste of Gond and if it was his casethat Ihi- Mana eommuniiy to which he belongs has nothing to do with the

Li.l .K.| SliRILEDEO r.ABU V: IVUVyil AMI OTHERS 221

Goncl community it is difficult to hold that he would have described him-self as Gond (Mana) in (he nomination paper filed by him in 1957. Nowwhen he was examined as a witness for himself in the previous electionpetition, he had stated that he knew (hat Mana been included withinGond community as sub-division among Gonds in the Constitution Sche-duled Tribes Order. When he was confronted with this portion of hisevidence in that case, which is marked "A" in the copy of the depositionat Exhibit 73, he said that he had not stated so. This statement whichhe has made in his earlier deposition would clearly show that he didrecognise Mana as a sub-division of Gond community, though he has beendenying this position in the present petition. What is more, he has comeforward in his evidence to deny even the very existence of a communityknown as Kshatriya Bidwaik Mana or Kshatriya Bidwaik Mane, In hiswritten statement he was content only to say that he did not belong toKshatriya Bidwaik Mana community as alleged by the petitioner. Hiscase was that he belongs to the Mana community which has been specifiedin the new entry. As a matter of fact, in his written statement he implied-ly admitted the existence of this community. However, in spite of this,he came forward to depose that such a community did not exist at all.Now to what extent respondent No. 1 would go to support his case some-how or the other is evident from his statement in his cross-examination tothe effect that there is no community known as Gond though in the earlierportion of his deposition he had enumerated certain tribes as sub-tribes ofthe Gonds. Obviously he was denying the existence of the Gond com-munity in order to boost his case that Mana is not a sub-caste or sub-division of that community. When he was asked in his re-examination toexplain this discrepancy, he came out with an evasive reply stating thathe said that there is no community known as Gond because in the amen-ded order Gond is not recognised as a tribe. On the face of it this replywould show that he is out to say anything in order to support his case.Further more in the previous election petition when he was examined bythe learned Judge at the time of framing issues, he had said that he didnot claim to belong to a sub-caste called Mana of which the head casteis Gond. When he was confronted with this statement which he has ad-mittedly signed, he denied to have said so. He says that on the otherhand he had stated that Mana is not a sub-caste of the Gonds. All thiswould show that this person has no regard for truth and he would takeany stand which suits his convenience and is in the best interest of hiscase. It would not be possible to rely on the word of such a witness un-less it is fully corroborated. His maternal uncle Vinayak does not advancehis case any further. He simply said that he and respondent No. 1 be-longed to Mana community and denied that both of them belong toKshatriya Bidwaik Mana or Kunbi Mana community. His evidence atthe most would support the evidence of respondent No. 1 to the effect thatthey belong to a community known as Mana which is neither sub-casteof Gonds nor Kshatriya Bidwaik Mana. This witness does not deny theexistence of Manas as sub-caste of Gonds. His evidence is entirely silenton this point. The oral evidence, therefore, on record, in my view, doesestablish' that there is a community known as Mana which is a sub-casteor sub-division of the Gond Tribe. In this connection reference may alsobe had to the report of the Advisory Committee appointed by the Govern-ment of India to which I have made a reference earlier. As already stated.Appendix VII of this report gives a list of the Scheduled Castes and Sche-duled Tribes as revised by the Committee. The Gond tribe is mentionedat Serial No. 16 in the part relating to Maharashtra in Appendix VII atpage 104 of the report. A perusal of this entry would show that accord-

222 SUKHKDrOBABtJ V. DADAJf AND OTHERS [VOL. LXIIf

ing to this Committee, Mana is a sub-tribe of the Gond tribe. Theredoes not, therefore, appear to be any doubt that there is a tribal commu-nity by name Mana which is sub-tribe of the Gond tribe. Now if that isso, and if Mana has been included in Part IX of the Schedule in the newentry relating to Gonds and others, the invitable conclusion would be thatit is this sub-tribe which has been specified as the Scheduled Tribe andnot any other tribe of that name even if there is one.

In the view which 1 take about the new entry, the petitioner will haveto establish that respondent No. 1 does not belong to that Mana commu-nity which is a sub-caste of the Gonds. For our purpose here it is irrfele-vant if respondent No. I is Kshatriya Bidwaik Mana or any Mana otherthan the one which is sub-caste of Gonds. If on evidence it is found thathe does not belong to the Mana community which is Sub-caste of theGonds, the irresistable conclusion would be that he is not a member ofthe Scheduled Tribe as specified in {he Order and, therefore, he is notqualified to be chosen for the seat reserved for the Scheduled Tribes. In-deed, it is not necessary for me in this petition to find out if respondentNo. I belongs to the Kshatriya Bidwaik Mana or Kunbi or MarathaMana community, as alleged by the petitioner or whether he belongs tothe Mana community which though a tribal community, is not sub-caste ofthe Gond tribe, as alleged by respondent No. 1. I have only to see ifrespondent No. 1 belongs to the Mana community which is sub-tribe ofthe Gond tribe because, as seen already, it is in that case only that he canbe held to be qualified to be chosen for the reserved seat. Let us, there-fore, see if it has been established from the evidence on record that res-pondent No. 1 does not belong to the Mana tribal community which issub-tribe of the Gonds.

Mr. Madkholkar, the learned Counsel for the petitioner, submitted thatin view of the finding of the Supreme Court in the appeal from theearlier election petition, it is not open to enter into an enquiry if respon-dent No. 1 belongs to the sub-tribe Mana or not. He submitted that inthat appeal the Supreme Court has held that respondent No. 1 belongsto the Mana community amongst the Marathas and this finding of theSupreme Court is binding on this Court by virtue of Article 141 of theConstitution. On the other hand, it is submitted by Mr. Salve for respon-dent No. 1 that the Supreme Court has not held that respondent No. 1belongs to the Mana community amongst the Maratha as contended byMr. Madkholkar. Tt was further submitted by Mr. Salve that assumingthe Supreme Court has recorded such a finding, it will be a finding of factand would not be binding under Article 14! of the Constitution not beingdeclaration of a law. As a matter of fact, objection had been takenduring the evidence of respondent No. 1 and his witness for admitting theevidence with regard to the community to which respondent No. 1 belongs,on the ground that such evidence was not admissible because of the rulingof the Supreme Court. The learned Counsel for the petitioner had thensubmitted that he would substantiate his objection at the time of argu-ments and evidence was recorded subject to his objection. Now in theappeal from the previous election petition the Supreme Court at the con-clusion of its judgment observed as follows: —

"We, therefore, agree with the High Court that the appellant, merelybecause he belonged to the Mana community amongst the Marathas, isnot eligible to stand as a candidate for election to the MaharashtraLegislative Assembly from the reserved seat of the Armori consti-tuency in Gadchiroli tahsil of Chanda District.".

E.L.R.] SUKKEDEO BABU V. DADAJI AND OTHERS 223

The question firstly is whether this is a finding that respondent No. 1belongs to Mana community amongst Maralhas and secondly if that is so,whether it would be permissible now to enter into this- enquiry in thispetition. _ In this connection it may be pertinent to note that while delive-ring his judgment in the previous election petition the learned Judge of thisCourt did not record a categorical finding that respondent No. 1 belongedto the Kshatriya Bidwaik Mana community or for the matter of that Manacommunity amongst Marathas. After holding that by specifying Mana inEntry 12 the Legislature intended to specify the sub-tribe Mana as a Sche-dule Tribe, the learned Judge held that respondent No. 1 was not eligibleto be a candidate for a seat reserved for a member of the Scheduled Tribefrom the Armori constituency, as respondent No. 1 did not belong to theScheduled Tribe within the meaning of the Order. It appears that thelearned Judge did not record a finding that respondent No. 1 belongs tothe Kshatriya Bidwaik Mana or Maratha Mana as alleged by the petitionersin that case. With great respect I find that when the Supreme Court ob-served as above, it did not intend to record a finding that respondent No.1 belongs to the Mana community amongst the Marathas. This passagefrom the judgment of the Supreme Court will have to be read in its context.What their Lordships meant to say was that respondent No. 1 was noteligible to stand as a candidate for the reserved seat simply because hebelongs to a Mana community as in the earlier part of the judgment theirLordships have made it clear that a Mana who was a member of the sub-tribe of the Gonds alone was entitled to the privileges conferred by theSchedule to the Order. However, even if it is assumed that the SupremeCourt recorded a finding that respondent No. 1 belonged to Mana com-munity amongst the Marathas, in my view, it would not be possible tosay that that finding would be binding in the present malter. If at all it is afinding, it will be a finding of fact. Mr. Madkhoikar relying on the ob-servations of the Supreme Court in Bhaiyyarcun v. Anirudaha (A.I.R. 1971Supreme Court 2544), submitted that the question whether a particularperson is a member of a Scheduled Tribe so declared by the Presidentunder Article 342 of the Constitution is essentially a question of law.Mr. Madkhoikar submitted that if this is so, then this finding would bebinding under Article 141 of the Constitution. In my view, the observa-tions of the Supreme Court in this case would not govern the point underconsideration. Here the Supreme Court has not held in the passagequoted above that respondent No. 1 is or is not a member of the ScheduledTribe under the Order. The passage quoted above is being relied for thepurpose of showing that respondent No. 1 belongs to the Mana communityamongst the Marathas. In other words, assuming that the Supreme Courthas recorded a finding, it would be a finding on the point as to which casterespondent No. 1 belongs. New in L. Siddappa v. K. Chandappa (A.I.R.1968 Supreme Court 929) the Supreme Court has held, following; on itsearlier decisions in Basavallingappa v. Munichinnappa (A.T.R. 1965Supreme Court 1269) and Bhaiya Lai v. Harikrishna Singh (A.I.R. 1965Supreme Court 1557), that to what caste a candidate belongs is a questionof fact. It would, therefore, appear that assuming that the Supreme Courtheld :hat respondent No. 1 belongs to the Mana community amongstMarathas, it would be a finding of fact. In Prakash Chandra v. State ofUttar Pradesh (A.I.R. 1960 Supreme Court 195), the Supreme Court hasheld that the decisions even CJ: the highest Court on questions which areessentially question of fact cannot be cited as precedents governing thedecisions of other cases which must rest on the ultimate analysis upontheir own particular facts. In Amristar Municipal Committee v. HazaraSingh (A.I.R. 1975 Supreme Court 1087), the Supreme Court has cited

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with approval the following passage from the judgment of the Kerala HighCourt in State of Kerala v. Vasudevan (1975 Cri. LJ . 97): —

"Judicial propriety, dignity and decorum demand that being the highestjudicial tribunal in the country even obiter dictum of the SupremeCourt should be accepted as binding. Declaration of law by thatCourt even if it be only by the way has to be respected. But allthat does not mean that every statement contained in a judgment ofthat Court would be attracted by Article 141. Statements on mattersother than law have no binding force. Several decisions of theSupreme Court are on facts and that Court itself has pointed out inGurcharan Singh v. State of Punjab (1972 F.A.C. 549) and PrakashChandra Pafhak v. State of Uttar Pradesh (A.T.R. 1960 S.C. 195) thatas on facts no two cases could be similar, its own decisions which wereessentially on questions of fact could not be relied upon as precedentsfor decision of other cases "

Hence if it is held that in the passage quoted above the Supreme Courtrecorded a finding of that respondent No. 1 belongs to the Mana com-munity amongst the Marathas. it would be a finding of fact and as such can-not be availed of by the petitioner either under Article 141 of the Constitutionor as precedent. In my view, therefore, it was .open to respondent No. 1to lead evidence to show to which community he belongs. As a matterof fact, the petitioner himself earlier led evidence to establish that respon-dent No. 1 belongs to Kshatriya Bidwaik Mana community. Tf he coulddo so, respondent No. 1 was entitled to lead evidence in rebuttal to esta-blish that he belongs to some other community than the one alleged bythe petitioner.

Both the parties, namely the petitioner and respondent No. 1 haveadduced evidence to support their respective contentions as regards thecommunity to which respondent No. 1 belongs. The petitioner and hiswitness Vishwanath Akhare have both deposed that respondent No. 1•belongs to Kshatriya Bidwaik Mana community and possess himself to bea Maratha Mana or Kunbi Mana which is not a Scheduled Tribe. Boththese witnesses have deposed to the difference in the customs arid mannersamonast the Marathas Manas or Kunbi Manas on one hand andthe Gonds or Gond Manas on the other hand. The petitioner has alsorelied on the admitted fact that at one time respondent No. 1 was in VicePresident of an institution known as Kshatriya Bidwaik Mana ShikshanSanstha, which, according to the petitioner, caters to the educational needsof the members of the Kshatriva Bidwaik Mana community. On the otherhand, respondent No. 1 has. through his evidence, tried to establish thathe belongs to a Mana communitv which is neither Kshatriya Bidwaik Manaor Maratha Mana or the alleged sub-tribe of the Gonds. As already seenabove, his case clearly was that there is only one Mana community whichis neither a sub-caste of the Marathas nor sub-tribe of the Gonds and hisentirely independent of the two. As alreadv stated, above, it is not neces-sary for me in this election petition to decide whether respondent No. 1.belongs to the Mana community which is sub-caste of the Marathas orKunbis community or whether he belongs to the Mana communitv whichis not a sub-tribe of th- Gond trib»\ Tf the evidence on record establishesthat respondent No. 1 does not belong to the Mana sub-tribe of the Gondtribe, that would be enough for our purpose. Tn the view which T havetaken with regard to the implication of mentioning the Mana in Entry 18.the evidence of respondent No. 1 that there is a Mana tribe independentof the Gonds is not necessary to be gone into. There may or may not be


such a tribe or respondent No. 1 may or may not belong to it. What weare concerned is whether he belongs to the Mana sub-tribe of the Gondsand in this respect we need not go too far as respondent JNo. 1 himselfhas categorically admitted in his evidence that he does not belong to theMana sub-tribe of the Gonds. In para. 4 of his deposition respondentNo. 1 has stated that he has no concern with the Gond community and thecustoms and traditions with regard to the marriage of his community aredifferent from those of the Gonds. Again in para 10 of his deposition hehas stated that he has not heard of any community by the name of GondMana. However, in para 18 of his deposition he has reiterated that thereis no community by name Gond (Mana). In the same para he has madea very categorical statement to the effect that he does not belong to theMana community which is alleged to be the sub-caste of the Gonds. Asalready seen, he had gone even to the length of saying that there is nocommunity known as Gond. As already seen in his examination in theearlier election petition he had categorically admitted that he did not claimthat he belongs to sub-caste of Mana of which the head caste is Gond. Allthis, therefore, unequivocally establishes that even on his own showing res-pondent No. 1 does not belong to the sub-tribe Mana amongst Gonds. Ifthat is so, and if the Mana community is specified in Entry 18 of PartIX of the Schedule to the Order specifies the sub-tribe of Mana of theGond Tribe, as a Scheduled Tribe and if Mana has not been specified inany other entry of the said part, if has to be held that respondent No. 1does not belong to a Scheduled Tribe within the meaning of the Order. Ifthat is so, he is clearly not qualified for being chosen to fill the seat fromthe Armori Constituency of the Maharashtra Legislative Assembly whichwas reserved for the Scheduled Tribes. In this view of the matter, theelection of respondent No. 1 will have to be declared as void as providedby clause (a) of sub-section (/) of section 100 of the Act. In the viewwhich I take, it is not necessary to record finding on issues Nos. 1 and 2.Issue No. 3 will have to be answered in the negative and issue No. 4 inthe affirmative. The reply to issue No. 5 would be that respondent No. 1does not belong to the Scheduled Tribes specified in the said Order sincehe does not belong to a Mana sub-tribe of the Gond tribe. Issue No. 7would be answered in the affirmative and issue No. 6 in the negative.

The question then arises if the petitioner is entitled to a declarationthat he has been duly elected from the said constituency. There were atthe time of the election five contesting candidates in the fray i.e., thepetitioner and respondent Nos. 1 to 4. Since respondent No. 1 was notqualified to contest the election, there still would have been four candi-dates excluding him. Thus excluding respondent No. 1 there would havebeen more than one candidate contesting the election. The question iswhether the votes cast in favour of respondent No. 1 could be said tohave been thrown away. In Keshav Laxman Borkctr v. Dr. DevraoLaxman Anada (A.I.R. 1960 Supreme Court 131) the Supreme Court hadheld that a defeated candidate out of the two who contested the electionmay be declared elected under section 84 read with section 101 of theAct, if he proves that the voters had notice of the disqualification of thesuccessful candidate. However, in Vishwanath v. Kanappa (A.I.R. 1969Supreme Court 604), the Supreme Court has held that Keshav Laxman'scase was not correctly decided. It laid down the dictum as regards thelaw governing such matters in the following words;

"When there are only two contesting candidates and one of them isunder a statutory disqualification votes cast in favour of the disqualified

226 SUKHEDEO BABU V. DADAJI AND OTHERS [VOL. LXHI

candidate may be regarded as thrown away, irrespective of whe-ther the voters who voted for him were aware of the disqualification.This is not to say that where there are more than two candidates inthe field for a single seat, and one alone is disqualified, on proof ofdisqualification all the votes cast in his favour will be discarded andthe candidate securing the next highest number of votes will be dec-lared elected. In such a case, question of notice to the voters mayassume significance, for the voters may not, if aware of the disquali-fication have voted for the disqualified candidate.".

The latter half of this rule will govern the present case. In order toobtain the declaration that he has been duly elected it was obligatory onthe petitioner tq establish that the person who voted in favour of respon-dent No. 1 did so with the knowledge that he was not qualified to con-test the election. The petitioner has not adduced any evidence in thisrespect. It is significant to note in this respect that no objection even hadbeen taken to the nomination of respondent No. 1 at the time of scrutiny.It is true that the petitioner says that he had taken oral objection but theReturning Officer had not been it into consideration. However, it is diffi-cult to believe this, particularly when he had taken objection against res-pondent No. 2 and the Returning Officer had rejected it after recordinghis finding. Hence even remotely it would not be said that the voters wereaware of the disqualification of respondent No. 1 and voted for him eventhen. In these circumstances it is not possible to hold that votes polled infavour of respondent No. 1 were thrown away and hence the petitioner isentitled to be declared elected being the candidate securing the next highestnumber of votes. I, therefore, answer issue No. 13 in the affirmativeand issue No. 14 in the negative.

Issue No. 12 was framed on the basis of the contention raised byrespondent No. 1 that the petition was not tenable in the absence of theReturning Officer. Mr, Salve, the learned counsel for respondent No. 1fairly conceded that the petition would be tenable even though the Return-ing Officer has not been joined as a party. I, therefore, hold that thepetition is tenable.

The petitioner, therefore, partly succeeds. The election of respondentNo. 1 Dina Narnaware is hereby set aside as void. The prayer of thepetitioner that he himself should be declared as elected and that it shouldbe declared that the nomination paper of respondent No. 2 was wronglyaccepted is hereby rejected. The petitioner will be entitled to his costsof this petition from respondent No. 1. He shall get Rs. 2,000 as counsels'fee and other costs as taxed. Since the petitioner has lost as against res-pondent No. 2, he shall pay the costs of the latter. Respondent No. 2shall get Rs. 1,000 counsel's fees and other costs as taxed. Though res-pondent No. 3 put in appearance through a counsel, he did not participatein the proceedings. Hence he shall not be entitled to any costs. Respon-dent No. 5 shall bear his own costs. Since respondent No. 4 did notappear, there shall be no order as regards his costs. Bill of costs shallbe drawn accordingly. The security deposit of the petitioner shall be re-funded to him after deducting such expenses, if any, to which he shall beliable.

Petition allowed.

IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH

at HYDERABAD

BADR1V1SHAL PJTTIV

SH1V PERSHAD & ORS

(ALLADI KUPPUSWAMI, J.)

October 20, 1978

Representation of the People Act, 1951 Section 64—Counting ofvotes—demand for recount of votes before the Returning Officer merelyon the ground that the difference in the votes secured by the elected candi-date and the next contestant was extremely small—whether justified—Election Petition—Grounds for seeking inspection scrutiny and recount ofthe votes—whether established.

The petitioner alleged that [he Returning Officer committed an illega-lity in refusing the recount of votes in the election held to the AndhraPradesh Legislative Assembly from 214 Maharajgunj constituency inFebruary, 1978, in particular, when the difference between the votes securedby the elected candidate and himself was extremely small i.e. only 266votes. The petitioner also alleged that a number of irregularities werecommitted at the counting of votes which materially affected the election.


(a) The Returning Officer is not bound to order recount of votesmerely because the margin of votes by which the elected candidate hadwon was extremely small;

(b) The various irregularities alleged have not been established andhad otherwise not been shown to have materially affected the counting;

(c) None of the grounds for ordering recount of votes as laid down bythe Supreme Court in the following cases were satisfied:

S BALDEV SINGH v TEJA SINGH: AIR (1975) SC 693;

SURESH PRASAD v. JAI PRAKASH: AIR (1975) SC 376;

MELRAM v. JAI BEHARI LAL: AIR (1975) SC 283;

CHANDA SINGH v. SH1V RAM: AIR (1975) SC 403 etc.


Koti Reddy, for the petitioner

K Venkataraniaiah, for Respondent No. 1227

228 BADRIVISHAL PITTI V. SHIV PERSHAD AND ORS. [VOL. LXIII

JUDGMENT

ALLAD1 KUPPUSWAMI J.—The petitioner and the respondentsherein contested for the membership of the Andhra Pradesh State Legis-lative Assembly from the Maharaj Gunj Assembly constituency at Hydera-bad. The petitioner contested as a candidate of the Janata party andrespondent-1 as a candidate of Congress (1). The polling took place on25th February 1978, the votes were counted on the 27th February and theresult was declared on the same day. The first respondent secured thehighest number of votes, namely, 22,801 votes whereas the petitionersecured 22,535 votes; with the result the first respondent was declaredelected.

The petitioner has filed this petition praying that the election of thefirst respondent be declared void and the petitioner be declared as havingbeen duly elected from the Maharaj Gunj Assembly constituency. Healso prayed for inspection, scrutiny and recount of all the votes polled inthe constituency.

The case of the petitioner is that on a true and correct counting ofvotes polled he will be found to have polled a majority of votes. TheReturning Officer, the Counting Supervisor and the Counting Assistantscommitted many mistakes, illegalities and irregularities in the matter ofcounting, bundling, rejection and receiption of votes. A written requestwas made on behalf of the petitioner by his Election Agent, Sri G. Nara-yana Rao at about 8 p.m. on 27th February 1978 before the announcementof the result for a recount. The Returning Officer however negativedthe request on irrelevant and untenable grounds. In paragraph 7 (i) to(xxxi) the petitioner has enumerated the irregularities and illegalities com-mitted which according to him constitute substantial grounds for orderinga recount. In paragraph 7 (xv) it was stated that there were 116 tenderedvotes and most of them had to be counted in favour of the petitioner sincethe first respondent and his agents indulged in large scale impersonation.When the first respondent in his written statement submitted that theallegation of impersonation lacks material particulars and the allegationis liable to be struck down, the petitioner sought leave to strike out thefollowing words:

"Since the respondent and his agents indulged in large scale imperso-nation".

in paragraph 7 (xv) and he was permitted to do so. The first respondentfiled a written statement denying the allegation that his election was voidand opposed to law. The various allegations regarding the irregularitiesmentioned in paragraph 7 (i) to 7 (xxxi) are also denied. It is statedthat the request for a recount was rightly rejected by the Returning Officeras no case was made out. According to him, the election petition hasto be dismissed with costs. Respondent-4 also filed a counter to theelection petition in which he stated that he has no objection to the grantingof the prayers in the election petition, except with regard to the awardingof costs. It is however stated that no irregularity or illegality was com-mitted and he has no dispute about the conduct of the election. Theother respondents did not file any written statements and were set exparteby order Dated 20th June, 1978.

E.L.R.] BADR1VISHAL PITTI V. SHIV PERASHAD AND OTHERS 229

In support of his petition the petitioner examined P. Ws. 1 to 6.P.W. 6 is the Returning Officer and as he turned hostile at a particularstage the petitioner requested permission to treat him as hostile and tocross-examine him and permission was granted. The first respondentexamined one witness, R.W. 1 Exs. A-l to A-89 were marked on behalf ofthe first respondent.

The following issues were framed on 23rd June 1978.

1. Whether the order of the Returning Officer dated 25th February,1978. rejecting the request for re-count was legal and proper?

2. Whether the allegations made in paragraph 7 (i) to (xxxi) in theElection Petition are true? If so, do they warrant a re-count ofthe votes polled at the election?

3. Whether for the allegations made in paragraph 7 (i) to (xxxi) inthe Election Petition, the petitioner is entitled to inspection,scrutiny and recount of the votes polled in 214 MaharajgunjAssembly Constituency of Andhra Pradesh?

4. Whether the petitioner is entitled to be declared as having beenduly elected from 214 Maharajgunj Assembly Constituency ofAndhra Pradesh?

Issue (1):

Some time after the counting was over the Returning Officer, P.W. 6declared the votes polled in favour of each of the contesting candidates.It is the case of the petitioner that at about 8-10 p.m., he made a writtenrequest to the Returning Officer for a recount and the request was rejected.The application for recount is Ex. A-17. In Ex. A-17 it is stated that thedifference in the votes secured by respondent 1 and the petitioner was266 votes which was exteremely small and there was every possibility oferror in counting which might make all the difference in the election result.A total recount and complete verification of all the votes polled was therefore demanded. By his order, Ex. A-l8, the Returning Officer statedthat no objection or request for recount was made during the five countsof the votes, though the petitioner and his Election Agent together withthe counting agents were present throughout the counting. The reasonadduced for recount does not justify the demand for recount. He wastherefore of the view that the request of the applicant was frivolous andunreasonable and that there were no specific grounds for recount and hetherefore rejected the application. Under rule 63 of the Conduct ofElection Rules, 1961 made under the Representation of Peoples Act, 1952(referred to in this judgement as the rules and Act respectively), the Return-ing Officer may allow an application for recount in whole or in part ormay reject it into if it appears to him to be frivolous and unreasonable.In this case, all that is stated in the petition is that as the difference invotes, namely 266 is very small 'there is every possibility of error in coun-ting which might make all the difference in the election result'. No parti-culars are given as to any irregularities in counting or in accepting orrejecting votes. The only ground stated is that the difference is verysmall and from that it is sought to be inferred that there is a possibilityof error in counting. The mere fact that the difference in the votes is

230 BADRIVISIIALPITTt V. SHIVPERSHAD AND OTHERS [VOL. LXIII

small is no ground for ordering a recount if there has not been any irregu-larity or error in counting in any respect. On the face of the petition therewas no basis for the Returning Officer to order a recount. The ReturningOfficer was therefore right, in my opinion, in holding that the reason forrecount is vague and general in nature as no specific instance or instanceswere mentioned to justify a recount and therefore the request was frivolousand unreasonable within the meaning of rule 63. The Returning Officeralso stated in his order that no petition or request for recount was madeduring the five rounds of counting. Even in the evidence of any of thewitnesses including the election agent, it is not stated that any request forrecount was made during the five rounds. This statement thereforeremains uncontradicted. It is also stated in Ex. A-18 though the candidateand his election agent were present throughout the counting, no one raisedany objection. On this aspect, the evidence on behalf of the petitioneris that objections were raised on several occasions by the counting agentsas well as the election agent in regard to the various matters orally but theReturning Officer did not pay heed to them. It is however admitted thatno objection was made in writing. Even assuming for the purpose of thisissue that some oral objections were raised at the time of counting thatwould not make any difference as the order of the Returning Officer reject-ing the application for recount is concerned, has to be judged with referenceto the grounds mentioned in the application for recount. Taking theapplication for recount and the ground mentioned therein into account,I am of the view that the Returning Officer was justified in holding thatthe request for recount was frivolous and unreasonable and rejecting theapplication. Issue 1 is decided accordingly.

Issues (2 and 3)

These issues may be considered together. It is not disputed by therespondent that merely because the application for recount is held to havebeen validJy rejected by the Returning Officer the petitioner is not preclud-ed from placing sufficient material before this Court and requesting thisCoutt to direct a recount, if it is satisfied on such material that a casefor recount is made out. As a matter of fact it has been held by theSupreme Court in (1) that even where no application for recount is madebefore the Returning Officer, it is open to the petitioner to request thegranting Election Tribunal, namely, the High Court to direct a recount if heis able to satisfy the court that a case for recount exists. It is thereforenecessary to consider whether the evidence in this case justifies this Courtgranting ihe prayer of the petitioner for inspection, scrutiny and recountof the votes polled. .

The grounds on which a recount is prayed for are mentioned in para-'graph 7 (i) to 7 (xxxi) of the petition and were regrouped and stated bythe counsel for the petitioner as follows:

(1) The arrangements made in the counting hall for counting thevotes and in particular the seating arrangements at different tableswere wholly unsatisfactory and this resulted in mistakes in count-ing (paragraph 7 (i) and (ii)).

(2) The petitioner and his countin.2 agents were not allowed to inspectthe ballot papers rejected by the Returning Officer or to note theserial numbers of the ballot papers either at the time of sorting

E.L.R.] BADR1VJSHAL PITTI Vs. SHIV PERSHAD & ORS. 231

out of the ballot paper or at the time of rejection. (Paragraph 7(iii)).

(3) Unauthorised persons entered the counting hall at the time ofcounting which resulted in confusion in counting. (Paragraph7 (iv)).

(4) One Asaram Malani who was a counting agent for respondent-5did not turn up and another person was allowed to impersonatehim and was allowed to act as a counting agent though he was nota counting agent. (Paragraph 7 (v)).

(5) The Returning Officer increased the counting staff after the firstround (Paragraph 7 (vi)).

(6) The seals of four ballot boxes were not in tact and an objectionin writing was raised by the petitioner's counting agents at tableNos. 7 and 8 and the said objection was overruled by the Return-ing Officer without any justification. (Paragraph 7 (vii)).

(7) Ballot papers were not sealed at the end of each count. (Para-graph 7 (xxvi)).

(8) About 300 ballot papers having mark on the reverse side werecounted in favour of the first respondent inspite of the objectionsby the counting agents at table Nos. 9 and 10. (Paragraph 7(xii)).

(9) In regard to polling booth No. 84, it was mentioned in form No.16 that ballot paper No. 062181 was missing even though in theseries supplied to the polling booth, no such number exists. Thismistake indicates that extra ballot papers were commissioned intouse to the advantage of the first respondent. (Paragraph 7(xiii)).

(10) 300 ballot papers which were to be counted for respondent-5were placed in the compartment of respondent-1 and counted inhis favour. (Paragraph 7 (xvi)).

(11) Ballot papers once counted were again brought and counted forrespondent-!. (Paragraph 7 (xxv)).

(12) 125 bundles of votes polled in favour of respondent-1 containedless than 50 votes but were counted as 50 and 300 bundles contain-ed more than 50 votes but were counted as 50 only in favourof the petitioner. (Paragraph 7 (xviii)). In the first categorythe first respondent gained about 230 votes and in the secondcategory the petitioner lost about 400 votes.

(13) 300 votes cast in favour of the petitioner were wrongly rejectedwithout assigning any reasons and details are given in scheduleNo. 1. (Paragraph 7 (xvii)).

(14) About 540 votes which were invalid for various reasons werecounted in favour of the first respondent inspite of protest by thepetitioner's counting agents. Particulars are set out in scheduleNo. 2. (Paragraph 7 (xix)).

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(15) 10 Votes having identifiable marks were counted in favour of res-pondent-!. (Paragraph 7 (xx)). Particulars relating to thisare set out in schedule No. 3.

(16) About 120 ballot papers did not contain any distinguishing marksand signatures of the presiding officers but were wrongly markedfor respondent-1. (Paragraph 7 (xxii)). Particulars were givenin schedule No. 4.

(17) About 500 ballot papers marked for more than one candidatewere wongly counted for respondent-1 as detailed in ScheduleNo. 5. (Paragraph 7 (xxiii)).

(18) About 200 ballot papers which were marked clearly on the sym-bol of the petitioner wrere wrongly rejected on the ground thatalleged scribbling was found on the reverse of the ballot papers.(Paragraph 7 (xxiv)).

(19) 12 ballot papers which would have been counted in favour of thepetitioner were rejected wrongly on the ground they are damagedor mutilated. This happened at table Nos. 1, 4, 7 and 11 andthis was objected to by the petitioner's counting agents at therespective tables. (Paragraph 7 (xxi)).

(20) The total number of ballot papers issued at polling booths were51,501; whereas the total number of ballot papers counted are51,613. Thus 112 ballot papers which were not issued werecounted; in regard to booth No. 36 where 402 ballot papers wereissued, at the time of counting 295 votes were found. There isconsiderable discrepancy between the ballot papers issued and thevotes counted. (Paragraph 7 (viii) and (ix)).

(21) No test check of the bundles of the counted ballot papers wasmade by the Returning Officer as required under pragraph 19 (m)of the Instructions issued to the Returning Officer; nor a testcheck of the ballot papers was made as required by paragraph19 (n). (Paragraph 7 (xxvii)).

(22) Neither the petitioner nor his election agents were asked to affixtheir signatures immediately after sealing of the ballot paperpackets. (Paragraph 7 (xxviii)).

(23) The Returning Officer did not obtain the signature of the peti-tioner or his agents at the time of drawing the proceedings asrequired under paragraph 19 (s) of the instructions. (Paragraph7 (xix)).

The grounds raised in paragraph 7 (x), (xi), (xiv), (xv) where notpressed.

The principles which are to be followed in considering whether a re-count should be ordered by the Election Tribunal or not, have been laiddown in a number of decisions of the Supreme Court. The judicial powerto direct, inspection and recount is undoubted but will be exercised sparingly.A judicial recount is not a matter of right. A liberal recount or re-ins-pection of votes may create belated uncertainties, false hopes and a sense

E.L.R.j BADRIVISHAL PITT! Vs. SH1V PERSHAD & ORS. 233

of suspense, long after the elections are over, governments formed andlegislatures begin to function. Moreover, while a recount, within therecounting station with the entire machinery familiar with the processstill available at hand and operational, is one thing, a re-inspection andrecount, which is an elaborate undertaking with mechanics s-nd machineryof a specialised nature and which cannot be judicially broughtinto existence without an amount of time, toil and expense, is adifferent thing. Vide S. Baldev Singh V. Teja Singh (2) AIR 1975 SC,page 693. The Court would be justified in ordering a recount of theballot papers only where:

1. The election petition contains as adequate statement of all thematerial facts on which the allegations of irregularity or illegalityin counting are founded;

2. On the basis of evidence adduced such allegations are primafacie established, affording a good ground for believing that therehas been a mistake in counting; and

3. The court trying the petition is prima facie satisfied that the makingof such an order is imperatively necessary to decide the disputeand to do complete and effectual justice between the parties.Vide Suresh Prasad Vs. Jai Prakash (3) AIR 1975 SC. p. 376.

In Meliram Vs. Jal Behari Lai (4) AIR 1975 SC. p. 283, it was pointedout that as an order for recount touches upon the secrecy of the ballot, it .should not be made lightly or as matter of course. The court would bejustified in ordering a recount or permitting inspection of the ballot papersonly where all the material facts on which the allegations of irregularityor illegality in counting are founded, are pleaded adequately in the electionpetition and the court trying the petition is prima facie satisfied that themaking of such an order is imperatively necessary to decide the disputeand to do complete and effectual justice between the parties. Mere allega-tions that the petitioner suspects or believes that there has been improperreception, refusal or rejection of votes or there have been irrugularities inthe counting of ballot papers will not be sufficient to support an order orrecount and inspection.

The Supreme Court had occasion to consider the case for recount inthe case where the successful candidate has been declared elected by a verynarrow margin in Chinda Singh Vs. Shiv Ram (5) AIR 1975 SC. P. 403,it observed that the victory by a very few votes may certainly be a groundto far unwitting error in court. The stage is then set for a recount givensome plus point of clear suspicion or legal lacuna rniiitaling against theregularity, accuracy, impartiality or objectivity bearing on the originalcounting. The same view was reiterated in S. Baldev Singh Vs. TejaSingh (2) supra, where it was observed that where the margin of differenceis minimal, the claim for a fresh count be summarily brushed aside.

Bearing these principles in mind the various grounds urged in supportof the claim for recount may be considered, but before doing so it is neces-sary to refer to certain admitted facts.

The counting took place on 27th February, 1978 from 8-00 a.m., tillabout 7-00 p.m., at the Municipal Corporation Office at Zummerat Bazaar.Throughout the counting, the petitioner and his election agent, Narayan

234 BADRIVISHAL HTTI Vs. SHIV PERSHAD & ORS. [VOL. LXIII

Rao, P.W. 4 were present in the counting hall. Though it is the caseof the petitioner that objections were raised from time to time by the count-ing agents as well as the election agent with regard to the various irregula-rities, it is admitted that no objection in writing was made by any of them,except in regard to one matter by one of the counting agents, Sri Dokewith regard to the defect in seals in respect of one ballot box, which willbe considered while dealing with ground No. 6. Apart from this, thefirst objection in writing was only by way of an application for recountto the Returning Officer, by the Election Agent, Ex. A-17. Even here asobserved under issue No. 1, no particulars of the irregularities were mention-ed, the only ground being that as the difference was very small there isevery possibility of error in counting. The various irregularities arementioned for; the first time in the election petition. Bearing this in mind,the evidence of the petitioner in regard to the various irregularities refer-red to in the grounds referred to above will have to be considered.

GROUND No, 1: The petitioner has let in evidence to show that thearrangements for the tables where the counting took place and seatingarrangements at each of the table was so defective that the counting agentscould not even see properly the sorting of the ballot papers and placingthem in different compartments allotted to each of the candidates in thetrays placed on ths tables and they could not satisfy themselves whetherthe counting was properly done and whether the ballot papers were validlyaccepted or rejected. It is in evidence that there was a table for theReturning Officer on a dais where chairs were placed for the staff whowere assisting their the Returning Officer as well as for the candidate andtheir election agents. On either side of the table. Opposite to himchairs were arranged one end, sat a Supervisor with counting assistants oneither side of the table. Opposite to him chairs were arranged for thecounting agents for all the eigth contesting candidates. The case of thepetitioner is that as the counting agents were sitting facing the Supervisorand not the counting assistants, they were unable to see clearly the processof counting. They could not also see the markings on the ballot papersproperly and therefore they were unable to satisfy themselves whether theballot papers were properly put in the various compartments set apart foreach of the candidates in the tray placed on each table. The petitioner'switnesses deposed the chairs were so low that after the tray which was ofa height of 9" was placed on the table, they were not able to see thecounting properly. On the other hand the Returning Officer as P.W. 6deposed that the tables used were ordinary office tables and the chairswere steel chair which were ordinarily used. Some of the witnesses saidthat the height of the chair was 2^' and therefore they were not able to seethe counting, especially as the counting agents were not sitting oppositeik& counting; assistants. I am unable to see any force in this contention.Trie table used was ordinary office table and even if the counting assistantswere sitting on either side of the table and the counting agents were sittingfacing the supervisor and not the assistants there is absolutely no difficultyin counting agents seeing the sorting out and distribution of the ballotpapers. They would clearly be visible by a person sitting on a steel chair.No objection in writing was made by any of the counting agents or thecandidate or his election agent that the seating arrangements were defec-tive, Almost all the witnesses on behalf of the petitioner deposed thatthey had objected orally andi they were informed that nothing could be doneabout the matter. It is impossible to accept their evidence. If they werenot even able to see the counting properly it is improbable that they wouldi J quiet without objecting in writing if their oral objections had

E.L.R.] BADRIV1SHAL I>ITT1 Vs. SHIV PERSHAD & ORS. 2 J 5

not been heeded. If this were so, the counting agents of the other candi-dates also would have raised objection and there is no evidence to show thatthe other candidates raised any objection. This objection would have beenput in the fore front in the petition for recount, Ex. A-17 filed by the electionagent, P.W. 4. P.W. 4 deposed that by that time most of the counting agentshad gone out and he wanted to get particulars from them and sought the per-mission of the Returning Officer to go out, but the permission was refused.Even assuming that it was necessary for him to get particulars from thecounting agents regarding matters, such as particulars of votes, which wereimproperly accepted or rejected or with reference to the details of counting,there was no need for conferring with the counting agents in regard to thedefective seating arrangements of which P.W. 4 who was throughout sit-ting in the hall was aware. There was nothing preventing him fromreferring to this objection in his application for recount. It is no doubttrue that in the Handbook of Instructions given to the Returning Officer,it is stated in paragraph 4 (a) of Chapter IX that counting of votes shouldbe done on tables arranged in rows as shown in annexure XIX and in para-graph 19 (b) it is stated! that the counting agents may be seated facing thecounting assistants as shown in annexure XIX. But this is not a manda-tory requirements and as long as the counting agents are able to observethe sorting and counting properly from the place where they are seated, inmy view it is of very little consequence that the counting agents were notsitting facing the counting assistants but at their side. I have therefore nohesitation in rejecting this ground.

Ground No. 2: In paragraph 7 (iii) it is stated that no opportunitywas given to the counting agents or the petitioner to inspect the ballotpapers rejected by the Returning Officer or the Assistant Returning Officerand the counting agents were not allowed to note the serial number of theballot paper wrongly rejected inspite of demand from the election agentwho was sitting at the table of the Returning Officer. This is basedsolely upon the testimony of P.W. 4, the election agent so far as whathappened at the table of the Returning Officer is concerned. Here again,no objection in writing was raised at any time on this aspect. Even inEx. A-17, the application for recount, this was not mentioned. As this issaid to have happened at the table of the Returning Officer where theelection agent was seated, there was no need for him to confer with thecounting agents and the explanation given by him that he was not permittedto go out by the Returning Officer is not acceptable as he could have raisedthis objection in Ex. A-17 even without getting into touch with the count-ing agents. This ground is also untenable.

Ground No. 3: Ground No. 3 as stated in paragraph 7 (iv) of thepetition is that the Returning Officer allowed six persons named in thatparagraph into the counting hall though they were not the counting agentsof any of the candidates of members of the counting staff and they createdscenes by their unruly behaviour and did not allow the counting to go onsmoothly. P.W. 1 one of the counting agents gave the number as 25 or30, P.W. 2 as 20 or 25, P.W. 3 as 50 and P.W. 4 as 30 or 40. It is inevidence that a number of policemen were kept at the entrance of thehall and passes or badges were given to the candidates election agents,counting agents of the candidates and the staff and the persons other thanthose who had passes were not admitted into the hall. it is difficult toaccept the evidence of the petitioner's witnesses that large number ofunauthorised persons entered the hall and created confusion, especially in

236 BADRIVISHAL PITfl Vs. SH1V PERSHAD & ORS. [VOL. LXI1I

view of the fact that in the petition, it was stated that only six named personsentered the hall. In this connection reliance was placed upon Exs. A-27and A-28 which were passes given to two persons, M. B. Ramaswamyand Burauddin. The lists of counting agents for all the candidates whowere appointed were marked as Exs. A-29 to A-34 and it is admitted bythe Returning Officer, P.W. 6 that these two persons are not the countingagents of any of the candidates. It is therefore argued that this clearlyindicates that at least two persons who are not entitled to passes were inpossession of passes. The Returning Officer is unable to explain howit came out that these two passes were given to persons who are not count-ing agents or members of the staff. He stated that he had not writtenthe names in Ex. A-27. The forms for the passes were prepared in theoffice earlier giving the name of the candidate constituency, counting centreand the counting table and he signed the form just before issuing them.The work of distributing the passes was entrusted to his clerk, Hasanuddin,the Election U.D.C. and it was just possible that the clerk issued passeswithout filling up their names. He admitted that it was inegular to issuepasses without filling of the names. In the passes they were shown ascounting agents of Laxmanrao, one of the candidates, respondent-4. Thusit does appear from the evidence that two persons who were not countingagents of any candidates were issued passes and it is noted in the passesthat they were counting agents of Laxmanrao, R-4. It is just possiblethat an irregularity might have been committed by issuing passes to thesetwo persons who were not counting agents. But it does not follow thatthey used these passes and entered the hall unauthorisedly. If so, theirnames would have been mentioned in the election petition. The first personmentioned therein is P. Ramaswamy, whereas the names referred to inEx. A-27 is M. B. Ramaswamy. The name of Burauddin is not foundin paragraph 7 (iv) at all.

Apart from this even assuming that taking advantage of some laxityin the airangements regarding entry into the hall, some unauthorisedpersons entered into the hall now and then there is no acceptable evidenceto show that they created any confusion or the counting was in any wayaffected by their presence. It is true that some witnesses on behalf of thepetitioner stated that some of them crowded round the tables and sometried to sit by the side of the counting agents. But there is no tangibleevidence to show that the counting assistants were in any way disturbedby their presence and as a consequence there was a possibility of error incounting. Again it is to be noticed that no objection was made in writingby any of the counting agents on this account. It is not possible to acceptthe evidence of some of the counting agents that they raised objectionorally and the Returning, Officer, directed the intruders to go out of the hall,but no heed: was paid to his direction. P.W. 5 went to the extent of sayingthat the police came and removed some unauthorised persons bodily fromthe hall. This is very hard to believe when no objection was raised inwriting by any of the counting agents) and this was not referred to by P.W. 4in Ex. A-17, the application for recount. P.W. 4 admitted that he alsosaw unauthorised persons entering and that he objected. There was noreason why he should not have mentioned this in his application,if it wastrue and if entry of any unauthorised persons had any adverse effect on thecounting.

Ground No. 4: It is stated in paragraph 7 (v) that the Returning Officerallowed some persons to impersonate one Asaram Malani. the counting

E.L.R.] HADRIVI.SHAI, P1TTI K.t. SH1V PERSHAD &.OR.S. 23:7

agent of respondent 5 who did not turn up. Except a mere suggestionto P.W. 6, the Returning Officer, which was denied there is absolutely noevidence to support this allegation. Hence this ground is also rejected.

Ground No. 5: It is stated that the Returning Officer increased thecounting staff after the first round of counting and appointed four countingassistants at each table. P.W. 6 denied this. He stated that though hehad additional staff ready, there was no need to make use of them. Noobjection in writing was made in regard to the increase of the staff and thisis not mentioned in Ex. A-17 also. Even if there was any such increasein staff, there is no evidence to show that the increase in any way adverselyaffected and impeded the counting agents in their task of watchingthe counting and satisfying themselves as to the correctness of the counting.

Ground No. 6: In paragraph 7 (vii) of the petition it is stated that theseals of four boxes were not in tact and though an objection was raisedby the counting agents at table Nos. 7 and 8 the objection was overruledby the Returning Officer without any justification. There is practically noevidence in support of this contention. The counting agents of tableNos. 7 and 8 were not examined and the other counting agents who wereexamined namely, P.Ws. 1 to 3 and 5 do not speak to this. The ReturningOfficer, P.W. 6 stated that one Rama Rao Doke who was the countingagent at table No. 7 drew his attention to the fact that seal in regard to oneof the ballot boxes was put on the handle instead of on the thread. Hefelt there were no merits in this objection as the box had been put insidea cloth bag which was stitched and sealed and the paper seal was visiblefrom the window of the box and was in tact. He overruled the objectionafter explaining the position to the counting agent. I therefore see nomerit in ground No. 6.

Ground No. 7: It is complained that ballot papers were not sealed atthe end of each count. This is spoken to by the plaintiff's witnesses.Rule 57 provides that the valid ballot papers of each candidate and therejected ballot papers shall be bundled separately and the several bundlesmade up into a separate packet which shall be sealed with the seals of theReturning Officer and of such of the candidates, their election agents orcounting agents as may desire to affix their seals thereon. This onlyprovides that all the bundles should be made into a separate packet and thepacket should be sealed. It is not necessary that each bundle should besealed. Hence even if each of the bundles of the ballot papers were notsealed, there is no violation of Rule 57. This contention also fails.

Ground No. 8: In paragraph 7 (xii) it is stated that about 300 ballotpapers having marks on the reverse side were counted in favour of thefirst respondent inspite of objection by the counting agents at table Nos.9 and 10. The counting agent at table 9 was not examined. P.W. 3is the counting agent at table No. 10. He did not depose to the effectthat any ballot paper which had markings on the reverse were countedfor respondent-1. He stated that he noted down the irregularities in Ex..A-3. The genuineness of Ex. A-3 is attacked by the respondent buteven assuming for the purpose of this allegation that Ex. A-3is true, I do not find any reference in Ex. A-3 to the votes which hadmarkings on the reverse being counted in favour of respondent-3. Thereis only reference to 'mark not visible', 'marking with instrument not suppliedby the office', and the 'ballot papers having double markings' as far as

238 BADRIV1SHAL PJTTJ Kr. SH1V PERSHAD & ORS. [VOL. LX1II

votes counted for respondent-1 are concerned. P.W. 6 denied that he count-ed for respondent-1 any ballot paper which had markings on the reverse.I do not find any substance in this contention also.

Ground No. 9: It is stated that in regard to polling booth No. 84, itwas mentioned in form 16, that ballot paper No. 062181 was missing, eventhough in the series supplied to the polling booth no such number exists.It was contended that this mistake would indicate that extra ballot paperswere commissioned into use to the advantage of respondent-1. It is truethat 062181 is not one of the ballot papers issued to booth No. 84 and theremark in form 16 that the ballot paper was missing is therefore not justi-fied. I find from a perusal of the forms belonging to other polling boothsthat this number was issued in polling booths that this number was issuedin polling booth No. 82. It is noted in part I of form 16 of that pollingbooth also that 062181 was missing. The note therefore in part I ofform 16 relating to polling booth No. 84 is obviously a mistake. But Iam unable to see how this would affect in any manner the counting. Atthe counting hall, all that the staff is concerned is to count the votes foundin the ballot boxes. If any vote issued at the booth is missing in thebox, that would net have any affect on tha counting process. I am unableto see how the petitioner is justified in stating that the mistake indicates thatextra ballot papers were commissioned into use and further how is justifiedin saying that they were commissioned into use for the advantage of res-pondent-1. This contention is also rejected.

Ground No. 10: In paragraph 7(xvi) it is stated that 300 ballotpapers which were to be counted for respondent-5 were wrongly placed inthe compartment of respondent-1 and counted in his favour. No parti-culars of such votes are given. It is not stated in which round and at whichtable this occurred and there is absolutely no evidence in support of thisallegation, except a suggestion to P.W. 6, the Returning Officer which wasdenied. This ground also has to be rejected.

Ground No. 11: In paragraph 7{xxv) of the petition it is alleged thatballot papers which were once counted were again brought and countedfor respondent-1. There is absolutely no evidence in support of thisallegation and hence this ground is rejected.

Ground No. 12: It is alleged that 125 bundles of votes polled in favourof respondent-1 contained less than 50 votes but each one was counted ascontaining 50 votes; whereas 300 bundles which contained more than 50votes cast in favour of the petitioner were each counted as containing only50. In the first category the first respondent gained 230 votes and in thesecond category the petitioner lost about 400 votes. P.W. 6, the Return-ing Officer denied this allegation. He stated that no complaint was madeto him that in the case of the petitioner more than 50 votes were placedin the bundles and counted as 50 and in the case of respondent less than50 votes were placed in the bundle and counted as 50. It is true that headmitted he did not check all the bundles to find out whether they contain-ed exactly 50 votes or not. But he stated that he checked 10% of thebundles as required by the Instructions and in the bundles he checked therewere no discrepancies. In the absence of any complaint made in writingthat the bundles. In some cases contained more than 50 votes and insome cases less than 50 votes and in the absence of any such specificallegation in the application for recount of made immediately after the count-ing "was over by P.W. 4 it has to be held that this allegation is not proved

E.L.R.] B\rvm!I \LVrrr ] KS\!V prjRSHAO & ORS 239

Ground Nos. 13 and 19: They relate to the rejection of votes in favourof the petitioner on grounds which according to the petitioner are nottenable and these will be considered separately towards the end of thejudgment.

Ground Nos. 14, IS, 16 and 17: They are to the effect that certainvotes were wrongly counted for the first respondent and may be consideredtogether. The allegations in support of these grounds are contained inparagraphs 7(xix). 7(xx), 7(xxii) and 7(xxiii). These allegations are mainlyfounded upon Exs. A-l to A-3 and A-20 which"are cyclostyled sheets pro-duced by four counting, agents in which each of them had noted certainparticulars regarding the numbe- of votes polled, number of votes rejected,number of votes wrongly counted in favour of the respondent voles wherethe marks were not correctly placed or where there were double markingsor there was no signature or the Presiding Officer and so on. As thegenuineness of these documents is questioned by the respondent it isconvenient to consider the evidence relating to these documents in ffc? firstinstance.

Ex. A-l is said to be a cyclostyled sheet which was. given to P.W. 1.the counting agent of the petitioner at table No. 3. Ex. A-2 is a sheet saidto have been given to P. W. 2 who was counting agent of the petitionerat table No. 11. Ex. A-3 to P.W. 3 counting agent" at table No. 10, andEx. A-20 to P.W. 5. counting agent at table No. 5. The evidence of thesecounting agents as well as the Election Agent, P.W. 4 is that on the eveningof the 26th a meeting was called at the petitioner's election office at Nara-yan Bhavan, Begum Bazaar. All the counting agents were instructedto sec that the votes in favour of the petitioner were properly counted inhis favour. They were asked to note the mistakes or irregularities com-mitted by the counting staff in counting the votes. Each one of themwas given a cyclostyled sheet wherein they should note down which candi-date is polled how many votes and the discrepancies, doubtful votes etc.in the counting hall. Accordingly, each of them noted down the parti-culars in these sheets given to him and later in the evening after the count-ing was over, they again went to the election office and showed them tothe petitioner and his Election Agent. They were however asked to keepthe sheets with themselves and produce them when election petition wasfiled by the petitioner- Each of the cyclostyled sheets is in Hindi and isheaded "214 Maharaj Guni Assembly Constituency d/27-2-78. At the• top. on one side there is the word 'counting agent', on the other side,'table number'. Below that there are six columns as follows: RoundNo.; Janata: Congress (T): Congress; other candidates: Doubtful. Belowthat some space is left and aeain there are six columns, viz., round number;,votes rejected, wrongly counted in favour of Shivprasad. ballot paperswhee making is not correct; ballot papers without (he signature of thepresiding officer, ballot papers without making. Each of counting agentwho produced Exs. A-l to A-3 and A-20 and has notes down the parlicu-lars in the first part of the document have votes obtained bv Janata, Cong-ress (T), Congress other candidates and doubtful votes in each round. Tnthe second half of the documents thev have noted some particulars underthe various heads. The caso of the counting agents is that thev noteddown these particulars as and when the counting in different rounds wasgoinff on. Tt was argued on behalf of the petitioner that the particularsnoted in these sheets regarding the votes which were wrongly rejected orwrongly counted have been made contemporaneously with the counting and

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940 BADRjSHAI PITT I KSAIV PI.iRSHAD & O.RS. [VOL. LX.lIt

should be taken as correct and in asmuch as a substantial number of votesare shown to have been either wrongly counted in favour of the respondentor wrongly rejected against the petitioner, a case for recount is made out.On the contrary, the case of the respondent is that these documents havebeen brought into existence subsequently to support the case of the peti-tioner and ought not be relied upon.

The learned counsel for the respondent drew my attention to the factthat the date in each of these sheets was typed as 27 whereas the case of thepetitioner is that (hey were handed over to the counting agents on 26 andthis is a suspicious circumstance. I am however unable to attach muchimportance to this circumstance, as everybody knew that the counting wouldtake place on 27th and it is not improbable that the sheet containing thedate of counting, namely, 27th was handed over to the counting agents onthe 26th. Another circumstance relied on is that in the first half in whichthe particulars of votes obtained by each candidate is to be noted, we findonly Janata, Congress (I) and Congress and other candidates. There isno column for each one of the other candidates separately. I do notattach much importance to this circumstance also as it is in evidence thatthe main contestants for the seat were Janata, Congress (I) and Congressparty candidates and all other candidates had practically no chance ofsuccess. This is also clearly borne out by the very few voles that wereobtained by all other candidates. It is therefore quite probable that whenthe form was prepared particular mention was made only of Janata, Cong-ress (I) and Congress and all others were clubbed together under the heading'other candidates'. It also appears to me to be p'obable that all thecounting agents must have been given some paper or other in which theywould have been asked to note down the votes obtained by each candidatein each one of the rounds. I am unable to completely reject the* evidenceadduced on behalf of the petitioner that these sheets, similar to Exs. A-1to A-3 and A-20 were given to all the counting agents. The fact that insome of them the name of the counting agents or the table number is notmentioned is also not conclusive. The blank sheets would have been givenand the counting agents must have been expected to fill in their names andtable number and it is just possible that some of them might have notfilled up their names or table number or both.

It does not however follow that the petitioner is entitled to ask thecourt to accept all the particulars noted in the second half of the sheetregarding the votes wrongly rejected or wrongly counted for respondentetc., as correct. Tn this connection it is significant that the sheets givento the counting agents we'e not taken possession of either by the petitioneror his Election Agent soon after the counting was over when admittedlythe counting agents went together to the Election Office and showed thesesheets to them. These are very important documents and it is hard tobelieve that the petitioner or his Election Agent would have allowed thesedocuments remain in the custody of each of the counting agents with theresult the petitioner would be at the me-cy of these counting agents whenthey were required to be produced. One would expect the petitioneror his Election Agent to obtain the signature of the counting agents on thesedocuments and keep them with them. None of these documents containthe signature of the counting agents. Further, the columns in. the secondhalf of the sheet are very significant. There is only one column for voteswrongly counted in favour of Shivprasad Congress (I) and there is nosimilar column, for the votes wrongly counted in favour of the Congress

E.L.R.] BADKISHALPITII K SA1V PtRsHAD & ORS 241

candidate. While in the upper half there are three columns, Janata,Congress (1) nnd Congress and other candidates, one would expect columnsin the second half for votes wrongly counted in favour of Congress (1),Congress and other candidates. There is no acceptable reason why thename of Shivprasad alone should be mentioned and there is no columnregarding Congress candidate or other candidates. Even assuming that thethree candidates who equally mattered were Janata, Congress I, and Congressone would expect a column for wrongly counted votes in favour of Cong-ress candidate also. Further 1 have gone through the particulars notedin each of these documents by the respective counting agents. Themanner in which these particulars are noted does not inspire confidence.No mention is made of these important documents in the election petition.Though particulars are given in the various schedules attached to theelection petition of the votes rejected, wrongly counted and so on no alle-.gation is made that these particulars were obtained from the sheets main-tained by the respective counting agents in which the particulars were noted.It is also significant that only four of such sheets are produced. One wouldhave expected the petitioner to mention in the petition that these sheetswere maintained by the election agents and all the particulars regardingthe votes wrongly counted or wrongly rejected were noted in those sheets.Further as it is the case of the petitioner that the counting agents werenoting down the particulars then and there is no reason why they couldnot have given their objections in writing. At any rate they could haveimmediately handed over the sheets to the Election Agent, P.W. 4 wl»could have given these particulars in his application for recount. For allthese reasons I do not consider it safe to act upon the particulars containedin these documents, Exs. A-1 to A-3 and A-20. It appeas to me thatwhile it is probable that the particulars noted in the first half of the docu-ments were true, no weight can be attached to the particulars containedin the second half for the reasons given above. It is possible that columnsin the second half and the particulars contained therein might have beenbrought into existence subsequent to the election petition. At any rateit is not safe to act upon those particulars.

1 now turn to ground numbers 14 to 17:

Ground No. 14: In paragraph 7 (xix) it is stated that about 540votes which were invalid for various reasons were counted in favour ofrespondent-1 inspite of protest by the petitioner's counting agents. Parti-culars are set out in schedule 11 to the election petition where two cate-gories are mentioned, viz., where from the marks it is not discernable towhom the vote is cast and where the marks were not made with the instru-ment supplied. The main evidence with respect to this contention con-sists of the particulars noted in Exs. A-l to A-3 and A-20 and as they arenot accepted by me this allegation cannot be accepted. It is also seenthat out of total number of 540 votes mentioned in Scheduled 11 only about160 votes are covered by Exs. A-1 to A-3 and A-20.

Ground No. 15: It is alleged in paragraph 7 (xx> that 10 voteshaving identifiable marks were counted in favour of respondent-!. Asthis allegation is also based upon the particulars contained in Exs. A-l toA-3 and"A-20 which have been rejected this ground is to be rejected. Inthis connection out of 10 voles mentioned in the Schedule it is seen thatonly one vote is covered by Ex. A-3 produced by P.W. 3.

242 BADRISHAL PITH V SA1V PERSHAD & ORS. [VOL. LXI11

. Uround No. 16: In paragraph 7 (xxii) it is stated that about 120ballot papers did not contain any distinguishing marks and signatures of thepresiding officers but are wrongly marked for respondent-1. Particularsarc given in Schedule IV. Out of the 5 tables mentioned there, onlyagents incharge of tables 5 and I i in respect of 32 votes have been exami-ned, it is true that P.W. 6 admitted that some of the ballot papers did-not contain the signatures of the presiding officers, but there is no evidenceto show that on that ground they could not be identified as to in whosefavour the votes were cast. lha t circumstance alone is not sufficient toheld that they were wrongly counted in favour of respondent-1.

Ground No. 17: It is alleged that about 500 baiiol papers markedfor more than one candidate were wrongly counted for respondent-1 asdetailed in schedule V. Out of these, there is proof only with regard to197 votes and even in respect of these the proof consists only of the parti-culars noted in Exs. A-l to A-3 and A-20. As I have held that no reliancecan be placed upon them, it is to be held that there is no priina facie casemade out that 500 ballot papers marked for more than one candidate werewrongly counted for respondent-1,

Ground No, 20: It is alleged that the total number of ballotpapers issued at Die polling booths were 51,501 whereas the total number

•of ballot papers counted are 5J,613. Thus 112 ballot papers which werenot issued were counted and hence there is a priina jade mistake in count-ing and a recount is called for. This contention is based upon the figuresas found in form 16 wherein the ballot papers issued have been noted.There are also figures relating to ballot papers cancelled and tendered andthe ballot papers found in each of the ballot boxes. I have gone through

• them myself the particulars in each case and if we exclude the tenderedvotes, in a majority of the cases the ballot papers found in ballot boxestalley with the ballot papers issued. In a very few cases there is no doubt,a slight discrepancy. But this argument proceeds upon the assumptionthat the figures given by the person in charge of the polling booth withregard to the total number ballot papers is correct. It is possible thatsome mistake might have been committed while noting down the numberof ballot papers issued and merely because there is some small discrepancyin some cases found regarding the ballot papers issued and the ballot papersfound in ballot boxes and counted, it cannot be said that the counting isinaccurate. One case of glaring discrepancy was sought to be made out.In regard to booth No. 36 it was alleged that 412 ballot papers were issued,but only 295 ballot papers were counted. This argument is based uponEx. A-36, a certified copy said to have been issued by the Returning Offi-cer, of form No. 16 relating to polling booth No. 36 in which it is statedthat the ballot papers issued to the voters are 402 and the numbers givenare 028026 to 028427. in part II it is however stated that 295 votes werecounted. But the original, Ex. A-l 1 is produced before me and it showsthat ballot papers issued were 402 and ballot papers counted were 401For booth No. 34, the form 16 is marked as Ex. B-l and 1 find that thenumber of ballot papers issued to the voters is shown as 295 and the votescounted also 295. It is suggested by the respondent that it is just possiblemat while making a copy of form 16 relating to booth No. 36 the figuresrelating to booth No. 34 namely, 295 was copied instead of the figure 40!relating to booth No. 36. When the original is before me it is not possible

to act upon the certified copy. The suggestion made by the petitioner isnot without force. It was argued on behalf of the petitioner thai the

E.L.R.] BADRJSHAL PITT1 V SAIV PERSHAD & ORS. 243

certified copy gives the correct iigure and the original might have beenmanipulated subsequently by showing the iigure 401 instead of 295 withregard to ballot papers counted. I think that this contention is far fetched.Hence there is no-substance in the contention that ballot papers which werewere not issued were counted.

Ground No. 21: It is stated that no test check of the bundles ofthe counted ballot papers was made by the Returning Officer as requiredunder paragraph 19 (m) of the instructions issued to the Returning Officer,nor was test check of the ballot papers made as required by paragraph19 (u).

The Returning Ofliccr, P.W. 6 slated in his evidence that he test check-ed the ballot papers though he could not remember how many ballot papershe test checked. He also slated lhal he made test check in some casesand in some cases he asked his assitants to make a test check. He doesnot remember how many bundles he test checked and how many bundleshis assistants test checked. He however stated he test checked 10% ofthe bundles as required by the rules. But he was categorical that he didnot come across any case where wrong votes were placed in the bundle.I have no reason not to accept his evidence, especially in view of the factthat the Election Agent or the petitioner who were throughout admittedlyin the counting hall and sitting at the table of the Returning Officer did

.not suggest that the Returning Officer did not counduct test check as required

. by the instructions and no mention is made by them in the application forrecount. As long as he test checked 10% of the bundles as required, themere fact that he asked his assistants to test check some bundles is nota grave irregularity.

Giound No. 22: It is alleged that the petitioner or his electionagent were not asked to affix their signatures immediately after the sealingot the ballot paper packets. There is absolutely no evidence that any ofthe counting agents or the petitioner or his election agent desired that heshould affix signatures and he was prevented from doing so. There isno merit in this contention.

Ground No. 23: It is stated that the Returning Officer did notobtain the signature of the petitioner or his agents at the time of drawingthe proceeding as required under paragraph 19 (s) of the instructions.

Under paragraph 19 (s) it is stated that the Returning Officer shoulddraw up proceedings mentioning the full particulars of the candidates,agents present in the counting hall, the fact that they are asked to affixtheir signatures and seals on the packets of used ballot papers etc., if theyso desired and the particulars of those persons who had refused to do so.

The Returning Officer, P.W. 6 stated that he drew up the proceedings,Ex. A-89 in a note book in the first thirty pages. He admitted that hedid not sign these proceedings though he appended his signature at thebeginning where the description of the proceedings is noted as follows:

"General Elections 214 Mflharaj Gunj Assembly Constitutency Noteso:> varioj.1; :-.i igcs and action taken regarding."

244 HADRISHAL Pl'lTl V SA1V PLUSHAD & OKS. [VOL. LX11I

The proceedings also do not contain any date. It is true that the absenceof the signature of the Returning Officer and the date at the end of the pro-ceedings lends some force to the suggestion -made by the petitioner thatthe proceedings were not made immediately after the counting took place.Further though these proceedings relate to matters which took place ondilferent dates, namely, 25th February 1978 to 27th February, 1978 theproceedings give the appearance of having been written at a stretch. TheReturning Oih'cer also in one portion of his evidence admitted that theproceedings drawn in Ex. A-89 are not proceedings contemplated in para-graph 19 of Chapter 9 of the Hand Book of instructions. But these infir-mities are not of much consequence. They may indicate that tthe Return-ing Officer has not this part of his work satisfactorily but 1 do not thinkthat a claim for recount can be based solely on the ground that the proceed-ings were not drawn by the. Returning Officer in accordance with the instruc-tions contained in the Hand Book. Further, there is no evidence to showthat the Agents present in the counting hall desired to affix their signaturesand seals on the boxes of used ballot papers. Hence it cannot be saidparagraph 19 (s) which requires inter alia that the Returning Officer shouldmention in his proceedings the particulars of agents who made such requestshould be noted has been violated. 1 therefore see no substance in thisground also.

Ground Nos. 13, 18 and 19: These grounds can be consideredtogether as they relate to wrongful rejection of votes said to have been castinifavour of the petitioner. In ground No. 13 it is slated that 300 votescast in favour of the petitioner were rejected without assigning any reasonsand the details are given in Schedule 1. In ground No. 18 it is allegedthat about 200 ballot papers which were marked clearly or the petitionerwere wrongly rejected on the ground that scribbling was found on thereverse of the ballot papers and in ground No. 19 it is alleged that 12 ballotpapers were rejected on the ground that they are damaged or mutilated.Here again, the basis for these allegations are the particulars noted in Exs.A-l to A-3 and A-20 in regard to the ballot papers rejected. 1 havealready held that no importance can be attached to the particulars notedin these documents. They consisted of ballot papers without marks, ballotpapers with multiple marks, torn ballot papers and containing marks madewith instrument other than the instruments supplied by the election com-mission. There were ballot papers containing marks on the reverse sideof the ballot paper. He stated that no complaint was made to him thatthe ballot papers were wrongly rejected by him on account of the abovegrounds. He exposed that when doubtful ballot papers were brought tohim he scrutinised them in the presence of the candidates or their agentsand when he found that a particular ballot paper is marked for a particularcandidate he added that to the particular candidate. He made a recordof this in the final working sheet. The figures in the check memos wereput by his assistants and he personally put the figures in the working sheet.He however admitted that he cannot rule out the possibility of committingmistakes. He admitted that there is a correction in Ex. A-44 which isone of the check memos against the column 'rejected ballot papers'. It isseen that the difference between the votes obtained by the successful candi-date and the petitioner is very small namely 266 votes out of a total ofmore than 45,000 votes polled in favour of both of them. There is alwaysthe possibility of human error in scrutinising the votes and in coming tothe conclusion whether they arc to be rejected or not. The ReturningOfficer himself admitted that the entire counting staff was hard pressedfor time and there is always a possibility of committing mistake. As the

JB.L.R.1 BADK1SHAL 1MTTJ V SAW PLRSHAi) & ORS. 245

Supreme Court has pointed out in Chanda Singh Vs. Sliiw Ram (5) supra,and S. Baldev Singh Vs. Teja Singh (2) supra, victory by a very few votesmay be ground to fear unwriting error in count and where the marginof difference is minimal the claim for a fresh count cannot be summarilybrushed aside. One of the main objections to a re-count as pointed outby the Supreme Court is while the entire machinery familiar with thecounting process is available at the counting station, its recount at theinstance of (he Court which does not have the elaborate mechanics andmachinery of a specialised nature would involve considerable time, toil andexpense will not arise if the rejected votes are scrutinised again by theCourt. Bearing this in mind 1 consider that to secure the interests ofjustice and to remove any vestige of doubt, that the respondent might havesucceeded by a narrow margin by the wrong rejection of votes of the peti-tioner, those votes which were rejected should again be scrutinised bythis court and a re-count should be ordered to that extent only. Thepetitioner will deposit Rs. 250/- to cover the expenses for Scrutiny andre-count before the Registrar within one week from today. Post thepetition on 16th October for Scrutiny and recount.

Pursuant to ihe Judgment of the High Court dated 6th October, 1978,this Case coming on this day the 20th October, 1978 for scrutiny and re-count of the rejected ballot papers, upon perusing the petition and theMemo of grounds filed therein and the counter affidavit filed therein andupon hearing the arguments of Mr. I. Koti Reddy. Advocate for thePetitioner and of Mr. K. Venkatramaiah, Advocate for respondent No. 1and Mr. Laxman Rao, Respondent No. 4 appearing party-in-person andrespondents 2. 3, 5, 6 and 7 having been set exparte by order of Courtdated 20th June, 1978, the Court delivered the following JUDGMENT:

By order dated 6th October, 1978 I directed that the votes which wererejected should again be scrutinised by this Court and a re-count is orderedto that extent. The petitioner was directed to deposit Rs. 250/- to coverthe expenses for scrutiny and re-count before the Registrar within one weekfrom that date.

It is now represented that the said amount has not been deposited.I therefore take it that the petitioner is not interested in having the re-countof the rejected votes. Sri Koti Reddy, the learned counsel for the peti-tioner, makes an oral application to extend the time for making the deposit.The only ground mentioned is that the petitioner is desirous of carryingthe matter on appeal to the Supreme Court. This is not a ground for ex-tending the time for making the deposit of a very nominal amount of Rs.250/- The request is rejected. As all other points have been held againstthe petitioner, the Election Petition is dismissed with costs. Advocate'sfee 1,500/-

Petition dismissed

IN THE HIGH COURT OF JUDICATURE, ANDH&A PRADESHAT HYDERABAD

G NARAYANA REDDYV

S NARAYANA REDDY & ORS

( G A N G A D H A R A RAO, J.)

August 2, 1978 .

Representation of the People Act, 1951—-Section 64 -counting of votes—demand for recount initially pressed before the Returning Officer butwithdrawn—whether petitioner estopped from seeking recount in theelection petition—Conduct of Election Rules, 1961—Rule 156(1)—countingof votes and rejection of ballot , paper—Returning Officer taking intoaccount ballot' papers rejected by the Presiding Officer—whether reasonsto be given by the Returning Officer.

After the counting of votes was over, in the election held to theAndhra Pradesh Legislative Assembly from Penukonda constituency, thepetitioner submitted an application before the Returning Officer requestingfor recount of votes. However, after verifying the check memo for re-counting of votes he did net press for recounting. The Returning Officercounted in favour of the elected candidate some of the ballot papers whichwere rejected by the presiding officer as defective. Tn an election peiitionunder Section 81 of the Act the petitioner sought a recount.

HELD: Dismissing the petition,

(1) The petitioner's act in not pressing the demand made before theReturning Officer for recount does not operate as an estoppel against himin asking for recount in the election petition;

(2) However, the petitioner's above conduct clearly showed that theallegations made in the petition for recount were purely an afterthought:

(3) No ground existed for ordering recount of votes;

(4) The Returning Officer is not required to state any reason whentaking into account ballot papers rejected by the presiding officer as defec-tive. He will be presumed to have been satisfied that there was a mistakeor failure on the part of the presiding officer within the meaning of Rule56(2) (e) and (h)

M NARAYANA RAO v G VENKATA REDDY: ATR (1977)SC 208 ... relied on


1 Kofi Reddy. for the petitioner

C Obulpathy Chowdhary and K Scsharajyam, for the first respondent.

246

E.I.R.] G. NARAYANA REDDY V S. NARAYANA REDDY & ORS. 247

JUDGMENT

GANGADHARA RAO J.—The petitioner, G. Narayana Reddy, the1st respondent, S. Narayana Reddy and others, respondents 2, 3 and 4,contested from No. ] 66-Penukonda Assembly Constituency for AndhraPradesh State Legislative Assembly. The petitioner contested on behalfof the Janata Party and he was allotted the election symbol of Haldarwithin wheel. The 1st respondent contested on behalf of the IndianNational Congress (I) with the election symbol of 'Hand'. The 2nd res-pondent contested on behalf of the Indian National Congress and he wasallotted the election symbol of 'Cow and Calf. The 3rd respondent con-tested as an Independent with the election symbol of 'Cycle' and the 4threspondent also contested as an Independent with the symbol of 'Tractor'.The election took place on 25th February, 1978 and counting of the voteson 27th February. 1978. The petitioner secured 29775. The 1st Res-pondent secured 30415 votes. The 2nd respondent secured 3980 votes.The 3rd Respondent got 1377 votes and the 4th respondent 983 votes.1686 votes were rejected as invalid. The Returning Officer declared the1st respondent as having been duly elected from the constituency. Hegot a margin of 640 votes over the petitioner.

As soon as the counting was over, the petitioner submitted an appli-cation before the Returning Officer requesting for recount saying:

"(1)The number of rejected votes are many and there may be someerror identifying them;

(2) Since the number of candidates are five, there may be some over-sight mistakes in sorting and counting them;

(3) Since the majority is very thin, T feel by recounting T may get morevotes to win the election;

(4) By way of natural justice, the recount of votes may be ordered".

Subsequently after verifying the check memo for recounting of votes, hedid not press for recounting of the votes. He made an endorsement tothat effect at 8 p.m. on the same day, i.e., 27th February, 1978 on hispetition.

Thereafter he had filed this petition under section 81 of the Represen-tation of the People Act, 1951, in this Court, for recount. He has allegedthe following irregularities:

(1) The arrangement of the counting tables was made in contraven-tion of the instructions issued to the Returning Officer; Thereforethe Agents were handicapped from observing and supervisingthe process of sorting of votes and they were not allowed to standup and see what was going on at the table;

(2) The Returning Officer and his counting staff did not provideopportunity to the petitioner or his counting agents to inspect theballot papers finally rejected by the Returning Officer or theAssistant Returning Officer.

33—3 EGI/ND/85

248 G. NARAYANA REDDY V. 5. NARAYANA REDDY & ORS. [VOL. l.XITl

(3) The counting Agents of the petitioner al the Assistant ReturningOfficer's table were not allowed to note (he serial numbers of theballot papers wrongly rejected by (he Returning Officer inspiteof demand;

(4) About 430 votes counted in favour of the 1st respondent, did notbear the distinguishing mark on the reverse side of the ballotpaper and inspite of the objection of the Counting Agent of thepetitioner they were counted in favour of the 1st respondent.

(5) About 480 voles polled al Booth No. 117 of Pandiparthi villagecontained (he distinguishing mark of Ihe face of the Ballot paperand also the mark made with the instrument supplied to thevoter for the purpose of marking. The Returning Officer count-ed those votes in favour of the 1st respondent inspite of theobjection raised by the counting agents of the petitioner.

(6) The Polling staff connived with the polling agent of the 1st res-pondent and allowed the agents of the 1st respondent to mark theballot papers for themselves;

(7) About 300 ballot papers having mark on the reverse side werecounted for the first respondent inspite of the objection of thecounting agents of the petitioner;

(8) The entries in Form No. 16 in many cases did not tally with theparticulars as to the number of votes found in the ballot box.

(9) About 300 votes on which the mark was not properly discrimibleas to whom the vote was cast and the; mark was not made with theinstrument supplied were counted in favour of the 1st respondent;

(10) About 40 bundles of votes marked for the 1st respondent contain-ed less than 50 votes but still they were counted as bundles con-taining 50 votes each:

(11) Similarly about 60 bundles of ballot papers marked for the peti-tioner, although they contained more than 50 votes were countedas 50 votes.

(12) The ballot papers which were already counted in favour of the1st respondent were once again counted in his favour;

(13) The test check of bundles of the counted ballot papers were notmade by the Returning Officer as required under paragraph 19(h) of the instructions issued to the Returning Officers.

(14) Neither the petitioner nor his election agents were asked to affixtheir signatures immediately after sealing of the packets of usedballot papers;

(15) The Returning Officer did not obtain the signature of either thepetitioner or his agents at the time of drawing the proceedingsas required under paragraph 19 (a) of the instructions.

Notices were issued to the respondents. Only the 1 st respondent contestedthe petition. Respondents 2 to 4 did not appear and file any counter.

E.L.R.] G. NARAYANA REDDY V S. NARAYANA REDDY & OUS. 249

1st respondent filed a counter denying the various allegations and aver-ments made by the petitioner in his election petition. In addition hehas stated that since the petitioner has withdrawn his objections before theReturning Officer, he was estopped from' filing this election petition for arecount.

After hearing both the parties, the following issues were framed withtheir consent:

(1) Whether the petitioner is estopped from asking for recount ofvotes in view of the petition filed by the petitioner before theReturning Officer on 27th February, 1978?

(2) Whether, in the circumstances mentioned in paragraphs 7(i) to(xi) and 8 to 14 of the Election Petition, the petitioner is entitledfor scrutiny, inspection and recount of votes polled at 166 Penu-konda Assembly Constituency?

(3) To what relief is the petitioner entitled?

Thereafter the petition was posted for trial. The petitioner has examinedthree witnesses on his behalf including himself as P.W-3, P.Ws-1 and 2were the counting agents of the petitioner. P.W-1 is S. N. Rangappa,He deposed that the counting table was at a higher level while the Benchon which they were silting was at a lower level. The Officers tied upthe ballot jjapers into bundles consisting of 25 each. They verified thetotal number of ballot papers polled with reference to Form No. 16, but theydid not tally and they had objected for it. They also objected to thesitting arrangement. They could not see the actual votes that the officers,viz., the Supervisor and his assistants were putting in each compartmentof the tray. They asked the Supervisor to show each of the ballot paperto them but they were informed that they should not be disturbed andif they had any objection they coukl submit to the Reluming Officer. Someballot papers did not contain the signature, of the Polling Officer and thedistinguishing mark on the reverse. Some ballot papers contained the dis-tinguishing mark as well as the mark of the vote on their face. Someballot papers contained the mark of the voter on the reverse of it as againstthe symbol of the candidate. At the end of each round of counting, eachbundle did not contain equally 50 ballot votes. Some bundles of the votesmarked for the petitioner though contained more than 50 were countedonly as 50 votes, while some bundles of the 1st respondent, though con-tained less than 50 votes were treated as if they are 50 votes. He hadnoted down all these irregularities on a paper. The counting agents weresent out after the 4th round was over by the Returning Officer becausethe people who were present at the counting of the Gorantla constituencyin the next hall also rushed into this hall at that time after the counting oitheir constituency was over. That night at about 9 O'clock he had shownthe paper on which he had noted the irregularities to the petitioner, butthe latter asked him to keep it with him and if necessary to produce it intocourt at a future date. The Returning Officer did not seal each packet inhis presence nor permit the counting agents of the petitioner to put theirown seal. After each round of counting of 1000 votes, if there wasany deficit in that number those deficit ballot papers were being sent bythe Relurniii" Officer through (he Assislanl Supervisors. P.W-1 has pro-duced inlo this Court a paper on which he has noted the irregularities.Tt is marked as Ex. A-l. The petitioner was also present >n the hall

250 G, NARAYANA REDDY V S.NARAYANA REDDY & ORS. [VOL. LXlli

where the counting was done. He used to come now and then to theirtable and they used to tell him the irregularities observed by them and heasked them to note down those irregularities on a paper and give himlater on.

In the cross-examination P. W-l had admitted that when he was atTable No. 13, he did not submit any objections in writing to the ReturningOfficer. The petitioner gave instructions to his counting agents as to howthey should conduct themselves at the time of counting, but he did nottell them the manner in which they should note down their objections.As and when he detected an irregularity he noted it down on the paperEx. A-l. The petitioner did not tell him the number of columns he shoulddraw on Ex. Al , nor did he draw them up in consultation with the othercounting agents. Since he has experience as a counting agent he himselfhad drawn up the columns on Ex. Al. All the general objections werenoted on the reverse of Ex. Al and all particular objections with respectto each round were noted in the Remarks column. He has admittedthat the first irregularity noted on the reverse of Ex. Al relating to smudg-ing of the marks was noted after the first round was over and the secondround of counting has begun. He could not say the number of the ballotpapers on which the Swastik symbol could not be identified specificallyduring the first round of counting. He had noted the objections relatingto the Swastik symbol on the reverse of Ex. Al because he first doubtedwhether it was an objection to be taken or not. He could not say in whichround of counting less number of votes were bundled up in favour of the1st respondent S. Narayanareddi. He denied the suggestion that he hadwritten Ex. Al subsequently for the purposes of the election petition. Headmitted that he did not note down the total number of votes counted inthird and fourth rounds. It was at the stage of bundling up of countedvotes, people from the neighbouring hall had rushed in. He admitted thatthere was no irregularity in bundling up of the ballot papers because ofthe disturbance. He does not know whether the petitioner has takenany steps to bring the irregularities to the notice of the Returning Officer.He wanted to hand-over Ex. Al to the petitioner immediately after thecounting was over but he could not do so since he was sent out of the hallbecause of the disturbance and the petitioner happened to be inside hall.It was only at 9 P.M. that night after the counting was over he handed overEx. AJ to the petitioner. It was only his guess that the Returning Officermust have sent the deficit ballot papers from already counted and bundledup votes. The petitioner, he says had returned Ex. Al to him that nightand asked him to preserve it.

I must say that the evidence of P.W. 1 is far from satisfactory. Hehimself has admitted that he has not submitted any objections in writingto the Returning Officer. I do not believe his evidence for a moment thatas and when he raised an objection, he was asked to submit his objectionsfinally in writing to the Returning Officer. Assuming it to be so, thereis no reason why he did not submit his objections to the Returning Officer.I have no doubt in my mind that Ex. Al document was got up subsequentlyfor the purpose of this election petition. I do not believe his evidencethat he could not hand-over Ex. Al to the petitioner in the counting halland he could do so only in the night at 9 O'Clock when the petitioner wasalso in the counting hall. It is highly improbable that P.W. 1 would haveleft the hall immediately after the counting was over particularly when thepetitioner continued to stay there. Here, it should not be forgotten that

E.L.R.] G. NARAYANA REDDY V S. NARAYANA REPDY & ORS 251

the petitioner himself has filed an objection petition immediately after thecounting was over, complaining about the irregularities and requestingthe Returning Officer for a recount. Then after a verification of thecheck memos, he withdrew his objections and did not press his petition.In these circumstances if really P.W. 1 had noted down the irregularitiesthen and there on Ex. Al , he would have certainly handed over them tothe petitioner and he would have enumerated these objections in his petitionwhich he had submitted to the Returning Officer immediately after thecounting was over.

P.W. 2 R. Narayanappa, is another counting agent of the petitionerat Table No. 2. In the chief-examination he has broadly corroboratedP.W. 1 and it is not necessary for me to repeat his evidence in that regardonce again. He has further stated that he had noted down all the irre-gularities which he found on the paper Ex. A2. In the cross-examinationhe stated that he has shown Ex. A2 to the petitioner, but the latter returnedit to him saying that he might keep it with him and if necessary he wouldcollect it from: him. He did not note down in Ex. A2 that in some bundlesmore than 50 votes and in some bundles less than 50 votes were kept.He did not also note down in Ex. A-2 that whenever 1000 votes were sentby the Returning Officer to their table for counting them, there were fiveor six votes less. He does not know where from the deficit votes werebrought. He denied the suggestion that he had written Ex. A2 subse-quently for purposes of this election petition. He has stated that byvirtue of his previous experience as counting agent, he has drawn up thevarious columns in Ex. A2. I have observed his demeanour in the wit-ness box. I am not also satisfied with his evidence for the same reasonsgiven by me while discussing the evidence of P.W. 1 also hold that notmuch reliance can be placed on the evidence of this witness.

P.W. 3 is G. Narayanareddy, the petitioner, in his chief-examinationhe had spoken to the various irregularities mentioned by him in his elec-tion petition. He was not present at the counting tables al through. Hewas going and coming to the tables now and then. He has stated thatafter the 5th round of counting was over, he stayed behind. He askedfor recount orally and requested for some time to present a petition. TheReturning Officer gave him time. Then he went out, got the petitiondrafted with the help of a friend of his and presented it to the ReturningOfficer. With the consent of both the parties, the certified copy of thepetition is marked as Ex. A3. After he presented the petition, the ReturningOfficer asked him to wait for hall an hour for passing orders. After half anhour he went to him and the Returning Officer told him orally that he hadconducted the counting properly and therefore he did not permitrecount. While he was going out, he was once again called in by theReturning Officer. Then he went in, then the two Assistant ReturningOfficers (the Tahsildar of Penukonda and the Land Ceiling Tahsildar,Ananthapur) pressed him to endorse on the petition that he had withdrawnit. He asked them as to why he should endorse like that. They insistedthat he should make such an endorsement. Then in some confusion hemade the following endorsement in his petition.

"After verifying the check-memo for counting of votes, I am not pres-sing for recount of votes".

That endorsement is marked as Ex. A-l. He has deposed that his count-ing agents came to his party office and there he asked then whether thev

252 G. NARAYANA REDDY VS. NARAYANA REDDY & ORS. [VOL. LXIIl

had noted the irregularities observed by them while counting the votes.They said that they noted them on papers. He asked them to keep thosepapers with them stating that if necessary they could be produced inCourt. He did not take the papers from the counting agents, before theyleft the hall because he was confused. When he wanted to go into thetown to collect the papers from his counting agents, the Returning Officeradvised him not to go into the town alone, because the Congress (I) candi-dates were celebrating their victory. It has a small hall and the tablearrangements were not satisfactory. He complained but the ReturningOfficer stated that he could not make better arrangement. He has statedthat the irregularities noticed by him were complained to the ReturningOfficer. His counting agents also informed him that they have also obser-ved the irregularities at the time of counting. He know one B. C. Babaiah,Physical Instructor in Penukonda Junior College and also one B. Raja-gopal, working as Physical Instructor in the same College. They workedas counting assistants though they canvassed for the 1st respondent in theelections. He did not object to their being as counting assistants. Inhis cross-examination he staled that he could not say how many votes hehad lost with respect to each irregularity enumerated by him. His count-ing agents did not inform him as to the actual number of votes countedin favour of other candidates which ought to have been counted, in hisfavour. As and when he was going about the tables, his counting agentsinformed him of the irregularities observed by them. He was contactingthem between one round another. Nobody objected to his contacting hisagents during the time of the counting. He had not noted down the irre-gularities himself, because they were being noted by his counting agents.About ten counting agents informed him that some of the ballot papers didnot contain the signature, of the Presiding Officer and he brought it to thenotice of the Returning Officer immediately. So also about ten of hiscounting agents have informed him about the lack of the distinguishingmark on the ballot papers. About 10 to 12 of his counting agents toldhim that both the distinguishing, mark as well as the voters' mark werefound on the symbol 'Hand' on the face of the ballot paper. He hasbrought to the notice of the Returning Officer all irregularities. He hasalso mentioned some of these irregularities in the petition submitted by himto the Returning Officer and not all. He denied the suggestion that nosuch irregularities were committed by the time he submitted Ex. A-3.Subsequently he did not inform any higher authorities that the AssistantReturning Officer pressed him to make the endorsement Ex. A-4 to with-draw the petition and but for their insistence he would not have madethe endorsement. He does not know that he can appoint a counting agentto sit at the Assistant Returning Officer's table. During 5-30 and 7-30p.m. he was not doing any thing. He did not observe whether his countingagents have noted down the number of votes polled for him and the numberof votes polled in favour of the respondents. After each round, theReturning Officer was displaying on a Board in the hall the number) of votespolled by each of the candidates. By 5-30 or 6 p.m. he knew by thenumber of votes that he was trailing behind and he decided to ask for arecount. At the time when he presented the first petition. Ex. A-3 hehad no reason for asking for a recount, except those mentioned in Ex. A-3.When he wanted time to contact his counting agents and present a petitionfor recount, the Returning Officer told him that there was not much timeand advised him to draft the petition himself and submit. He denied thesuggestion that he had made the various allegations of irregularities in theelection petition only for the purpose of the Election Petition. To aquestion by the Court, he stated that he had passed Intermediate in 1954-55

E.I,..«..] G. NARAYANA REDDY V S, NARAYANAREDDY & ORS. 253

and since then he had been in politics, that in 1967 he contested for theAssembly Constituency from Penugonda, and he succeeded. In 1972he contested as an Independent candidate from the same constituency buthe was defeated. He admitted that he was not afraid of the ReturningOfficer or the Tahsildar of Penukonda or the Tahsildar of Anantapur whoworked as Assistant Returning Officers.

His evidence also is far from satisfactory. It is not disputed that hehas presented a petition to the Returning Officer i.e., Ex. A3 as soon asthe counting was over. In thai petition he has broadly mentioned thatthe rejected votes are many and there may be some error in deciding themand also since the number of candidates were five there might be someovcr-sighi mistakes in sorting ami counting them. He thought by a re-count he may get; some more votes. He has not specifically mentionedand various irregularities which he has now alleged in the election peti-tion. After submitting that petition Ex. A3, he verified the check-memofor counting of votes and thereafter did not press his request for recountingof votes. In the light of the endorsement, evidently he was satisfied withthe way in which the counting was done and he did not press for re-count.Therefore, I have to hold that the present allegations made in the electionpetition are more an afterthought.

It is contended by the learned counsel for the respondents that in viewof the endorsement made by the petitioner Ex. A-4, he estopped from filingthe election petition. I do not agree with him merely because he fileda petition for recount and subsequently withdrew that petition, it cannotbe held that the petitioner is estopped from filing the election petition.In that even without filing any such petition for recount. After the coun-ting was over, he can still file a petition for recount alleging those irregula-rities. If so, he could not have been in a worse position merely becausehe has presented a petition as soon as the counting was over and did notpress it. Further, there is no provision in the Representation of the PeopleAct which says that 'a person is precluded from filing an election petitionin such circumstances'. At the same time I hold that it is a circumstancewhich the Court can taken into consideration while deciding the questionwhether the allegations made by him in the election petition are true or not.In this case, I hold that since he did not press his petition, the allegationsmade in the subsequent election petition have to be viewed with caution.

After the petitioner has examined three witnesses, a consent memowas filed by the petitioner and the 1st respondent duly signed by theiradvocates stating that this Court may, as a test check, inspect 3000 ballotpapers polled and counted in favour of the 1st respondent in the first roundand also the total rejected votes in the round for purposes of ascertainingthe truth contained in the allegations made by the petitioner in the electionpetition, and after completion of the test check, if at least 60 votes werefound counted in favour of the 1st respondent which ought to have beencounted for the petitioner, the recount may be ordered; Otherwise theelection petition shall be dismissed with costs.

In view of that memo filed by both the parties and in view of theevidence adduced by the petitioner that some votes were improperly count-ed. T also thought that in the interests of justice I should ordet inspectionof 3000 ballot papers only. Accordingly notice was given to the Return-

254 G.NARAYANA REDDY V S.NARAYANA REDDY & ORS. [VOL. LXffl

ing Officer to produce the ballot papers in this Court and 3000 ballot papersin the first round polled in favour of the 1st respondent were scrutinisedin my presence and in the presence of the petitioner and the 1st respondentand their counsel on 24th July 1978. The result of the Inspection is asfollows: —

"68 Ballot papers contained the mark of the instrument with whichthe voter has to put his mark (Swastik Mark) but not the distinguish-ing mark of the Presiding Officer on the reverse of those ballot papers.13 Ballot papers contained the distinguishing mark, the Swastik markand the signature of the Office on the reverse and 7 ballot papers didnot contain the signature of the Officer on the reverse. One bundleat Table No. 11 contained only 49 votes instead of 50 votes. Onballot paper No. 036484 the voter's mark was on the blank space,and it was rejected.

Then the rejected votes were scrutinised. The result of the Scrutiny wasthat it was agreed that ballot No. 076598 and ballot paper No. 080801had to be counted for the petitioner. The rejection of other ballot paperswas held to be valid.

According to the consent memo if at least 60 votes were counted infavour of the 1st respondent which ought to have been counted in favourof the petitioner, recount may be ordered by the court; otherwise the elec-tion petition shall be dismissed. Admittedly in this case as a result of thescrutiny of 3000 ballot papers polled in favour of the 1st respondent, 60votes were not found counted in favour of the 1st respondent which oughtto have been counted in favour of the petitioner. Therefore, the electionpetition has to be dismissed with costs.

Even otherwise, the irregularities that were found scrutiny of the 3000ballot papers cannot form a ground for ordering a recount. AS statedby me already, 68 ballot papers contained only the 'Swastik mark' but notthe distinguishing mark on the reverse. Similarly 13 ballot papers con-tained the distinguishing mark, the voter's mark and also signature of theofficer on the reverse. Two Ballot papers did not contain the signatureof the officer. Rule 56 (2) (h) of the Conduct of Election Rules, 1961says that Returning Officer shall reject a ballot paper if it does not bearboth the mark and the signature which it should have borne under the pro-visions of sub-rule (1) of rule 56, provided that where the Returning Officeris satisfied that any such defect as is mentioned in clause (g) or clause (H)has been caused by any mistake or failure on the part of a presiding Officeror polling officer, the ballot paper shall not be rejected merely on theground of such defect. In this case the Returning Officer has not rejectedthese ballot papers on the ground of any such defect, but he had countedthem in favour of the 1st respondent. It means he must have been satis-fied that the mistake or failure was caused on the part of the presidingOfficer or Polling Officer. The Rule does not provide that he shouldrecord any reason before counting those votes, (Sec. M. Narayana RaoV. G. Venkata Reddy (1) A.I.R. 1977, S. C. 208; Paragraph 37 at page 222)similarly a ballot paper need not be rejected merely on the ground thatit did not contain the signature of the Presiding Officer. The ReturningOfficer has to consider if that defect was occasioned by the inadvertance orlapse of the Presiding Officer or (he Polling Officer. When once theReturning Officer has counted that ballot paper in favour of a pa:rty, we have

E.L.R.] G. NARAYANA REDDY V. 1. NARAYANA REDDY & ORS. 255

to take it that he has considered the defect and has come to the conclu-sion that it was occasioned by the inadvertance or lapse of the PresidingOfficer or the Polling Officer. (See S. Baidev Singh V. Teja Singh (2)A.I.R. 1975, S.C. 693 Paragraph 10 at page 697).

I, therefore, hold that the petitioner has not sub-stantiated his allega-tions and he has not made out a case for recount. Consequentely, I dis-miss this Election petition with costs. Advocates fee Rs. 500/-.

Petition dismissed.

34—3 ECI/ND/85

IN THE SUPREME COURT OF INDIA

RAJENDRA SINGH YADAVV.

CHANDRA SEN AND OTHERS

{Y V'CHANDRACHUD, C.J., P S KAILASAM AND A D KAUSHAL, JJ.)

October 26, 1978 •

Representation of the People Act, 1951—Section 123(5)—Corrupt prac-tice—allegation of hiring vehicles for the free conveyance of electors to andfrom the polling station—// proved.

The appellant was elected to the Uttar Pradesh Assembly in 1974but his election was set aside by a single judge of the Allahabad HighCourt on the sole ground that he had committed the corrupt practice underSection 123(5} of the Act. He was also disqualified for a period of sixyears.

On appeal to the Supreme Court—

HELD: The appeal must be allowed and the impugned judgmentset aside. The commission of the alleged corrupt practice was not provedbeyond reasonable doubt.

CIVIL APPEAL NO. 1929 OF 1975

JUDGMENT

KOSHAL, J.—This is an appeal under section 116-A of the Represen-tation of the People Act, 1951 (hereinafter referred to as the Act) againstthe judgment of a Single Judge of the Allahabad High Court declaringthe election of the appellant named Rajendra Singh Yaday, who was thereturned candidate from the Uttar Pradesh Assembly Constituency No. 314(Mohammadabad, District Farrukhabad), held in the year 1974, to be voidon the sole ground that he had been guilty of the commission of the corruptpractice specified in clause (5) of section 123 of the Act. and further hold-ing that "he is disqualified for a period of six years".

2. Seven candidates took part in the election contest, the appellant'snearest rival being the Congress candidate Smt. Vidyavati Rathore (res-pondent No. 3) who secured 25736 votes as against 43844 polled in favourof the appellant who fought the battle as an independent candidate.

3. The petition under section 81 of the Act was instituted in the HighCourt by two electors other than the candidates on various grounds in-cluding the commission by the returned candidate of different types ofcorrupt practices. The only ground found by the High Court to have been

256

E.L.R.] RAJENDRA SINGH YADAV V. CHANDRA SEN AND OTHERS 2-5?

established is, as already stated, the commission of the corrupt practicedetailed in clause (5) of section 123 of the Act which states :

"123. The following shall be deemed to be corrupt practices for thepurposes of this Act : —

(l) ... . . . . :

{£) . . . .

(3) . . . . . . . . . . . . .

(4) . . • . .

(5) The hiring or procuring, whether on payment or otherwise,of any vehicle or vessel by a candidate or his' agent or by anyother person with the consent of a candidate or his election agent.or the use of such vehicle or vessel for the free conveyance ofany elector (other than the candidate himself, the members of hisfamily or his agent) to or from any polling station provided undersection 25 or a place fixed under sub-section (1) of section 29for the poll.

. (6 ) . . •

. (7) . . • . . . . . . . .

The allegations made in the petition, in so far as they are relevantfor the purpose of the present appeal, were stated in paragraph 12 thereofand are reproduced below : .

"(a) That respondent No. 1 himself, his workers, agents and sup-porters, with the consent of respondent No. 1, hired and procured vehi-cles, tractors with trolleys, trucks, jeeps and cars for free conveyanceof electors frorn their houses to the polling stations on the date of poll,i.e., 26-2-74. ' .

«"(b) That the persons who were transporting the voters were theworkers, agents and supports of respondent No. 1 and were so doingwith the consent of respondent No. 1 in as much as they had putbadges depicting the name of respondent No. 1 with his election sym-bol (cycle). Some of them were carrying banners in which the sym-bol of cycle was depicted. The persons who used to carry the votersto the polling stations on the vehicles dropped the voters in the campsset up by respondent No. 1 nearing the polling stations. After thesevoters had cast their votes, they were brought back to their respectivevillages on the aforesaid vehicles. Respondent No. 1 himself, hisworkers, agents and supporters, with the consent of respondent No.1, were carrying a large number of female voters also."(c) That in most of the vehicles, a poster bearing cycle symbolwas carried and the workers, agents and supporters of respondent No.1 with his consent were wearing badges with cycle symbol, and assuch throughout the polling day, i.e., 26-2-74, the voters were carried."

Clause (a) of the same paragraph stated that full particulars of variousvehicles hired, procured and used along with the places and the pollingstations at which and the person by whom they were used were given in

RAJENDRA SINGH YADAV K CHANDRA SEN AND OTHERS [VOL. LXIIT

Schedule III in the petition, to which was later on added by amendmentSchedule III-A. Items 2 and 5 of Schedule III and the whole of ScheduleIII-A contain "full particulars" of the corrupt practice and found to havebeen proved and are extracted below for facility of reference.

"SCHEDULE III

"Particulars of hiring and procuring of the vehicles by respondentNo. 1, his agents, workers and supporters with the consent of res-pondent No. 1 for the free conveyance of the electors from theirhouses to polling stations.

SI. Dale Time VillageNo. from

whereelectorswheretaken

•** ***

"2. 26-2-74 10 AM to 1. Bichh-4 PM auli

2. Siani

Name ofpollingstationto whichtheelectorswereconveyed

***

Nauli

Kind ofvehicleand No.of vehicles

Name ofpersonswho con-veyed theelectorsfrom theirhouses topollingstations

***

Tractor with 1. Lajjatrolly ofBhubhutiPrasatt r/oAmroli

Ram2. Chiraunji

SinghAll r/oNauli

Name ofsome electorswho wereconveyed tothe pollingstation

***

1. ShankerLai

2. SriKrishna

3. Gandhi4. Basant Lai5. Ram

Sanahi6. Umesh

Ghandsome otherpersons andsome ladies.

•'5. 26-2-74 9 AM to From3.30 PM adjoining

hamlets

Khinmmi Tractor with 1. Radhay Man andtrolly No. Shy am women"R.J.D. 2606 2. Hari

Shankar

SCHEDULE III-A"HIRING AND PROCURING USER OF VEHICLES

Date Place who procured and Kind of vehicle Name of the owenerhired vehicle of vehicle

'21-2-74 Mohamma- Purushottam Singh Tractor and jeep Onipal Singh ChandeJdabad s/o respdt. No. 1 r/o Mohammadabad

Tractor R.anpal Singh PradhanSikandarpur

"Procured and hired in presence of Mukat Singh, Harkanipur and Subedar Singhaflipur.

'22-2-74 Amroly Rajendra Singh TractorRajendra SinghYadavrespdt. No. 1

Bhabhuti Pd. Village &P.O. Amroli (registered inthe name of his son Soba-ran) Chassis No. F. 2083

E.L.R.] RAJENDRA SINGH YADAV V. CHANDRA SEN AND OTXiERS 259

"Procured and hired in presence of Devdutt son Khargai village Rukhjya.

,, „ „ „ Ant Ram s/o Gyan Singhresident of village & P.O.Amroly No. 2015 UPT(Due to typing mistake itwas shown as VPI 2016.)

'24-2-74 Sarai Auguat Rajendra Singh Mahcsh Singh s/o HarishYadav Chandra Singh villagerespdt. No. 1 Akbarpur Keshoram P.O.

Alipur No. RJD 2606

'•procured and hired in the presence of Narain Singh S/o Anganoo Singh VillageNaigaon Khasulia."

4. In his written statement, (he appellant controverted all the pleasmade by the petitioners-electors and asserted (hat neither he nor any ofhis agents or workers had hired or procured any vehicle whatsoever forthe purpose stated nor had used any such vehicle therefor.

5. On the pleadings of the parties, the learned Single Judge framed12 issues but we are concerned only with Issue No. 7 which runs thus :

. "7. Whether respondent No. 1 himself, his workers, agents and sup-porters with the consent of respondent No, 1 had procured and usedvehicles for free conveyance of electors as mentioned in paras 12(a)(b) (c) (d) and (e) and schedule III of the petition, and thus committedthe corrupt practice as provided in section 123(5) of the Act? If so,its affect'!"•

6. It is common ground between the parties that Naulj polling Sta-tion had two polling booths, each having a separate Presiding Officer.These booths were designated by serial numbers 121 and 122. G.S.Srivastava (P.W.2) who otherwise held the office of the District FisheriesInspector, Farrukhabad, was the Presiding Officer at polling booth No.121 which was meant for voters residing in village Nauli alone. The otherpolling booth having serial No. 122, had another Presiding Officer andvoters from Villages named Bichhauli and Siani had to poll their votes/there at. Simililarly, Khinmini polling Station had two polling boothsdesignated by serial numbers 88 and 89 having P.S. Gaharwar (P.W.6)and Narendra Singh (P.W.3) as Presiding Officers respectively.

7. Six witnesses were produced by the petitioners in support ofthe corrupt practice pertaining to polling station Nauli. G. S. Srivastava(P.W.2) stated that during the- poll complaint exhibit P-l was made to him'by Lalmani Singh (PW.4) who was polling agent for Smt. VidyavatiRathore. The relevant portion of that complaint may be freely translatedthus :

" " xxx xxx xxxThe agents and supporters of the independent candidate Shri RajendraSingh Yadav are bringing their voters in vehicles and makethem poll their votes after forming them into a queue. Tf you come

260 KAJENDRA SINGH YADAV V. CHANDRA SEN AND OTHERS [VOL. LXlII

outside you will find that Lajje Ram and Chiranji Lai are bringingwomen voters of my village, whom 1 fully recognise, in a trolly anda tractor and are leaving them near the school building. On the trac-tor files a flag having the symbol 'bicycle' and the trolly has posterspasted on it. Those people are also shouting slogans in support ofthe independent candidate "

According to the Presiding' Officer, the' complaint exhibit P-l washanded over to his at 12-00 noon and was found, on enquiry by him, tobe correct. This fact finds a mention in diary exhibit P-2 prepared by himin accordance with the rules. Item 14 in the diary reads :

"A serious complaint was made by Sri Lalmani Singh, Congress agent,regarding transportation of voters and other irregularities by the otherparty, i.e., the independent candidate, Shri Rajendra Singh Yadav."

Lalmani Singh (P.W.4) testified to the correctness of the contents ofcomplaint exhibit P-l and averred that he made the complaint after hefound voters from villages Nauli, Bichhauli and Siani being brought in atractor and trolly by Lajja Ram Chiranji Lai, who were the supporters andworkers of the appellant. The details of what he saw are given by himthus :

"Ram Kishan, Ram Sanehi, Balak Ram, Sri Krishna and ladieswhose names I do not know were seen sitting the tractor and trollyfor the first time at about 10 O'clock. Those ladies were not ofmy village and hence 1 did not recognise them. The said men voterswere of village Sayani. Agya Ram and Phulwari of village Bichhauliwere seen sitting by me on the second occasion on the tractor. Bich-hauli is at a distance of about a mile from the said polling Station.Ram Sumiren of Sayani, Khushi Ram of Sayani were recognised byme on the third occasion. Bhoomraj Singh of Nauli and ladies wereseen by me on the fourth occasion. Out of the ladies, whom 1 recog-nised, were the wives of Bhoomraj, Surendra Singh and Tika Ram.I know Bhoomraj, Surendra Singh and Tika Ram, but I have noconnection with them."

Dataram (P.W. 5) was the polling agent of Smt. Vidyavati Rathoreat polling Booth No. 122. He also claimed to have seen voters beingbrought in a trolly attached to a tractor by Lajja Ram and Chiranji Lai.When questioned about the identity of the voters he stated:

"The agents voters were Gandhi, Ram Sanehi, Lajja Ram and Kishean.There were some lady voters also, but I do not know their names.Thereafter the. tractor went to Bichhauli. Ram Bharose. Shri Ram,Mullu, Agya Ram, Bir Sahai, Ajuddhi. the voters of Bichhauli, cameon the tractor and hence I concluded that the tractor had gone toBichhauli. Wives of Mullu, Shri Ram, Bir Sahai and Ragghu werealso amongst the lady voters, whom I could recognise."

He was asked as to whether he had made a written complaint to thePresiding Officer and his answer was in the negative, because, accordingto him, he was 'sufficiently illiterate'. However he admitted that he had

E.L.R.l K.AJKNDRA STNGH YADAV V. CIUNDRA SEN AND OTHERS 261

asked Ram Sarup, the other polling agent for the Congress candidate, tomake a complaint in writing but that the latter did not comply with thedemand.

Bhajan Lai (P.W.7) is a voter from Nauli village who claims to havebeen transported in the said tractor and trolly. To the same effect isthe testimony of Gandhi (P.W.10), a voter hailing from Siani.

Shobaran Singh (P.W. 17) claims to be the owner of a tractor bear-ing registration No. UPT 2249 and that is the tractor which is alleged tohave transported voters to Nauli Polling Station on the day of the poll.According to the witness, the tractor was hired by the appellant himselfat village Amroli four days prior to the date of the poll for a sum of Rs.115/-, for the purpose aforesaid. The witness added that it was his father,Bhabhuti Prasad. who worked on the tractor as the driver on the date ofthe poll.

8. In relation to the transport of voters to the polling station at Khin-mini, the petitioner produced four witnesses. Narendra Singh (P.W.3) whowas the Presiding Officer at Polling Booth No. 89, testified to complaintexhibit P-3 having been made to him by the Congress candidate herselfat 2 P.M. on the date of the poll. The relevant portion of the com-plaint when freely translated would read thus :

" Radhey Shyam, resident of Bharatnagar andHari Shankar of Sarulapur who are the supporters of Rajendra SinghYadav arc bring the voters in a trolly attached to tractor No. RJD2606 having the flag and posters bearing the election symbol 'bicycle'."

The diary prepared by the witness is exhibit P-4 of which item No.22 is extracted below:

. •"22. serious complaints, A complaint regarding transpota-if any, made by Ihc tion of votes by Smt. Vidyavaticandidate. .Rathore. The same is attached

with diary."

The witness further stated that on enquiry made by him, the complaintwas found to be "true in all respects".

P.S. Gaharwar (P.W. 6), who presided at Polling Booth No. 88, statedthat complaint exhibit P-5 was made to him by the Congress candidateherself after it had been taken down by another person at her dictation.According to the witness he received the complaint at 2.10 P.M. ColumnNo. 19 of diary exhibit P-6 which he prepared mentions the receipt ofthe complaint. The main allegation made in the complaint was thatRadhey Shyam of Bharatnagar and Hari Shankar of Sarulapur were bring-ing voters in a trolly attached to Tractor No. RJD 2606, and that the trollybore a flag and posters carrying the election symbol 'bicycle'.

Pati Ram (P.W.8) is a voter from Khinmini village. He deposed thatRajendra Singh had sent a tractor-cum-trolly for transporting the voters,that the machine bore flags and poster with the symbol 'bicycle' depictedther.eon and that the witness was asked by Puttulal of his village "to cast

269 RAJENDRA SINGH YADAV V, CIIANDRA SEN AND OTHERS [VOL. LXIII

my vote after going to sil on the tractor". The witness added that Narot-tam Singh and Ulfal ;>nd some ladies of his mohalla had also accompani-ed him in the trolly.

The testimony of Mahesh Singh (P.W. 12) is to the effect that hewas the owner of tractor No. RJD 2606 and a trolly which were hiredfrom him by the appellant two days prior to the date of the poll for asum of Rs. 125/- so that the same could be used for the transport ofvoters which operation the witness claims to have carried out in personon the day of the poll.

9. After a consideration of the evidence detailed above. The learnedSingle Judge accepted it at its face value. He appears to have been spe-cially impressed with the fact that complaints in writing were made to theiPresiding Officers of three of the four polling booths comprised in thepolling stations at Nauli and Khinmini. After hearing learned counsel forthe parties at length we feel, however, that the evidence is not only insuffi-cient for holding the corrupt practice in question to have been made outbut should either not have been allowed to be brought on record or isuntrustworthy.

10. The first noteworthy factor in connection with the allegationsfound to have been established is that no voter of Nauli village was alleg-ed either in Schedule III or Schedule IH-A to have been transported to;Nauli Polling Station so that any attempt on the part of the petitionersto prove that such voters were so transported should have been scotchedat the threshold. It is well settled that allegation of corrupt practices haveto be made and proved like a charge in a criminal case and that what isnot pleaded cannot be allowed to be the subject matter of evidence, asalso that the allegtions must be proved beyond reasonable doubt and notmerely by way of preponderance of probabilities. Viewed in this context,the testimony of G.S. Srivastava (P.W.2) and the contents of complaintexhibit P-l must be ruled out as irrelevant inasmuch as they refer to thetransportation of voters from village Nauli alone which was not a matterin dispute between the parties and about which the petitioners—electorshad no right to lead any evidence whatsoever.

11. And in so far as the allegations in regard to voters from Bichhauliand Siani are concerned, we find that no complaint in writing v/as madeto the Presiding Officer of Polling Booth No. 122 even though the pollingagent of the Congress candidate asserts unequivocally that he asked hisco-polling agent named Ram Sarup to make such a complaint. RamSarup himself has not been produced in the witness-box and no explana-tion has been offered as to why he did not make a complaint regardingthe transportation of voters from Bichhauli and Siani in the tractor andtrolly alleged to have been driven by Bhabhuti Prasad. This single factoris sufficient to condemn the entire evidence produced on the point as anafterthought. We need hardly say that it is not at all difficult for a defeatedcandidate to produce a few witnesses in support of such allegations afterthe event, even though' the truth may be far different from what they state.In this connection we may specially make a reference to the testimony ofLalmani Singh (P.W. 4) who, in the witness box,, has glibly testified tovoters from Bichhauli and Siani having been transported to the NauliPolling Station which is an allegation conspicuous by its absence from

E.L.R.] RAJENDRA SINGH YADAV V. CHANDRA SEN AND OTHERS 263

complaint exhibit P-l. Had there been any truth in the allegation, thereis no reason why the complaint should have been confined, as it was, totransportation of voters from village Nauli alone. In any case, LalmaniSingh (P.W.4) would have immediately called upon the polling agent ofthe Congress candidate at the other booth located in the same polling sta-tion to make a complaint to the Presiding Officer of that booth in regardto the transportation of voters hailing from Bichhauli and Siani. Thatalso not having been done, the testimony of Lalmani Singh (P.W.4) mustbe characterised as untrustworthy. As it is. the entire oral evidence onthe point appears to us to be of that character for the reason that nowritten complaint was made to the Presiding Officer of Polling Booth No.122, regarding the transportation of voters from Bichhauli and Siani whichwe find wholly unproved.

12. The case of the appellant in relation to the transportation ofvoters to Khinmini Polling Station stands on a still stronger footing. Re-ference in this connection may first be made to the relevant contents ofSchedule III which appear in item No. 5 thereof. Column 3 of that itemstates the name of the village from where voters were transported as "fromadjoining hamlets" which on the face of it is an expression calculated not tosupply any information whatsoever about the place from where voters weretransported. It is vague in the extreme and infact borders on the meaning-less. Practically the same is true of the contents of the last column of the -item which gives the names of the electors transported to the pollingstation as "men and women" which expression hardly needs any comment.The inference which must be drawn from the contents of the item isthat when Schedule III was framed, the petitioners-electors had no know-ledge at all of any particular voters having been transported to khinminiPolling Station or off the place from, where they were picked up. The oralevidence produced gets a severe jolt from this circumstance alone andmust be characterised as a vain attempt to support a case concocted later.Besides, the item is so lacking in particulars that it should not have allow-ed to be proved at the evidence stage, nothing specifically having beendisclosed such as would give notice to the appellant as to what case hehad to meet.

As already stated, the learned Single Judge appears to have beenimpressed by the two written complaints, exhibits P-3 and P-5 in formingthe opinion that the oral evidence produced in support of the transportationof voters to Khinmini Polling Station was reliable. However, it furtherappears that he did not closely scrutinise the other connected documentaryevidence, of which diary exhibit P-4 is enough to shatter the case pro-pounded against the appellant. We have extracted above the contents ofitem No. 22 forming part of that diary. The item states that a complaintregarding transportation of voters by Smt. Vidyavati Rathore had beenmade to the Presiding Officer. The relevant entry in the item however isvery suspicious and appears to have been made by way of an over-writing,the original entry most probably being "None" which means that by thetime the diary was prepared in the first instance, no complaint had beenmade to the Presiding Officer. Naturally, the word "None" must havebeen inserted after the poll was over and if that be so, the over-writingmust be deemed to have been made later on and behind the back of theappellant's polling agents which would not only constitute a serious ir-regularity on the part of the Presiding Officer but also indicate thatall is not well with the complaint in the entry which furnishes a circum-

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264 RAJENDRA SINGH YADAV V. CHANDRA SEN AND OTHERS [VOL. LXIH

stance pointing to an attempt on the part of the Congress candidate andthe Presiding Officer to concoct evidence—a circumstance which casts athick cloud of suspicion on the veracity of the entire oral evidence pro-duced on the point.

We conclude that the transportation of voters to Khinmini PollingStation also remains unproved.

13. I'or the reasons stated we reverse the finding of the learned SingleJudge of the Allahabad High Court on the point of the commission ofthe corrupt practice described in clause (5) of section 123 of the Act.Consequently the appeal succeeds and is accepted and the impugned judge-ment is set aside. In the result the petition under section 81 of the Actis dismissed. The appellant shall have his costs in both the courts fromthe contesting respondents.

Appeal allowed

IN THE HIGH COURT OF JUDICATURE AT ALLAHABAD

RAJENDRA PRASAD GUPTAV

PRADEEP KUMAR BAJAJ AND OTHERS

(M P MEHROTRA, J.)

October 27, 1978

Constitution of India—Art. 173(6)—Age—Representation of the Peo-ple Act, 1951—Election Petition—Pleadings and proof—variance betweenthe pleadings and evidence led—effect of—adverse inference—Elected can-didate not producing the relevant evidence petitioner not examining him-self—evidence as td the age of the candidate—Evidence Act, 1872—Section79—Birth certificate issued under rules framed under the Registration ofBirths and Deaths Act, 1969 regarding the birth—presumptions.

The petitioner challenged the election of the first respondent to the U PLegislative Assembly from Rudrapur constituency on the ground that thefirst respondent was less than 25 years of age on the date of the nomina-tion, poll and declaration of the result and on account of the above theacceptance of his nomination paper was improper. In support of his casethe petitioner relied on the High School Certificate of the first respondent.In the written statement the first respondent stated that his date of birthwas wrongly mentioned in the High School Certificate but the facts andcircumstances as to how the wrong entry was made were not set out. Thefirst respondent also did not produce the relevant documents and evidenceto show how the age was recorded wrongly in various other documents.The first respondent relied upon the Birth Certificate issued under therules framed by the Bihar Government under the Registration of Birthsand Deaths Act, 1969.

The petitioner further did not examine himself as a witness in the case.

HELD : Allowing the petition—

(a) The election of the first respondent is liable to be set aside onthe ground that he was not of the age prescribed under Art. 173(b) ofthe Constitution for being a candidate;

(b) Although the pleadings and evidence led on behalf of the firstrespondent were at variance, no prejudice can be said to be caused tothe petitioner by allowing the respondent to lead such evidence. Therelevant evidence could not be ignored.

Bhagwati v. Chandramul : AIR (1966) SC 735

...relied on

(c) An adverse inference should be drawn against the first respondentas he tailed to produce such evidence in his possession which he was bound

265

266 RAJENDRA PRASAD GUPTA V. PRADEEP KUMAR BAJAJAND OTHERS [VOL. LXIII

to produce if he wanted his explanation regarding wrong entry of his dateof birth in the documents to be accepted.

Brij Mohan v. Priya Brat : AIR (1965) SC 282

: ...relied on

(d) No adverse inference can be drawn against the petitioner for notexamining himself as the petitioner had no personal knowledge about theage of the first respondent.

Balwan Singh v. Prakash Chanel : AIR (1976) SC 1187

...relied on

(e) Birth registers arc capable of being tampered with and in the factsand circumstances of the case the entry in the registers could not bebelieved.

Arnrit Lai Ainbalal Paid v. Himathbhai : AIR (1968) SC 1455

...relied on

(f) The age of the candidate disclosed in the electoral roll is notconclusive and is open to challenge.

R Chandran v. M V Mump pan : AIR (1973) SC 2362

;• ...referred to

Thirdu Johan v. Returning Officer : AIR (1977) SC 1724Saddik Mohemed Shah v. MT Saran and Others : AIR (1930) SC 57Hem Chand v. Pcarey Lai : AIR (1942) PC 64Murlidhar v. International Film Co : AIR (1943) PC 34Kanda v. Waghu : AIR (1950) PC 68Projan & Co v. Nagappa : AIR (1953) SC 235Sheodhari Rai v. Suraj Prasad : AIR (1954) SC 758Deoki Nandan v. Murlidhar : AIR (1957) SC 133MMB Chatholicos v. T Paullo Aver a : AIR (1959) SC 31Kishorilal v. MT Shali'ibai : AIR (1959) SC 1861Jugal Kishore v. Ratnakar : AIR (1976) SC 2130Gurbanla Singh v. Piara Ram : AIR (1960) PUN 614Udhav Singh v. M R Scindia : AIR (1976) SC 744Madan Gopal v. Mamrai : AIR (1976) SC 461Military Stores v. R L Kohli : AIR (1965) ALJ 298Ram Prasad v. State of Bihar : AIR (1970) SC 326'Kotiswar v. Paresh Nalh : AIR (1956) CAL 205Nagaraja Rao v. Koothappan : AIR (1941) Mad 602Hazura Singh v. Mohinder Singh : AIR (1937) Lahore 599Court of Wards Balrampur v. Lai Bahadur : AIR (1937) Oudh 353Pars Ram v. Shiv Chand : AIR (1968) Punjab 331A li Naur Khan v. Manik Chand : ILR 25 All. 90

E.L.R.] RAJENDRA PRASAD GUPTA V. PRADEEP KUMAR BAJAJ 267AND OTHERS

Imrit Chamar v. Sibdhari Pandey (17 Calcutta Weekly Notes 108Bibi Imambandi v. Haji Matatimddi : 15 C.L.J. 621MT Saidunnisa v. MT Rusya : AIR" (1931) All 307M A Khan v. Board of Revenue : (1962) A.L.J. 1094Paryaniba v. Bajirao : AIR (1963) Bom. 25Dalim Kumar v. Nandrani : AIR (1970) Cal 292S R Rehman v. W.T. Commissioner : AIR (1970) Patna 327Nanhak Lai v. Baijnath : AIR (1935) Patna 474Anil Krishna Basak v. Sailendra Nath : (69 C.W.N. 593)D Venkaia Reddy v. R Sultan : (1976) 2 SCC 455Bharat Basi v Gopi Nath : AIR (1941) AH 385Durga Shankar v. Raghuraj Singh : AIR (1954) SC 520P R Belagali v. B D Jalli : AIR (1971) SC 1348Baidyanath Panjira V. Sila Ram Mahto : AIR (1970) SC 314R M Ramaswamy v. B M Krishnamurthy : AIR (1963) SC 458G Mohiuddin v. Election Tribunal : AIR (1959) All 357;

referred to

ELECTION PETITION NO, 7 OF 1977

D S Sinha, for the petitioner

K S Choudhry and N S Jovshi. for respondent No 1

JUDGMENT

MEHROTRA J.—This petition arises out of the last General Election!o the LJ.P. Assembly held in June 1977. It is in respect of No. 202 •Rudrapui Assembly Constituency in the district of Deoria.

In brief, the relevant facts are these : The petitioner and the respon-dents nos. I to 7 contested in the said election from the said constituency.The polling look place on 12th June, 1977 and the counting of votes on15th June, 1977. The result was also announced on June 15,"l977 and therespondent no. 1 was declared to have secured 29,249 valid votes and thepetitioner secured 16,714 valid votes. Thus the petitioner lost by a marginof 12.535 votes. te

The petitioner claims that the election of the respondent no. 1 is voidand illegal and it should be so declared and it should be set aside. Hehas further claimed that he should be cleared duly elected.

It is claimed that on the date of nomination, poll and declaration ofthe result and even on the date of the filing of the election petition, therespondent no. 1 was less than 25 years of age and as such he was dis-qualified under Article 173 of the Constitution to be elected to the As-

sembly. The correct date of birth of the respondent no. 1 was claimed

268 RAJENDRA PRASAD GUPTA V. PRADEEP KUMAR BAJAJAND OTHERS [VOL. LXI1I

to be 14th September, 3955. This dale was shown in the official Gazette,dated 15th January, 1977, Part IV at page 273 where the High Schoolresult of the respondent no. 1 was published. The respondent no. 1 pass-ed his High School Examination of the Board of High School and Interme-diate Education, U.P. from Acharya Narendra Dev College, Patharawa(Deoria) Centre in the year 1971 and the said result was published in theaforesaid Gazette. It was further claimed that the said date of birthwas published by the said Board on the basis of the information whichwas supplied by the respondent no. 1 himself to the Board. The respon-dent no. 1 was stated to have been born at Bharauli Bazar, Deoria on14th September, 1955 and the fact of birth was registered with the Muni-cipal Board. Deoria by Shri Ram Autar, father of the respondent no1 on 16th September, 1955. It was further alleged that on the date ofnomination the respondent gave a false and wrong declaration about hisage in his nomination paper stating that he was ov'er 25 years of age.If he had not given the said declaration in the nomination paper abouthis age, his nomination paper would have been rejected on the date ofscrutiny itself. Thus, there was an improper acceptance of the nomi-nation paper and the result of the election was materially affected by suchimproper acceptance of the nomination paper of the respondent no. i.It was further claimed "that but for the invalid voles counted in favourof the respondent no. i, the petitioner would have been entitled to bedeclared as elected from No. 202—Rudrapur Constituency in districtof Deo'ia". The petitioner also alleged that it was during the courseof the fcounting that he came to know about the age of the respondentno-. 1 and then he raised a specific objection to the Returning Officerpointing out that the respondent no. 1 was less than 25 years of age andwas not qualified to be a candidate and as such his votes should berejected as invalid. The Returning Officer, however, did not pay anyattention to the said objection and observed that it was a matter forelection petit.!.3:1. The petitioner further claimed that he tried to file awritten objection but the Returning Officer declined to receive the same.

The respondent no. 1 alone contested the petition. He filed hiswritten statement. The allegations in the petition were denied. In briefit was claimed that she correct date of birth of the respondent no. 1 was11th April, 1949 and not 14th September, 1955 as alleged by the peti-tioner. On the basis cf. his correct date of birth, namely, 11th April,1949, the lespondent did r,ot suffer from any disqualification as on therelevant dates he was more than 25 years of age. His election was, there-fore, not void on the ground alleged by the petitioner. In para 13(vi) ofthe written statement it was stated :

"It is submitted that the answering respondent did not give the dateof birth as alleged in the paragraph under reply to the Boardof High School and Intermediate Education, Uttar Pradesh, Alla-habad. The correct position is that the date of birth of answeringrespondent was wrongly mentioned earlier which was reproduced onthe basis of the earlier certificate, hence an incorrect date was scribedin the said High School Certificate.

It was claimed that the date of birth published in the aforesaid Gazettewas incorrect. The respondent no. 1 next claimed that he was not bornin Deoria but was born in Katihar in the State of Bihar, where the parentsof the mother of the respondent no. 1 resided. The respondent no. 1

E.L.R.] RAJENDRA PRASAD GUPTA V. PP.ADEEP KUMAR BAJAJ 269AND OTHERS

then claimed that the date of 14th September, 1955 recorded in the Mu-nicipal Board, Deoria related to his younger brother, Dalip Kumar Bajajand not to him, namely, the respondent no. 1. In para 13(xi) of thewritten statement it was stated :

It is submitted that the answering respondent did not supply any dateof birth to the Board of High School and Intermediate Educationof Uttar Pradesh. As a matter of fact, the said date has been subs-cribed on the basis of earlier entry recorded wrongly. It is alsoincorrect to allege that the father of the answering respondent sup-plied the date of birth of the answering respondent as 14 th of Sep-tember, 1955."

Next, it was claimed that the respondent no. 1 had correctly statedhis. age in the nomination paper and there was no false declarationmade by him in his nomination paper. There was no improper acceptanceof his nomination paper by the Returning Officer. At the time. of thefiling of the nomination papers no objection was raised by any one to thenomination paper or on the date of the scrutiny of the nomination paperno objection was raised by any one to the nomination paper of the res-pondent no. 1 on the ground of age. No objection was raised on theground of age of the. time of the counting of votes and the allegation madeby the petitioner in his election petition claiming that he had raised suchan objection at the time of counting was incorrect. Even if for the sakeof argument it be accepted that the respondent no. 1 was not qualifiedto be a candidate in the said General Election, the petitioner, in anycase, could not claim to have been duly elected in the said election.Lastly, it was alleged in the additional pleas that the petition was notin accordance with section 83 of the Renresentation of the People Act(hereinafter described as the said Act), it was not within time and theverification of the petition was defective. There was non-compliance withthe provisions of section 117 of the said Act.

A set of twelve interrogatories was served on the respondent no. 1under Order XI, rules 1 and 4, C.P.C. The respondent no. 1 answeredthe said interrogatories on affidavit. In answer to interrogatory no. 1 res-pondent no. 1 stated :

"that the dale of birth of he deponent was wrongly mentioned as14th September, 1955 in t'~e examination form for High School Ex-amination of 1971. Tt so happened that in the transfer certificateissued by the Mahanth Triveni Parbat Inter. College, BishunpuraBazar, Deoria contains the wrong date of tvrth inadvertently."

In reply to the interrogatories nos. 2, 4 and 6 the respondent no. 1stated that he. did not remember the date of birth which he stated inthe admissiori form submitted by him for seeking admission in the In-termediate Arts, First Year, in the admission form submitted by himwhile seeking admission in the Sant Vinova Degree College, Deoria andin the examination form submitted by him for the examination of B.A.Part I of 1974 of the Gorakhpur University, Gorakhpur.

By interrogatory no. 8 he was asked :

"When did you come to know that your date of birth was incorrectlyrecorded in High School Certificate as 14th September, 1955."

270 RAJENDRA PRASAD GUPTA V. PRADEEP KUMAR BAJAJAND OTHERS [VOL. LXHI

His reply was :

" The deponent docs not remember the exact date when hecame to know about the wrong date mentioned in the High School "Certificate."

In reply to the interrogatory no. 3 the respondent no. 1 stated :

"That the date of birth of the deponent was shown in the HighSchool Certificate as 14th September, 1955."

In reply to interrogatory no. 5 the respondent no. 1 stated :

"The wrong date of birth was initially mentioned in the High SchoolCertificate issued by Mdhanth Triveni Parbat Inter. College, Bishun-pura Bazar, Deoria and on that basis the transfer certificate in SantVinova Degree College, Deoria contains the wrong date of birth."

This stand was reiterated in reply to interrogatory no. 7 also.

In reply to interrogatories nos. 9, 10, 11 and 12 whereby the peti-tioner desired the steps, if any, which the respondent no. 1 took to gethis alleged wrong date of birth corrected, the respondent no. 1 statedthat he consulted the Principal of Mahanth Triveni Parbat Inter. Col-lege, Bishunpura Bazar, Deoria for correcting the original transfer cer-tificate issued by the said institution. ' However, the Principal expressedhis inability to do so on the basis of the date given in the said transfercertificate other certificates had been issued by other authorities also.

On the basis of the pleadings of the parties the following issueswere framed :

1. Whether the respondent no. 1 was less than 25 years of ageOn the date of nomination, poll and declaration of the resultof the election in question? If sq, its effect?

2. Whether the nomination paper of the respondent no. 1 wasimproperly accepted and the result of the election in question wasmaterially affected by the alleged improper acceptance of hisnomination paper ?

3. Whether the petitioner received the majority of valid .votes andis he entitled to be declared elected?

4. To what relief, if any, is the petitioner entitled?

Issue nos. 1 and 2:

These issues can be conveniently dealt with together. The documen-tary evidence tendered on behalf of the petitioner is as follows :

(1) Ex. 1.— Ex. R-9: Birth certificate issued by the Municipal Board,Deoria which shows that a male child was bom to Shri RamAutar, son of Shri Bala Bux Marwari on 14th September, 1955at Bharauli Bazar, Deoria. The certificate also shows .that the

E.L.R] RAJHNDRA PRASAD GUPTA V. PRADLitP KUMAR BAJAJ 271AND OTHERS

said birth was registered on 16th September, 1955 in the officeof the Municipal Board, Deoria. The genuineness of this certifi-cate is admitted to both the parties. However, they differ asto whether this certificate relates to the respondent no. 1 or tohis younger brother, Dalip Kumar Bajaj.

(2) Ex. 2: U.P. Gazette, dated 15th January, 1977 at page 273, PartIV whereof appears the name of the respondent no. 1 and dateof birth is mentioned as 14th September, 1955. In the said Gazettethe High School result of 1971 was published. The respondentno. l's roll no. is mentioned as 544868 and he was shown to havepassed from Acharya Narendra Deo Intermediate College (Pa-thardeva), Deoria Centre. The genuineness of this documentis also admitted. However, the respondent no. 1 claims that thedate of birth shown therein is incorrect and his correct date ofbirth was 11th April, 1949.

(3) Ex. 3 : The original examination form of the respondent no. 1for appearing in B.A. Part I examination held in 1974. Thisdocument was admitted by the learned counsel for respondentno. 1 without any qualification or reservation. It is signed bythe respondent no. 1 and the date of birth of the respondentno. 1 is shown as 14th September, 1955.

(4) Ex. 4 : The original admission form of the respondent no. 1for seeking admission in B.A. Part 1 in Sant Vinova Degree Col-lege, Deoria. It is admittedly signed by him on the front pagebut the respondent no. 1 has denied that the body of the formwas filled in by him in his own handwriting.

(5) Exs. 5 and 6 : The original admission form of the respondentno. 1 seeking admission in Sewa Samiti Boy Scout Inter. Col-lege, Deoria. The signatures of Shri Ram Autar Bajaj at twoplaces in this form were admitted by the respondent no. 1 andthey have been marked as Exts. 5 and 6 respectively. Hehowever, denied that he had signed the said form or that theentries made in the form were in his handwriting. In the bodyof the form the date of birth of respondent no. 1 is stated as14th September, 1955.

Apart from the aforesaid documents, which have been exhibitedcertain other papers which have not been exhibited are as under :

(1) Paper no. A-56—A true copy of the relevant extract from theScholar's Register and Transfer Certificate Form issued by theSewa Samiti Banwari Lai Inter. College, Deoria relating to the res-pondent no. 1. It shows the date of birth of the respondentno. 1 as 14th September, 1955. This true copy was filed byShri Jokhu Prasad Singh (P.W. 4) who is the Principal of thesaid Intermediate College. He brought the original register andfiled the said true copy on the basis of the original document.However, the said witness stated that he did not know in whosehandwriting the original document was written and, therefore,the document could not be held to be proved.

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272 RA.IENDRA I'RASAD GUPTA K I'RADUil' KUMAR |VOL. LXIKBAJAj AND OTHERS

(2) Paper no, A-51—A true copy of the relevant extract from theScholar's Register and Transfer Certificate Fonn issued by theSewa Samiti Boy Scout Higher Secondary School Inter. College,Deoria relating to Ram Autar Agrawal, son of Bala Bux. It showsthe date of birth of Ram Autar Agrawal as 1st July, 1936 andalso states that he passed (he High School Examination in 1952in the second division. This true copy was filed by Shri JokhuPrasad Singh (P.W. 4), who is the Principal of the said inter-mediate College. As stated above, he brought the original re-gister and filed the said true copy on the basis of the originaldocument. This document also was not proved on account ofthe aforesaid reasons.

(3) Paper no. A-63—A true copy of the relevant extract from theLedger Register issued by the Sant Vinova Degree College,Deoria relating to the respondent no. 1. It shows the date ofbirth of respondent no. 1 as 14th September, 1955. This truecopy was filed by Dr. B. D. Mishra (P. W. 3) who is the officia-ting Principal of the Sant Vinova Degree College, Deoria. How-ever the said witness stated that he dfd not know in whose hand-writing the original document was written and, therefore, thedocument could not be held to be proved.

(4) Paper no. A-65—Nagariko Ka Rashtriya Register prepared inthe year 1951, in respect of Ward no. 7, Bharauli Bazar, Deoria.It was summoned from and filed by Shri Khushi Ram (P. W. 1)who is the Tehsildar at the Tahsil Sadar, Deoria. At page 85of this register the names of the inmates of house no. 296 arementioned. Inter alia, the name of (Dhanlal), son of ChandraLai, Bala Bux, son of Dhan Raj (Dhanlal) Sita Ram, son ofBajrang Lai, Murlidhar, son of Bajrang Lai, Ram Autar, son ofBala Bux etc. are mentioned. In column no. 3 of the Registeragainst the name of Ram Autar the figure T is there and ShriKhushi Ram (P. W. 1) stated that the said figure meant that RamAutar was then not married. The age of Ram Autar is shownas 15 years. Further, the entries do not include the name ofSita Devi who is the mother of the respondent no. 1. On thebasis of the said entries it was sought to be argued that in 1951Ram Autar, father of the respondent no. 1 was aged only 15years and he was not even married. Therefore, there could beno question of the date of birth of the respondent no. 1 beins:11th April, 1949.

(5) U.P. Gazette, dated 13th September, 1952, in Part IV whereofthe result of High School examination held in 1952 was publish-ed. It shows that one Ram Autar Agrawal passed the HighSchool from S.S. Boys Scout Higher Secondary School, Deoriaand obtained Second Division. His date of birth is shown as1st July, 1936.

The nature of the oral evidence of the petitioner is as follows. [Aftersetting out details of such evidence the judgment proceeded] :

Now, 1 shall notice the rival contentions of the learned counsel for theparties,

E.L.R.] RAJENDR.A PRASAD GUPTA V. PRADEEP KUMAR BAJAJ 273AND OTHERS

Shri D. S. Sinha, learned counsel for the petitioner, accepted that theinitial burden of proof to establish that the respondent no. 1 was agedless than 25 years on the relevant date, was on the petitioner. However,in view of the admissions made by the respondent no. 1 himself in variousdocuments brought on the record (wherein the respondent no. 1 statedthat his date of birth was 14th September, 1955). the onus had shiftedto the respondent no. 1 to explain his admissions. According to thelearned counsel this petition should be held to be governed by the ratiolaid down in Thirdu Johan versus Returning Officer (AIR 1977 S.C.1724) and the earlier Supreme Court pronouncement reported in BrijMohan versus Priva Brat (AIR 1965 ,S.C. 282) stands distinguished fromthe present case.

Sri V.K.S. Chowdhry and Sri N.S. Joshi, learned counsel for therespondent no. 1, disputed the said contention and submitted that theinstant election petition fell in the line of the earlier Supreme Court pro-nouncement and not in the line of the latter Supreme Court pronounce-ment. It was contended that in AIR 1977 SC 1724 there was no expla-nation whatsoever to explain the admissions but in the instant case it wascontended that a plausible explanation was forthcoming from the res-pondent no. 1 in respect of his admission. It was pointed out that inAIR 1965 SC 282 the Court observed—

' Taking all the circumstances into consideration we are of opinionthat the explanation may very well be true and so it will not beproper for the Court to base any conclusion about the appellant'saac on the entries in these three documents, viz. Ex. 2, Ex. 8 and

.Ex. 18."

It was contended that in the said observation the Supreme Court haslaid down the ratio that it was not necessary that the explanation mustbe held to be true. It will be sufficient if the explanation '"may very wellbe true".

Sri Sinha next contended that there was a striking variance between thepleadings of the respondent no. 1 and the oral evidence tendered by himand such oral evidence which was at variance with his pleadings shouldbe disregarded. In this connection he also referred to the applicationmoved by him on behalf of the petitioner, dated 24th August, 1978 on therecord. In this application a prayer was made that the respondent no. 1should not be permitted to lead evidence to the effect that a wrong dateof birth was deliberately got recorded by understanding his real age by5 to 6 years, with a view to secure his admission in class VI in MahanthTriveni Parbat Higher Secondary School, Bishunpura district Deoria. Itwas pointed out that this was not his case in the written statement andthat in his reply to the first interrogatory, the respondent no. 1 hadstated that ';in the transfer certificate issued by Mahanth Triveni ParbatInter College, Bishunpura Bazar, Deoria contains the wrong date of birthinadvertently".

On the said application I passed an order on the same day that theevidence of the respondent no. I would continue to be recorded subjectto the objection of the petitioner, Sri Sinha placed reliance on the follow-ing authorities in support of his contention :

I. Saddik Molu'med Shah versus Ml. Saran and others (AIR 1930S.C. 57).

274 RAJENDRA PRASAD GUPTA V. PRADEEP KUMAR tvOL. LXIIIBAJAJ AND OTHERS

2. Hem Chand versus Pearey Lai (AIR 1942 P.C. 64).

3. M uralidhar versus International Film Co. (AIR 1943 P.C. 34).

4. Kanda versus Waghu (AIR 1950 P.C. 68).

5. Projan and Co. versus Nagappa (AIR 1953 S.C. 235).

6. Sheodhari Rai versus Sum Prasad (AIR 1954 S.C. 758).

7. Deoki Nandan versus Murlidhar (AIR 1957 S.C. 133).

8. M. M. B. Chatholicos versus T. Paullo A vent (AIR 1959 S.C. 31).

9. Kishori Lai versus Mi. Chaltibai (AIR 1959 SC 504).

10. Bhagai Singh versus Jaswant Singh (AIR 1966 S.C. 1861).

11. Jugal Kishore versus Ratimkar (AIR 1976 S.C. 2130).

12. (J968 Doabia's Election cases 162).

13. Gurbontd Singh versus Piara Ram (AIR 1960 Punjab 614).

Learned counsel for the respondent no. 1. however, contended thatthere was no variance between the pleadings and the evidence led onbehalf of the respondent no. 1. The respondent no. 1 was not requiredto plead evidence in his pleadings. Reliance was placed on the followingcases :

1. Udhav Singh versus M. R. Scindis (MR 1976 S.C. 744).

2. Madan Gopal versus Mamrai (AIR 1976 S.C. 461).

3. Military Stores versus R. L. Kohli (1965 A.L.J. 298).

Learned counsel for the respondent no. I on the other hand, con-tended that there was variance between the pleadings of the petitionerand the oral evidence tendered by him. There was no pleading regardingthe father of the respondent no. 1, Shri Ram Autar, regarding the motherof the respondent no. 1 Srimati Sita Devi and regarding the Nagariko KaRastriya Register. However, in the evidence the petitioner sought to ad-duce evidence in respect of the age of Shri Ram Autar and Srimathi SitaDevi and in respect of the said register.

Learned counsel for the petitioner next submitted that the best docu-mentary evidence had been led on behalf of the petitioner and it was notnecessary for the petitioner to examine himself in the witness-box when thepetitioner personally knew nothing about the date of birth of the res-pondent. Reliance was placed on Bcdwan Singh versus Prakash Chand(AIR 1976 S.C. 1187).

On the other hand, learned counsel for the respondent no. 1 con-tended that there was no oral evidence from the side of the petitioner insupport of his case that the correct date of birth of the respondent no. 1was 14th September 1955. Further, there was no oral evidence from hisside to show that the respondent no. 1 was bom at Deoria and not atKaiihar. On the other hand, counsel pointed out that substantial oralevidence had been led on behalf of the respondent no. 1 in support of

E.L.R.] RAJENDRA PRASAD GUPTA V. PRADEEP KUMAR BAJA 275AND OTHERS

the latters case that he was born at Katihar and not at Deoria and thathis date of birth was I lth April, 1949 and not 14th September, 1955.

Counsel next made rival contentions as to whether paper nos. A-56,A-57, A-63 and A-65 mentioned above should be accepted or not. WhileShri Sinha sought to invoke the aid of section 90 of the Evidence Act asamended in U.P. which lays down a period of 20 years instead of 30years regarding the presumption to be drawn in respect of ancient docu-ment, counsel for the respondent no. 1 contended that the said sectioncould not be invoked in the facts and circumstances of this case. In sup-port ol' this contention reliance was placed on the following cases :

1. Rum Prasnd versus Slate of Bihar (AIR 1970, SC. 326).

2. Kotiswur versus Paiesh NalJi (AIR 1956 Cal. 205).

3. Nagaraja Rao versus Koothappan (AIR 1941 Mad. 602).

4. Hazura Singh versus Mohinder Singh (AIR 1937, Lahore 599).

5. Court of wards Balrampiir versus Lai Bahadur (AIR 1937, Oudh353).

Learned counsel for the petitioner also sought to contend that the afore-said papers were public documents and, therefore, they did not needany formal proof. This contention was also disputed by the learned coun-sel for the respondent no. 1. Counsel for the respondent no. 1 also con-tended that so far as the aforesaid paper no. A-65 Nagariko Ka RashtriyaRegister is concerned, the same was inadmissible in evidence under sec-tion 15 of the Census Act, 1948. The counsel for the petitioner disputedthese contentions and placed reliance on Pars Ram versus Shiv Chand(AIR 1968 Punjab 331). The relevant entries at page 85 of the saidregister were alleged to be manufactured for the purposes of this peti-tion. It was pointed out that there was the difference in house no.while in the said register house number was stated as 296, the other evi-dence on the record shows that the house number of the respondent no. 1was 513. Further, the fact that the name of Sita Devi did not appear inthe said register could not be treated as evidence of the fact that she wasnot there in the said family in 1951. While the existence of an entry,under section 35 of the Evidence Act is relevant under the said provi-sion, the absence of such an entry cannot be treated to be relevant, un-der the said provision. Reliance was placed on the following cases :

1. AH Nasir Khun versus Manik Chand (L.L.R. 25 All. 90).

2. (56 C.L.J. 389) (There is no such case).

3. limit Chatnar versus Sibdhari Pandey (17 Calcutta Weekly Notes108).

4. Bibi Imainbundi versus Haji Malaliauddi (15 C.L.J. 621).

Counsel for therespondent no. 1 further pointed out that there wasno oral evidence from the side of the petitioner which would connect theidentity of the persons concerned named in the documentary evidencewhich was led from his side. Such oral evidence was bound to he Jedto connect the documentary entries with the father of the respondent

276 RAJENDRA PRASAD GUPTA V. PRADEEP KUMAR [VOL. LXJ1IBAJAJ AND OTHERS

no. I Shri Ram Autar Bajaj and with the respondent no. 1. himself. Re-liance was placed on the following cases :

1. Mt. Saidutmisa versus Mt. Rusya (AIR 1931 All. 307).

2. M. A. Khan versus Board of Revenue (1962 A.L.J. 1094).

3. Paryaniba versus Bajirao (AIR 1963 Bora 25).

Learned counsel lor the petitioner questioned the genuineness as wellas the admissibility of Ex. Rl , Ex. R-7 and Ext. R8 and of Ex. Cl Re-garding Ex. Rl it was pointed out that the name of the respondent no.I, Pradeep Kumar Bajaj was there in the document and in genuine birthregister the name of the new born baby can never be expected in casethe birth, is registered immediately or shortly after the date of birth. Itwas pointed out that in Ex. Rl the date of registration of birth is givenas 12th Aprii, 1949 i.e. the very next day after the alleged date of birthdated llth April, 1949. Counsel drew attention to the statements ofRadhey Shyam Goeka (R. W. 5) and of Srimati Rita Devi (R. W. 6)from which it appears that the boy was named as Pradeep Kumar afterabout the expiry of six months after the date of his birth. It was, there-fore, argued' that on 12th Aprii, 1949 when the said birth was allegedlyregistered, the baby's name could not be given as Pradeep Kumar andthis fact clearly shows that Ex. Rl was a fake document. The documentwas said to suffer from many other infirmities also. Counsel for the peti-tioner a'so adversely commented on the fact that the special officer of theKatihar Municipality was ultimately not put in the witness-box eventhough he had been summoned along with the relevant document andhe was present in the court on the date of evidence. It was suggestedthat this was deliberately done because otherwise the interpolation inthe original birth register would have come to light, counsel in this con-nection placed reliance on Anvil Lai Amba Lai Patel versus Himathbhai(AIR 1963 S.C. 1455) where it was found that the birth registers hadbeen tempered with.

On the other hand, counsel for the respondent no. I contended thatthere was a presumption about the correctness of Ex. Rl and the peti-tioner had failed to rebut the said presumption. Reliance was placedon the following cases :

1. Dalim Kumar versus Nandrani (AIR 1970 Cal. 292).

2. S. R. Rehman versus W. T. Commissioner (AIR 1970 Patna 327).

3. Nanhak Lai versus Baijnath (AIR 1935 Patna 474).

4. Anil Krishna Basak versus Sailendra Nath (69 C. W. IS. 593).

It was further pointed out that counsel for the petitioner had notdenied Ex. Rl when he made his endorsement of admission or denialon the said document. He merely endorsed "seen" on the said document,it was also pointed cut that the petitioner himself in his list of witnesseshad named special officer, Katihar Municipality with the relevant docu-ments and thus lie himsjl!' warned lo examine the said witness but he didnot do so and a presumption should be drawn against him. It was also

E.L.R.] RAJENDRA PRA5AD GUPTA r I'RADUEP KUMAR BAJAJ 277AND OTIUiRS

submitted that the mere fact that the name of Pradeep Kumar was therein Ex. Rl should not lead to the inference that the document was notgenuine. It might be thai the person who applied for the certified copymight have put down the name of Pradeep Kumar in his application andtherefrom it travelled into the certified copy which was issued on suchapplication.

Regarding the two horoscope Ex. R7 and Fix. R8 counsel for thepetitioner contended that even from their looks they clearly showed that.they were not genuine documents. Ex. R7 did not look to be about 29years old which it purported to be. The ink in which the horoscopes werewritten is absolutely shining and the writing do not appear to be old. Itwas further pointed out that the vermillion mark in both the horoscopesarc almost similar and they do not look to be o^i It was then point-ed out that in none of the said two horoscopes the time of birth wasstated. It was contented that ordinarily the time of the birth is statedin horoscopes because the position of stars which is given in the horos-cope is on the basis of the time of birth of the baby. It was then pointedout that in both the said documents there was intrinsic evidence to showthat they were prepared for the purposes of this petition. In both the docu-ments the word 'Bajaj' invariably appears with the names of Bala Bux andRam Autar; further, in Ex. R-7, the baby is described as 'Prathama Putra'(first child) and in Ex. R-8 the baby is described as Dwitiya Putra (se-cond child). It was contended that never in genuine horoscopes it isstated that the child is the first born or the second born or the thirdborn. It was also pointed out that in Ex R-7 the son has been shownand the Rashi mentioned is Mesh Rashi the figure T stands for MeshRashi. However, a reference to the Kashi Panchang of Pt. GaneshApa Ji would show that in April 1949 the' sun entered the Mesh Rashi on13th April, 1949 and not before that. Therefore, it was clear that thedate of birth was disclosed in the said horoscope, namely, 11th April,1949 stood contradicted by the aforesaid aspect of the matter. The docu-ment was, therefore, clearly shown to be manufactured and not a genuineone. It was also contended that in the two documents the place of birth hadnot been mentioned and it was bound to be mentioned there. Even if it isnot mentioned in the horoscope the person who prepares the horoscopemust know the place of birth with a view to enable him to prepare thehoroscope showing the planetary position at the time and place of birth.It was pointed out that R.W. 3, Avadh Behari Sharma, stated that hislather did not make any note about the place of birth. This was clearlyunbelievable. Counsel placed reliance on :

1. D. Venkata Reddhy versus R. Sultan [(1976) 2 S.C.C. 455], and

2. Bharat Bad versus Gopi Nath (A.I.R. 1941 All. 385).

On the other hand, learned counsel for the respondent no. 1 con-tended that the position of the sun might have been wrongly shown inthe horoscope but that could be a genuine mistake and does not neces-sarily lead to the inference that the document was not genuine. The othercontentions of the counsel for the petitioner in this connection were alsorepelled.

So far as Exs. R-2, R-3 and R-4 were concerned, which arc certifiedcopies of extracts from the electoral rolls in lespcct of (he respondent

278 RAJENDRA PRASAD GUPTA V. PRADCEP KUMAR [VOL. LXJliBAJAJ AND OTHERS

and. his younger brother Dalip Kumar Rajaj, counsel made rival con-tentions regarding the probative value of the said documents on thequestion of the date of birth. Counsel for the petitioner placed relianceon :

1. Durga Shanker versus Raghuraj Singh (A.I.R. 1954 S.C. 520).

2. R. Chanchan versus M. V. Marappan (A.I.R. 1973 SC 2662).

3. Unreported decision in Election First Appeal no. 1807 of 1976Rajendra Kumar Singh versus Shishupal Singh decided on 21stFebruary, 1977 by M. N. Shukla. J: and

4. Unreported decision of Gopi Nath, J., dated 29th October, 1975in Hira versus Dadan, First Appeal no. 17 of 1974.

On the other hand, counsel for the respondent no. 1 placed relianceon the following cases :

1. R. Chcmdnm versus M. V. Marappan (A.I.R. 1973 S.C. 2362).

2. P. R. Belgali versus B. D. Jalti (A.I.R. 1971 S.C. 1348).

3. Baidyanath Panjira versus Sii'a Ram Mahto (A.J.R. 1970 S.C. 3i4).

4. R. M. Ramaswamy versus B. M. Krishnanutrthy (A.I.R. 1963 S.C.458).

5. G. Mohiuddin versus Election Tribunal (A.I.R. 1959 All. 357).

6. Writ Petition no. 3198 of 1975 Brahmanand Singh versus RelumingOfficer decided by Gulati J. on 23rd May, 1975.

Counsel for the petitioner contended that the 'Sookha' disease fromwhich the respondent no. 1 was alleged to have suffered in his child-hood was equivalent to Ricets and the said disease could not last up tothe age of 17 years as was sought to be established in the oral evidenceof the respondent no. I. ]n (his connection reliance was placed on the fol-lowing :

1. Davidson and Maclcod, IOth Ed., 1972 : The Principles andPractice of Medicine, pages 152—155.

2. Savill's system of Clinical Medicine (Fourteenth Ed.), 1964.page 922.

3. Dr. M. Upadhya. An introduction to Practice of Medicine (1973),page 272.

4. The dictionary meaning of "rickets' in Webster 3rd New Inter-national Dictionary (1976), Vol. 11 page 1952.

5. A consolidated Glossary of Technical Terms, published by theCentral Hindi Directorate. Ministry of Education, Government ofIndia (1962), page 1078, column 1.

E.L.R.] RAJENDRA PRASAD GUPTA V. PRADEEP KUMAR 279BAJAJ ANfr OTHERS

On the other hand, counsel for the respondent no. 1 disputed thatthe disease of 'Sookha' was equivalent to Rickets. It was contended thatit was equivalent to the disease known as 'Marasmus'. Reliance wasplaced on the :

1. English-Hindi Dictionary published by the Hindi Sahitya Sam-melan known as Manak Angreji-Hindi Kosh.

2. English-Hindi Dictionary by Dr. Buike.

3. The dictionary meaning of the word 'Marasmus' in WebsterDictionary, U Vol., page 1380.

4. Medical Encyclopaedia in Reader's Digest Family Health Guide.

Counsel for the petitioner next contended that adverse inferenceshould be drawn against the respondent no. 1 due to his failure to pro-duce evidence which he should have, in the circumstances of the case,produced in the court. In this connection, he referred to the non-pro-duction of the paternal and the maternal grand father of the respondentno. 1 who are admitted to be alive, non-production of the medical prac-titioners who are said to have treated him in his childhood in respectof the alleged disease of 'Sookha' and non-production of the originalapplication and declaration which Ram Autar Bajaj, the father of therespondent no. 1 is said to have filed in 1966 in Mahanth Triveni ParbatHigher Secondary School while seeking to get the respondent no. 1 ad-mitted in the said institution in the sixth class and the non-productionof the transfer certificate said to have been issued to the respondent no. 1by the said institution. Lastly, it was also contended that there was thefailure to produce all the horoscopes of the other brothers of the respon-dent no. I and Dalip Kumar Bajaj.

Counsel also referred to the contradictory nature of the statementsmade by the witnesses of the respondent no. 1.

On the other hand, counsel for the respondent no. 1 submitted thatthe circumstances of the case supported the case of the respondent no. 1that his age was deliberately understated at the time of his admission and,therefor the wrong date crept in the subsequent documents. Inter alia,it was pointed out that no objection was taken to the nomination paperof the respondent no. 1 at the time of the scrutiny of nomination papersbefore the Returning Officer. Further the probability that the respondentno. 1 was* born at Katihar and not at Deoria is there in view of a customthat the delivery of the first born child ordinarily takes place at tneplace of the parents of the mother.

Next, it was pointed out that the fact that the respondent no. 1 hadto be admitted in an educational institution at Bishunpura even thoughthe entire family of the respondent no. 1 resided at Deoria, which wasat a distance of about 16 or 17 miles made the case of the respondentno. 1 probable that it was on account of ihe difficulty in getting the res-pondent no. 1 admitted in any institution at Deoria due to his over-age.

Next, it was suggested that the date of admission as mentioned inEx. C-I was 14th September, 1955 and the date of birth of the respondent

37_3 ECI ND/85

280 RAJENDRA PRASAD GUPTA V, PRADEEP KUMAR BAJAJ ANDOTHERS | VOL. LXII

no. I as shown in the said document was 14th September, 1955. It wasprobably done to have full complete ! I years of age of their respondentno. 1.

Lastly, it was pointed out that Srimati Sita Devi, according to herstatement, had in all ten conceptions and taking into consideration theintervals stated by her, the age which she had stated in the witness-boxwas likely to be the correct age and it was not likely that she would beless than 5 or 6 years as sought to be suggested from the side of the pe-titioners.

Counsel for the respondent no. 1 made a point that the EducationCode of U.P. is no statutory but is only in the nature of a Code of depart-mental directions which are directory in nature. Reliance was placed onDhata Intermediate College versus Brahma Nand Singh (1975 A.L.R.655).

Counsel for the respondent no. 1 also submitted that no declarationwas needed for starting a press as was sought to be argued by the counselfor the petitioner a declaration was needed only when some periodicalwas sought to be published.

Before I examine the evidence on the record I should like to dealwith the question of the variance between pleadings and evidence raisedby the learned counsel for the parties. In the written statement the respon-dent no. 1 undoubtedly did not say anything about the alleged circum-stance in which he was got admitted in Mahanth Triveni Parbat HigherSecondary School in 1966 on the basis of an understatement of age.Nothing was said about the disease from which he was alleged to sufferin his childhood. However, in para 13 (vi) of the written statementit was stated. "The correct position is that the date of birth ofanswering respondent was wrongly mentioned earlier certificate,hence an incorrect date was scribed in the said High School certificate.It seems to me that the foundation for the case of the respon-dent no. 1 is contained in the said sentence but L must be admitted thatnecessary details and facts which should have been set out in the writtenstatement were not set out. In my opinion, counsel for the respondentno. 1 are not right in contending that the facts concerning the circum-stances in which the respondent no. 1 had to be taught at his home inview of his alleged disease and the circumstances in which he had tobe got admitted in the educational institution at Bishunpura Bazar, Deoria,are merely in the nature of evidence of the respondent no. 1. Thesefacts had to be set out in support of the foundation which is containedin the aforesaid sentence which has been extracted from the written state-ment. However, I believe that the Supreme Court in Bhagwati versusChandramaul (A.I.R. 1966 S.C. 735) has laid down that in the matterof construction of pleadings the decisive consideration should be that noparty should be caused any prejudice in leading evidence in respect of thecontroversies between the parties. A too strict view of the pleadingsshould not be taken and while there is the non-mentioning of importantfacts which should have been stated in the written statement, I do notthink that there can be said to be a material contradiction or variancebetween the pleading and evidence in this case such as to justify a dis-regarding of evidence led on behalf of the respondent no. 1 regarding

E.L.R.] RAJENDRA PRASAD GUPTA V. PRADEEP KUMAR 281BAJAJ AND OTHERS

the aforesaid matter. It has further to be emphasised that the petitionerhad led any oral evidence on the ground that he knew nothing aboutthe facts and circumstances relating to the claim of the respondent no. 1that his date of birth was wrongly recorded in the documents. In such asituation, it cannot be said that any prejudice has been caused to himin the matter of leading evidence by the fact that the aforementionedfacts and circumstances were not stated in the written statement of therespondent no. 1. It is not necessary to discuss the various cases whichwere cited at the Bar and to which I have made a reference above. Thesaid cases were decided on their own facts and circumstances of the caseand naturally the nature of variance difference from case to case. I alsohold that the petitioner was not bound to set out in his petition any factregarding the age of Sri Ram Autar, father of the respondent no. 1 orregarding the age of Srimati Sita Devi, the mother of the respondent no. 1as sought to be contended by the counsel for the respondent no. 1. Thesefacts were not necessary to be set out in the election petition and it wasopen to the petitioner to lead evidence in respect of the said questionswithout saying anything about the age of the father and the mother ofthe respondent no. 1 in the election petition. •

The foresaid application of the petitioner, dated 24th August, 1978 will,therefore, stand rejected in so far as it prays that certain parts of theoral evidence of the respondent no. 1 should be disregarded and not readin evidence. However, the Court will be entitled to draw adverse infe-rence against the respondent no. 1 on account of his failure to set outthe aforesaid facts and circumstances when he should have stated them inbis pleadings. The Court can take the said aspect of the matter into con-sideration while evaluating the probative value of the oral evidence ledby the respondent no. 1.

I shall first take up the oral evidence led by the parties.

So far as the petitioner's oral evidence is concerned, there is nothingin it which throws light on the controversy about the correct date of birthof the respondent no. 1. Actually the witnesses were summoned to producedocuments and the petitioner's main reliance is on the admissions of therespondent no. 1 contained in such documents. None of the petitioner'switnesses has had any personal knowledge in respect of the controversiesbetween the parties or in respect of the contents of the documents whichwere brought by them and produced in the Court. It is, therefore, notnecessary to advert their statements.

So far as the oral evidence of the respondent no. 1 is concerned I haveno hesitation in holding that it has not inspired any confidence in me. Thewitnesses have not deposed in a natural manner and they clearly appearto be tutored in respect of the age of the respondent no. 1, in respect ofthe name of the father or the grandfather being described as Ram AutarBajaj and Bala Bux Bajaj and not as Ram Autar Agrawal or Bala BuxMarwari and in respect of the alleged disease of "Sookha" from whichthe respondent no. 1 was said, to be suffering. I shall refer to certaincontradictions and inconsistencies in respect of the statements madeby the witnesses of the respondent no. 1. The Respondent no. 1as R.W. 1 stated that his father Ram Autar Bajaj and grandfatherBala Bux Bajaj were not described in any other manner. He wentto the extent of saying "if my said grandfather is described as Sri

98?. RAJENDRA PRASAD GUPTA V. PRADEEP KUMAR BAJAJ ANDOTHERS [VOL. LXII1

Bala Bux Marwari then it will be a misstatement. He is always describedas Bala Bux Bajaj''. This statement is clearly, contradicted by Ex. 1which is equivalent to Ex. R. 9. The document is thus a common docu-ment of the two parties. It is the birth certificate issued by the DeoriaMunicipal Board and shows the date of birth of child to Shri Ram Autar.The parties, as has already been stated above, are at contention as towhether this birth certificate relates to respondent no. 1 or his youngerbrother, Daiip Kumar Bajaj but apart form this contention, there is noother difference between the parties in respect of this document. It isimportant that there the word "Bajaj" is missing from the name of RamAutar. He is simply described as Ram Autar. Further the grandfatheris described as Bala Bux Marwari. The testimony of R.W. 1 thus standsdirectly falsified.

testimony of the mother R.W. 6, Srimathi Sita Devi, also attracttiie same criticism. She also made a fetish of the word 'Bajaj' and wentto the extent of stating in cross-examination : "My father-in-law is notknown as Bala Bux Marwari". This great anxiety on the part of thesewitnesses to snow that the father and the grandfather of the respondentno. 1 were always described as Ram Autar Bajaj and Bala Bux stemsfrom the fact that the petitioner was contending that the father of therespondent no. 1 was Ram Autar Agrawal who passed his High Schoolexamination in 1952 as testified to by the U.P. Government Gazette, dated13th September, 1952 referred to above. In the said document the dateof birth of Ram Autar Agarwai is shown as 1st July, 1936 and, there-fore, apart from and in addition to the legal objections raised to theiadmissibility of the said document, effort was made to establish in theoral evidence that the father and the grandfather were not described inany manner except as Ram Autar Bajaj and Bala Bux Bajaj. The arti-ficial and false nature of the oral evidence is too obvious to be disre-garded.

R. W. 1 contradicts R. W. 2 regarding the educational institutionwhere Dalip Kumar read. While R. W. 1 says that his younger brotherDalip Kumar also read in the Bishunpura institution where the formerclaimed to have been admitted R. W. 2 Babunandan Misra stated thatDalip read in an educational institution in the city of Deoria.

R.W. 1 contradicts R. W. 4 in respect of a letter which was allegedto have been handed by the former to the latter. R. W. 1 stated in hisstatement that he handed over the letter to R. W. 4 Shri Jagdish PrasadPandey at the railway station, Lucknow, the letter was allegedly ad-dress to Shri A.N. Singh, counsel for the respondent no. 1 for being deliveredto the said counsel. The witness also stated that at the said time fcis youngerbrother was also going from Lucknow to Allahabad, but he preferred to givethe letter to Shri Pandey Ji because the latter was an elderly person and theyounger brother was aged only about 18 years, and was coming to Allahabadfor the first time. R.W. 4, on the other hand, says nothing about any of hisvisit fiom Lucknow to Allahabad; or of any letter having been entrustedto him by the respondent no. 1. at Lucknow for being delivered to ShriA. N. Singh at Allahabad. The said witness said that a letter was handedto him by~ the respondent no. 1 at Deoria for being handed to Shri A. N.'iingh, at Allahabad, of course,"the witness at the subsequent stages did

E.L.R.] RAJENDRA PRASAD GUPTA V. PRADEEP KUMAR 283BAJAJ AND OTHERS

talk about another letter which was given to him earlier for being deli-vered to the said counsel at Allahabad but even then he did not saythat the alleged earlier letter was given (o him at Lucknow. A veryimportant statement which was made by R. W. 1 was that his youngerbrother Dalip Kumar also got admitted in the same Bishunpura institu-tion at the age of about 15 of 16 years. The witnesses, however, addedthat there was no under statement regarding the age of Dalip Kumar andthe laters correct date of birth was recorded in the institution. If thisbe so, the entire case of the respondent no. 1 that an under statement ofage by five or six years had to be made at the time of his admissionin the Bishunpura institution falls to the ground. If Dalip Kumar couldbe admitted in the said institution despite his being overage and with-out the necessity of any under statement of age, it is not comprehen-siable why respondent no. 1 could not be similarly admitted in the saidinstitution by stating his correct age. Another inconsistent statementwhich R. W. 1 made was regarding the first time that he came to knowthat the date of birth of Dalip Kumar was 14th September, 1955. In thewritten statement, which was filed on 12th December, 1977, the respon-dent no. 1 stated in para 13(ix) and in para 13(x) that 14th September,1955, was the date of birth of his younger brother, Dalip Kumar. In hisstatement in the witness-box, however, he stated that he came to knowof the said date of birth of his said younger brothers for the first timewhen the certified copy Ex. R 9 was obtained by his younger brother andshown to him. Ex. R 9 was obtained on or after 6th February, 1978 asis clear from the said certified copy. Here, 1 should also like to saythat the kind of special effort, which R.W. 1 made in the witncss-boxi toexplain away the word "in advertently"' used by him in his answer to thefirst interrogatory did not impress me. in the oral statement he stated :

"By the expression 'inadvertently' used in para 1 of my affidavit(A-41), filed in answer to the interrogatories which was served onme in this petition what was meant was that the fact that the timewhen my admission was sought in the Mahanth Triveni Parvat Inter.College in the 6th class it was not revealed to any one in the saidinstitution that my real age was 17 years. In the said affidavit thesentence 'it so happened that the transfer certificate issued by theMahanth Triveni Parvat Inter College, Bishunpura Bazar, Deoriacontain.-, a wrong date of birth' 'inadvertently" was meant to statethat the wrong date of my birth had been stated at the time of myadmission in the 6th class in the said college and the said fact wasnot revealed to any one in the institution, lest there might be somedifficulty in my admission due to overage I again repeat thatby the word 'inadvertently' what was really meant was that the cor-rect date of birth was not revealed to any one in the said institu-tion at the time when admission was sought by me".

The said interpretation of the word 'inadvertently' is absolutelyuntenable and artificial. Further, the witness's statement that the factof the wrong date of birth was not revealed to any one at the time of seekingadmission in the said institution is against the case of the respondent no. 1that the Head Master of the institution, Sri Jagdish Prasad Pandey, wastold about the said wrong date.

The exceedingly brazen manner in which this witness would deny evenobvious facts would be clear from his reply in cross-examination that he

284 RAJENDRA PRASAD GUPTA V. PRADEEP KUMAR BAJAJ ANDOTHERS [VOL. LX1II

did not look into the entries in the admission form on the basis of which hegot himself admitted in the Intermediate class. This form is Ex. 5-6. Thisform contains the signatures of his father at two places which have markedas Exs. 5 and 6. I have already stated that he denied the rest of the writingin this document including his own signature. In the body of this documentthe date of birth of the respondent no. 1 is shown as 14th September, 1955.This document was get filed by the petition on 14th August, 1978. It is almostin impossibility to believe that the respondent no. 1 would not have caredto have looked into this document which concerned him and on which thepetitioner was placing reliance for proving the date of birth of the respondentno. 1 to be 14th September, 1955. The respondent no. 1 as R. W. 1 stated:

"The admission form on the record whereby I was got admitted in theintermediate class was seen by me for the first time on 14th August,1978, in the course of hearing of this case 1 did not read what is

written there in the said form in its different columns. 1 did not tryto know what is the date of birth entered in the said admission form.Since 1 did not read into the contents of the form I cannot say whetherthe data of my birth has been correctly or incorrectly recordtd in thebody of the said form".

This statement is too brazely unnatural and false to be believed:

1 should also like to say that in his answer to the interrogatoriesserved on him the respondent no. 1 was less than candid. In his repliesto interrogatories nos. 2, 4 and 6 he pretended the loss of memory. Hecertainly could have said that 14th September, 1955 was shown inthe different documents on account of the fact that when he was getoriginally admitted in the Bishunpura institution, he said wrong date ofbirth was got recorded in the said institution by his father, but he saidnothing of this kind and pretended to have forgotten everything.

R. W. 2. Babunandan Misra, has made at various places inconsistentstatements. In the earlier part of his statement the witness stated thatSri. Jagadish Prasad Pandey. the Head of the said institution "suggestedthat in case the boy's real age was understated then it would be possiblyto give admission in the 6th class". Subsequently, however, in hisstatement he stated:

"The principal of the Mahant Triveni Parvat Higher SecondarySchool, Bishunpura did not suggest in 1966 when we met him to. getthe respondent to be admitted in sixth class that the wrong date of birthof the respondent no. 1 should be given in the application for gettingthe respondent no. 1 admitted in the sixth class. I suggested that theage of the respondent no. 1 should be understated so that he could begiven admission in the said class".

At another place, however, he said :

"I did not speak any lie to Shri Jagadish Prasad Pandey when wewent to get the respondent no. 1 admitted in the sixth class in the afore-said institution. It was his father who gave the application stating thewrong date of birth and the respondent no. 1 was admitted on the basisof the said application".

At one place this witness stated :

"Thereafter Shri Ram Autar Rajaj, the father of the-respondentno. 1 gave an application in writing under his signature wherein he

E.L.R.] RAJENDRA i'RASAD GUPTA V. PRADEEP KUMAR 285BAJAJ AND OTHERS

stated that the respondent was taught in his home and not in any institu-tion. In the said application the date of: birth of the respondent no. 1was given but at present I do not recollect the said date. However, 1recolfect that on the basis of the date of birth which was given in thesaid applications the approximate age of the respondent no. 1 at thesaid time worked oul to 11 years.

At another place, however, he said :

"The application which Shri Ram Autar Bajaj gave to Shri Pandeywas not read by me. I cannot say what was written in the said applica-tion".

This witness stated that at the time when the respondent no. 1 was gotadmitted in the sixth class in the Bishunpura institution "there were classesfrom 6th class to ]Oth class" in the said institution. This statement isabsolutely incorrect and it has come in-the oral evidence given by otherwitnesses of their respondent no. 1 that in 1966 the institution had class upto 8th class and there was no 9th or 10th class in the said institution. R. W.1 said that after passing 8th class from the said institution he had to preparefor the High School Examination. This witness R. W. 2 gave an absolutelyuntenable reason why he himself did not give admission to the respondentno. 1 in his own institution known as Gandhi Junior High School PalikaParishad, Deoria. He stated that his institution was a Junior High Schooland it was not a Higher Secondary School. As Head Master of a JuniorHigh School only he was not entitled to admit any child in the sixth classin his institution without the child having a transfer certificate showingthat he had passed fifth class from some institution. He went on to say :

"The Principals of the Higher Secondary institutions are entitledto admit a child in the sixth class in their institution even though suchchild does not produce any transfer certificate showing that he hadpassed his fifth class from any institution."

I did not think that this kind of distinction has ever been there in respectof the power of a Head Master of a Junior High School to admit a studentin sixth class and that of the Head of a Higher Secondary institution toadmit a student in the sixth class, under the Educational Code of UttarPradesh "school" has been defined in paragraph 1, clause (xxvi) of ChapterI. In sub-clause (c) 'senior basic school' or 'junior high school' is definedthus :

" ''Senior basic school' or 'junior high school' means either a schoolpreparing students for the junior high school examination of the De-partment or a school teaching classes I to VTTI or VT to VTTT."

fn sub-clause (d) 'higher secondary school' is defined thus :

" 'Higher secondary school' means a school which with or withoutlower classes maintains classes IX and X and/or XI and XII and pre-pares students for the High School and/or Intermediate examination ofthe Intermediate Board or a University."

It will thus be seen that in a junior high school there may be classesfrom 1 to VIII or VI to VIIT. In a higher secondary school there must beIX and X classes and /or XI and XII classes with or without lower classes.

286 RAJENDRA PRASAD GUPTA V, PRADEEP KUMAR BAJAJ ANDOTHERS [VOL. LXII

TThus both in a junior high school and in a higher secondary school theremay be 6th class but in a higher secondary school there are bound to be

V m t . , c l a s s e s w h e r e a s i n a Juuiw high school there can be no 9thand IOth classes. So far as the power of the head of the institution to admita student, who has not read earlier in any other institution is concerned,there is no distinction between these two types of schools. Chapter IV innn/,w -c d e a I s w i t h ^cognised higher secondary schools. In paragraph90(h) it is provided :

"If a student presented for admission to an institution has attendedany recognised institution, an authenticated copy of the student's registeror a transfer certificate from his last and not former institutions mustbe produced, before his name can be entered on the rolls."

This provision clearly shows that a transfer certificate is required onlywhen the student who is seeking admission has earlier attended any recognis-ed institution. However, if he has not read in any such institution thenthere is nothing to suggest that he cannot be admitted in the sixth class of ahigher secondary school. Chapter V of the Code deals with recognisedjunior basic (primary) and senior basic (junior high) schools. Para 171lays down :

"A student applying for admission, who has not previously attendedany recognised school, may be admitted to the class for which the HeadMaster considers him fit."

It is obvious that whatsoever may be the power of the head of a highersecondary school to admit a student in the sixth class without the productionof a transfer certificate by the student seeking admission, so far as the powerof the head of a junior high school is concerned, it is obviously thereinhim under the aforesaid para 171. Therefore, R. W. 2 Babunandan Misraas the head master of a junior high school in 1966 could clearly give admis-sion to the respondent no. 1 without asking for a transfer certificate whenthe respondent had not read in any earlier institution. Yet even this obviousposition was blatently denied by this witness and also by R. W. 4 ShriJasdish Prasad Pandey when both of them insisted that paragraph 171 doesnot apply to a junior high school which is manifestly incorrect. R. W. 2referring to para 171 said :

"According to my interpretation this paragraph refers to a studentseeking admission in any of the classes from class I to class V only.It does not relate to the students who are sought to be admitted in the6th class in the senior basic school."

This distinction is wholly untenable and the aforesaid para 171 makes nosuch distinction.

R. W. 4 Jagdish Prasad Pandey stated in the cross-examination :

"Paragraph 171 is applicable to the primary school alone. Byprimary schools I mean schools which teach class I to class V. ChapterV of the Education Code of 1958 applies to re-recognised junior basicprimary and senior basic (junior high schools) schools. I admit thatparagraphs nos. 170 to 177 are contained in the said Chapter V of theCode. Chapter and rules contained therein including these containedin paragraphs 170 to 177 apply to the class of institutions to which the

K.L.R.] RAJLNDRA t'RAS.VO OiJi'TA V. 1'R \DLLP KUMAR BAJAlAND OTHLKS

said Gandhi Junior High School of which Shri Babunandan Misra wasthe head in 1966 belonged. The suggestion of the cross-examiningcounsel is not correct when he suggests that paragraph 171 also appliedto the class of institutions lo which the said Gandhi Junior High Schoolbelonged. Paragraph 171 has to be read along with paragraph 173 andreading the two paragraphs together, in my view, the rule contained inpara 171 did not apply to the said Gandhi Junior High School."

Ft is obvious that the said statement of (he witness is absolutely contradic-tory and untenable. All the rules contained in Chapter V, including thosecontained in paragraphs 171 and 173, have been applicable to junior highschools, and, therefore, they were applicable to Gandhi Junior High Schoolin 1966 of which R. W. 2 was the head.

These two witnesses who are advanced in years and have been function-ing for many years as heads of educational institutions have been preparedto go to any length with a view to support the respondent no. 1. Thatthey can deny in the witness-box something which is absolutely obvious inthe provisions of the Educational Code goes to show their daring nature andtheir complete indifference to concepts of truth and propriety. On their ownadmission these witnesses had no scruple in suggesting to the father of therespondent no. 1 that he should make an understatement of age of his child.R. W. 4 made an exceedingly curious statement as to whether a fraud wasbeing committed or not in giving admission to the respondent no. 1. Hereplied :

"It was not an act of fraud on my part when I got the wrong date ofbirth recorded in the Scholar's Register in respect of the respondentno. I. It would have been a case of fraud in case the real fact hadnot been brought to my notice but since the real fact was brought tomy notice then it would not be a case of fraud committed by anybody,but it was a wrong thing which was done when an incorrect date of birthwas knowingly recorded in the Scholar's Register."

In my opinion, an honest witness would have said that it would be acase of fraudulent conduct if he reallv knew that the wrong date of birthwas being recorded but it would not be a case of such fraudulent conductin case he did not know of the sa'd fact. The exceedingly inverted andperverted nature of the thinking of this witness makes it absolutely necessarythat his testimony should be completely discarded. Tn the natural courseof conduct even if a wrong date of birth of a student is recorded in an insti-tution, the head of the institution will only say that the wrong date of birthwas recorded because the guardian of the student gave the wrong date ofbirth and that the head himself was not aware that a wrong date of birthwas being given by the guardian. However, here are two heads of educationalinstitutions who almost reveal in statins that each of them took the initiativeand suggested to the guardian that the latter should understate the age of theward by 5 to 6 years and then admission would be granted. I fully agreewith the learned counsel or the petitioner that the Supreme Court's stricturespassed in Chanda Singh versus Shiv Ram (A.I. R. 1975 S. C. 403) in respect

;-c\f such witnesses are applicable to R. W. 2 Babunandan Misra and R. W.'4:Ja^dish Prasad Pandey. The court observed :

"Tf really R. W. 2 had printed and had failed to comply with theprovisions of law, he was a self-ex nosed criminal. The probability isthat he is a perjurer rather than an offending printer,"

' 38—3 ECT/MD/R5

28f! RAJINDKA PRASAD GUPTA V. PRADIILP KUMAR J3AJAI ANDOTHIIRS [VOL. LXII1

Further on the Court added :

"The Court cannot accept of face value witnesses who have nocompunction in owing that they are conspirators in bribery for the sakeof vote splitting at the elections."

So far as R. W. 3 is concerned, this witness has been produced to provethe hand-writing of the two horoscopes Ex. R-7 and Ex. R-8. He claimsthat the said horoscopes are in the handwriting of the late father, Shri MohanLai Sharma. Yet the witness was also utilised to depose about the probable,age of the respondent no. 1 and about the Pradeep Press having been namedaftet the respondent no. I. He admits his families intimate re-lationship with the family of the respondent no. I and receivesCharhawa (offerings) from the family of the respondent no. 1. Headmits that horoscopes were not prepared by the father in his presence andhe knows nothing about them except that they are in the handwriting of hislate father. The exceedingly interested nature of this witness is brought oulfrom his great anxiety, in seasons and out. to state that the respondent no. 1was younger to him by five to six years. In the cross-examination themanner in which he went out of his way to make a statement about the ageof the respondent no. 1 is testified to by the following reply which he gave :

"The respondent no. 1 and I used to play together in our earlychildhood. The respondent no. 1 however, is younger to me by five tosix years."

This witness further stated :

"I did not know anything about this election petitioner before Ireceived the Court process for appearing as a witness in this case onMay 17, 1978."

It should be seen that the name of this witness appears as the first witnessin the list of witness which was filed on behalf of the respondent no. 3under Order 16 rule 1(1), C.P.C. • on 1st March 1978. Ordinarily it is notpossible to think that his name would have been put in the list without therespondent no. I having spoken to him about the case in which he was re-quired to appear as a witness particularly taking into consideration the factI hat he had such intimate relations with the respondent no. 1 and his family.However, in his over anxiety to establish his credentials the witness statedthat he knew nothing about the election petition before he received the Courtprocess on May 17, 1978. I completely disbelieve the testimony of thiswitness, weak as it is inasmuch as the witness has no real personal knowledgeabout the controversies in the case.

So far as R. W. 4 Shri Jagdish Prasad Pandey is concerned I have al-ready commented on his testimony while dealing with the oral statement ofR. W. 2 Babunandan Misra. This witness has very unfavourably impressedme. According to his own admission, most of the students who were admitt-ed in the sixth" class in his institution were average by a number of yearsand knowingly he gave admission to such students on the basis of wrong-dates of birth mentioned in the declaration forms. He admitted that manytimes he himself suggested to the guardians that they should give such wrong

E.L.R.J RAJENDRA 1'RASAD GUPTA V. PRADEEP KUMAR BAJAI 289AND OTHERS

declarations. He was cross-examined in reference to paragraph 90(.v) of theEducational Code. The said clause is as under:

"If the parent's or guardian's statement under clause id) is found tocontain any wilful misrepresentation regarding the student's career, thehead of the institution will report the fact to the Inspector or Inspectressas the case may be, who may after obtaining necessary explanation fromthe parent or guardian direct that the student shall not be allowed to getpromotion to the next higher class earlier than he would have beeneligible on the basis of his correct record. He/She may also at his/herdiscretion also direct that a suitable fine be paid by the parent orguardian, or in default that for six months following the day of his/her order the student shall not be allowed to attend any institution towhich these rules apply. . ."

Hie witness stated :

In my view, the mere fact that the wrong date of birth was men-• lioned in the admission form in respect of the respondent no. 1 was

not such as could attract clause (S) of paragraph 90 of the Code and,therefore, I did not think it necessary to report to the Inspector ofSchools in respect of the wrong entry of the date of birth of the respon-dent no. 1.

The artificial nature of the reply is too obvious to need any elaboration.This witness was hard put to explain the fact that at an earlier stage in thiselection petition he had sworn an affidavit in support of an application movedon behalf of the respondent no. 1. The application is paper no. A - l l / l , 2, 3,and was moved on 14th November, 1977. The affidavit of R. W. 4, JagdishPrasad Pandey in support of this application is A-H/4 to 7. Tn para \(a) ofthe affidavit it has been stated :

"That the deponent is the Pairokar of the opposite-party and wellacquainted with the facts deposed to below."

The great anxiety of the respondent no. 1 as R. W. 1 and that of R. W. 4Jagdish Prasad Pandey himself has been to try to show that Shri JagdishPrasad Pandey is a disinterested witness and, therefore, the theory was setup that Shri Pandey brought a letter from the respondent no. 1 to be deliver-ed to his counsel, Shri A. H. Singh at Allahabad and on the suggestion ofthe said counsel, the said affidavit was sworn by Shri Pandey. All thiseffort has seemed to be far fetched and motivated by a desire, as stated

. above, to establish the credentials and disinterestedness of the witness. Ihave already pointed out that there is a big difference between R. W. 1 andR. W. 4 whether the alleged letter was delivered to R. W. 4 at Lncknow orDeoria. R. W. 1 clearly stated :

"I never requested Shri Jagdish Prasad Pandey, Principal, MahanthTriveni Parvat Tnter. College. Bishunpura Bazar, Deoria fo do anyPairvi in the litigation and in my knowledge he did not do and pairviin any litigation on my behalf. T did not authorise Shri Jagdish PrasadPandey to do any Pairvi on my behalf in this case. However, T cannotsay whether he actually did any Pairvi or not. If he did any Pairvi onmy behalf then the same was unauthorised as I did not authorise him todo any Pairvi in this case."

290 RAJLNDRA PR AS AD GUPTA V. PRADEEP KUMAR liAJAl ANDOTHERS [VOL. LXIII

Here 1 should like to make mention of another point which emergesfrom the oral statement of the witnesses of the respondent no. 1. The res-pondent no. 1 as R. W. 1 stated :

"1 joined Mahanth Triveni Parvat Higher Secondary School,Bishunpura Bazar, district Deoria at the age of 17 years in class VI. Iread up to 8th class in the said institution and thereafter as the institu-tion was then not recognised for High School Examination therefore, Istudied privately for the High School Examination."

R. W. 2 Babunandan Misra also stated in his examination-in-chief :

"At the time of the respondent no. 1's admission the said collegewas a Higher Secondary School."

I have already poinled out that under the definition of "School' in the U. P.Educational Code Higher Secondary School' must have 9th and 10th classes.Therefore, the said witnesses have falsely deposed that the said institution atBishunpura Bazar, Deoria was in 1966 a Higher Secondary School. It couldnot be so because it was then only up to 8th class. In Exs. 5 and 6, whichis the admission form for getting the respondent no. 1 admitted in SewaSamiti Boy Scout Intermediate College, Deoria, the Bishunpura Institutionhas been described as Mahanth Triveni Parvat Adarsh Vidyalaya, Bishun-pura, Deoria. It, therefore, seems that in 1966 the institution was not evendescribed as a higher secondary school and yet the said two witnesses hadno scruple in describing it as such.

I shall now take up R. W. 5 Radhey Shyam Goenka. He is the ma-ternal uncle of the respondent no. 1 R. W. 5 stated in his statement that hehad no personal knowledge about the birth register maintained in the KatiharMunicipal Board. Ex. R-l was obtained by his Munim Sri Prakash Sharmaand the application for obtaining the said document was signed by the fatherof this witness. He has no knowledge about the contents of the said applica-tion. He did not go to get the date of birth of the respondent no. I recor-ded in the Katihar Municipal Board when the respondent no. 1 was allegedlyborn at Katihar. He has put forward a story about a Tewa' having beensent to his father by the father of the respondent no. I in connection withthe search for a match for the respondent no. 1. He says that he came toknow that 11th April, 1949 was the exact date of birth of the respondent no.I from the said Tewa. However, no such Tewa has been produced by thewitness. Both this witness and R. W. 6, Smt. Sita Devi, the mother of therespondent no. 1 were at great pains to show that in 1951 for long durationsSrimati Sita Devi remained at Katihar. R. W. 5 Radhey Shyam Goenkastated Srimati Sita Devi came to Katihar from Deoria about 1 or \\years after the birth of the respondent no. 1". R. W. 6 Smt. Sita Devislated :

"My mother died nearly two years after the birth of Pradeep KumarBajaj. About U- or two months before the death of my mother I had

.. gone from Deoria to my parents' place at Katihar. I came back fromKatihar about 2 or 2\ months after the death of my mother In1951 and 1952 I did not remain in Deoria because my mother happenedto be ill a! Katihar and*! had gone and remained there on account ofthe said fact".

E.L.R.] RAJENDRA FRASAD GUPTA V. PRADEEPKUMAR BAJAI 291AND OTHERS

It has seemed to me that all these statements were made by the witnesseswith a view to explain the absence of the name of Sita Devi in the aforemen-tioned document, Nagarika ka Rashtriya Register. It is another matter whe-ther the said document is admissible or not but the motivation why the saidstatements were made regarding the stay of Srimati Sita Devi in Katihar in1951 appears to be to put forward a plausible explanation to get rid ofthe inferences which might be drawn from the said document. I am onlytrying to pin point that the oral testimony of those witnesses is not naturalbut given in a background of set purposes and set aims.

So far as R. W. 6 Smt. Sita Devi is concerned, my comment is that sheagain is not a reliable witness. I have already pointed out that she tookgreat pains to emphasise that her husband was always described as Sri RamAutar Bajaj and her father-in-law is always described as Sri Bala Bux Bajaj.This part of the statement stands convincingly disproved by Ex. 1—R 9which is a common document of the parties. A very unnatural part of thestatement of this witness was concerning ihe year in which her husband died.While she could precisely recall that she was married in (lie year 1947 andthe respondent no. I was born in 1949 events which occurred long prior toher deposition in the witness-box she could not recall the exact year of thedeath of her husband which occurred according to her about three yearsbefore her appearance in the witness-box. She stated :

"My husband died cither in 1974 or 1975. I cannot give the definiteyear."'

The explanation which she put forward in this connection is wholly un-convincing and artificial. A question was put to her in these words:

"Questions—Cim you explain why you can give the definite calendaryear in which you were married ?nd which event took place, accordingto you about 30 or 31 years age but you are not in a position to givethe definite calendar year in which your husband died when, accordingto you he died about three years back".

Her answer was :

"1 am definite about the calendar year of my marriage because inthat year India has attained Independence and my marriage had takenplace about two or three months after the Independence day in the saidcalendar year".

It should be seen that this witness stated about the disease of the res-pondent no. I :

"The treatment for the said disease continued for about 10 to 12years. The treatment started when he was aged about 2 years. Thetreatment ceased when Pradeep Kumar was aged about 14 years. Thetreatment ceased because the boy had been cured".

It is not clear why when the boy had been cured by the time when hereached the age of 14 years, another 3|- years were taken before he wasallegedly got admitted in September 1966 in the Bishunpura institution. Ifhe was born on I lth April, 1949 then in Sep(ember 1966, the- boy was about17l years. Tins n^peci of the mailer further, falsities the probability of the

292 RAJENDRA PRASAD GUPTA V. PRADEEP KUMAR BAJAl ANDOTHERS LVOL. LXIlj

story which has been put forward on behalf of the respondent no. 1 as to. the reason why allegedly the wrong date of birth was got recorded in the

Bishunpura institution.

In my opinion, the counsel for the petitioner is right in contending thatadverse inferences should be drawn against the respondent for his failureto produce such evidence as he was bound to or should have produced if hewanted his explanation to, be accepted regarding the allegedly wrong ad-missions contained in the Various documents stating his date of birth to be14th September, 1955. 1 am not impressed by the fact that on account ofthe age infirmity Bala Bux Bajaj, the paternal grand-father and thematernal grand-father of the respondent no. 1, could not be produced. Theycould have been examined on commission if necessary. No medical practi-tioner was examined in support of the version that the respondent no. 1suffered from the alleged disease in his childhood though it was admittedthat the one Dr. Mukerji and another Dr. Acharya treated him. A veryimportant omission on the part of the respondent no. 1 is his failure toexamine his younger borther, Dalip Kumar. The most material and dis-tinguishing circumstance of this case <;s that here the wrong date of birth wasalleged to have been recorded at the time of the admission of the respondentno. .1 in the Bishunpura institution and such wrongly recorded date of birthhappens to be date of birth recorded in the Deoria Municipal Board inrespect of a child who was born to Sri Ram Autar, father of the respondentno. 1. This is a circumstance of supreme importance. It is true that inBrij Mohan, versus Priva Brat (AIR 1965 SC 282) the court observed thatvery often wrong date of birth are recorded in School registers with a viewto seek future advantages. However, it would be the most strange coincidenceif such wrongly recorded date of birth should be found to be the correctdate of birth of a younger brother. It is impossible that a father would con-sciously get a date of birth recorded for his son which should be the date ofbirth of another son of his. He will give some date at random but surelynot the date of birth of another child of his to be recorded as the date ofbirth of some other child of this. I am not impressed by the suggestion ofthe counsel for the respondent no. 1 that it might be attributed to the factthat the child was allegedly got admitted on 14th September, 1966 in theBishunpura institution. It would not be safe to rely on Ex. Cl whichpurports to be a copy of the Scholars Register maintained in the saidBishunpura institution. It was come from the custody of R. W. 4 who isa highly interested witness in this case and whose testimony has been foundto be absolutely untrustworthy. It has seemed to me that when it becameclear to the respondent no. 1 that the petitioner had come to know of thedate of birth as 14th September, 1955 recorded in the Deoria MunicipalBoard, then the story was set up that the said date related to his youngerbrother Dalip Kumar. In such a situation, Dalip Kumar was bound to beexamined from the side of the respondent no. 1. Further it will be seenthat it was possible for the respondent no. 1 to have produced some docu-mentary evidence of unimpeachable kind which could have shown that therecorded date of birth of Dalip Kumar in such documents in 14th September,1955. However, no such documentary evidence has been produced from theside of the respondent no. 1. The admission forms transfer certificate, exa-mination forms, high school certificate, relating to Dalip Kumar have notbeen produced in this case and this omission to do so is highly significant.11 in these documents the date of birth of the said younger brother of therespondent no. I were recorded as 14th September, 1955, then strength wouldhave been imparted to the ease of ihe respondent no, I thai his own dateof biith was recorded in (he High School certificate as 14th September, 1955

t:.L.R.] RA.lbNDRA FRASAD GUPTA V. V R S D I I I ' KUMAR BAJAI 293AND OHU-.KS

was likely to be incorrect. Obviously turns apart two brothers cannot havethe same date of birth. But the respondent no. 1 failed to prove any suchevidence relating to Dalip Kumar and the latter was also not examined inthe witness box. This aspcel of the mailer has looked to me to be mostimportant and I attach much significance to it. No amount of oral testi-mony can make good the said lacuna.

1 also find that the respondent no. 1 has not produced any documentaryevidence to show that Pradccp Press was really started some time in 1950or 195!. It was possible lor him to produce such documentary evidencebut he has failed to do so. He admitted that he had income-tax assessmentorders relating to his father but the same have not been produced by him.The said assessment orders would have clearly shown as to in which yearthe said press was started. A declaration under section 4 of the Press andRegistration of Books Act, 1867 was also bound to be there when the presswas started. No certified copy of such declaration has been filed. A verysignificant fact has emerged from the documents on the record. In Exs.5-6, which is the originals admission form whereby the respondent no. 1was got admitted in Sewn Samiti Boy Scout Intermediate College, Deoriaon 19th July, 1971, the address of the respondent no. 1 has been simplymentioned as 'Bajaji Road, Deona'. However, when he was got admittedin the B.A. Part I on 16th July, 1973, the address was given as 'PradeepPress Bajaji Road, Deoria. This address was repeated in Ex. 3 which isthe examination form for appearing in B. A. Part I examination of theGorakhpur University in 1974. It seems that the Pradeep Press is of recentorigin and came into existence after 19th July, 1971. Of course, thisobservation can be said to suffer from a certain amount of guess work buttaking into consideration the failure of the respondent no. 1 to adducemuch better evidence which was possibly for him to adduce in respect ofthe starling of the Pradeep Press, I think the said aspect of the matter mayalso be taken into consideration. The original admission form and thedeclaration which Ram Aufar is said to have filed in the Bishunpura institu-tion have also not been summoned from the said institution. R. W. 4Jagdish Prasad Pandey clearly admitted that the declaration must still bethe possession of the institution. 1. therefore, feel that adverse inferenceshould be drawn asainst the respondent no. 1 under section 114 of theEvidence Act for his failure to produce the oral and documentary evidencewhich he was bound and which he could produce in this case.

In my opinion no adverse inference should be drawn against the peti-tioner for not examining himself in the witness box. He had no personalknowledge about the date of birth of the respondent no. 1 and, therefore,could not assist the court in any manner in respect of the controversy involv-ed in the petition.

In A. I R. 1976 SC 1187 (supra) it is clearly laid down that there isno such obligation on election petitioners to examine themselves, andthe evidence which they were able to produce at the trial court not be reject-ed for any such fanciful reason when there was nothing to show that theelection petitioners were able to give useful evidence to their personalknowledge but stayed away purposely.

I hove stated above that counsel made rival contentions regarding thenature of the disease of 'sukha' in children. They also cited certain medicalauthorities and referred to the dictionary meaning of the two diseases.

294 RA.IENDRA PRASAD GUPTA V. PRADELP KUMAR BAjAI ANDOTHERS I.VOL. LX1U

'Rickets' and 'Marasmus'. I do not feel it safe to say anything in this mat-ter because in the absence of complete symptoms of a disease no one wouldlike to hazard any definite opinion on the nature and the disease. How-ever, 1 must say that I have not been impressed by the story of the respon-dent no. 1 that due to disease he did not join any educational institutiontill the age of 17 yeais. Even sickly boys do not remain at their homes tillthe age of 17 years. They join educational institutions much earlier. Ihave found it hard to believe that the respondent no. I remained idle andnot join any educational institution till he was aged about 171 years onaccount of the alleged disease. R. W. 2, Babunandan Misra stated thathe had taught the respondent no. 1 for a period of ten years in the latter'shome according to the witness he taught every day for one hour. It isalmost impossible to believe that a child would be taught for ten yearscontinuously every day for one hour and would join only the sixth classafter such a long intensive teaching at home. One has to consider the pro-babilities in these matters and I think the version of the respondent no. 1seems to be wholly improbable. I have referred earlier to the statementof Srimaii Sita Devi, R. W. 6 where she stated that the respondent no. 1had been completely cured of the disease by the time he was aged aboutfourteen years. Thereafter there was no reason why the boy could not joinany educational institution and remained sitting idle at home for a fur-ther period of 3J years. AH these aspects of the matter make the entirestory of the respondent no. 1 absolutely improbable.

I shall now take up the documentary evidence of the parties. I havegiven above the details of such evidence and I should now like to evaluatethe significance of such evidence. Exhibit 1 equivalent to Ex. R-9 is acommon document of the parties. It is the birth certificate issued by theMunicipal Board, Deoria, which shows that a male child was born to ShriRam Asitar. son of Shri Ba'a Bux Marwari. on 14th September, 1955 atBharauli Bazar, Deoria. The only controversy between the parties iswhether this birth certificate relates to the respondent no. 1 or to hisyounger brother Dalip Kumar. When in so many documents the date ofbirth of the respondent no. 1 has been shown as 14th September, 1955then, the onus of proof is on the respondent no. 1 to show that the saiddate was not his date of birth but that of his younger brother Dalip Kumar.In other words, it is for the respondent no. 1 to establish that the saiddocument exhibit which is equivalent to Exhibit R-9 is relatable to DalipKumar and not to the respondent no. 1 himself Ex. 2 is the U.P. Govern-ment Gazette, dated 15th January, 1977 which shows 14th September, 1955as the date of birth of the respondent no. 1. Ex. 3 is the original examina-tion form of the respondent no. 1 for appearing in B. A. Part I Examina-tion held in 1974. This document has been clearly admitted on behalf ofthe respondent no. 1 and it bears his signature and the date of birth ofthe respondent no. 1 is shown as 14th September, 1955. The entries arein the handwriting of the respondent no. 1 himself and the latter did notsay in the witness box that the said entries were in somebody else's hand-writing as he stated about the entries in Ex. 4 and Exs. 5-6. Ex. 3 clearlyfalsifies the statement of the respondent no. 1 which he made in the wit-ness-box in these words. "T have never in my own hand ever writtenor entered my date of birth as 14th September, 1955". In Ex. 3, as statedabove, the date of birth is entered as 14th .September, 1955 in the ownhandwriting of the respondent no. I. The respondent no. 1 admitted hissignatures on Ex. 4 at the front page but denied his signature on the backpage. He also denied that the entries 'in the document were in his hand-writing. The counsel for the petitioner requested the Court to make a

E.L.R.] RAJENfiRA PRASAD' GUPTA V PRABEEP KUMAR 2.95BAJAJ AND OTHERS

comparison of the said writing and he submited that the entire document(Ex. 4) was in the writing of the respondent no. 1. I do not consider itnecessary to do so because irrespective of whether the entries in the bodyof the document are in the handwriting of the respondent no. 1, in theopening part of the said document which he admittedly signed it is clearlyrecited that all the entries in the body of the document have been correctlyand truthfully entered. It, therefore, clearly follows that the respondentno. 1 has vouched for the correctness of the entries made in the documentincluding the entry about the date of birth which is entered as 14thSeptember, 1955. The same is the position with exihibits 5-6. Here againthe respondent no. 1 denied his signature and the entries to have been madem his own handwriting, but he admitted two signatures of his father RamAutar Bajaj on the document and the said signatures were marked as Exs.5-6, respectively. The respondent no. 1, however, never suggested thatthe entries made in the document were unauthorised or that they were notdeliberately made. He did not say that if he had made the entries, thenthe date of birth would not have been shown by him as 14th September,1955. Indeed the case of the respondent no. 1 is that after the said wrongdate of birth was recorded at the time of his admission in the BishunpuraBazar Institution, it was bound to be carried into subsequent documentsduring his educational career. Indeed as stated above, he himself statedthe said date of birth in Exhibit 3 which was filled in by him. Therefore,nothing turns on the fact that the entries in Ex. 4 or in Exs. 5-6 have beendenied by the respondent no. 1 to be in his handwriting.

In my opinion paper nos. A-56, A-57 and A-63 cannot be held to beproved. They have, therefore, rightly not been exhibited. I do not agreewith the petitioner's counsel that his client is entitled to invoke either theaid of section 90 of the Evidence Act or to contend that the said papersare true copies of public documents. The case law which has been referredto above, cited by the counsel for the respondent no. 1, clearly rules outIhe application of section 90 of the Evidence Act. The witnesses concern-ed could not say in whose handwriting the original registers were written.The witnesses knew nothing about the writers of the original documents.

Tn A.I.R. 1941 Madras, Page 602 (Nagaraja Rao versus Koothappan)h§ad note (b) is as follows :

"Before a relevant statement is admitted into evidence, its author-ship has to be proved. For that purpose, s. 90 is commonly relied uponin the case of old documents the authorship of which cannot be prov-ed by persons who knew the handwriting or can recognise the signa-ture of the maker, but this section cannot be relied upon for the proofof a document, which does not purport to be in any known person'shandwriting or to be signed by any known persons : ('18) 5 A.I.R.1918 Mad. 932 and ('39) 26 A.I.R. 1939 Mad. 926, Rel. on."

In A. I. R. 1937 Lahore page 599 (supra) and A. I. R. 1937 Avadhpage 353 (supra) have also laid down to the same effect.

I do not think that scholar's registers maintained in aided institutionscan be said to be public document under section 74 of the Evidence Act.This controversy was raised in the Supreme Court in Brij Mohan's case(A.I.R. 1955 S. C. 282) (supra) but the Court did not give its verdict. How-ever, as the language of the statute stands it is difficult to accede to the

39—3/ECI/ND/85

296 RAJENDRA PRASAD GUPTA KPRADEEP KUMAR J3AJAJ ANDOTHERS [VOL,

contention of Sri Sinha that such registers should be taken as public docu-ments.

So far as paper no. A65 (Nagrikon Ka Rashtriya Register) is concern-ed, counsel for the petitioner again sought to invoke the aid of section 74of the Evidence Act and in the alternative of section 90 of the said Act.This register purports to have copied out census slip. In that sense it isreally a copy of the original document. It has not been stated in the evi-dence that the original census slips were destroyed or were lost and in theabsence of such evidence, the register which is in the nature of secondaryevidence cannot be admitted in evidence. 1 also accept the contention ofthe counsel for the respondent no. 1 that section 15 of Census Act, 1948will be a bar to the admissibility of this document. 1 fail to understandhow this register can be admissible when the original slip (of whose copyit happens to be) would be inadmissible under the said section. I do notthink that A.I.R. 1968 Punjab 331 will be applicable to such a register.

However, I do not agree with the contention of the counsel for therespondent no. 1 that entries at page 85 of the register have been manu-factured for the purposes of the case. The register seems to be genuineand page 85 appears to be in the same handwriting as other pages in theregister. I have been impressed with the genuineness of the document. Thehouse number which is mentioned in the register is 296 and there is noth-ing on the record to show that the said house number has come to bearpresent no. 513. Such evidence should have been adduced on behalf ofthe petitioner if he wanted to rely on the said document. Though it isnot unlikely that house number 296 has now come to bear the presentnumber 513, I think that in the absence of definite evidence from the sideof the petitioner, it will be safe to ignore the said document in arriving atmy finding. I should like to add That the evidence of P. W. 1 has nothelped me in treating the document to be admissible or proved though thewitness has impressed me as a truthful one.

So far as the U.P. Government Gazette dated 13th September, 1952 isconcerned, I think that its genuineness stands established under section 81of the Evidence Act. This document shows that one Ram Autar Agrawalpassed the High School Examination in 1952 and his date of birth isshown as 1st July, 1936. It is obvious that if this Ram Autar Agrawalwas the father of the respondent no. 1, then the latter's story that he wasborn on 11th April, 1949 will be absolutely impossible to believe. On 11thApril, 1949, Ram Autar Agrawal would have been less than 13 years ofage and one could not expect him to have been married then. While it isnot improbable that this Ram Autar Agrawal is the same as the father ofthe respondent no. 1, legally it has to be accepted that the petitioner didnot lead any evidence to connect the said Ram Autar Agrawal with thefather of the respondent no. 1. A.I.R. 1931 All. page 307 (supra), 1962A. L. J. 1094 (supra) and A.I.R. 1963 Bom. 25 (supra) clearly support thecontention of learned counsel for the respondent no. 1 that there should besome evidence to connect the identity of a person with the entry in therecord. I have, therefore, not taken into consideration the said document.I shall now refer to the documentary evidence of the respondent no. 1.Much reliance has been rjlaced on Ex-R. 1 which is styled as 'JanmaPraman Patra' (birth certificate) which purports to be in Form no. 9 underrule 9 of the Rules framed by the Governor of Bihar, under the Registra-

E.L.R.] RAJENDRA PRASAD GUPTA FPRADEEP KUMAR 297BAJAJ AND OTHERS

tiou of Births and Deaths Act, 1969 (18 of 1969) which is a Central statue.It is necessary to refer to certain provisions of the said Act. The Actprovides for the regulations of registration of births and deaths and formatters connected therewith. Section 7(1) with its proviso is as follows :

"7. Registrars—(1) The State Government may appoint a Registrarfor each local area comprising the area within the jurisdiction of amunicipality, panchayat or other local authority or any other area or acombination of any two or more of them :

Provided that the State Government may appoint in the case of amunicipality, panchayat or other local authority, any officer, or otheremployee thereof as a Registrar.''

Sub-section (2) of section 7 is as follows:

"7. (2) Every Registrar, shall without fee or reward, enter in theregister maintained for the purpose all information given to him undersection 8 or section 9 shall also take steps to inform himself carefullyof every birth and of every death which takes place in his jurisdictionand to ascertain register the particulars required to be registered."

Section 8 specifies the person whose duty shall be to give or cause tobe given information to the Registrar regarding birth and death in thelocality concerned.

Section 9 makes special provision regarding birth and death in aplantation. Section 11 provides that where oral information has been givento the Registrar, then the informant shall write in the register his name,description and place of abode and if he cannot write, shall put his thumb-mark in the register. Section 12 lays down as under:

"12. The Registrar shall, as soon as the registration of a birth ordeath has been completed, given, free of charge, to the person whogives information under section 8 or section 9 an extract of the prescrib-ed particulars under his hand from the register relating to such birthor death."

Section 14 provides for the registration of name of child and is asunder :

"14. Registration of name of child.—Where the birth of any childhas been registered without a name, the parent or guardian of suchchild shall within the prescribed period give information regarding thename of the child to the Registrar either oralrr or in writing and there-upon the registrar shall enter such name in the register and initial anddate the entry."

Section 16 provides for the maintenance of a register of birth anddeath in the prescribed form.

Section 17 lays down as under :

"'17. Search of birth and death register.—(]) Subject to any rulesmade in this behalf by the State Government, including rules relatingto the payment of fees and postal charges, any person may—•

(a) cause a search to be made by the Registrar for any entry ina register of birlh and death; and

298 RAJENDRA PRASAD GUPTA KPRADEEP KUMAR BAJAJ ANDOTHERS [VOL. LXIII

(b) obtain an extract from such register relating to any birth ordeath :

Provided that no extract relating to any death, and issued to anyperson, shall disclose the particulars regarding the cause of death asentered in the register.

(2) All extracts given under this section shall be certified by theRegistrar or any other officer authorised by the State Government togive such extracts as provided in section 76 of the Indian Evidence Act,1872 and shall be admissible in evidence for the purpose of provingthe birth or death to which the entry relates."

Section 29 lays down that this Act shall not be in derogation of theprovisions of the Births, Death and Marriages Registration Act, 1886.

Section 30 empowers the State Government to make rules with theapproval of the Central Government. Clause (a) of sub-section (2) of sec-tion 30 lays down that such rules may provide for "the particulars of whichextract may be given under section 12".

Clause (i) provides for the search of birth and death registers and thefees payable for such search and for the grant of extracts from the registers.

The Governor of Bihar framed rules and the same were published bynotification no. G. S. R. 43, dated 23rd June, 1970. Rule 9 of these rulesprovides as under :

"9. Extract of registration entries to be given under section 12—The extracts of particulars from the register relating to births or deathsto be given to an informant under section 12 shall be in Form no. 9or Form no. 10, as the case may be."

Rule 11 prescribed the period for the purpose of section 14. It laysdown as under :

"11. Period for the purpose of section 14—(1) Where the birth ofany child has been registered without name the parent of guardian ofsuch child shall within 12 months from the date of registration of thebirth of child, give information regarding the name of the child, tothe Registrar either orally or in writing :

Provided that if any such information is given after the period of12 months, subject to the provisions of sub-section (4) of section 23,the Registrar shall—

(a) if the register is in his possession, forthwith enter the name inthe register on payment of a late fee of rupees two;

(b) if the register is not in his possession and if the informationis given orally, make a report giving necessary particulars, and if theinformation is given in writing forward the same to the officer specifiedby the State Government in this behalf for making the necessary entryon payment of a late fee of rupees two.

E.L.R.] RAJENDRA PRASAD GUPTA V PRADEEP KUMAR 299BAJAJ AND OTHERS

(2) The parent or the guardian, as the case may be, shall alsopresent to the Registrar the copy of the extract given to him undersection 12 of a certified extract issued to him under section 17 and onsuch presentation the Registrar shall make the necessary endorsementrelating to the name of the child or take action as laid down in clause(b) of the proviso to sub-rule (1)".

Rule 14 lays down as under :

14. Fees and postal charges payable under section 17.—(1) Thefees payable for a search to be made or an extarct to be issued undersection 17 shall be as follows :

Rs.(a) For search of a single entry in Ihc first year for

which the search is made. . . . . 1.00

(b) For search of every additional year for whichthe search is continued. . . . . 1.00

(c) For an extract relating to each birth or death. 1.00

(2) Any such extract in regard to a birth or death shall be issuedby the Registrar or the Officer authorised by the State Government inthis behalf in Form no. 9, as the case may be, in Form no. 10 andshall be certified in the manner provided for in section 76 of the IndianEvidence Act, 1872 (1 of 1872).

(3) Any such extract may be furnished to the person asking forit by post or payment of the postal charges, therefor."

It has to be seen that the Act in question namely, the Registration ofBirths and Deaths Act was enacted in 1969 and its provisions have not beengiven any retrospective operation. If any birth register was maintained inany municipality prior to 1969, such registers cannot be said to have beenmaintained under the provisions of the said Act. It is difficult to see howthe provisions of this Act can be made applicable restrospectively to abirth register which might be maintained by the Katihar Municipality inApril 1949. However, even if I were to forget the said aspect of the matter,still, it has to be seen that Ex. R-l cannot be said to be an extract fromany birth register. In this document it is clearly recited that the followinginformation has been obtained from the original register maintained bythe Katihar Municipality. The name of the respondent no. 1 is there andhis date of birth is given as 11th April, 1949. The name of father is givenas Ram Autar Bajaj and the place of birth as Bara Bazar. The date ofregistration is given as 12th April, 1949. It purports to be dated 14thOctober, 1977 and to be signed by the special Officer, Katihar Municipality.It bear the seal mark of the said municipality. The document purportsto have been issued under section 12/17 of the said Act. However, thereis no signature of the issuing authority and his seal mark is also not' there.It should be seen that this document has to be signed by the Registrar aswell as by the officer who issues the certificate. From the recital in thedocument it is very clear that it is not the certified copy of an extract ofany birth register. This explains why "there is no such certificate as hasto be given under section 17(2) of the said Act which in turn refer to sec-tion 76 of the Indian Evidence Act. In other words, it is not a certifiedcopy at all. It is a certificate under section 12 of the said Act and this

300 RAJENDRA PRASAD GUPTA V PRADEEP KUMAR BAJAJ ANDOTHERS [VOL. LXI1I

is clear also from the fact that Ex. R-l is in Form no. 9 and under Ruleno. 9 of the aforesaid Bihar rules. The said rule has been reproducedabove. Now under section 12 of the certificate which is described as "anextract of the prescribed particulars can be given only to the person whogives information under_ section 8 or section 9". I have already referredto sections 8 and 9 which specify the persons who are required to giveinformation to the Registrar regarding births and deaths in the locality.Now according to Ex. R-l, the respondent no. 1 was born on 11th April,1949, and it is not clear who gave the information of the said birth to themunicipality then. In law no such certificate could be issued to any oneelse in 1977 under section 12 of the said Act. In my opinion the saidsection as it is worded is meant to apply only when births and deathshave been registered under the Act of 1969 on the basis of informationgiven under section 8 and section 9 of the said Act. Section 12 cannot beutilised to issue a certificate to any one who just cares to apply for suchcertificate in 1977 in respect of a birth which is alleged to have been regis-tered in 1949. If a person in 1977 desires to obtain such information thenhe has to apply for the certified copy of an extract from the birth register.I shall not say whether he can or cannot apply for such a certified copyunder section 17 (1) (b). The controversy may arise because the birth isalleged to have taken place in 1949 and the birth register then maintainedby the aforesaid municipality cannot be said to be one maintained underthe registration of Birth and Death Act, 1969. However, there can belittle doubt that if a person can apply for such certified copies under thesaid new Act, then u can only be done under section 17(1) (b) of the Actand not under section 12 of the said Act. Ex. R-l, therefore is againstthe provisions of section 12 of the said Act, and in my opinion the presump-tion under section 79 of the Evidence Act cannot be drawn in its favour.The document is contrary to the law contained in section 12 of the saidAct. The rulings relied on by the counsel for the respondent no. 1 toclaim the presumption under section 79 are clearly distinguishable andwill not be applicable to this document. I have enumerated the saidruling above and it is not necessary to discuss them individually.

I agree with the criticism of the learned counsel for the petitioner inrespect of the worthlessness of this document. It clearly recites that thefollowing information has been obtained from the original birth registermaintained in the Katihar Municipality and then the name of the respon-dent no. 1 is given. When the birth was registered on the every next dayi.e. on 12th April, 1949, the new born baby had not been named.This fact is testified to by the statement of R. W. 5 Radhey Shyam andR. W. 6 Srimati Sita Devi. Both of them gave out in the witness box thatthe baby was named as Pradeep Kumar after six months from the date ofhis birth. This clearly goes to prove the fake nature of Ex. R-l. It willbe seen that section 14 of the said Act provides for the registration of thename of a child and under rule 11 of the Bihar Rules a period of twelvemonths from the date of registration of birth of the child is prescribed forthe registration of the name of such child. However, these provisions havecome into play after 1969 and they were no where therein 1949. Ex. R-l,however, certifies that the name of the respondent no. 1 alleged to havebeen born on 11th April, 1949, is therein the original birth register of theKatihar Municipality. In my opinion this document is highly suspiciousand absolutely unreliable and it has been prepared for the purpose of thisease.- R.. W. 5. Radhey Shyam could throw no light on this document andhe passed on the entire responsibility on his Munim, The said Munim,

E.L.R.] RAJENDRAl'll.-\SAD GUFt'A V VRAVE& KUMAR 301BA.JAJ AND OTHKRS

however, has not been examined. T also agree with the learned counselfor the petitioner (hat the great care with which (he word 'Bajaj* has been

. added to both the names of (he respondent no. I and his father is againhighly suspicious. This is in vivid contract to Ex. 1 equivalent to Ex.R-9 which is the birth certificate issued by the Dcoria Municipal Board.In the said document the name of the child is not there and the name ofthe father is merely described as Ram Autar and the name of the grand-father is described as Bala Bux Marwari.

Here 1 may notice the contention of the counsel for the respondentno. 1 that the counsel for the petitioner did not deny the said document andmerely endorsed the word 'seen' when the document was placed beforehim for admission or denial. 1 do not think that anything can be madeout. of the said fact. The entire case of the petitioner and the stand takenby him in his pleadings is asainst the correctness of the said documentEx. R-l. If Ex. R-l Is correct then the entire case of the petitioner isthrown over board. If Ex. 1 is held to relate to the respondent no. 1, thenEx. R-l must necessarily be held to be a faked document. The petitioner'sclear case from the very beginning is that Ex. 1 relates to the respondentno. 1. Throughout the cross-examination of the witnesses of the respon-dent no. 1, the petitioners' clear stand was that the said document was amanufactured one and not a genuine one.

Counsel for the respondent no. 1 also tried to make much of the factthat in his list of witnesses the petitioner had included the special officer,Katihar Municipality with the relevant document and thus the petitionerhimself wanted to examine the said witnesses. However, ulimately thepetitioner did not summon the said witness. On the other hand,, the counselfor the petitioner pointed out that when he found that the respondent no. 1in his list included the said witness, then he i.e., the petitioner did notconsider it necessary to summon the said witness along with the register.The respondent no. 1 summoned the said witness with the register but ulti-mately, even though the witness had turned up in the court, he was givenupon 17th AugusF, 1978. The excuse put forward was that because on!he said date the court could not immediately examine the said witnessas the respondent no. 1 as R. W. 1 was being cross-examined in the witness-box, therefore, the said witness would have been required to wait till 21stAugust, 1978 which was the next date for the recording of the evidence.The witness, therefore, was given up by the respondent no. 1. In myopinion there was no justification for giving up the witness on 17th August,1978 on the said ground. No witness is entitled to insist that the Courtshould stop the cross-examination of a witness who is already in the wit-ness-box and should record the former's statement. I agree with thecounsel for the petitioner that all this exercise on behalf of the respondentno. 1 has been staged managed and the latter was really not keen to enablethe court to look into the original birth register alleged to be maintainedby the Katihar Municipality. The aforesaid excuse on the basis of whichthe said witness along with certain other witnesses, was given up, finds aplace in the application, dated 24th August, 1978 of the respondent no. 1which is pending and with which T shall deal hereafter.

AIR 1968 SC page 1455 (supra) is a clear authority which shows thatthe parties in an election dispute are capable of tampering with a birthregister maintained bv a local authority and in the facts and circumstancesof the instance case, I have come to the conclusion that Ex. A-l should betotally discarded as a piece of absolutely unreliable evidence.

"'02 RAJENBRA PRASAB GUPTA K PRAOEEP KUMAR BAJAJ ANDOTHERS [VOL.

So far as Exs. R-2, R-3 and R-4 are concerned, these are certifiedcopies of extracts from the electoral rolls in respect of the respondent no. 1and his younger brother Dalip Kumar. They are not direct evidence regard-ing the date of birth of the respondent no, 1 but from the approximateage which is given there in respect of the respondent no. 1 and in respectof his brother Dalip Kumar, it has been contended that the respondent no.l's date of birth as 11th April, 1949 gets supports.

In AIR 1954 SC page 520 (Dura Shankar versus Raghuraj Singh) sec-tion 36(7) of the Representation of the People Act, 1951 came up forinterpretation and it was laid down as follows :

"In other words, the electoral roll is conclusive as to the qualifi-cation of the electoral except where a disqualification is expresslyalleged or proved."

In the instant case the respondent no. 1 is alleged to be suffering fromsuch a constitutional disqualification under Article 173(b) of the Constitu-tion. A. I. R. 1973 SC page 2363 (supra) has been relied on by both theparties. It is laid down that the electoral roll is conclusive as to thequalification of the elector except in respect of the requirement underArticle 173.

It is not necessary to refer to the other decisions which have beenrelied on by the learned counsel for the parties. In many of the said deci-sions including the unreported ones delivered by some of the learned judgesof this court, the question rose in reference to election of certain localbodies and the question was whether the age disclosed in the electoral rollwas conclusive or could be challenged. In my opinion the said controversy isabsolutely irrelevant so far as the present case is concerned. Here it cannotbe denied that the age of the respondent no. 1 recorded in the electoral roll isnot conclusive. It is open to challenge and is being challenged in this case.The question is what probative value should be given to the age as recordedin such rolls. I have felt that in the absence of any proof as to the basis onwhich the age of the respondent no. 1 or his brother Dalip Kumar cameto be recorded in the relevant electoral rolls it will not be safe to rely onthem, particularly in view of the other documentary evidence which falsifiesthe age recorded in the electoral rolls. It is not in frequently that personswho are under aged succeed in finding a place in the electoral rolls. Veryoften the age of the voters recorded in these rolls is found to be substan-tially wrong and in my opinion Exs. R-2, R-3 and R-4 cannot out-weightthe probative value of the other documentary evidence on the record. Ex.R-5 is the same document as Ex/R-3. So far as Ex. R-5 is concerned, itis the certified copy of the nomination paper of the respondent no. 1 filedin the election in dispute. It states the age of the respondent no. 1 as havingcompleted 27 years. This statement is made by the respondent no. 1 him-self in his own signature in the said document. I should like to observehere that if 11th April, 1949 was really the date of birth of the respondentno. 1, then he had completed 28 years on the date when he filed the saidnomination paper. The nomination paper was filed on 18th May, 1977.It is not clear why he did not say that he had completed 28 years. Thisis another circumstance which goes to falsifies the case of the respondentno. 1 that his real date of birth is 11th April, 1949. So far as Exs. R-7and R-8 are concerned, these are two horoscopes one alleged to be of therespondent no. 1 and the other alleged to be of Dalip Kumar, his younger

C.L-R.j RAJENDRA PRASAD GUPTA V. PRADEliP KUMAR BAJAI AND 303OTHERS

brother. The said documents have not impressed me as genuine and Isubstantially accept the criticisms which the learned counsel for the petitionerhas levelled against the said documents. I have already noticed his conten-tions in this regard and it is not necessary to re-state them. In both thedocuments the word 'Bajaj' invariably appears with the name of Bala Buxand Ram Autar; further in Ex. R-7 the baby is described as 'PrathemPutra' (first child) and in Ex. R-8 the baby is described as 'Dwitiya Putra'(Second child). Such things arc never mentioned ingenuine horoscopes.The very look of the documents belies that they are really such old docu-ments as they are claimed to be and the vermillion' mark in both is un-doubtedly similar. As the original Pandit, who is said to have preparedthese documents is dead, nc one could be cross-examined in respect ofthe contents of the said doci ments. It is not difficult to prepare suchhoroscope for the purposes of a litigation and in my opinion they shouldbe held to have been prepared for the purposes of this case. So far asEx. R-9 is concerned, it is the birth certificate issued by the Deoria Muni-cipal Board and it is a common document in as much as it is equivalentto Ex. 1 which has been filed by the petitioner in support of his case. Ofcourse, the parties are at contention as to whether this birth certificaterelates to the respondent no. 1 or to his younger brother. This is all thedocumentary evidence from the side of the respondent no. 1.

I have already referred to a document which has been marked as aCourt document being C-l and I have made by observations in connectionwith the said document above. .

Taking into consideration the entire documentary evidence on therecord I have felt that the documentary evidence of the petitioner is superiorin quality and is more reliable than the documentary evidence of the res-pondent no. 1.

I have noticed the various contentions raised on behalf of the respon-dent no. 1 in the foregoing discussion. However, a few more remain bediscussed.

Learned counsel for the respondent no. 1 contended that the instantpetition should be held to be governed by the law laid down in BrijMohan's case (AIR 1965 S.C. 282) (supra) and not by the law laid downby •'Tjirujohn's case (AIR 1977 S.C. 1724) (supra). He also placed reli-ance on recent decision of a learned judge of this Court in Anirudh versusBirendra Election Petition no. 15 of 1977~decided on 31st March, 1978). Inthe said election petition also the question of age was involved and on thebasis of the evidence led by the parties it was held that the returnedcandidate's date of birth had been wrongly recorded in the school register.The facts of the said case were peculiar and it was found that first day ofdifferent calendar months was recorded as the date of birth of a largenumber of scholars admitted to the institution. It was observed byBANERJI, J.. who decided the petition:

"As a matter of fact in the first 100 names in the Register 13scholars had their date of birth as the 1st January, 2 had 1st February,5 had 1st March. 2 each had 1st April, 1st May, 1st June, 3 had 1stof July, 1 each had 1st August, 1st October and 1st of November.This totals up to 32 out of a 100 having their date of birth as the1st of a month."

40—3JECI/ND/85

304 RAJENDRA PRASAD GUPTA Kl'RADLtiP KUMAR JJAJAI AND OTUIRS"| VOL. LXHI

In the said background it was held that 1st of January. 1954 was wronglyrecorded as the dale of birth of the respondent in the said case. 1 do notthink that any help can be derived from the observations in the said petitionin deciding the instant case which has its own facts and circumstances.

I do not think that counsel for the respondent no. I are right in con-tending that in AIR 1965 SC 282 {supra) it has been laid down, that irres-pective of the plausibility or acceptability of ihc explanation offered thesame must be accepted by a trial Judge on (he off chance thai the explana-tion might turn out to be true. II do not think that any such law can beand has been laid down in the aforesaid extract from the said judgmentof the Supreme Court which has been reproduced above. In the said casethe Election Tribunal had accepted the explanation about the incorrectdate of birth recorded in the school register but the High Court had upsetthe said finding. When the matter went to the Supreme Court, it wasobserved that—

"Taking all the circumstances into consideration, we are of opinionthat the explanation may very well be true".

The observations have to be read in the context in which they weremade and no such generalization or legal proposition was laid down as isbeing contended for by the learned counsel for the respondent no. 1. tnmy view, in every case such explanation as may be forthcoming regarding analleged wrong date of birth recorded in school register will have to beconsidered on the basis of the evidence adduced by the parties coupledwith the circumstances of the case. The question of the acceptability ofsuch explanation can never be treated as a question of law. Tn my view,there is no inconsistency between AIR 1965 SC 282 (supra) and AIR 1977SC 1724 (supra). The cases were decided on their peculiar facts andcircumstances and in one. the. explanation offered by the returned candidatewas accepted but in the other it was rejected. However, T have alreadyheld that on the basis of the law laid down in AIR 1977 SC 1724 (supra)it has to be held in the instant petition also that the onus of proof hasshifted from the petitioner to the respondent no. 1 and it was for the latterto have satisfied the Court with his explanation regarding his admissioncontained in various documents. He has failed to discharge the said onus

..of proof.

I have referred to certain circumstances on which the learned counselfor the respondent no. 1 placed reliance but, in my view, the so-called cir-cumstances in no way help the respondent no. 1. The fact that the respon-dent no. 1 read in an institution at Bishunpura Bazar at some good dis-tance from the city of Deoria and not in the city of Deoria, the fact thaton the basis of the oral evidence of the respondent no. 1. Smt. Sita DevJis alleged to have had ten conceptions, etc. are disputed questions;*aMeven if they were admitted 1 do not think that they are of such cogencyas to make the version of the respondent no. 1 really probable.

Similarly, certain other points which were emphasised by the learnedcounsel for the respondent no. 1 have also not impressed me. For exam-ple, his contention that at the time of the scrutiny of nomination no objec-tion was taken is in no way material. It may be that at that stage the

-petitioner did not know about the real date of birth of the respondent no. 1.Jn the same manner, counsel's point that as the eldest child, there is a

E.L.R.] RAJENDRA PRASAD GUPTA V. PRADKEP KUMAR BAJAI AND 305OTHERS

likelihood that the respondent no. 1 would have born at the place of themother's parents is again an absolutely vague kind of probability. Noreliance should be placed on such tenuous disputed circumstances.

Regarding the contention that the Educational Code of U.P. is notstatutory but is only in the nature of a code of departmental direction, 1have to say that the said contention really goes against the case of therespondent no. 1 if such was the legal position then there was no difficultyin R. W. 2, Babunandan Misra giving admission to the respondent no. 1in his own institution notwithstanding any direction to the contrary in thesaid Code. It is the respondent no. 1 himself who has made so muchabout the requirement of the maximum age of admission in the sixth classwhich is said to be laid down by the said Code. So far as the petitioneris concerned, he is clearly alleging that the entire aforesaid story of therespondent no. I based on the directions contained in the EducationalCode of Uttar Pradesh is a mere pretence and eye-wash set up for thepurposes of explaining away his correct date of birth 14th September, 1955as recorded in the various documents to which reference has been madeabove.

. There are a few pending applications in the petitions and I herebywould deal with them. 1 have already dealt with the application ofthe petitioner, dated 24th August, 1978 and 1 have, for the reason statedherein before, rejected the same. However, 1 must say that there is areal substantial point which the petitioner has made in the said applicationand I draw adverse inference against the respondent no. 1 for his failureto set out the facts and details in his written statement concerning thecircumstances in which the allegedly wrong date of birth came to be re-corded in the Bishunpura Bazar institution. The very fact that nothingwas said about the said part of the case of the respondent no. 1 in hispleadings entitled the Court to draw adverse inference against the proba-tive value of the evidence which was subsequently adduced in the witness-box.

There is an application of the respondent no. 1, dated 16th August,1978 wherein he has prayed that the aforesaid paper no. II Nagrikon KaRashtriy Register) should nor be read in evidence. I have already accept-ed the said contention of the respondent no. 1 and, therefore, the prayerin the application shall stand allowed. There is another application, dated24th August, 1978 by the respondent no. 1 wherein it was stated that someof the witnesses of the respondent no. 1 brought certain documents andfiled the same in the Court—"without the knowledge of the respondentno. 1 and his counsel -Sri A. N. Singh and Sri V. K. S. Chaudhary". Itwas alleged in paragraph 6 of the application that "nobody directed theaforesaid two witnesses to file those papers in the case on behalf of the

jes-pondent no. 1. The said papers therefore, may not be taken on recordatria- may not be perused as evidence in the case from the side of therespondent no. I"'. Amongst the papers filed is the original birth registerof the Deoria Municipal Board, an extract whereof is Ex. 1.

1 have not been impressed with the correctness of the said allegations.The witnesses concerned were official witnesses and they had no personalinterest; to file any document unless the parly who summoned them desiredto gel such papers lilcd. Il has seemed lo me another instance of the xtylein which ihe respondent no. I has been lighting out this case in a rather

300 RAJENDRA PRASAD GUPTA V PRADEEP KUMAR BAJAI AND OTHERSLVOL. LXIII

questionable manner. If the respondent no. 1 were not to disown the filingof the said papers including the birth register, then he would have beenhard put to explain as to why he did not get th§ birth register from theKatihar Municipal Board summoned and brought by the witness filed ina similar manner. Hence, the said application was given with a view toward off such criticism. However, the papers which were filed by theofficial witnesses, have not been treated an evidence in this case and, there-fore, so far as the prayer contained in the said application is concerned,it shall stand allowed.

I may state here that alter the arguments were over and the petitionwas reserved for judgment, the respondent no. 1 sought to bring on recordadditional evidence but by my separate order I did not allow him to doso as 1 feel that there was no adequate reason to allow additional evidenceto be brought on the record at that stage.

I, therefore, decide issue no. 1 in favour of the petitioner and againstthe respondent no. 1.

So far as issue no. 2 is concerned, it has to be decided in favour ofthe respondent no. 1 in view of law laid down in A.l.R. 1954, S C page 520(supra). However, in view of my decision on issue no. I, it has to be heldthat the election of the respondent no. 1 is void under section 100 (I) {a)of the Representation of the People Act, 1951.

issue no. 3

No argument was adduced on behalf of the petitioner in respect ofthis issue and it is decided against the petitioner. There is no evidencein support of the claim of the petitioner that he received the majority ofthe valid votes. It should be seen that in the context besides the peti-tioner and respondent no. 1 there were six other candidates and in such asituation, it cannot be said that if the respondent no. 1 goes, then the peti-tioner must necessarily be held to have secured the majority votes. In fair-ness to the counsel for the petitioner, I should like to state here that hehimself conceded that the petitioner could not in the fact of this case claimrelief (b) of the petition. In other words he could not be declared electedin place of respondent no. 1.

The petition accordingly succeeds in part. The election of the res-pondent no. 1, Pardip Kumar Bajaj is hereby declared void and is setaside. The prayer contained in relief (b) in the petition is hereby rejected.The petitioner shall be entitled to such costs as have been incurred by himfrom the respondent no. 1.

Under section 103 of the Representation of the People Act, 1951, theElection Commissioner and the Speaker of the U.P. Assembly shall' beimmediately informed about the decision of this petition by the Court and,therefore the office shall send to the Election Commissioner as soon aspossible, an authentic copy of the judgment.

Petition allowed.

IN THE HIGH COURT OF JUDICATURE FOR RAJASTHANAT JODHPUR

SATYADEO RAJPUROH1TV

SHANKAR LAL AND ANOTHER

(KALYAN DUTTA, J.)

January 19/November 18, 1978

Constitution of India—Ankle 14 -Representation of tne PeoDle Act,195[—Sections 100(1) (d) (iv) and 123(7)—Election Symbol {Reservationand Allotment) Order, 1968—clause 13—Non-compliance with provisionsof —candidate to be treatid as set u/> by a political party—requirement of—notice of intimation of a particular candidate as set up by a national partyto be signed by the President etc—stencilled imprint of the signature ofthe President in the Notice—whether sufficient—allegation election material-ly affected by nan compliance—proof of—corrupt practices—procuring theassistance cf government servants for the furtherance of tne prospects ofthe candidate's election-Candidates of the national and stele partiesbroadcasting their election propaganda on All India Radio and Doordarshanpursuant to Notification issued by the Election Commission,—whetheramounts to candidate procuring the assistance of government servants work-ing In the said organisations—whether discriminatory and violative. of Article14—Meaning of the expression "Agents" in Explanation 1 under Section123 (7).

Representation of the People Act, 1951—Sections 82 and 83—partiesto the petition—whether Returning Officer is a necessary party—-Materialparticulars to be stated in the petition- -requirement of.

The petitioner challenged the election of the first respondent to theRajasthan Legislative Assembly from Jetaran Assembly constituency on theground, inter alia, that the election was materially affected by reason of thenon-compliance with the provisions of the Election Symbols (Reservationand Allotment) Order, 1968 and on account of corrupt practices committedby the first respondent at the election. The petitioner contended that thefirst respondent and the second respondent who contested the election asthe candidates of the Indian National Congress party and the Janata Partyrespectively were wrongly ailowed to do so as the requisite notice underparagraph 13 (b) of the 1968 Order contained the signature of the Secretaryof the Congress party in stencilled imprint, as regards the second respondent,the Janata party candidate the pstitioiner contended that despite the intima-tion to the Election Commission by the President of the Janata Partyabout a change in the name of the official candidate from the second res-pondent to another person the Returning Officer continued to treat the secondrespondent as the official candidate. Although the notice of the intimationof the change was received by the Election Commission before 3 a.m. asprovided under paragraph 13 of the 1968 Order, such notice of inlimafionwas, however, received by Ihe Returning Officer after the said lime. TheElection Commission vide a subsequent letter confirmed that in the circuins-

308 SATYADEO RAJPUROHIT V SHANKAR [VOL. LXIIJ

tanccs the second respondent had been valid ly treated as the official candi-date of the Janata Party.

The pctiiioner further contended that the first respondent and otherofficial candidates of the national parties committed a corrupt practice byprocuring the assistance of the government servants working in the AllIndia Radio and the Doordarshan Kendras for broadcasting their propagandain furtherance of the prospects of their election. Further the act on the partof the Election Commission in affording such facilities to recognised Nationaland State parties only and not to the petitioner and other like candidateswas discriminatory and in violation of Article 14.

A preliminary objection to the maintainability of the petition wasraised on the ground of non-joinder of Returning Officer as a party andalleging absence of material particulars viz names of voters etc who wouldhave voied otherwise it the alleged non-compliance with paragraph 13 ofthe Order of 1968 had not occurred.

HELD: Dismissing the petition—-

(i) 'I he signature in the notice of the intimation of the official Candi-da'e made by a stencilled impiint is sufficient compliance with paragraph13 of the Order, 1968 and it is not necessary that the signature has to bein the person's own handwriting in each of such notices. Even assumingthat there was a non-compliance, the petitioner had failed to establish thatthe election had been materially aiiected by reason of any such non-com-pliance.

(ii) The act of the candidates set up by the national and state partiesbeing allowed to broadcast their election propaganda over All India Radioand Doordarshan Kendras does not constitute a corrupt practice withinthe meaning of Section 3 23(7) of the Act. it falls under the proviso toSection 123(7) as the government servants working in the All India Radioand Coord,irsnan. Kendras were discharging their legitimate official dutiespursuant TO the direction issued by the Election Commission of India.

IN-DKA NEHRU GANDHI v RAJ N A RAIN : AIR ! 975 (SC) 2299;

KA RUCK CHANDERA ROUT v BUOY KRISHNA DE: 1962Doabia Election Cases 282;

HAFIZ MOHAMMAD IBRAHIM v ELECTION TRIBUNAL: 13E.L.R. 262;

HAJ1 ABDUL. ftABID v B V KESHKAR AND ANR: 2! E L R 409

... referred-to

(iii) In the absence of any imputation of nialafsde, bad faith, miscon-duct or impropriety on the part of the Returning Officer, the ReturningOfficer is neither a necessary nor a proper party to the Election Petition.The petition tiled was therefore not bad for non-joinder of necessary party.

(iv) The petitioner had stated ail the material particulars in the petition. .]t was ii'H necessary for the petitioner to give out the names of the voiers--who would have voted for him in case the symbols were not allotted in theother candidates.

E.L.R.] SATYADKO RAJVUROH1T V. SHANKAR 309

HARDWAR! LAI. v KANWAL SINGH: AIR (1972) SC 515;

SMT INDIRA NEHRU GANDHI v RAJ NARA1N: AIR (1975) SC

2299;

VASHISHT NARAIN SHARMA v DEV (HAND & ORS: 10 E.L.R.30:

MAHADEO v (IDA! PRATAP: AIR (1966) SC 824;

JASHBHAI PAT EL v ANVERBEG: AIR (1969) SC 586:

/?/rL/ i?.4M v NAND KUMAR- AIR (1977) SC 1914;

BASHIR AHMED MAGREY v GHULAM QUAD/.R MIR: (1977)i SCC 285

...referred to

(v) The classification of recognised national and state political partiesinto a separate class is based on intelligible differentia related to the objectsought to be achieved, namely, in a democratic country the political partiesplay an important role and voters should know their programmes and poli-cies. The opportunity of broadcasting being allowed to national and statepolitical parlies is not therefore discriminatory or violative of Article 14.


Satyadeo Rajpurohit with ML Shrimali, for the petitioner

Marudhar Mridul, for Respondent No 1

N M Lodha. for Respondent No 2

JUDGMENT

ORDER DATED JANUARY 19, 1978 ON PRELIMINARY ISSUES:

KALYAN DTJTTA J.—'I his is an election-petition filed by SatyadeoRajpurohit against Shanker Lai and Narayan Singh for declaring void theelection of the successful candidate to the Rajasthan Legislative Assemblyfrom Jetaran constituency. Upon pleadings of the parties, besides otherissues, the following 'hree legal issues were framed:--

!. Whether the Returning Officer is a necessary party lo the petition?If so, what is its effect?

2. Whether the allegations of corrupt practice alleged in petition arevague or wanting in material particulars? If so, what is its effect?

N.P. 1.

3. Whether allegations about the election being materially affected,lack material particulars? If so, what is its effect?

N.P. 1.

310 SATYADEO RAJPUROIIIT K SI1ANKAR [VOL. LXlii

As the aforesaid issues were purely of legal character, they were taken-up for decision in the first instance. Arguments were heard on theseissues on 17th January, 1978. My findings on each issue are quoted below:

Issue No. 1.

It was contended by Mr. Marudhar Mridul, learned counsel forShanker Lai. non-petitioner No. 1, that certain allegations have been madein the election-petition with regard to the conduct of the Returning Officerand so he should have teen impleaded as a necessary party to the election-petition. In support of his above contention, he relied upon an authorityof the Calcutta High Court Dwijendera Lai Sen Vs. Hare Kishan Konar(1). Mr. Satyadeo Rajpurohit, petitioner, on the other hand, contended thatno allegations of bad faith, misconduct or impropriety have been madeagainst the Returning Officer in the election-petition and, therefore, it wasnot necessary to add the Returning Officer as a necessary party to theelection-petition. In support of his above contention, the election-petitionerinvited my attention to section 82 of the Representation of the PeopleAct, hereinafter referred-to as the Act, and contended on the strength ofits provisions that as he has not claimed a further declaration that he himselfor any other candidate has been duly elected, he was required under the lawto implead in his election-petition the returned candidate only, which hehas already done. The election-petitioner further submitted that undersection 82 of the Act it is not necessary to add the Returning Officer as aparty to the election-petition especially when there is no imputation ofmisconduct or bad faith against him.

I have considered the rival contentions. The allegations in the elec-tion-petition against the Returning Officer are that he allotted party symbolsto Shri Shanker Lai and Shri Narayan Singh in direct contravention ofpara 13 of the Election Symbols (Reservation and Allotment) Order, 1968,hereinafter referred-to as the order. Such an allegation is not an imputa-tion of misconduct or bad faith against the Returning Officer. It might bea bonafide but an erroneous decision on the point of allotment of symbolsto Narayan Singh and Shanker Lai, who were candidates of Janata partyand the Indian National Gongress respectively. Hence, I <!o not subscribeto the view of Mr. Marudhar Mridul, learned counsel for the non-petitioner.Shanker Lai that She Returning Officer was a necessary party to the election-petition and that he should have been made a non-petitioner. In thereferred-to above authority cited by Mr. Marudhar Mridul, it is merelyobserved that the Returning Officer is a proper party, if allegations of mereirregularity and illegality committed by him are made against him in theelection-petition. In the instant case the election petitioner has merelychallenged the correctness of the order of the Returning Officer passed onthe question of allotment of symbols to the non-petitioners and so. in niyopinion, it is not an appropriate case where it is necessary to make theReturning Officer as a necessary or proper party to the election-petition.Consequently, issue No. 1 is decided against the non-petitioners and it is heldthat the Returning Officer is not a necessary party to this election-petition.

Issue No. 2.

The contention of Mr. Marudhar Mridul learned counsel for ShankerLai non-petitioner No. 1, regarding this issue before me is that the allega-

(1) 1963 Doabla's Election Cases 206.

E.L.R.] SATYADEO RAJPUROHIT V. SHANKAR 311

tions of corrupt practice regarding procuring or obtaining by the non-peti-tioners or their agents or by any other person with their consent or withthe consent of their election agents any assistance, other than the givingof vote, for the furtherance of the prospects of their election from any personin the service of the Government are vague and lacking in material parti-culars and so do not raise any triable issue. According to his submission,the election-petitioner must have precisely set out the type of assistanceand also the manner in which it was obtained or procured from persons inthe service of the Government. Further, the election-petitioner ought tohave mentioned the time and place when and where such assistance wassought from the aforesaid persons. [n support or his above contention,Mr. Marudhar Mridul relied upon the following authorities:— HardwariLai Vs. Kanwal Singh (2) and Smt. Indira Nehru Gandhi Vs. Raj Narain(3) Mr. Satyadeo Rajpurohit. election-petitioner, on the other hand, urgedthat in ground (e) of para 18 of his election-petition he has precisely andclearly stated that the Indian National Congress and the Janata Party pro-cured assistance of authorities controlling All India Radio and Televisionfor broadcasting and telecasting their election propaganda for thefurtherance of the prospects of the election of the non-petitioners to the pre-judice of the election petitioner who was denied such facilities of broadcast-ing and telecasting election propaganda through All India Radio by theaforesaid authorities. According to his submission, such a propagandathrough All India Radio and Television amounted to obtaining or procur-ing assistance, other than giving votes, with the consent of the non-petitionersfor the furtherance of their prospects from persons in the service of the Go-vernment. Mr. Satyadeo Rajpurohit further urged that in para 19 of hiselection-petition he has given out necessary particulars as to the type ofthe assistance, the time and place and the period during which it was ob-tained or procured from the authorities controlling All India Radio andTelevision.

I have given my anxious consideration to the rival contentions. Inmy opinion, the election-petitioner has alleged all material facts and particu-lars about the assistance obtained or procured by the Indian NationalCongress Party and the Janata Party with the consent of the non-petitionersfor furtherance of the prospects of their election from persons in the Govern-ment service controlling All India Radio and Television. The election-petition, therefore, does not suffer from want of essential and materialfacts or particulars to furnish a cause of action. The question whetherprocuring or obtaining such assistance as set out in the election-petitionfalls within the purview of proviso to sub-section (7) of S.I23 of the Acthas to be decided at the appropriate stage. Suffice it to say that thenature of the assistance as also the manner in which the assistance wasobtained or procured from the persons in the service of Government and theplace and the period during which it was obtained have been set out in theelection-petition and therefore, the election-petitioner cannot be asked tofurnish material particulars with regard to the allegations of this corruptpractice. Tssue No. 2 is, therefore, decided against the non-petitioners.

Issue No. 3.

Mr. Marudhar Mridul, learned counsel appearing on behalf of ShanJcerLai, non-petitioner, vehemently contended that the allegations made by the

••• (2) A.T. R. 1972 S. C. 515.(3) A. T. R. 1975 S. C. 2299.41—3 ECI/ND/85

312 SATYADEO RAJPUROMIT V. SIIANKAR [VOL. LXIII

election-petitioner about the election being materially affected lack inmaterial particulars. According to his submission, the allegations in thisrespect do not fall within the purview of any of the four sub-clauses ofclause (d) of sub-section (1) of S. 100 of the Act and so in the absence ofmaterial and essential particulars, the election-petition may be dismissed.In support of his above contention, Mr. Mardhar Mridul relied upon VashaistNarain Sharrna Vs. Dev Chand and others (4), Mahadeo Vs. Udai Partap(5), Jashbhai Patel Vs. Anverbeg (6), Beli Ram Vs. Nand Kumar (7) andBashir Ahmad Magrey Vs. Ghulam Quadir Mir (8). Mr. SatyadeoRajpurohit, on the other hand, argued that he has set forth full particularsabout the election being materially affected in para I8(f). (g) and (h) andso his election-petition docs not suffer from want of essential particularsin this behalf. f*?

I have considered the rival contentions. Clause (iv) of sub-section (1)(d) of S. 100 of the Act lays down that if the High Court is of opinionthat the result, in so far as it concerns a returned candidate, has been materi-ally affected by non-compliance with the provisions of the Constitution orof the Act or any Rules or Orders made under the Act, it shall declare theelection of the returned candidate as void. Tn the instant case, the peti-tioner has complained of the breach of the provisions of the Order as, ac-cording to him, the symbols of the Janta Party and the Tndian NationalCongress Party were wrongly allotted to Narayan Singh and Shanker Lai,non-petitioners. The order was made by the Election Commission of Indiain exercise of the powers conferred by Art. 324 of the Constitution readwith Rules 5 and 10 of the Conduct of Election Rules, 1961 and all otherpowers enabling it in this behalf. Hence, it rnay be said that primafaciethe allegations made by the election-petitioner about the election beingmaterially affected fall within the purview of clause (iv) of sub-sec. (1) (djof section 100 of the Act. The petitioner has made clear allegations thatthe result of the election was materially affected. In addition thereto, hefurther alleged that it has been materially affected on account of non-com-pliance with the provisions of para 13 of the Order which was made bythe Election Commission in exercise of the powers conferred by Article324 of the constitution read with Rules 5 and 10 of the Conduct of ElectionsRules. 1961 and all other powers enabling it in this behalf. Apart fromthis, the election-petitioner clearly stated in sub-paras (f), (g) and (h) of para18 of the election-petition how and in what manner the election has beenmaterially affected by non-compliance with the provisions of the order.It was not necessary for him to give out the names of voters who wouldhave voted for him in case the symbols were not allotted to the non-peti-tioners as party candidates. Of Course, the burden of proving that theresult of the election had been materially affected by the non-complianceis on the petitioner. Tn case he fails to discharge the burden, the election-petitions would bs dismissed. At this stage, it cannot be said that theelection-petition lacks any essential and material particulars regarding theelection being materially affected. Issue No. 3 is, -therefore, decided'infavour of the petitioner and against the non-petitioners.

ORDER DATED NOVEMBER 18, 1978.

This is an election petition filed by Shri Satya Deo Raipurohit, whocontested the election to the Rajasthan Legislative Assembly held in t]ig

(4) 10ELR. 30. C5) AIR 1966 SC 824.(6) AIR 1969 SC 586. (7) AIR 1977 SC. 1914.(8) (1977) 1 SCC. 285

E.L.R.] SATYADEO RAJlUROHlT V. SH.ANKAR 313

year 1977 from Jetaran (159) Assembly constituency and was declaredunsuccessful. The petitioner seeks to challenge the election of the returnedcandidate Shri Shanker Lai, non-petitioner No. 1, on the ground that theresult of the election in so far as it concerned the returned candidate, hadbeen materially affected by non-compliance with the provisions of theElection Symbol (Reservation and Allotment) Order, 1968, hereinafter refer-red-to as the Order, 1968, and on the ground of a corrupt practice com-mitted by the returned candidate and as defined under section 123(7) ofthe Representation of the People Act, 1951, hereinafter referred to as theAct, 1951.

The petitioner's case, in brief, is as follows: —

The petitioner filed a nomination paper to contest the election to theRajasthan Legislative Assembly held in the year 1977 from Jetaran (159)Assembly constituency. Upon scrutiny, his nomination paper was acceptedon May 19, 1977, by the Returning Officer. Likewise, the nominationpapers of Amra Ram, Bhoora Ram, Uttam Chand, Narayan Singh, ShankerLai and Shyam Singh also were accepted along with those of some othercandidates. Shri Uttam Chand, Shyam Singh and Shri Narayan Singh andthe petitioner made a declaration in their nomination papers that they wereset-up by the Janata Party as candidates to contest the election, whereas thedeclaration contained in the nomination paper of Shri Shanker Lai was tothe effect that he was set-up as a candidate by the Indian National CongrassParty. The last date for withdrawal from the candidature was May 21,1977, upto 3 p.m. Shri Chandra Shekhar, President, Janata Party and ShriR. K. Hagde, General Secretary, Janata Party, were authorised to sign andsend the notice under paragraph 13(c) of the Order, 1968, as they were com-petent to sponsor any candidate on behalf of thejanta Party. ShriNarayan Singh, non-petitioner No. 2, presented a notice dated May 17, 1977,along with specimen signatures of Shri Chandra Shekhar, President, JantaParty, to the Returning Officer, under paragraph 13(b) of the Order, 1968,on May 21, 1977, before 3 p.m. The notice contained a declaration tothe effect that Shri Narayan Singh was a candidate set-up by the JantaParty for contesting election to the Rajasthan Legislative Assembly fromJetaran (159) Assembly Constituency. This notice did not contain thesignatures of the President of the Janta Party as required by paragraph13(c) of the Order, 1968. There were imprints of the block of signaturesof Shri Chandra Shekhar on it only. A similar notice purporting to be underparagraph 13(b) of the Order, 1968, was filed by Shri Shanker Lai, non-petitioner No. 1 before the Returning Officer prior to 3 p.m. on May 21,1977. This notice also contained the declaration that Shri Shanker Laiwas a candidate set-up by the Indian National Congress Party, but it wasnot signed by any person required to sign the same. It contained a stencilimprint of cyclostyle including the imprint of the signatures of M. ChandraShekhar, General Secretary, Indian National Congress Party. No authori-sation by the Indian National Congress Party in favour of M. ChandraShekhar was, however, filed before the Returning Officer.

The General Secretary of the Janata Party sent an intimation to theElection Commission, vide notice under para 13(b) of the Order, 1968.before 3 p.m. on May 21, 1977, that in place of Shri Narayan Singh, ShriShyam -Singh was the candidate set-up by the Janta Party to contest the"electi&'n from Jelaran constituency, Ihis intimation contained (he namesof the candidates finally set-up by the Janta 1'arty in Rajasthan for 13

314 SATYADEO RAJPUROHIT K|SMANKAR [VOL. LXlIl

constituencies. In pursuance of the said intimation, the Election Com-mission sent a telex message to the Chief Electoral Officer, Rajasthan, Jaipur,on May 21, 1977. A copy also of the telex message was sent on May 22,1977 by the Chief Electoral Officer, Rajasthan, Jaipur to the ReturningOfficer, on May 25, 1977. The Returning Officer received a message fromthe Chief Electoral Officer, Jaipur, Shri M. L. Kanungo on May 21, 1977,at 9.38 p.m. to the effect that Shri Shyam Singh had been set-up as candidateof the Janata Party from Jetaran constituency in place of Shri Narayan Singh.It will not be out of place to mention that Shri Shyam Singh had alreadywithdrawan his candidature from the said election before 3 p.m. on May21, 1977 and his withdrawal was accepted by the Returning Officer. Someother candidates also withdrew from election on that date, with the resultthat Sarvashri Amra Ram, Bhoora Ram, Uttam Chand, Narayan Singh,Shanker Lai and the petitioner only remained in the field as contestingcandidates. Symbol of cow and calf was allotted to Shri Shanker Lai,non-petitioner No. I, as he was the candidate set-up by the Indian NationalCongress Party while symbol of 'Haldhar' (within the wheel) was allottedto Shri Narayan Singh taking him to be the candidate of the Janata Partyon the basis of the notice filed by him on May 17, 1977. The petitionercame to know on May 21, 1977 from the news relayed from All IndiaRadio, Jaipur at 7.05 p.m. that Shri Shyam Singh was set-up as a candidateof the Janta Party in Jetaran constituency in place of Shri Narayan Singh.After hearing these news, the petitioner reached the office of the ReturningOfficer on May 23, 1977, and met him at about 4 or 5 p.m. The petitionerenquired from the Returning Officer about the change made in the nameof the candidate set-up by the Janla Party. The Returning Officer inform-ed the petitioner that he had received an intimation from the Deputy ChiefElectoral Officer, Jaipur, upon telephone that the candidate set-up by theJanta Party in Jetaran constituency was Shri Shyam Singh in place ofShri Narayan Singh but as Shri Shyam Singh had already withdrawn hisnomination paper and Shri Narayan Singh had already been allotted thesymbol of the Janata Party, he in his reply intimated the latest positionto the Deputy Chief Electoral Officer during his talks on telephone. There-upon, on May 24, 1977, the petitioner sent a petition under rule 10(5) ofthe Conduct of Election Rules, 1961, hereinafter referred to as the Rules,1961, read with paragraph 13 of the order, 1968, to the Election Commissionby registered post. By way of this petition, the petitioner submitted thatShri Narayan Singh could not be treated as a candidate set-up by the JantaParty under paragraph 13 of the Order, 1968, and therefore, he should beallotted any free symbol and the symbol of the Janata Party allotted to himshould be withdrawn. The petitioner raised objections also in his petitionregarding non-compliance with the directions contained in paragraph 13(c)of the Order, 1968, and on that basis also sought to challenge the allotmentof symbol of the Janata Party issued to Shri Narayan Singh.. The petitionof the petitioner reached the Election Commission on May 26, 1977. Acopy thereof was given to the Returning Officer, Jetaran, also, on May 25,1977. The Returning Officer heard the petitioner and Shri Narayan Singhon May 26, 1977 and expressed his inability to withdraw JantaParty symbol from Narayan Singh because, in his opinion, theElection Commission could do so under Rule 10(5) of the Rules, 1961 andas the petitioner had already moved the Election Commission in thisbehalf, he would do nothing but would wait for the decision of the ElectionCommission. The petitioner met the District Election Officer also on May,26, 1977, but he gave the same reply as was given to him by the Returning'."Officer. The petitioner then met Shri T. Swami Nathan on May 30. 1977.


and requested him for giving a decision on his petition but no decision wasgiven and the petitioner was asked to wait for the decision, which would beintimated to him as and when given. However, no intimation of any deci-sion on the petitioner's petition was received by the petitioner.

The petitioner further alleged in his election-petition that the Union ofIndia afforded facilities to the national as well as State parties for broad-casting election speeches from All India Radio Stations and Doordarshanin every State in which general elections to the Legislative Assemblies werebeing held. The Election Commission of India issued notification No.437/4/77 to this effect to All the Chief Electoral Officers including thatof Rajasthan. By virtue of this notification each national and State Partywas allowed to broadcast election speeches on All India Radio on twooccasions of 15 minutes each and to telecast from Durdarshan for 15minutes. Hence, in pursuance of the said notification, the Indian NationalCongress Party and the Janata Party were allowed to broadcast on AllIndia Radio and to telecast on Durdarshan Kendras during the periodbetween May 25 and June 7, 1977, election propaganda in their favour.The petitioner, being an independent candidate, was not afforded any suchfacility. The said notification, therefore, violated Article J4 of the Consti-tution of India. Besides, such broadcast on AH India Radio Stations andtelecast on Durdarshan Kendras amounted to corrupt practice as definedunder section 123(7) of the Act, 1951, because Shri Shanker Lai and ShriNarayan Singh candidates of the Indian National Congress Party and theJanata Party respectively procured assistance of even gazetted officers of theUnion Government who were in charge of the All India Radio and DurDarshan Kendras during the aforesaid period for furtherance of the pros-pects of their election. The poll took place on June 10, 1977. The voteswere counted on June 14, 1977 and the result was declared the same dayas under: —

(a) Total votes 73408

(b) Votes polled . ; 38961

(c) Invalid votes 917

(d) Valid votes 37944

(e) Votes for Anna Ram (Independent) 283

(f) Votes for Uttamchand (Independent) 236

(g) Votes for Narayan Singh (Janata Party) 16615

(h) Votes for Bhoora Ram (Independent) 653

. (i) Votes for Shankcrlal (Indian National Congress Party) J8660

(j) Votes for Satya Deo (Independent) 1494

The petitioner further alleged that as a result of non-compliance withthe provisions of paragraph 13 of the Order, 1968, symbols of the IndianNational Congress Party and the Janata Party were wrongly and illegallyallotted to Shri Shanker Lai and Shri Narayan Singh. Had these symbolsbeen not allotted to the" • ' - - - - " ' - < • •• -* •dents and Shri Shanker

them, they would have fought the election as Indepen-ker Lai would not have won the election. The oeti-- . „_ peti-

tioner has, therefore, sought a declaration that the election of the returnedcandidate Shri Sh.inter Lai had been materially affected and it may bedeclared void.

316 SATYADEO RAJPUROH1T V. SHANKAR [VOL. LXIII

Shri Shanker Lai, non-petitioner Mo. 1, appeared in the court in res-ponse to the summonses issued to him and filed a written-reply. The caseof Shri Shanker Lai is that the election-petition is liable to be dismissed fornon-joinder of necessary parties to the election-petition. According tohim, the Returning Officer, the District Election Officer, the Chief ElectoralOfficer, Rajasthan, Jaipur and the Election Commission of India shouldhave been impleaded as necessary parties because certain allegations abouttheir conduct were made by the petitioner in his election-petition. It wasfurther urged that the election-petition suffered from want of statement ofmaterial facts and particulars as required by section 83(1) (a) and (b) of theAct, 1951. Apart from these preliminary objections the non-petitionerNo. 1 denied that any corrupt practice was committed by himor his agent as defined in sub-section (7) of S. 123 of theAct, 1951. He further denied the allegation of the petitioner that therewas no compliance with the provisions contained in para 13(b) or (c) ofthe Order, 1968 in respect of his candidature and that of Narayan Singh.As no intimation from the General Secretary of the Janata Party reachedthe Returning Officer.before 3.30 p.m. on June 21, 1977, about change ofthe name of the candidate set-up by the Janta Party in place of Shri NarayanSingh, the Returning Officer committed no illegality in allotting Janta Partysymbol to Narayan Singh, because Shri Shyam Singh had already withdrawnhis nomination paper before noon on May 21, 1977. The non-petitionerNo. 1 produced a certified copy of the wireless message sent by the ChiefElectoral Officer, Rajasthan, Jaipur, to the Collector, Pali, confirming theallotment of symbol of the Janta Party to Shri Narayan Singh to show thatthe allotment of the symbol of the Janta Party to Shri Narayan Singh waslegal. In the end, it was pleaded that the petitioner's allegation that theresult of the election had been materially affected was baseless and a tallclaim, because even total votes polled by the petitioner and Shri NarayanSingh fell short of the votes polled by him.

Shri Narayan Singh, non-petitioner No. 2 also put in his appearancein the court through his learned counsel Shri G. M. Lodha (as he then was),but he did not file any written reply, although opportunities were givento him. On September 29, 1977, the learned counsel for the non-petitionerNo. 2 prayed for further adjournment to file the written reply but furtheradjournment was refused and on December 12, 1977, the following issueswere framed upon pleadings of the parties: —

1. Whether the Returning Officer is a necessary party to the petition?If so, what is its effect?

2. Whether the allegations of currupt practice alleged in petition arevague or wanting in material particulars? If so, what is its effect?

3. Whether allegations about the election being materially affectedlack material particulars? If so, what is its effect?

4. Whether allotment of symbol of Janata Party to non-petitioner No. 2is illegal as alleged in the petition? If so, whether the same hasmaterially affected the result ol election?

5. Whether the allotment of the Symbol of Congress Party to noil-petitioner No,:. 1 _\n illegal? If so, has it materially a (fed ed theresult of election?

IX.R.J SATYADEO RA.1PUROHTT V. SHANKAR 317

6. Whether non-petitioner No. 1 is guilty of corrupt practice withinthe meaning of section 123(7) of the R.P.A. (Representation ofthe People Act) as alleged in paras 16 and 18(e) of the petition?

7. Whether non-petitioner No. 2 is guilty of corrupt practice withinthe meaning of section 123(7) of the Representation of the PeopleAct as alleged in paras 16 and 18{e) of the petition?

8. Is the petitioner entitled to any relief?

The issues were read over' and explained to the learned counsel for theparties. As issues Nos. 1, 2 and 3 were legal issues, they were taken-upfor decision in the first instance. The learned counsel for the parties didnot like to adduce any evidence on these issues and advanced their ar-guments. Arguments were heard on January 17, 1978 and decision onthese issues was given on January 19, 1978. All these issues were decidedagainst the non-petitioners. The decision on these issues shall form partof this judgment.

The petitioner examined himself on the remaining issues Nos. 4, 5,6 and 7 and produced documents marked Exs. 1 to 20. He did not liketo produce any witness. Likewise, Shri Shanker Lai, non-petitioner No. 1,appeared in the witness-box and examined no other witness. He, how-ever, produced some documents which are marked Exs. A. 1 to Exs. A. 13.The non-petitioner No. 2 neither filed written reply, nor examined himselfor any other witness.

I have carefully gone through the record and heard Mr. M.L. Shri-mali for the petitioner and Mr. Marudhar Mridul appearing on behalfof non-petitioner No. 1. Mr. N. M. Lodha appeared on behalf of non-petitioner No. 2 but he did not advance any argument. My findings onissues Nos. 4, 5, 6, 7 and 8 are quoted below in extenso:—•

Issues Nos. 4 and 5

These two issues are based on one of the grounds contained in sec-tion 100(1) (d) (iv), i.e. non-compliance with the provisions of the Act,1951 or the Rules or the orders made thereunder and, therefore, they aredealt with together. There is an allegation in the election petition that theresult of the election has been materially affected by infraction of the pro-visions contained in paragraph 13(b) and (c) of the Order, 1968. Thenon-compliance with paragraph 13(b) and (c) of the Order, 1968, asalleged by the petitioner is that Shri Shanker Lai, non-petitioner No. 1and Shri Narayan Singh, non-petitioner No. 2 could not be deemed to becandidates set-up by the Indian National Congress Party and the JanataParty respectively, because the notice under paragraph 13(b) of the Or-der, 1968, on the basis of which Shri Shanker Lai was allotted the symbolof the Congress Party was neither signed by the President, Secretary orany other office-bearer of that Party, who was authorised by the saidParty to send such notice, nor. was it communicated in advance to theReturning Officer of Jetaran Constituency and the person who stencil im-

. prints of cyclostyled signatures appeared on the notice was authorisedby the Congress Party to send such notice, and likewise the notice spon-soring Shri Narayan Singh as a candidate of the Janata Party also wasneither signed by Shri Chandra Shekar, President of the Janta Party, nor

318 SATYADEO RAJPUROHIT V. SHANKAR [VOL. LXIII

the specimen signatures of Shri Chandra Shekar were communicated inadvance to the Returning Officer of the said constituency. It was fur-ther alleged by the petitioner that the Secretary General of the JantaParty intimated to the Election Commission, India, by a notice underparagraph 13(c) of the Order, 1968, before 3 p.m. on the last day of with-drawal of candidatures, i.e. on May 21, 1977, that in place of Shri Nara-yan Singh, non-petitioner No. 2, Shri Shyam Singh was set-up as a can-didate to contest the election to the Rajasthan Legislative Assembly fromJetaran constituency on behalf of the Janta Party but despite such notice,the Returning Officer allotted the symbol of the Janta Party to Shri NarayanSingh taking him to be the candidate of the Janta Party on the basis of theprevious notice dated May 17, 1977 and, in this manner, the Returning Officercontravened the mandatory provisions of paragraph 13 of the Order, 1968.According to the petitioner, Shri Narayan Singh could not be deemed tobe a candidate set-up by the Janta Party. The candidate set-up by theJanta Party was Shri Shyam Singh, who withdrew his nomination paper be-fore 3 p.m. on the last day of withdrawal of candidatures. Had therebeen compliance with the provisions of paragraph 13 of the Order, 1968,Narayan Singh would have been allotted an independent symbol and thevotes polled in favour of the Janta Party would have been cast in favourof the petitioner. Similarly, if there had been no contravention of the pro-visions of paragraph 13 of the Order, 1968, Shanker Lai, non-petitionerNo. 1, would have been deprived of the symbol of the Indian National Con-gress party and would not have secured votes polled in favour of that party.

As stated earlier, the non-petitioners have denied all the allegationsmade by the petitioner regarding non-compliance with the provisions con-tained in paragraph 13 of the Order, 1968. They have further deniedthat the result of the election had been materially affected by the allegednon-compliance. Hence, it has to be determined whether the petitionerhas succeeded in proving that there has been non-compliance with theaforesaid provisions of the Order, 1968 and the result of the election hasbeen materially affected by such non-compliance. Before dealing withthe question of contravention of the aforesaid provisions of paragraph 13of the Order, 1968, and their effect on the.result of the election, I thinkit necessary to reproduce paragraph 13 of the order, 1968, which readsas follows:—

"13. When a candidate shall be deemed to be set up by a politicalparty.—For the purposes of this Order a candidate shall be deemedto be set up by a political party if, and only if,—

(a) the candidate has made a declaration to that effect in his nomi-nation paper;

(b) a notice in writing to that effects has, not later than 3 P.M. onthe last day of withdrawal of candidatures, been delivered tothe returning officer of the constituency; and

(c) the said notice is signed by the president, the secretary or anyother office-bearer of the party and the president, secretary otsuch other office-bearer is authorised by the party to send suchnotice and the name and specimen signature of the president,;the secretary or such other office-bearer are communicated inadvance to the returning officer of the constituency and to theChief Electoral Officer of the State."

EX.R.H SATYADEO RAJPUROH1T K SHANKAR

Paragraph 8 of the said Order provides that a candidate set up by a na-tional party at any election in any constituency in India shall choose, . andshall be allotted the symbol reserved for that party in that State and thereserved symbol shall not be chosen by, or allotted to, any other candi-date who is not set up by that national party for whom such symbol hasbeen reserved. It is not disputed before me that both Janta Party and theIndian National Congress Party were national parties in the last electionto the Rajasthan Legislative Assembly. Further; there is no dispute thatthe symbol of cow and calf was allotted to the Indian National CongressParty while the symbol of 'Haldhar' (within the wheel) -was reserved forthe Janta Party. The dispute is whether Shri Shanker Lai and Shri Nara-yan Singh, non-petitioners Nos. 1 and 2, could be deemed to be set up bythe Indian National Congress Party and the Janta Party respectively inthe last election to the Rajasthan Legislative Assembly from Jetaran(159) constituency and whether symbols reserved for these two partieswere rightly allotted to the candidates set up by them in the aforesaidconstituency. From a bare perusal of Ex. A. 1 it appears that a notice inwriting under paragraph 13(b) of the Order, 1968, was delivered to the(Returning Officer of the constituency on May 19, 1977, at 11.45 a.m.before the last day of withdrawal of candidatures. Ex. A. 1 bears thesignatures of Shri Girdhari Lai Vyas, President, Rajasthan Pradesh Con-gress, Committee, marked A to B therein. In this document it is clearlystated that Shri Shanker Lai, non-petitioner No. 1, is set up as a can-didate to contest the election to the Rajasthan Legislative Assembly fromJetaran constituency and that the symbol reserved for the Indian NationalCongress Party, i.e. cow and calf may be allotted to him. Hence, there isdue compliance with paragraph 13(b) of the Order, 1968.

The next question that arises for consideration is whether Shri GirdhariLai Vyas who signed the said notice Ex. 1 as President Rajasthan PradeshCongress Committee, sent such notice and whether his name and specimensignatures were communicated in advance to the Returning Officer of theconstituency and the Chief Electoral Officer of the Rajasthan State. Inthis connection, reference may be made to Exs. 3, 4 and Ex. A. 10. BothExs. 3 and 4 are letters dated May 11, 1977, communicating in advanceto the Chief Electoral Officer, Rajasthan State, that Shri Girdhari LaiVyas, President, Rajasthan Pradesh Congress Committee, had been autho-rised by the Indian National Congress Party to intimate the names of thecandidates proposed to be set up by the party at the general election,1977 to the Rajasthan Legislative Assembly and that the specimen signa-tures of Shri Girdhari Lai Vyas so authorised were given below. Theseletters contained specimen signatures of Shri Girdhari Lai Vyas. Theobjection of the petitioner to the validity of these letter is that they do notbear the signatures of M. Chandra Shekar, General Secretary, IndianNational Congress Party and so it cannot be safely held on their basisthat the communication envisaged by paragraph 13(c) of the Order, 1968,was sent by the General Secretary, Indian National Congress Party. Itis no doubt true that these two letters Exs. 3 and 4 were not signed byM. Chandra Shekhar, General Secretary, Indian National Congress Party,but the non-petitioner No. 1 has invited my attention to another docu-ment Ex. A. 10 which bears the stencil imprints of the cyclostyled signa-tures of M. Chandra Shekhar, General Secretary, Indian National Con-gress Party. This letter was also addressed to the Chief Electoral Officer,Rajasthan, Jaipur. Tt is clearly stated in it that in pursuance of paragraph13(c) of the Order, 1968, it is hereby communicated that Shri Girdhari Lai

42—3 ECI/ND/85

320 SATYADEO RA.TPUROHIT V. SHANKAR [VOL. LXTIT

Vyas, President, Rajasthan Pradesh, Congress Committee, has been autho-rised by the Indian National Congress Party to intimate the names of thecandidates proposed to be set up by the party at the general elections,1977, to the Legislative Assembly from Rajasthan and That the specimensignatures of Shri Girdhari Lai Vyas so authorised were given below.

There are three specimen of stencil imprints of the cyclostyled sig-natures of Shri Girdhari Lai Vyas in it. This letter is dated May 11,1977 and it was received by the Chief Electoral Officer, Rajasthan, Jaipur.on May 16, 1977. On the back of this letter, there is the following en-dorsement:—

"No. F. 3(l)(63)T/Elec/77/2647

Copy together with copy of enclosure forwarded for informationand necessary action to:

(1) All Returning Officers for Rajasthan Constituencies.

(2) All Election Officers (Collectors).

Telegraphic receipt may kindly be acknowledged.

Sd/-Manik Lai

Dy. Chief Electoral OfficerRajasthan, Jaipur."

The contention of the petitioner is that the expression "sign" used inparagraph 13(c) of the Order, 1968, can only mean writing ones own namein ones own handwriting except in the case of persons who are unableto write their names in whose cases the provisions contained in Rule 2(2)of the Rules, 1961, must be complied with. According to him, the stencilimprints of the cyclostyled signatures of M. Chandra Shekhar, GeneralSecretary, Indian National Congress Party and of the specimen signaturesof Shri Girdhari Lai Vyas in Ex. A 10 are not signatures in the eye of lawand, therefore, there was no compliance with the mandatory provisionsof paragraph 13(c) of the Order, 1968. The above contention is devoidof substance, because stencil imprints of the cyclostyled signatures'M. Chandra Shekar, in Ex. A. 10 are included within the expression"sign", b'ecause his name is written in her own hand-writing. The word'sign' is to be taken in its ordinary sense with its grammatical variationsand cognate expressions as defined in S. 3(56) of the General Clauses Act.M. Chandra Shekhar, General Secretary, Indian National Congress Partywas required to sign a number of such letters during the election process,because the candidates were set-up by the Indian National Congress Partyin all the constituencies of different State where general election to theState Assemblies were held in the year 1977. If instead of writing hername by pen and ink in her own handwriting on every such letter sent toall the constituencies of the States in which general election to the StateAssemblies were held, she put her signatures by writing her name in herown handwriting on one such letter and the other letters bearing stencilimprints of the cyclostyled signatures prepared by mechanical process weresent to the constituencies of the Rajasthan State, it cannot be held thatsuch letters did not bear the signatures of M. Chandra Shekar in her own..

B.L.R.] SATYADEO RAJPUROH1T V. SHANKAR 321

handwriting. In S. C. Debi Vs. Union of India (1), it was held by theDivision Bench of the Calcutta High Court as under:—

"The Bengal Public Demands Recovery Act, 1913, and the rules inSchedule II of the Act do not contain any definition of the word "sign".Section 3(41) of the Bengal General Clauses Act 1 of 1899 containsthe following definition:—"Sign" with its grammatical variations andcognate expressions, shall, with reference to a person who is unableto write his name, include 'mark' with its grammatical variations andcognate expressions." A similar definition of the word "sign" will befound in section 3(56) of the Central General Clauses Act, 1897. Nowa person can sign his name by using a pen and ink; but the use ofpen and ink is not essential for a signature. He may well sign hisname by stamping his facsimile signature with a rubber stamp. Theimpression of a facsimile signature is not a mere mark or symbol;it distinctly identifies the individual whose signature it purports to be.In order that a person may sign his name by stamping his facsimilesignature, it is not necessary that he should be unable to write his name".

In an earlier case of the Calcutta High Court Nirmal Chandar Bando-pandhya Vs. Saratmoni Debya (2) the same view was taken by a DivisionBench of the Calcutta High Court and it was held as follows:—•

"The use of a pen and ink does not seem to be necessary for thepurpose of putting on the signature required. In the case of JenkynsV, Gaisford-(1.863) 11 W.R., (Eng.) 854; 3 SW. & T. 93) the Judgesindicate that the use of pen and ink was not necessary for signing,and that argument may be well applied to this case also. A personmay sign or put his name down by means of types, or, if he uses afacsimile for signing his name, he may use it for his signature."

Similarly, the stencil imprints of the cyclostyled specimen signaturesof Shri Girdhari Lai Vyas in Ex. A 10 cannot be found fault with for thereasons mentioned above. There is no proof adduced by the petitioner onthe record that stencil imprints of the cyclostyled signatures of M. ChandraShekhar and the stencil imprints of the cyclostyled specimen signatures ofShri Girdhari Lai Vyas were not the genuine signatures of these persons.Consequently, I am unable to hold that there was non-compliance withthe provisions contained in paragraph 13(c) of the Order, 1968.

For the reasons stated above, the letter Ex. 1 signed by Shri ChandraShekhar, President, Janta Party, bearing his stencil imprints of the cyclo-styled signatures does not suffer from any infirmity. The letter Ex. 1 wasaddressed to the Chief Electrol Officer, Rajasthan, Jaipur, and it was statedtherein that in pursuance of paragraph 13(c) of the Order, 1968, notice wasgiven that Shri Narayan Singh had been set-up by the Janta Party as itscandidate in the ensuing election to the Rajasthan Legislative Assemblyfrom Jetaran constituency. This letter is dated May 17, 1977. There isanother letter Ex. 5 on the record bearing the stencil imprints of the cyclo-styled signatures of Chandra Shekhar, President, Janta Party, sent to theChief Electoral Officer, Rajasthan, Jaipur, on May 16, 1977, communicating

(1) 67 (1962-63) Calcutta weekly Notes 759.(2) 25 (1898) I. L. R. Calcutta series 91) (916)

322 SATYADEO RAJPUROHIT V. SHANKAR [VOL. LXII1

that Shri Chandra Shekhar, President, Janta Party had been authorisedby the party to intimate the names of the candidates proposed to be set-upby the party at the election of 1977 to State Legislative Assemblies through-out India. It bears the stencil imprints of the cyclostyled specimen sig-natures of Shri Chandra Shekhar. There is the following endorsement ofthe Election Department on this letter:—

"No. F. 3(1)(63) I/Elec/77/2823Jaipur, Dated 18th May, 1977.

Copy forwarded to:—

All R.Os. for L.A. and All D.E.Os. for information and necessaryaction.

Sd/-Manik Lai,

Dy. Chief Electoral Officer,Rajasthan, Jaipur."

Hence, there is due compliance with the provisions contained in para-graph 13(b) and (c) of the Order, 1968, and the petitioner could not provethat there had been infraction of the provisions of the Act, 1951, or of anyRules or Orders made thereunder.

Another ground on which the election of the returned candidates issought to be declared void is that the Returning Officer committed anerror in allotting the symbol of the Janta Party to Shri Narayan Singh,candidate at the election, because he was not a candidate set-up by theJanta Party. This ground also is not well-founded. Under Paragraph 8of the Order, 1968, a candidate set-up by a national party at any electionin any constituency in India shall choose and shall be allotted the symbolreserved for that party and such reserved symbol shall not be choosen byor allotted to any other candidate. It is not disputed before me that theJanta Party was declared a national party at 1977 election to the Jetaranconstituency of the Rajastfran State. As stated above, in the beginning thecandidate set-up by the Janta party was Narayan Singh, who had made adeclaration to that effect in his nomination paper and a notice in writing tothat effect had been delivered to the Returning Officer of Jetaran constitu-ency before the last day of withdrawal of candidatures i.e. on May 21,1977. As stated earlier, the said notice was signed by the Janta PartyPresident Shri Chandra Shekhar, who was authorised by the Party to signsuch notice and the name and the specimen signatures of the Janta PartyPresident Shri Chandra Shekhar were communicated in advance to theReturning Officer of Jetaran constituency and to the Chief Electoral Officerof the State. The Returning Officer, therefore, committed no error in allott-ing the symbol reserved for Janta Party to Narayan Singh, because before3 p.m. on the last day of withdrawal of candidatures, he did not receiveany intimation about the alleged change in the name of the candidate set-up by the Janta Party in Jetaran constituency. The petitioner's contentionbefore me is that Shri Shyam Singh instead of Shri ;Narayan Singh, non-petitioner No. 2, must be deemed to be set-up by the Janta Party becausethe General Secretary to the Janta Party sent intimation to the ChiefElection Commissioner, India, on May 21, 1977, before 3 p.m. about changesmade if the party's official candidates in some constituencies of Rajasthan.


The letter by which such intimation was sent is Ex. 14. It is statedtherein by Shri R. K. Hegde, General Secretary of the Janta Party that onaccount of certain unavoidable circumstances the party has made somechanges in its official candidates in some of the constituencies of Rajasthan.In this letter Shri Shyam Singh was declared to be set-up by the JantaParty as its candidate in Jetaran constituency. In pursuance of this intima-tion by the General Secretary of the Janta Party, the Election Commissionof India, sent a telex message to the Chief Electoral Officer, Rajasthan.Jaipur, on May 21, 1977. The Deputy Chief Electoral Officer, Rajasthan,Jaipur, thereupon, sent a message upon telephone to the Returning Officerin Jetaran constituency on May 21, 1977. at 9.38 p.m. that Shri Shyam Singhhad been declared to be the official candidate of the Janta Party in placeof Shri Narayan Singh in Jetaran constituency. The Deputy Chief ElectoralOfficer, Rajasthan Jaipur, Further informed the Returning Officer that atelegram to the same effect also had been sent to the District ElectionOfficer, Pali. A copy of the message received by the Returning Officeron telephone is Ex. 6. The Returning Officer, Jetaran constituency, couldnot allot the symbol reserved for the Janta Party to Shri Shyam Singh incompliance with the intimation sent to him by the Election Commission ofIndia through Shri M.L. Kanungo, Deputy Chief Electoral Officer, Rajas-than, Jaipur, because Shri Shyam Singh had already withdrawn his nomi-nation form before 3 p.m. on the last day of withdrawal of candidaturesi.e. May 21, 1977, and his withdrawal had been accepted by the ReturningOfficer. When the petitioner approached the Returning: Officer on May 23,1977, at 4 or 5. p.m. and enquired about the change in the name of thecandidate set-up by the Janta Party, the Returning Officer disclosed all thefacts to him including the fact that he had intimated the latest position tothe Deputy Chief Electoral Officer during his talks with him on telephoneon May 21, 1977 at 9.38 p.m. The petitioner eventually moved the ChiefElection Commissioner India for cancellation of the allotment of the sym-bol of the Janta Party to Narayan Singh. It appears that the Chief ElectionCommissioner of India gave a direction vide telex message dated May28, 1977, that allotment of symbol reserved for Janta Party to NarayanSingh in Jetaran constituency was in order and he should be deemed tohave been set-up as a candidate by the Janta Party. Reference in thisconnection may be made to a certified copy of the wireless message whichwas sent by the Deputy Chief Electoral Officer, Rajasthan, Jaipur, to theCollector, Pali, on May 28, 1977. As stated earlier, the Election Commis-sion, India, did not issue any direction that the reserved symbol of theJanta Party was wrongly allotted to Shri Narayan Singh, but, on the otherhand, it had directed that allotment of symbol reserved for Janta Partyin Jetaran constituency was in order and the latter should be treated as acandidate set-up by the Janta Party in that constituency. Reference in thisconnection may also be made to Rule 10(5) of the Rules, 1961. Sub-rule(5) of Rule 10 clearly provides that the allotment by the returning officetof any symbol to- a candidate shall be final except where it is inconsistentwith any directions issued by the Election Commission in this behalf inwhich case the Election Commission may revise the allotment in such manneras it thinks fit. In view of these provisions, I have no hesitation in holdingthat the" allotment of the symbol reserved for Janta Party to Shri NarayanSingh was final as it was not inconsistent with any direction issued by theElection Commission in this behalf.

Assuming that there has been any non-compliance in the matter ofallotment of symbols to Shri Shanker Lai and Shri Narayan Sin^h, candi-

3 2 4 SATYADEO RAJPUROHIT V. SHANKAR [VOL. LXIII

dates of the Indian National Congress Party and that Janta Party respec-tively as alleged by the petitioner in his petition, the election of the re-turned candidate cannot be declared void unless it is proved that the resultof the election has been materially affected. The petitioner could notadduce proof of the fact that if the symbols reserved for the IndianNational Congress Party and the Janta Party were not allotted to Shn Shan-kher Lai and Shri Narayan Singh respectively, there would have been distribu-tion of votes in such a manner between the contesting candidates as wouldhave caused the defeat of the returned candidate and would have made him(i e the petitioner) successful. The question whether the alleged non-com-pliance with the provisions of the Rules, 1961 and the Order, 1968, hasmaterially affected the result of the election, m so far as it concerned thereturned candidate, is a question of fact which requires positive proofIt may be difficult to adduce such proof, but the petitioner is not relievedof his burden or duty to prove the effect of the non-compliance on theelection In the present case, the petitioner examined himself and producedno other affirmative evidence on this point. His evidence is that if thesymbol reserved for the Indian National Congress Party was not allottedto Shanker Lai, non-petitioner No. 1, he would have secured a good num-ber of votes because most of the voters were not pleased with Shanker Laibut they voted for the Congress Party. Likewise, if the symbols reservedfor the Janta Party was not allotted to Narayan Singh and if Narayan Singhhad fousht election on some independent symbol, the persons who votedfor the Janta Party would not have cast their votes in favour of NarayanSin^h on another symbol and would have voted for him, i.e. the petitionerhVause he was an active member of the Janta Party. It is further allegedbv\he petitioner that if Narayan Singh and Shanker Lai had contested theelection as independent candidates, the petitioner would have their chancesof winnina the election, because the majority of the voters who voted forn-rtv symbol and not for the candidates would have cast their votes in hisfavour The above statement of the petitioner is based on conjectures andno conclusion that the result of the election has been materially affectedcan be based on imaginary grounds. Hence, issues Nos. 4 and 5 are decidedagainst the petitioner.

Issues Nos. 6 and 7

The other ground on which the election of the returned candidate hasbeen challenged is that conupt practice as denned in sub-section (7) of S.m of the Act 1951 had been committed by Shri Shanker Lai, returnedcandidate, or his agent with his consent. The particulars of the alleged cor-rupt practice are given in para 16 and clause e) oh para 8 of the electionpetition In para 16 of the election pet.tion, it is stated by the petitioner thatthe Union of India afforded facilities to the national and State parties forbroadcasting by television or otherwise their election propaganda from AHS a Radio Stations and Doordarshan Kendras in every State in which thegeneral elections to the Legislative Assembles were going to be held TheElection Commission of India issued .Nohhcation No. 437/4/77 to all theChief Electoral Officers including the- Chief Electoral Officer, Rajasthan.whereby such broadcast and telecast of election propaganda on All IndiaRadio Stations and Doordarshan Kendras • respectively on two occasionsof 15 minutes' each was allowed for each national party or State party. Itwas further alleged that in pursuance of the said notification, the IndianNn ional Conercss Party and the Jania Party were permitted to broadcastfhc t ^ i o n propastnda on All India Radio Stations and Doordarshan

E.L.R.] SATYADF.O RAJPUROH1T V. SHANKAR 325

Kendras respectively during the period between May 25 and June 7, 1977(both days inclusive). The petitioner was not afforded such facility, becausehe was an independent candidate. According to the petitioner, the saidnotification violates Article 14 of the Constitution of India and the broadcastand telecast of election propaganda by the Indian National Congress Partyand the Janta Party were illegal and amounted to obtaining or procuring,by the returned candidate or his agent, an assistance other than the givingof votes for the furtherance of his election from gazetted officers or staffof the All India Radio Stations and Doordarshan Kendras, who were inthe service of the Government at that time. In clause (e) of Para 18 of thepetition the aforesaid allegation is repeated, though in different words. IssuesNos. 6 and 7 were framed on these allegations of corrupt practice as theallegations were denied by the non-petitioner No. 1. The petitioner hasexamined himself to prove these issues. He led no other oral evidence.Shri Shanker Lai, non-petitioner No. 1, appeared in the witness-box torebut the statement of the petitioner.

I have carefully perused the evidence and the pleadings of the partieson these issues.

Before the election of the returned candidate can be declared voidon the ground of corrupt practice under sub-section (7) of section 123 of theAct, 1951, the petitioner is required to adduce affirmative evidence on thefollowing points:—

(!) whether the facts alleged by the petitioner can be deemed to be anassistance from any person in the service of the Government be-longing to any of the classes mentioned in sub-section (7) of section123 of the Act;

(2) If so, whether Shri Shanker Lai, the returned candidate or his agentobtained or procured the alleged assistance from any of the aforesaidpersons;

(3) If so, whether the assistance was for the furtherance of the returnedcandidates election.

It is only when all these conditions are satisfied that the provisions of sub-section (7) of section 123 of the Act, 1951, are attracted. If any of these condi-tions is not established, the case would not fall within the ambit of sub-section(7) of S. 123 of the Act, 1951. At the outset I may observe that there is noevidence on the record that the alleged assistance was obtained or procuredby Shri Shanker Lai or Shri Narayan Singh or their election agents from anyperson in the service of the Government belonging to any of the classes men-tioned in sub-section (7) of section 123 of the Act, 1951. It is no doubt truethat the Election Commission of India issued a notification (Ex. 11) to theChief Electoral Officers of the 12 States mentioned therein including the ChiefElectoral Officer, Rajasthan,- Jaipur, that there was a proposal to grant facili-ties to National and State parties for broadcasting from the principal All IndiaRadio Stations in a.State and Doordarshan Kendra in every State in which ageneral election to the Legislative Assembly is being held. The broadcaston All Tndia Radio will be on two occasions of 15 minutes' duration eachfor each party and likewise the telecast from Doordarshan Kendra wouldbe on two occasions of 15 minutes' duration each for each party. It was

326 SATYADEO RAJPUROHIT V SHANKAR [VOL. LXIII

further intimated by Ex. 11 that necessary instructions were expected to beissued to All India Radio and Doordarshan by the Ministry of Broadcastingin a day or two and the programme may be implemented between May 25and June 7, 1977 (both days inclusive). The Election Commission further""directed that all help in the matter should be given and it must be ensuredthat national and state parties in the States are informed of the date, timeand place of the draw of lots for such broadcasts and telecast well in time.Then further directions were given in regard to the method of draw of lotsfor broadcast and telecast from All India Radio and Doordarshan Kendra.It is alleged by the petitioner that in pursuance of this notification (Ex. 11),the Director General, All India Radio issued telegrams to Station DirectorsAH India Radio, Jaipur, on May 21, 1977, such instructions are containedin letter Ex. 12. Similarly, the Directorate General, Doordarshan, issueddirections to Doordarshan Kendras in States vide its letter Ex. 13 for afford-ing the aforesaid facility to broadcast and telecast to national and stateparties, in each State. In pursuance of these directions, speeches were deli-vered from All India Radio, Jaipur, by leaders of the Janta Party and theIndian National Congress Party as is evident from documents Exs. 15, 16,17, 18 and 19. It is further evident from the text of the speech Ex. 20that Shri Y. B. Chouhan, leader of the Congress Party delivered his speechfrom Doordarshan Kendra, Delhi. It is alleged by the petitioner that thesespeeches were delivered for furtherance of the prospects of election of thecandidates of Janta Party and the Indian National Congress Party and ifsuch facilities were not afforded to the said parties by the All India RadioStations and the Doordarshan Kendra, the returned candidate, namely, ShriShanker Lai and Shri Narayan Singh, candidate of Janta Party, would nothave been able to secure more votes than the petitioner had gained. Thepetitioner further contended that the expression 'agent' includes an electionagent, a polling agent and any person who is held to have acted as an agentin connection with the election with the consent of the candidate as is evi-dent from Explanation 1 appended to sub-section (7) of section 123 of theAct, 1951. According to the petitioner, the Indian National CongressParty and its prominent members who set-up the returned candidate, name-ly, Shanker Lai and who sponsored his cause and worked for furtherance ofthe prospects of his election and whose services were accepted by thecandidate were his agents. This is the definition of the expression 'agent'given in Explanation 1 appended to sub-section (7) of section 123 of theAct, 1951. In support of his above contention, the petitioner relied uponInder Lall Vs. Lai Singh (3), Krishan Kumar Vs. Krishna Gopal (4),Ramanbhai Vs. Ajitkumar (5) and Sheopat Singh Vs. Harish Chandra (6).

I have carefully perused the authorities cited by the petitioner. It is nodoubt true that the expression 'agent' defined in Explanation 1 appendedto sub-section (7) of section 123 of the Act, 1951, includes not only a personwho has been appointed agent by a candidate or his election agent towork for him in the election, but also the political party and its prominentmembers who, set up the candidate and, acted in furtherance of the pro-spects of his election and whose services have been expressly or impliedlyaccepted by the candidate. The election petitioner is not required to proveconsent of the returned candidate or his election agent in a case where he

(3) A. I. R. 1961 Raj. 122.(4) A. I. R. 1964 Raj. 21.(5) A. I. R. 1961 Gujarat 315.(6) A. I. R. 1960 S. C. 1217.


challenges the election on the ground of a corrupt practice having beencommitted by the agent or agents of the returned candidate in his interest.The words 'consent of the returned candidate or his election agent' have notbeen deliberately used in sub-clause (ii) of clause (d) of sub-section (1) of S.100 of the Act, 1951. The corrupt practice referred to in sub-clause (ii) of clause(d) of sub-section (1) of S. 100 of the Act, 1951, can be committed in theinterest of the returned candidate by an agent either with or without theconsent of the returned candidate or his election agent.

In this view of the matter, the Indian National Congress Party andits prominent members were all agents of Shri Shanker Lai, non-petitionerNo. 1, in the election and if such agents obtained or procured any assistancefrom any person in the service of Government belonging to any of theclasses mentioned in sub-section (7) of section 123 of the Act, 1951, thereturned candidate may be guilty of corrupt practice by an agent other thanhis election agent under sub-section (7) of section 123 of the Act, providedthe result of the election, in so far as it concerned the returned candidate, wasmaterially affected by the commission of such practice. In the instant case,the Indian National Congress Party and the Janta Party, who were agentsof Shri Shanker Lai, returned candidate, and Shri Narayan Singh, non-petitioner No. 2, respectively, were afforded facilities to broadcast theirelection propaganda from All India Radio Stations and Doordarshan Kendrain States in which the election to the Legislative Assemblies were beingheld. The facilities afforded to them were availed of by the prominentmembers of leaders of these parties, as is evident from documents Exs. 15to 20. It is further established that the assistance was given by gazettedofficers of All India Radio Stations, Jaipur and Delhi, and DoordarshanKendra for furtherance of the election of the candidates of these parties.The pertinent question that remains to be decided is whether such assistanceis permissible under the proviso to sub-section (7) of section 123 of the Act,1951. The proviso reads as follows:—

"Provided that where any person, in the service of the Government andbelonging to any of the classes aforesaid, in the discharge or purporteddischarge of his official duty, makes any arrangements or provides anyfacilities or does any other act or thing, for, to, or in relation to, anycandidate or his agent or any other person acting with the consent of thecandidate or his election agents, (whether by reason of the office heldby the candidate or for any other reason), such arrangements, facilitiesor act or thing shall not be deemed to be assistance for the furtheranceof the prospects of that candidate's election".

In my opinion, the assistance given by the gazetted Officers of the AllIndia Radio and Doordarshan Kendra to national and state parties forbroadcast, whether by television or otherwise, their propaganda in everyState including the Raiasthan State, where general election to the LegislativeAssembly was being held, comes within the purview of the said proviso,because their acts in providing such facilities or making such arrangementsamounted to legitimate discharge of their official duties in compliance withthe directions issued to them bv the Election Commission through theDirectorates General, All India Radio and Doordarshan. It is not the caseof the petitioner that gazetted officers or staff of the All India Radio Stationsand Doordarshan Kendra convassed for the candidates set up by the IndianNational Congress Party or the Janata Party including the returned candidateand Shri Narayan Singh or in any manner acted to influence the prospectsof election of such candidates. Further contention on behalf of the petitioner

43—3 ECI/ND/85

328 SATYADEO RAJPUROH1T V. SHANKAR [VOL. LXIII

is that the services rendered by gazetted officers of All India Radio Stationsand Doordarshan Kendras do not bear any relation to their official duties,because no such duty to allow leaders or prominent members of national andstate parties to broadcast by television or otherwise their election propagandawas imposed on them by statute or otherwise. The above contention alsois devoid of substance.

Gazetted officers allowed leaders or prominent members of political par-ties recognised as national and state parties by the Election Commissionof India to broadcast their election propaganda on All India RadioStations and Doordarshan Kendras in the performance of their officialduty under administrative directions of the Ministry of Information andBroadcasting. The expression 'official duty' includes a duty imposedby a statute or by any administrative direction of the execution as heldby the Supreme Court'in Indira Nehru Gandhi Vs. Raj Narain (7). Therelevant observation from ^the referred to above judgment are quotedbelow:—

149. "The contention on behalf of the respondent is that the Amend-ment Acts of 1974 and 1975 fall within the vice of delegated legislationbecause there are no guiding principles with regard to official dutyor nature of expenditure in Explanation 3 to section 77 of the 1951Act and in the proviso to section 123(7) of the 1951 Act. Official dutywill be a duty under any law. Official duty will be duty under admini-strative directions of the Executive. Official duty will be for security,law and order, and matters in aid of public purpose. These dutieswill be in connection with election. To illustrate, section 197 of theCriminal Procedure Code speaks of Official duty.

150. This Court in Matajog Dobey Vs. H. C. Bhari (1955) 2 SCR925 = (AIR 1956 SC 44) interpreted the words "official duty" to havereasonable connection between the act and the discharge of duty. Theact must bear such relation to the duty that the person could lay areasonable claim, but not a pretended fanciful claim that he did it inthe course of the performance of his duty. Where a power is conferredor a duty imposed by statute or otherwise and there is nothing saidexpressly inhibiting the exercise of the power or the performance of theduty by any limitations or restrictions, it is reasonable to hold that itcarries with it the power of doing all such acts or employing suchmeans as are reasonably necessary for such execution, because it is arule that when the lay commands a thing to be done, it authorises theperformance of whatever may be necessary for executing its command."

In the referred to above authority, services rendered by Governmentservants in the discharge of official duty for construction of rostrums andarrangements for supply of electric power for loudspeakers was not consi-dered to be an assistance for the furtherance of the prospects of the electionof the appellant Smt. Indira Nehru Gandhi. Reference in this connectionmay also be. made to Kartick Chandera Rout Vs. Bijoy Krishna De (8),Hafiz Mohammad Ibrahim Vs. Election Tribunal (9) and Haji Abdul WahidVs. B.V. Keskar and another (10).

(7) A.I.R. 1975 S.C. 2299 (2334).(8) 1962 Doabia Election Cases 282.(9) 13 Election Law Reports 262.

(10) 21 Election Law Reports 409.


In view of the provisions quoted above, the facts alleged and even pro-ved by the petitioner cannot be deemed to be any such assistance as mayfall within the mischief of sub-section (7) of S. 123 of the Act, 1951.

The last contention put forward by the learned counsel for the petitioneris that the facilities to broadcast were not affored to the petitioner by theMinistry of Information and Broadcasting during the election and, therefore,the directions issued by the said Ministry for affording facilities to politicalparties recognised as national or state parties by the Election Commissionto broadcast their election propaganda by television or otherwise from AllIndia Radio Stations and Doordarshan Kendras were highly discriminatoryand violative of Article 14 of the Constitution of India. In my opinion,such directions were based on intelligible differentia which was reasonablyrelated to the object sought to be achieved by them. In a, democraticcountry like India, the function of the political parties normally is recruit-ment of personnel for the Governments, particularly on the legislative sideand, to some extent, on the executive side and for the purpose of such recruit-ment they participate in electoral drive and, in this manner, they play animportant part in making it possible for the voters to know their programmesand policies before casting their votes. The alleged facilities were givenDy the Ministry of Information and Broadcasting to parties recognised asnational and state parties to propagate their election programmes throughthe media of All India Radio and Doordarshan, with a view to make itpossible for the voters to know the programmes and the policies of suchparties, the normal function of which was recruitment of personnel for theGovernments, particularly, on the legislative and administrative sides. Hence,it cannot be safely held that the directions issued by the Election Commis-sion, India, were discriminatory and violative of Article 14 of the Constitu-tion of India merely because such facilities were not given to the indepen-dent candidates including the petitioner.

As the returned candidate Shri Shanker Lai, non-petitioner No. 1,and Shri Narayan Singh, non-petitioner No. 2, candidate of the Janta Party,are not held guilty of corrupt practice as defined in section 123(7) of theAct, 195J, issues Nos. 6 and 7 are decided against the petitioner.

In view of my findings on issues Nos. 4, 5, 6, and 7, the election petitionfiled by Shri Satya Deo Rajpurohit fails and is hereby dismissed withcosts. As the non-petitioner No. 1 has examined himself only and producedno other witness, the costs payable to him are assessed at Rs. 750/-. ShriNarayan Singh, non-petitioner No. 2, neither filed any reply, nor did heproduce any evidence. Hence, he is not entitled to get any costs from thepetitioner. The costs shall be paid out of the security amount deposited bythe petitioner in this Court.

An intimation of the substance of the decision of this election petitionbe sent to the Election Commission, India, New Delhi, and the Speaker ofthe Rajasthan Legislative Assembly, Jaipur. An authenticated copy of thisjudgment may, thereafter, be sent to the Election Commission of India,New Delhi.

Petition Dismissed

BEFORE THE CHIEF ELECTION COMMISSIONER OF INDIA

In re : Reference from the President under Section 8{a) 3 read withSection 8 (a) 1 of the Representation of the People Act, 1951 re-garding the disqualification of SHRI RAM SURAT SINGH, M.L.A.

(S. L. SHAKDHER)

28//T November, 1978

Constitution of India, Article 192(2)—Representation of the People Act,1951—Section 8 A—Disqualification of members on grounds of committingcorrupt practices—opinion of the Election Commission—whether any ex-tenuating circumstances existed to reduce the period of disqualification.

The High Court of Patna declared the election of Shri Ram Surat Singhto the Legislative Assembly of Bihar void on the ground that he was guiltyof committing corrupt practices under Clauses (2) and (7) of Section 123of the Representation of the People Act namely availing of the services ofa gazetted officer and a police sub-inspector and also leading a mob andusing force to scare away voters. On account of the gravity of the offencesthe Commission did not find any extenuating circumstances for taking asympathetic view and therefore disqualified Shri Ram Surat Singh for thefull period of six years.

ORDER

Shri S. L. SHAKDHER—Whereas the election of Shri Ram Surat Singh(hereinafter referred to as the "returned candidate"), a returned candidateto the Legislative Assembly of the State of Bihar at the General Electionin that State held in 1972 has been set aside on the ground of corrupt prac-tices under sections 123(2) and 123(7) of the Representation of the PeopleAct, 1951, (hereinafter referred to as "the said Act");

And whereas the President has sought the opinion of the Election Com-mission in pursuance of sub-section (3) of section 8A of the said Act on thequestion whether the returned candidate should be disqualified in terms ofarticle 192 (1) (b) of the Constitution read with section 7(b) and section8A (1) of the said Act and, if so, for what period;

And whereas the Election Commission has given its opinion (vide An-nexure) that the returned candidate should be disqualified for a period ofsix years from the 17th November, 1977;

Now, therefore, I Neelam Sanjiva Reddy, President of India, in exerciseof the powers conferred on me under subjection (3) of section 8A of thesaid Act do hereby decide that the returned-candidate should be disqualifiedfor a period of six years from the 17th November. 1977.

NEELAM SANJIVA REDDY,Rashtrapati Bhavan, New Delhi, the 16th January, 1979.

President of India

330

E.L.R.] SHRI RAM SURAT SINGH, M.L.A. 331

ANNEXURE

ELECTION COMMISSION OF INDIA

BEFORE THE CHIEF ELECTION COMMISSIONER OF INDIA

In re : Reference from the President under section SA (3) read withsection 8/4 (1) of the Representation of the People Act, 1951, re-garding the case of Shri Ram Surat Singh, Ex-MLA.

This is a reference made to the Commission by the President of Indiaunder article 192(2) of the Constitution read with section 8A(3) and section8A(1) of the Rrepesentation of the People Act, 1951.

The election of Shri Ram Surat Singh (hereinafter referred to as thereturned candidate) to the Legislative Assembly of Bihar in 1972 has beenset aside on the ground of corrupt practices under sections 123(2) and 123(7)of the Representation of the People Act, 1951. Th opinion of the Com-mission is sought on the question whether the returned candidate should bedisqualified in terms of article 192(1) (b) of the Constitution read with section7(b) and section 8A (1) of the Act, and if so, for what period.

The returned candidate was elected to the Legislative Assembly of Biharin March, 1972 from 69-Belsand assembly constituency. His election waschallenged before the Patna High Court by Harish Chandra Mehto who wasan elector in that constituency. The main grounds on which the election waschallenged were: —

(1) The returned candidate himself and his workers, agents and sup-porters with his consent had committed the corrupt practices of un-due influence within the meaning of clause (2) of section 123 ofthe Act is so far as he had led a mob and by use of force hadscared away the electors and prevented a number of them fromexercising their franchise at the polling stations located in the Son-barsa Upper Primary School, on the day of poll i.e. 15-3-1972.

(2) The returned candidate has also committed the corrupt practice ofobtaining and procuring assistance of a BDO (who is a gazettedofficer of the Government of Bihar) and of a Sub-Inspector (whois a member of Bihar Police Force) for the furtherance of the pros-pects of his election which amounts to a corrupt practice withinthe meaning of clause (7) of section 123 of the Act.

The High Court found these charges established and by its judgmentdated 8-8-1975 declared the election of the returned candidate void.

On 8th September, 1975, the' returned candidate filed an appeal in theSupreme Court against the decision and order of the High Court. By itsorder dated 19-1-1976, the Supreme Court stayed the operation of the judg-ment and the order of the High Court. The Appeal filed in the SupremeCourt against the judgment of the High Court was dismissed by that Courton 17-11-1977 on the ground that.the appellant Shri Ram Surat Singh didnot press the appeal. Consequently, the stay order passed by the Supreme

3 3 | SHRI RAM SURAT SINGH, M.L.A. [VOL. LXII1

Court earlier was also vacated on 17-11-1977. Accordingly, the order ofthe High Court under section 99 of the said Act finding him guilty of corruptpractices should be deemed to have taken effect from 17th November, 1977.

The Election Commission issued notice to the returned candidateShri Ram Surat Singh affording him an opportunity of being heard. For thispurpose, the Commission fixed 9 June, 1978. Shri Ram Surat Singh didnot turn up on that day. Later he made four requests each time askingfor more time for filing the documents in support of his prayer on theground of his prolonged illness. Shri Singh was informed by the Com-mission that since he had been suffering ,from long illness, he need notcome personally to the Commission but could furnish to the Commissionall documents on which he relied and submit his arguments in writing onthe basis of which the Commission would formulate its opinionto be sent to the President. In his representation dated 29-9-1978,he had laid stress only on one ground namely that a period of 6 yearsof the disqualification should run from the date of the judgment of theHigh Court i.e. 8-8-75 and from the date of the dismissalof the appeal i.e. 17-11-1977 for the reasons that in essence the Judgmentof the High Court dated 8 August, 1975 was in operation effectively fromthe date of its pronouncement, that the Supreme Court did not grantan absolute stay of the Judgment of the High Court and that the appeal filedby him in the Supreme Court was not pressed before the Supreme Courtof India. In his submission, he has nothing to say on the actual findingsof the High Court regarding the twd corrupt practices proved to have beencommitted by him.

The High Court declared his election to be void on the ground ofthe commission' of corrupt practices under sub-clauses (2) and (7) of section123 of the Act. The returned candidate led a mob and used force to scareaway voters from polling stations. The commission of this corrupt prac-tice cannot be lightly viewed by the Commission. He has also availed ofthe services of not only a gazetted officer but also of a police sub-inspectorin furtherance of the prospects of his election. The fact that the stay gran-ted by the Supreme Court was only conditional is not material to theissue for consideration by the Commission as he was treated as a membeiof the Legislative Assembly though for a limited purpose and he did notincur any disqualification as contemplated in Chapter III of Part II of theRepresentation of the People Act, 1951.

For these reasons, there are not any extenuating circumstances in thepresent case for taking a sympathetic view. The Commission is thereforeof the opinion that Shri Ram Surat Singh should be disqualified in termsof Section 8A of the Representation of the People Act, 1951 and suchdisqualification should be for the full period of six years.

Accordingly, I tender opinion to .'the President..under section 8A(3) ofthe Act that Shri Ram Surat Singh- shoujd- f«-> iHsqualified for six yearsfrom the 17 November, 1977.

IN THE HIGH COURT OF JUDICATURE,ANDHRA PRADESH AT HYDERABAD

KASI VISWARA VENKATA RAMA KRTSHNA SRIRAGHAVARAJU

V.MURLA YERRATAH REDDY AND ANOTHER

(MADHUSUDAN RAO, J.)

December 18, 1978

Representation of the People Act, 1951—Ss, 36 and 100(1) (c)—rejectionof nomination paper—Constitution {Scheduled Tribes) Order 1950—Peti-tioner claiming to be a member\ of a Scheduled tribe mentioned in theorder—Proof of.

The petitioner challenged the first respondent's election to the AndhraPradesh Legislative Assembly from Bhadrachalam reserved constituencyon the ground that his nomination paper was improperly rejected by theReturning Officer at the time of scrutiny. The petitioner claimed that he be-longed to 'Rajah' or 'Rasha Koyas' which is a Scheduled Tribe mentionedin Part I of the Constitution (Scheduled Tribes) Order 1950. The Return-ing Officer rejected the nomination paper on the ground that in the lightof the documentary evidence produced before him he was not satisfiedthat the petitioner was a member of the abovementioned Scheduled Tribe.

HELD : Dismissing the petition—

On the evidence the petitioner was not a member of the ScheduledTribe of 'Rajah' or 'Rasha Koyas' but belonged to the Kshatriya commu-nity and as such was not entirtled to contest the election in the reservedconstituency. The rejection of his nomination paper by the ReturningOfficer was valid.

Wilson Reade v C S Booth: AIR (1958) Assam 128; DurgaprasadaRao v Sudharshana Swami : AIR (1940) Mad 513;

Muthuswami Mudhaliar v Masilamani : I.L.R. 33 Mad 342:

, N E Haro v jahanara : AIR (1972) SC 1840;

V V Giri v D S Dora : AIR (1959) SC 1318;

Bhatya Ram v• Animdh : AIR (1971) SC 2533

distinguished


A Venkataraman, for the petitioner

I Koti Rcddy and P Anantha Sekhara Reddy, for Respondent No. 2

333

334 KASIVISWARA VENKATA RAMA KRISHNA [VOL. LXIIJSRIRAGHAVARAJU V. MURLA YERRAIAH REDDY AND ANOTHER

JUDGMENT

MADHUSUDAN RAO J.—This is a petition under sections 80, 80-A and81 of the Representation of the People Act, 1951. for a declaration thatthe election of the first respondent as a Member of the Andhra PradeshLegislative Assembly from the Bhadrachalam (Scheduled Tribes) AssemblyConstituency is void.

The facts leading to the filing of the petition are in a narrow compass:General elections to the Andhra Pradesh Legislative Assembly were heldin February, 1978. Constituency No. 274, Bhadrachalam is reserved forScheduled Tribes. Nominations were received in January, 1978. The peti-tioner, the 1st respondent and five others filed their nominations claimingto the members of the Scheduled Tribes. Scrutiny of the nominations wasfixed by the Returning Officer on 2nd February 1978. Objections were raisedagainst the nominations of the petitioner, the 1st respondent and twoothers. The objection raised by the 1st respondent against the petitionerwas that the petitioner is a 'Kshatriya' by caste and that he did not belongto the Scheduled Tribe. After due hearing of the objections, the ReturningOfficer overruled the objections against the nominations of the 1st respon-dent and another but accepted the objections against the petitioner andone other candidate. The Returning Officer held that the nominations ofonly the 1st respondent and four others were valid. He accepted the objec-tion against the petitioner holding that the petitioner is not a member ofthe Scheduled Tribe. On the rejection of the nomination of the petitioneron the ground that he did not belong to the Scheduled Tribe and the nomi-nation of another, only five persons including the 1st respondent were per-mitted to contest the election. Polling was held on 25th February 1978 andthe votes were counted on 7th February 1978. After the counting of the votes,the Returning Officer declared that the 1st respondent, who got a majorityof the votes from amongst the contesting candidates, was duly elected tothe Bhadrachalam Scheduled Tribe Constituency. The petitioner has comeupto this Court with this petition for setting aside the election of the firstrespondent and for a declaration that the entire election is void in so faras the petitioner's nomination has been improperly rejected.

The allegations in the petition are as follows:

The petitioner is a registered voter in 274-Bhadrachalam (S.T.) Assem-bly Constituency, which is reserved for Scheduled Tribes. The petitionerbelongs to 'Rajah' or 'Rasha Koyas' which is a scheduled tribe within themeaning of Part I of the Constitution (Scheduled Tribes) Order, 1950(C. O. 22). Nugur taluk was part of Old Central Provinces which is nowin Madhya Pradesh. The petitioner's father, Yerram Raju, married ChandraDevi, who is a "Chattri of Sukuma village of Sukuma, taluk, Baster districtof Madhya Pradesh "Chattri" community is a Scheduled Tribe within themeaning of Part I of the Constitution (Scheduled Tribes) Order, 1950.Similarly the petitioner's grand-father also married from "Chattri" com-munity. Thus, the petitioner's father and forefathers belonged to a Schedu-led Tribe and that community is called "Rajah" or "Rasha Koya". Thepetitioner and the members of his family were always treated and recog-nised as "Rajah" or "Rasha Koya" by the members of the said com-munity.

E.L.R.] KASI VISWARA VENKATA RAMA KRISHNA SRIRAGHAVA 335RAJU V. MURLA YERRAIAH REDDY AND ANOTHER

The Returning Officer rejected the nominationof the petitioner on theground that the petitioner's father described himself as "Kshatriya" in somedocuments. The petitioner is not bound by the wrong description of thepetitioner's father as he did so only to enhance the status and prestige. Bymere wrong description of the petitioner's father as "Kshatriya", the peti-tioner's real community does not change. The petitioner and his fore-fathers were always treated as members of the Scheduled Tribe since gene-rations. The petitioner also filed a certificate from a Member of Parliamentof the Bhadrachalam (Schedule Tribe Constituency that the peti-tioner's father was always treated and recognised as a Scheduled Tribe).The Returning Officer exceeded his jurisdiction by making a roving enquiryand rejecting the petitioner's nomination without giving sufficient oppor-tunity to the petitioner to prove that he is a member of the Scheduled Tribe.

The first respondent pleaded that the petitioner, the parents and grand-parents of the petitioner are all "Kshatriyas" that they were always treatedas "Kshatriya"; that they described themselves as "Kshatriyas" wheneveroccasion arose and that at no time before the General Elections of theYear 1977 were notified did the petitioner claim to be a member of the.Scheduled Tribe and that for the first time the petitioner claimed to bea member of the Scheduled Tribe as a "Chattri" when he filed an appli-cation before the Tahsildar for a Schedule Tribe certificate to be filedalong with his nomination. It is further pleaded by the 1st respondent thatrealising that "Chatris" are not members of the Scheduled Tribes in AndhraPradesh, the petitioner changed his stand before the Returning Officer"Rajah" or "Rasha Koya" only to avail himself of the advantage of contest-ing from a Constituency in part of which he is a resident.

The Returning Officer, who was- impleaded as the 2nd respondent inthe election petition and against whom it was alleged in the petition thathe made an unauthorised roving enquiry at the time of the scrutiny of nomi-nations and thus acted beyond his jurisdiction by rejecting the nominationof the petitioner, pleaded that, in scrutinising the objections he dischargedhis statutory duties and that, in the light of the dcoumentary evidence pro-duced before him, he was not satisfied that the petitioner is a member ofthe Scheduled Tribe. As against the other allegation made by the petitionerthat the Returning Officer did not give him proper opportunity to rebutthe objections raised by the 1st respondent at the time of the scrutiny, theReturning Officer pleaded that he gave sufficient opportunity by postpon-ing the enquiry at the request of the petitioner from 11 a.m. to 5 p.m.

In the light of the pleadings of the parties, the following issues weresettled for trial: —

" 1 . Whether the petitioner can be deemed to be a member of theScheduled Tribe under the Constitution (Scheduled Tribes) Order,1950 and whether the nomination of the petitioner was illegallyand improperly rejected by the second respondent?

2. Is the election of the first respondent void on account of the rejectionof the Petitioner's nomination.

3. To what relief the parties are entitled".

It is not disputed that the 1st respondent is a member of the Sche-duled tribe, it is also not disputed that he secured the largest of votes fromamongst the candidates who contested the election. It is further not

44—3 ECI/ND/85

3 36 KASI VISWARA VENKATA RAMA KRISHNA [VOL. LXlISRIRAGHAVA RA.IU V. MURLA YKRRAlAli REDDY AND ANOTHER

disputed that the petitioner is a registered voter in the Bhadrachalam Sche-duled Tribe Constituentcy. The only contention of the petitioner is that hisnomination was illegally rejected by the Returning Officer and that, there-fore, the election of the 1st respondent is void.

The main question for decision therefore is whether the petitioner isa member of the Scheduled Tribe, [f it is found that he is a member of theScheduled Tribe, there can be little doubt (hat his nomination had beenimproperly rejected and that the election of the 1st respondent is void.Tf, on the other hand, it is held that he is not a member; of the scheduledribe, the election of the 1st respondent need not be interfered with.

In support of his case that he is a Rajah of Rasha Koya, the peti-tioner has adduced the oral evidence of seven witnesses consisting of him-self as P. W. 1 and six others as P. Ws. 2 to 7. He has also relied ona certificate issued to him by Smt. B. Radha Bai Ananda Rao, Memberof Parliament (Ex. B-8) (this certificate was produced by the petitionerbefore the Returning Officer at the time of the hearing of the objectionsby the Returning Officer and the same is filed in this Court by the Return-ing Officer when he was examined as R. W.2).

The respondents have examined five witnesses on their behalf inclu-ding the 2nd respondent as R. W. 1 and the 1st respondent as R. W. 5.As R. W. 1, the 2nd respondent filed Exs. B-l to B-12. Ex. B-l is a trueextract of college general register of admission and withdrawals for theyear 1962-63 issued by the Principal of the Government Junior College,Venkatapuram Ex. B-2 is a registered general power of attorney executedby the petitioner's father in the year 1958. Ex. B-3 is a registered generalpower of attorney executed by the petitioner's step-mother, Subbayamma,mother Chandra Devi and others in the year 1962. Ex. B-4 is the nationalregister of citizens prepared in the year 1952 and verified in the year 1957in respect of the citizens of the village of Venkatapuram in Nugur taluk.Ex. B-5 is the birth register of Venkatapuram village for the year 1953.Ex. B-6 is a letter addressed by the petitioner's father to the Patel of Ven-katapuram requesting registration of the birth of the petitioner. Ex. B-7is the counter-affidavit filed by the petitioner before the Returning Officerat the time of scrutiny. Ex. B-8 is the Caste Certificate produced by thepetitioner before the Returning Officer at the time of scrutiny. Ex. B-9is the order of the Returning Officer rejecting the nomination of the peti-tioner. Ex. B-10 is the petitioner's application filed before the Tah'sildar,Nugur, for the issue of a Caste Certificate. Ex. B-ll is the copy of GJO.Ms. No. 245, dated 30th June, 1977 of the Social Welfare Department inwhich the Government prescribed the competent authorities for issuing castecertificates to the students belonging to the scheduled tribes. Ex. B-12 isthe memo of objections filed by the 1st respondent before the ReturningOfficer when the nominations were scrutinised. •.. • »*

On a careful examination of'the oral and documentary evidence, Ihave no hesitation to hold that the petitioner's claim of being a memberof the scheduled tribe is not true. Though he denied being a "Kshatriyjg*the petitioner admitted in his cross-examination that he marriea a"Kshatriya" girl. He has further stated in his cross-examination by the 1strespondent as follows: .

"In the school registers, it was entered that I am. a Kshatriya by caste.That information was not given by me. It was given to the schoolauthorised by my father.., My father was telling everybody that

E.L.R.] KASIVISWARA VENKATA RAMA KRISHNA 337SRIRAGHAVA RAJU V. MURLA YERRAIAH REDDY AND ANOTHER

he was a Kshatriya. He was describing himself as a Kshatriya in alldocuments and other records My uncle Lingaraju marrieda Kshatriya lady. My younger brother also married a Kshatriya girlfrom West Godavari district. My great grand-mother Gowridevammawas the Zamindarini of Nuguru estate. That estate comprised of aboutthree thousand acres of land. On the abolition of the estates I, mybrother, my mother, step-mother and grand mother received a cpmpen-satioQ of nearly seven lakhs. In the application for compensation, wedescribed ourselves as Kshatriyas. Kshatriyas are not members of theScheduled Tribes I do not know if my grandfather and greatfather were Kshatriyas. My father, however, was a Kshatriya

I do not remember if I mentioned that I was a Kshatriyain any of the records prior to my filing the application for a certificatebefore the Tahsildar. In my application before the Tahsildar for acertificate, I claimed to be a Chattri and requested him to issue a certi-ficate to that effect. I did not then claim to be a Rasha Koya or Rajah.I stated therein that I am a member of the scheduled tribe bejongtnfito the sub-sect of Chattri in the main sect of Koyas. xxx xxx

xx I do not have any material by way of record,to show thai theKoyas or Rasha Koyas of Andhra Pradesh, are the same as Cbattrisof Madhya Pradesh I wore a sacred thread atthe time of my marriage."

The petitioner, no doubt, has stated in his examination in chief thathe is a Rajah or Rasha Koya, that though he married a Kshatriya girlwearing sacred thread at the time of the marriage, which took place in theWest Godavari district, he discarded the sacred thread on returning toVenkatapuram and that, according to the custom amongst the Koyas, hegave a dinner to all the Koyas at Venkatapuram in connection with hismarriage and that the elders of the Koya Community took his wife intothe Koya caste. But this evidence is not supported by any reliable evidence.

P. W. 2 was a driver under the employment of the petitioner's father.He stated that, for the dinner arranged in connection with the petitioner'smarriage, not only Koyas were invited but all the people of Venkatapuramwere invited. He stated in his examination in chief that the petitioner andhis father are Rasha Koyas by caste; that the Koyas in the vicinity weremeeting them often and that they were attending social functions at thehouse of the petitioner and that the Kshatriyas in the neighouring villageswere not dining at the house of the petitioner. The witness stated in hiscross-examination that the petitioner belongs to a Zamindari family.

P. W. 3 is a Koya of Venkatapuram. He married a girl fostered bythe petitioner's father. He stated that the petitioner was married at Gana-pavaram and that, soon 'after his marriage, he came to Venkatapwam withhis wife and invited all the Koyas for a dinner. He added that the Koyacaste elder, Reddicherla Narasaiah also attended that dinner and that thecaste elder and the other Koyas approved the marriage of the petitionerwith a Kshatriya girl. In his cross-examination, he stated that the petition-er's father is related to him as a brother-in-law and that the petitioner is rela-ted to him as son-in-law. He denied the suggestion that the girl married to himwas a servant in the house of P.W. 1 and that he also was a servantof P. W. l's father and was continuing to be a servant under P. W. 4.He went to the extent of saying that P. W. l's father was not a Kshatriya,but that he was a Rasha Koya and that even the father and grandfatherof the petitioner's father were Rasha Koyas.

338 KASI VISWARA VENKATA RAMA KRISHNA [VOL. LXIIISR1RAGHAVA RAJU V. MURLA YERRAIAH REDDY AND ANOTHER

P. W. 4 is the Patel of Venkatapuram. He deposed that the petitioneris a Rasha Koya. In his cross-examination, he stated:

"1 maintain the registers of deaths and births. 1 made an entry aboutthe birth of the petitioner in the births register. 1 wrote therein thatthe petitioner comes from the Rajulu...community. Kshatriyas arecalled Rajs or Rajulu xx xx I was giving true particulars for theentries in the Census registers, the entries in the relevant register alsoare true and correct. 1 do not remember if 1 made an entry in theNational Register to the effect that P. W. 1 is a Kshatriya by caste.I do not remember if I ever gave a certificate to P.W. 1 testifying thathe is a Kshatriya by caste. I do not know if he is a Kshatriya."

P. W. 5 is another resident of Venkatapuram. He stated that P. W. 1is a Rasha Koya and however added that Rasha Koyas are not calledRajulu or Kshatriyas. He further stated that he did not see any Koyas inthe house of P. W. l's father at any time, and that neither Rasha-Koyasnor Kshatriyas are called Rajulu.

P. W. 6 is the caste elder of Rasha Koyas. He depotsed in chief-ex-amination in complete support of the petitioner case, and added that thepetitioner not only gave a dinner after his marriage but also performed a'Vratam' and that he collected from the petitioner Rs. 100 as marriagekatnam. In his cross-examination by the 2nd respondent, he stated asfollows:

"The petitioner is a Kshatriya, but he joined our caste by eating foodtogether with all of us. The petitioner's father also was a Kshatriya.Gowridevara's son-in-law, Yerramanju was also a Kshatriya. Theymarried Koya girls and therefore became Koyas by caste. The peti-tioner married a Kshatriya girl. We have however taken the petitioner

- and his wife into our caste. The petitioner and his brother are calledas Rajus. They are not called Koyas by any one in our village, butthe Koyas, took them into our caste. I have nothing to do with theKshatriya community members. Rajus are Kshatriyas. I am not thecaste elder of Rajus. 1 am the caste elder of Rasha Koyas. Our RashaKoyas community is different from the community of Rajus orKshatriyas."

P. W. 7 is a Koya of Vaddigudem which is about two miles fromVenkatapuram. He stated that the petitioner as a Rasha Koyaby caste and that the petitioner's mother was also a Koya who hailedfrom Sukuma in Baster district of Madhya Pradesh. In his cross-exami-nation by the 2nd respondent, has stated that "the petitioner and his fatherare Kshatriyas. They are Rajus. The petitioner's mother however is aRasha Koya. I am saying that the petitioner is a Rasha Koya becausehis mother was a Rasha Koya. I do not know if the petitioner's wife isa "Kshatriya" by caste xx xx xX After the marriage, he (thepetitioner) came back to his village xx xx xx xx There was acosmopolitan dinner for all. There was no separate dinner for the Koyas.

R. W. 1 is the Returning Officer. He deposed to the facts in supportof the plea taken by him in his written statement. R.W. 2 is a residentof Venkatapuram and he is aged about 75 years. He stated that he hasbeen living in Venkatapuram for the last about 35 years, and that thepetitioner is a Kshatriya by caste. He added that his father worked as a

E.L.R.] KASI VISWARA VENKATA RAM A KRISHNA 339SRIRAGHAVA RAJU V. MURLA YERRAIAH REDDY AND ANOTHER

manager in the Zamindari of the petitioner during the time of the peti-tioner's father. In his cross-examination, he gave all the details of thefamily history of the petitioner.

R. W. 3 is a Kshatriya of Venkatapuram. He deposed that he knowthe petitioner since the last 30 years, as he worked as a cook in the houseof the petitioner during the time of the petitioner's father for about 20years. He described that the petitioner's father and mother were Kshatriyasand that none of the members of the family of the petitioner was a Koyaand that the Koyas never visited the house of the petitioner's father orof the petitioner. In his cross-examination, it was elicited that he gave uphis service as a cook! in the house of the petitioner's father since the deathof the petitioner's father and that he was given three acres of land bythe petitioner's father as gratuity for the service rendered by him as acook.

R. W. 4 is a resident of Rachapalli, which is about two miles fromVeRkatapuram. He is a Koya by caste. He deposed that there are two orthree Koya families in Venkatapuram. He added that the petitioner isa Kshatriya and not a Koya. He has further stated that none of the Koyasever treated the petitioner as a Koya and that there are no marriage alli-ances between Kshatriyas and Koyas.

R. W. 5 is the first respondent himself. He is a Konda Reddi byeaste and, as such, a member of the scheduled tribes. He spoke to thefacts in support of the plea set up by him in his written statement.

Apart from the oral evidence, which belives the case of the petitioner,the overwhelming documentary evidence leaves no doubt whatever thatthe petitioner is not a member of the scheduled tribe, but that he is aKshatriya. The earliest document is Ex. B-4, the citizens register preparedin the year 1952. It was entered in this register under serial No. 64 thatthe petitioners father and grandfather were Hindu Kshatriyas. As can beseen from the endorsement made on 12th October 1952 on the reserve ofthe first page of the register, the entries were made with reference to in-formation received from a direct house-to-house enquiry. The other en-dorsement under the above endorsement made on 1st July 1957 shows thatthe entries were verified by a house-to-house visit of the enumerator. Ex.B-5 is of the year 1953. It is the birth register of Venkatapuram. Underserial No. 23 (Ex. B-5-A) the birth date of the petitioner was entered. Incolumn No. 7 under the head 'caste' it was mentioned that the petitionerbelonged to the community of Rajulu. Rajulu are Kshatriyas and notKoyas. The letter, Ex. B-6 is addressed by the petitioner's father to thePatel of Venkatapuram giving intimation about the date of the petitioner'sbirth. On this letter-head, the petitioner's father was described as "SriRaja Raghavaraju Yeramraju, Zamindar, Nugoor Estate". Ex. B-2 is aregistered document dated the 16th June of 1958. It was a general powerof attorney executed by the petitioner's father. In this document, it wasmentioned that the petitioner's father belongs to the Kshatriyas caste. Ex.B-3 is another registered power of attorney executed by the petitioner'sstep-mother, mother and others on 15th March 1962. In this documentalso, the petitioner's mother and step-mother were mentioned as Kshatriyasand the petitioner's father was described as a Zamindar. Ex. B-l is thetrue extract of. College Admission Register for the year 1962-63 issuedby the Principal of the Government Junior College, Venkatapuram. Thisextract shows that the .petitioner is Kshatriya.. It .is clear from. Exs,.B-4,B-5, B-6, B-2, B-3 and B-l that in all the documents until'the year 1963;

340 KASI VISWARAVENKATA RAMA KRISHNA [VOL. LXIItSRIRAOHAVA RAJU V. MURLA YERRAIAH REDDY AND ANOTHER

the petitioner, his father and mother were being mentioned as Kshatriyasand that the petitioner's father was further being described as a Zamindar.For the first time after the announcement of the elections for the Bhadra-chalam Constituency, which is reserved for Scheduled Tribes, the petitionersubmitted an appilcation under Ex. B-10 on 5th January 1978 claiminghimself to be a member of the Scheduled tribe on the ground that hebelonged to Chattri community. He claimed to be a Chattri in this appli-cation on the ground that his mother, Chandradevi hailed from Sukumavillage of Bastar district in Madhya Pradesh State and that she belongedto the Tribal; community of "Chattri". It is significant that he did not statein this application that he a Rajah or Rasha! Koya, but simply stated thathe is a Chattri, which is considered to be a scheduled tribe in accordancewith the notification of the Government of Madhya Pradesh, Tribal andHarijan Welfare Department. As can be seen from Ex. B-ll , no com-munity by name "Chattri" is included amongst scheduled tribes of AndhraPradesh. Realising the difficulty, the petitioner obtained a certificate underEx. B-8 on 2nd February 1978 from Smt. Radhabai Ananda Rao, a Mem-ber of Parliament, in which it was mentioned for the first time that thepetitioner is a 'Rajah Koya' and that, therefore, he is a member of thescheduled tribe. There is not even a fraction or Farthing of reliable evi-dence in support of the petitioner's claim of being a Rajah or Rasha Koya.

The submission of the petitioner that his parents were styling them-selves as Kshatriyas only for the purpose of social status and for the en-hancement of their prestige, but that they really belonged to the scheduledtribe of Rajah or Rasha Koyas, docs not commend itself to me as true.It is a false explanation invented to get over the glaring effect of the un-impeachable documentary evidence starting against the petitioner.

Relying on the decisions in Wilson Reade v. C. S. Booth (A.I.R. 1958Assam, 128), Durgaprasada Rao v. Sudarshanaswami (A.I.R. 1940 Mad.513) Muthusami Mudaliar v. Masilamani (I.L.R. 33 Mad. 342), N. E.Haw v Jahanara (A.I.R. 1972 S C 1840) V V Giri v. D S Dora (AIR 1959SC 1318) and Bhatya Ram v. Anirudh (AIR 1971 SC 2533) Sri A. Veukata-ramana, the learned Counsel for the petitioner, contends that the petitionershall have to be held to be a member of the scheduled tribe of Rajah orRasha Koyas and cannot be treated as Kshtriya merely because in somedocuments he and his father were described as Kashtriyas.

In Wilson Reade v. C. S. Booth (Supra), what is held is that whethera person can be regarded as a member of the scheduled tribe is a questionof fact depending upon the evidence produced in the case the same willhave to be inferred from that totality of circumstances. It is further pointedout that the question of a person's domicile is by itself not enough to conferany particular status on him, though it is certainly an element in deter-minig the fact as to whether he was regarded as a member of the scheduledtribe. In that case, Wilson Reade's nomination for election was rejectedon the ground that he was an Anglo-Indian having been born to an Anglo-Indian father. Wilson Reade's contention that he was a member of theKhasi tribe because his mother was a Khasi was rejected. In the electionpetition, the Tribunal found that there is a practice prevalent among theKhasi tribe people that anyone, who was born of a Khasi mother, wasregarded as a member of the Khasi tribe. It was also found that thoughthe father of Wilson Reade was an Anglo-Indian, the mother was Khasiwoman and thai the Khasis are matriarchal in descent. The Tribunal how-ever rejected Wilson Reade's petition applying the test of purity of blood.

E.L.R.] KASI VISVVARA VENKATA RAMA KRISHNA 341SRJRAGHVA RAJU K.MURLA YERRAIAM REDDY AND ANOTHER

The division Bench held that the purity of blood is not the only criterionto Judge whether a particular individual is a member of the Khasi com-munity or not and that, in so far as there is a usage prevalent among theKhasi community that a person of a Khasi mother and a non-Khasi fatheris in course of time assimilated in the Khasi community, Wilson Readeought to have been treated as a Khasi and got a non-Khasi. Tn the ins-tant case, there is absolutely no evidence at all of any such custom in theChattris or Rajah or Rasha Koyas. There is also no plea to that effect.There or Chattris admitting the petitioner into their fold as a member oftheir tribe.

It was held in Durgaprasada Rao v. Sudarsanasami (Supra) by a Divi-sion Bench of the Madras High Court that, is a person renounced Hin-duism once, it cannot be said that he is prevented from re-conversion toHinduism.

In Muthusami Mudaliar v. Masilamani (Supra), what all is held isthat, where a caste accepts a marriage as valid and treats the parties thereto as members of the caste, the Court will not declare such a marriagenull and void. In the same case, it was held that it only persons who belongto the twice-born classes that are enjoined to marry in their own clearand that marriages between the members of different class of sudras arevalid, if the caste accepts the marriages as valid and treats the partiesthereto as members of the caste.

The petitioner, in the instant case, is a Kshatriya. He is a memberof the regenerate class. He married a Kshatriya girl, who also belongs tothe regenerate class.

In N. E. How v. Jahanara (Supra), their Lordships of the SupremeCourt held that, if a Munda male, who is a member of the tribe, marrieda non-Munda female, who is not a member of the tribe by virtue of birth,after due observance of all formalities and after obtaining the approvalof the elders of the tribe both the husband and the wife belong to the tribalcommunity of Munda, to which the husband belongs, on the analogy ofthe wife taking the husband's domicile. In the instant case, there is noevidence of either the petitioner or his wife being a member of the tribalcommunity. There is also no reliable evidence of the elders of the tribalcommunity treating the petitioner and his wife as members of a scheduledtribe.

In V. V. Gin v. D. S. Dora (Supra) it was held by the Supreme Courtthat the caste-status of a person will necessarily have to be determinedin the light of the recognition received by him from the members of thecaste into which he seeks an entry and mere unilateral acts of the personcannot be easily taken to prove that his claim for being the member ofa particular caste is established. Sri A. Venkataramana relies heavily onthis case and contends that merely because a person calls himself as aKshatriya to enhance his prestige and status, it cannot be said that hebecame a Kshatriya. No doubt, in that case, there was clear proof of the1st respondent, D. S. Dora, being born as a Mukka Dora i.e., memberof the scheduled tribe. In paragraph 24 of the judgment, their Lordshipsobserved:

"The evidence adduced by respondent 1 shows that all the documentsfrom 1885 to 1928 consistently described him as a Mukka Dora or amember of the Scheduled Tribe. The appellant has, however, produced

.documentary evidence which indicates that from 1928 onwards

342 KASI VISWARA VENRATA RAMA KRISHNA : [VOL. LXIIISRTRAGHAVA RAJU V. MURLA YERRAIAH REDDY AND ANOTHER

respondent I has described himself and the members of his family asbelonging to the Kshatriya caste. Oral evidence led by the appellantis intended to show that respondent 1 has for some years past adoptedthe customs and the rituals of the Kshatriya caste. xx xx xxxx xx The High Court has held that even if the documentary andoral evidence adduced by the appellant is accepted at its face value,it falls for short of establishing his plea that respondent 1 had becomea Kshatriya at the material time. The caste-status of a person in thecontext would necessarily have to be determined in the light of therecognition received by him from the members of the caste into whichhe seeks an entry. There is no evidence on this point at all. Besides,the evidence produced by the appellant merely shows some acts byrespondent 1 which no doubt were intended to assert a higher status;but unilateral acts of this character cannot be easily taken to provethat the claim for the higher status which the said acts purpose-, tomake is established.

As pointed out already, there is not even a title of reliable evidencein the instant case to show that the petitioner was ever a Rajah or RashaKoya. On the other hand the evidence available on record shows that heis a Kshatriya and that he made a claim of being a member of the Sche-duled Tribe for the first time long after he attained majority and just afterthe elections were announced for the Bhadrachalam Reserved Constituency.

In Bhaiya Ram v. Anirudh (Supra), what all is held is that mere'admission by a person that he is not a member of the scheduled tribeis not conclusive and that it is open to him to prove, by reliable evidence,that he is a member of the scheduled tribe.

None of the authorities cited by the petitioner's learned Counsel hasany direct bearing on the question for decision in the instant case. Thepetitioner claimed to be a Chattri for the first time in January, 1978 inhis application before the Tahsildar under Ex. B-10. He was then agedabout 27 years. Till this time, he, his father and mother were being des-cribed as Kshatriyas. He married a Kshatriya girl. His younger brotheralso married a Kshatriya girl. His grand mother was the Zamindarini ofNugur estate. His father was the Zamindar of that estate. He also succee-ded to the Zamindari. Only a few years before, he and the members of hisfamily filed an application for the compensation they were entitled towardstheir Zamindari lands. Tn that application, he described himself and themembers of his family as Kshatriyas. He and the members of his familyreceived compensation in a sum of rupees seven lakhs. Having taken thestand that he is a member of the "Chattri" tribe in his application beforethe Tahsildar made in January, 1978 and finding that no "Chattri" com-munity in Andhra Pradesh is specified as a schedule tribe, he changed hisstand in February, 1978 before the Returning Officer and claimed to bea Raja or Rasha Koya. The order of-the Returning Officer under Ex. B-9is well reasoned and he has rightly .rejected the nomination of the peti-tioner. There is absolutely no merit '-in the petitioner's claim of being amember of the scheduled tribe. Issue Nos. 1 and 2 are, therefore, foundagainst the petitioner and under issue No. 3, it is held that the petitioneris not entitled to any relief and that his petition is liable to be dismissed.

This petition is, therefore, dismissed with costs of the 1st Respondent.Advocate's fee Rs. 1000.

Petition dismissed.

343


VOLUME LXIII

SUBJECT INDEX

PAOB

Conduct of Election Ruk:>, 1961—Rules 22, 56 and 73 (2) (d)—Election Commission direction to print the postal ballot papers in English—Postal Ballot paper printed in Deonagari script—Effect of—Whetherelection materially affected—Counting—Scrutiny and rejection of votes—Ballot papers containing incomplete marking; marking substantially in theshaded portions between the two columns containing candidates'names and symbols—smudge and other accidental marks in addition toregular mark; writings on the back of the ballot papers etc.—whether to berejected -marking of postal ballot papers—Whether to be done in anyprescribed manner.

Uobind Prasad Shivprasad Chaudharyv. Returning Officer & Ors. (High Court ofBombay) 124

Conduct of Election Rules, 1961—Rule 56(1)—counting of votes and re-jection of ballot paper—Returning Officer taking into account ballot papersrejected by liie Presiding Officer—whether reasons So be given by the Re-turning Officer.

G Narayana Reddy v. A A'arayana Reddy and others (High Court of Andhra Pradesh) 249

Constitution of India—Article 14—Representation of the People Act, 1951—Sec-. tions 100 (1) (d) (iv) and 123 (7)—Election Symbol (Reservation and Allot-

ment) Order, 1968—Clause 13—Non-compliance with provisions of—candidate to be treated as set up by political parly—-requirement of notice ofintimation of a particular candidate as set up by a national party to be signedby the President etc.—stencilled imprint of the signature of the Presidentin the Noticj—whether sufficient— allegation election materially affected bynon-compliance—proof of corrupt practices—procuring the assistance ofgovernment servants for the furtherance of the prospects of the candidate'selection—Candidates of the national and state panies broadcasting theirelection propaganda on Ali India Radio and Doordarshan pursuant to Notifica-tion issued by the Election Commission—whether amounts to candidateprocuring the assistance of governmsnt servants working in the saidorganisations—whether discriminatory and violative-of Article 14—Meaningof the expression "Agents" in the Explanation 1 under Ssction 123 (7).

Satyddeo Rajpurokit v. Shankur Lai and another (High Court of Rajasthan) . . 3H

Constitution of India-Article J73 — Age prescribed for contesting theelection.

Meghruj Medltavi v. Ekhlakh Ahmad (High Court of Patna) . . . . 109

Consitution of India—Article 1 173 (b)—Ags—Representation of the PeopleAct, 1951—Election petition- PI .;iding*;\a,\d proof- var •'.nee leiweei, thepleadings and evidence led—effect of—-aijvjcrse inference -Elected candidatenot producing the relevant evidence-petitioner not examining himselfevidence as to the age of the candidate—Bykience Act 1872—Section 79—Birth certificate issued under rules framed":under the Registration of Birthsand Deaths Act, 1969 regarding the birth—presumptions.

Rajendra Prasad Gupta v. Pradeep Kumar Bijaj and'others (High Court of Allahabad) 269

Constitution of India—Article 191 (a) Disqualification--Holding an Officeof proa; Candidate functioning in the capacity of Assistant GovernmentPleader on an ad-hoc basis—whether holds' an Office of profit.

45—3 FXT'ND'fS5

344 INDEX

PAGE

Abhayacharanlal v. Shri Chandra Mouleshwar Singh (High Court of Patna). . 49

Constitution of India—Article 192 (2)—Representation of the People Act,1951—Section 8A—Disqualification of members on grounds of committingcorruot practices—opinion of the Election Commission—.whether any ex-tenuating circumstances existed to reduce the period of disqualification

In re. Shri Ram Surat Singh (Election Commission of-India) . . . . 334

Constitution of Tnda—Article 341—ds'emanation as to whe(h?r or not aparticular Caste is a scheduled caste—courr car1, only look at the public notifi-cation issued by 'he P e-ident in rhis behalf.

S Suwarna Kumar v. Sint. Radka Bai Am/tda Rao (High Court of Andh; a Pradesh) 8.3

Constitution (Scheduled Tribes) O d e , 1950—Pi t 1 \ ent<y 18-^entry rela-ting to Gjiids cmimu lity—whe her Mana Community -pecitied in entry 18includes only Maru sub tribes of Gond., and noc oth^r Mana Communities.

Sukhdeo Babu v. Dadaji and others (High C o u t of Bombay)..— . . . 201

Corrupt practice—-procuring the assistance of government servants for thefurtherance of the prospects of the candidate's election— Candidates, of thenational and state parties broadcasting the election propaganda on All IndiaRadio and Doordarshan pursuant to Notification issued by the Election Com-mission—whether amounts to candidate prosurins; the assistance of govern-ment serv ints working in the said organisation—whether discriminatory andviolative of Article 14—-Meaning of the expression "Agents" in Explanation 1under Section 123 (7).

Satyadeo Rajpurohit v. Shankar Lai and another (High Cour t of Rajas than) . . 311

Election Petition—copy of the petition served on respondent not exactly truecopy—effect of—security deposit in the name of Registrar High Court—whether valid.

Loknarain v. Bhairon Singh Shekhawat and another (High Court of Rajasthan} . 65

Election Petition—-Notice of Recrimination Petition—Election Petition, interalia, claiming a declaration that a candidate other than the returned can-didate has been duly elected—Recount orders on the allegation that impro-per votes had been accepted in favour of the elected Candidate and propervotes in favour of the candidate in whose favour the declaration is soughthave been rejected—fai'ure to give notice under Section 97—Effect of—whetherelected candidate can s ek th/inclusion of valid votes cast in his favour butcounted in favour of any other candidate at the original counting.

Gobi id'Prasad Shivp.asad Chaudhaiy v. Returning Officer & Others (High Courtof Bombay) . , . - • .. . 1 2 4

Election Petition--Pleadings and proof—variance between the pleadings andevidence led—effect of— adverse inference—Elected candidate not pro-ducing the relevant—petitioner not examining himself—evidence as to theage of the candidate. •'-,

Rajendra Prasad Gupta v. Prdeep Kumar Bajaj and others (High Court of Allahabad) 269

Election Symbols (Preservation and Allotment) Orde% 1968—applicationfor allotment of symbol reserved for a party—requirements to be satisfied-result of election materially affected due to misallotmem of sjtabol—quantumof proof required—jointer of parties to an election petition— whether Re-turning Officer is a necessary party.

Ishaq Mohamad v. Devaji (High Court of Bombay) "• . . . . . . 1 7 1

Evidence Act, 1872—Section 79—Birth certificate issued under rules framedunder the Registration of Births and Deaths Act," 1969 regarding the birth—presumptions.

INDEX 345

PAGE

Rakndra Prasad Gupta v. Prdeep Kumar and others (High Court of Allahabad) .Interpretation of Statutes—Conslit u ion of India—Article 141—Supreme 269Conn's judgement on a provision in the Statute—subsequent changes madein the provision—New legislation not materially different from the old one—whether original interpretation of the Supreme Court holds good and isbinding.

Sukhdeo Babu v. Dadaji and others (High Court of Bombay) . . . . 201Press and Registration of Books Act, 1867—Sections 1, 7—allegation ofindulgence in the corrupt practice of inciting communal hatred for the fur-therance of prospects of election—how court has to deal with it—presum-ption raised by Section 7 of the Press Act—whether can be used to provea corrupt practice in an election petition.

TKSM A M Thangal v. Haji C H Mohammed Koya (High Court of Kerala) . 1

"p.ess iii.d Resist at i* •>' of B<.»oks Act. 1867—Section 7—Presumption—Meaning of Editor—(>r>*ct of the Act.

Haji C H Mohammad Koya v. T K S M A Muthukoya (Supreme Court of India) 22Registration of Electors Rules, I960-—Rule 26—requirement of invitingobjection to the application for transposition of the name of elector'—transposition of the name made without inviting objection, and in violationof the rules—jurisdiction of the civil court to entertain disputes relatingto entries made in the electoral roll.

Sukhdeo Babu v. Dadaji and others (High Court of Bombay) . . . . 201Representation of the People Act, 1951—Election Petition—Pleadings andproof—whether, the age specified in the electoral roll is final and conclusive—age of the candidate specified in the school records'—whether amountsto admission and is conclusive against in candidate—Production ofproof r< g . dii g ;.ge.

"^Meghraj Med'tavi v. E'chtakh Ahmad (High Court of Patna) . 109Representation of the People Act, 1951—Sections 5, 27, 28, 30 and 36qualification for contesting an election—requirement of being an elector inthe state—electoral roll—finality—Registration of Electors Rules, 1960—Rule 26—Requirement of inviting objection to the application for transpo-sition of the name of elector'—traisposition of the name made withoutinviting objection, and in violation of the rules—jurisdiction of the civilcourt to entertain disputes relating to entries made in the electoral roll.

Sukhdeo Babu v. Dadaji and others (High Court ofBombay) . . . . 201

f ' esentation of the People Act, 1951— Section 8A—Disqualification ofbers on ground* of committing corrupt practices—opinion of the Elec-Commission whether any extenuating circumstances existed to reduce

the period of disqualification.

, In re Shri Ram Surat Singh (Election Commission of India) . . . . 334Representation of the People Act, 1951— Sections 33 (1), 33 (4), 36 (2),36 (5), 81 (3) and 117*—Rejection of nomination paper— omission to specifyage in the nomination paper'—whether defect is of a substantial characterelectoral roll filed with the'nomination specifying the age of the candidate—whether sufficient—nature of enquiry to be held by the returning officerat the time of scrutiny — amendment to S-ction 33 (4) in 1966—correctionof clerical technical printing errors etc permitted—scope of.

Loknarain v. Bhairon Singh Shekhawat and another (High Court of Rajasthan) . 65

Representation of the People Act, 1951—Section 36 (2) (a) and (7)—Rejec-tion of nomination paper—candidate's age specified in the electoral rollfiled along with the nomination—no objection raised before the ReturingOffice•• as to the age—whether the Returing Officer is required to conductany enquiry.

46—3ECI/ND'85

346 INJEX

PAGE

Meghraj Medhavl-v. Ekhlakh Ahmad (High Court of Patna) .\ ' . . ,

Representation of the People Act, 1951—Sections 36 and 103 (1) (c)—re- 109jection of nomination paper—Constitution (Scheduled Tribes) Order 1950.—Petitioner claiming to be a member of a Scheduled Tribe mentioned inthe order—proof of.

Kasi Viswara Venkata Rama Krish/ia Sriraghava Raju v. Murla Yerraiah Reddy andanother (High Court of Andhra Pradesh) . . . . . . . 337Representation of the People Act, 1951— Section 64—Counting of votes—demand for recount of votes before the Returning Officer merely on theground that the difference in the votes secured by the elected candidateand the next contestant was extremely small—whether justified—ElectionPetition—Grounds for seeking inspection scrutiny and recount of the

1 votes—whether established.

Badrivishal Pitti v. Shiv Prasad & Others (High Court of Andhra Pradesh) . 229

Representation of the People Act, 1951—Section 64—counting of votes—demand for recount initially pressed before the Returing Officer but witn-dravvn—whether petitioner estopped from seeking recount in the electionpetition-—Conduct of Election Rules, 1961—Rule 56 (1)—• counting ofVotes and rejection of ballot paper—Returning Officer taking into accountballot papers rejected by the Presiding Officer—whether reasons to be givenby the Returning Officer.

G Narayana Reddy v. S Narayana Reddy & Ors (High Court of Andhra Pradesh) 249

Representation of the People Act, 1951-—Section 81-—The Constitution ofIndia—Article 341—determination as to whether or not a particularcaste is a scheduled caste—court can only look at the public notificationissued by the President in this behalf.

S Suwarna Kumar v. Smt. Radha Bal Ananda Rao (High Court of Andhra Pra- 83desh)Representation of the People Act, 1951—Sections 81, 100 (1) (d) (iv),82—Election Symbols (Preservation and Allotment) Order, 1968— appli-cation for allotment of symbol reserved for a party—requirements to besatisfied result of election materially affected due to misallotment of symbol—quantum of proof required—jointer of parties to an election petition—whether Returning Officer is a necessary party.

hhaq Mohamad v. Devaji (High Court of Bombay) . . . . . 1 7 1

Representation of the People Act, 1951—Sections 82 and 83—parties tothe petition—whether Returning Officer is a necessary party—Materialparticulars to be stated in the petition—requirement of.

Satyadeo Rajpurohit v. Shankar Lai and another (High Court of Rajasthan) 311

Representation of the People Act, 1951—Section 83 (1) (a)—Petition forinspection and recount of votes—requirements to be satisfied before courtcan so order.

Bedprakash Mahanand v. Lalit Mohan Gandhi arid others (High Court of Orissa) . 95

Representation of the People Act. 1951 — Section 97—Notice-of Recrimina-tion Petition—Election Petition, inter alia, claiming a declaration that acandidate other than the returned candidate has besn duly eleitei—Recountorders on the allegation that improper votes had been, accented in favourof the elected candidate and proper votes in favour of the candidate m whosefavour the declaration is sought have been rejected—failure to give noticeunder Section 97— Effect of—whether elected candidate can seek the inclu-sion of valid votes cast in his favour but counted in favour of any othercandidate at the original counting.

INDEX 347

PAGE

•Gobind Prasad Shivprasad Chaudhary v. Retur'mg Officer and others (High Courtof Bombay) 124

Representation of the People Act, 1951—Section 100 (1) (d) (iv) and 123(7)—Election Symbol (Reservation and Allotment) Order, 1968—clause 13—Non-compliance with provisions of—candidate to be treated as set up

• by a political party—requirement of notice of intimation of a particularcandidate as set up by a national party to be signed by the President etc.—stencilled imprint of the signature of the President in the Notice—whethersufficient—allegation election materially affected by non-compliance.

Satyadeo Rajpurohit v. Shankar Lai and another (High Court of Rajasthan) . 3t 1

Representation of the People Act, 1951—Section 123 (2) (iii)—corruptpractices—forcibly preventing a voter from casting his vote and casting ofbogus votes proof of.

Abhayacharanlal v. Shri Chandra Mouleshwar Singh (High Court of Patna) . 49

Representation of the People Act, 1951—Section 123 (3A)— The Pressand Registration of Books Act, 1867—Sections 1, 7—allegation of indul-gence in the corrupt practice of inciting communal hatred for the further-ance of prospects of election—how court has to deal with it—presumptionraised by Section 7 of the Press Act—whether can be used to prove a corruptpractice in an election petition.

TKS.M.AMThangal v. Haji C H Mohammad Koya (High Court of Kerala) . 1

Representation of the People Act, 1951—Section 123 (3A)—publication ofmaterial promoting religious and communal hatred between citizens—Proofbeyond reasonable doubt of preponderance of probabilities— what cons-titutes—how to be proved.

Haji C H Mohammad Koya v. T K S M A Muthukoya (Supreme Court of India). 22

Representation of the People Act, 1951— Section 123 (5)—Corrupt prac-tice— allegation of hiring vehicles for the free conveyance of electors to andfrom the polling station—if proved.

Majendra Singh Yadav v. Chandra Sen and others (Supreme Court of India) 259

MGIPCBE—S7—3 ECI/ND/85-7-1-88—500-

Election Law Reports, Vol. LXIII

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