GOVT. OF INDIA1971

PLD. 71. XXXVIII1000

LECTION LAW REPORTS

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

Commission

Vol. XXXVIII

EditorR. K. P. SHANKARDASS, M. A., LLB. (Cantab.)

Advocate, Supreme Court. -

38 E. L. R.

Published under the Authority of the Election Commission of Indiaby the Manager of Publications, Civil Lines, Delhi, andPrinted by the Manager, Govt. of India Press, Nasik

1972

Price : Inland Rs. 12-50 or Foreign 29s Id or 4 $ 50 Cents.

o

V,

V,;

It

CONTENTS

PAGE NO.

I Table of Cases Reported (i)

II Table of Cases Cited (ii)-(vii)

III Report of Cases. 1-476

IV INDEX 477-482

The mode "of Citation of the Thirty eighth Volume of the ElectionLaw Reports i6 as follows :

38 E. L. R.

A TABLE OF THE

NAMES OF THE CASES REPORTED IN THIS VOLUME

• P A G E N O .

1 Amrit Lai Ambalal Patel v. Himatbhai Gomanbhai Pate l (S .C) . 32

2 Bhanu Kumar Shastri v. Mohan Lai Sukhadia and others (Rajas-than H . C.) 119

3 Birendra Chandra Dutta V. J. K. Chaudhry (Judicial Commis-sioner of Tripura at Agartala) 381

4 Dasu Sinhav. Ram Lakhan Singh Yadav and O r s . ( P a t n a H . C ) . 177

5 Dina v. Narayan Singh (S.C.) '212

6 GulzarAhmad v. Abdul Rashid( .J .&K.H.C.) . . . . 342

7 S.Harcharan Singh v. S.MohinderSingh (S.C.) . . . . 1

8 Harish Chandra Deogam v. BagunSumbrui (Patna H.C.) . . 305

9 Jagpati Singhv. Ramanand S ingh(S .C) 25

10 Janardhan Yadhav Sakhare v. Mukund Vithoba ( S . C ) . . . 8

11 Kr ishnaKantMishrav .Banamal i Babu(Orissa H.C.) . . . 451

12 MohammadAkbar v . K . H . Lassa Wani ( J . & K . H . C . ) . . 221

13 Mohan SinghOberoi v. Alhaj-i-Ahmad (Patna H.C.) . . . 160

14 Nathu Ram Mirdha v. Gordhan Son i andAnr . (S.C.) . . . 16

15 S.Rajagopal v. C .M.Armugam and Ors. (S.C.) . . . . 38

16 Ram Dayal v.Brij Raj Singh & Ors . (M.P. H.C.) . . . . 53

17 Ram Milan Singh v. Hari Shankar Parsad G u p t a and others .—

(Election Tribunal , Gorakhpur) 95

18 S.L.Saraf v. M.S.Qureshi and another (J .& K. H . C ) . . . 353

19 Sheodan Singh v. Mohan La IGautam (All .H.C.) . . . 242

20 G.Vasanta Pai v. R.M.Seshadr i and Ors. (Madras H . C ) . . . 267

*indicates the page from which the Judgment s tar ts .

(i)

(ii) IVOL XXXViii

TABLE OF CASES CITED

•PAGE NO.

Abdul Hamid Chaudhury v. Naai Gopal Swami and others (22.E.L.R. 358) 452,456

Abdul JalilChaudhuryv. Rathindra Nath Sen (A.I.R. 1958 Assam 51). 383 384, 411445

Abdul Majeed(Meera Sahib) v. Bharonvas(Krishnan) Member LegislativeAssembly and others (A.I.R. 1965 Kerala 18) . . . . 448

Administrator General of Madras v. Anandachari and others (I.L.R.9 Madras 466) 39,50

Agnes Dorothy Vermaniv. Boyant David Vermani (A.I.R. 1943 Lahore 39,5051)Alamgir v. Kamrunnissa (4 C.L.J. 442). . . . . 307,340

Allam Krishnaiah v. Creppalli Venkata Subbaiah Election Petition No.10 of 1967 (A.P.H.C.) 50

Amin Lai v. Munna Mai (A.I.R. 1965 S.C. 1243) . . . . 382,390Amir Chand v. Surendra Lai Jha and ors. (10 E.L.R. 57) . . 120,129Dr. Anup Singhv. Shri AbdulGhani and anr. (A.I.R. 1965 S.C. 815) . 382,392Balwan Singhv. Lakshmi Narain and ors. (A.I.R. 1960 S.C. 770) . ,382, 393, 395,

452,456BalwantRaiTayalv. Bishan Saroop and anr. (17 F.L.R. 101) . . 120,129S.M. Banerji v. Sri Krishna Agarwal (A.I.R. 1960 S.C. 368) . . 306,337Bankabshari Das v. Chittaranjan Naik (A.I.R. 1963 Orissa 83) . . 383,420Bansi Ram Naru Ram v. Jit Ram Gebru Ram (A.I.R. 1964 Punjab

231) 222,238Baru Ram v. Srimati Prasanni and others (1959 S.C.R. 1403) . . 1 , 3 , 342, 348,

383, 413,414The Barnstable Case (2 O'M & H. 236) 268,287T.C. Basappa v. T. Nagappa and others (3 E.L.R. 197) . . . 268,291,382,

383, 411Basawaraj K. Nagur v. B.R. Shidlingappa (12 E.L.R. 168) . . 120,125The Bewdly Case (3 O'M & H. 145) 268, 288Bhagwan Datta Sastri v Ram Ratangi Gupta and others (A.I.R 1960

S.C. 200) 269,292,452,456

Bhikaji Keshao Joshi and anr. v. Brijlal Nandlal Biyani and others(A.I.R 1955 S.C. 610) 382,393,394

Bhim Sen v. Gopali and others (22 E.L.R. 288) . . . . 96,117Biresh Misra v. Ram Nath Sarma and ors. (17 E.L.R. 243/A.I.R.

1959 Assam 139) . . 54,85,90,92,120,384,438,440

R.B. Biswaswarlal Halwasyav. Basup Rang Lai Jajudia(Doabia's Elec-tion Cases Vol. I 1955-Edition, p 186) 368

The Blackburn Case (1 O'M & H 198 at 202) 268, 285,288Smt. BobbaSuramma v. Smt.PeddireddiChandramma(A.I.R.1959 A.P.

568) 243,254The Borough of Great Yarmouth Case (5 O'M & H 176) . . 268,287The Borough of Worcester Case (4 O'M & H 154) . . . . 268,289The Boston Case (2 O'M & H 61 at 167) 268,284Brij Mohan Lai v. Election Tribunal Allahabad and others (A.I.R.

1965 All. 450) 304Brij Mohan Singh v. Priya Brat Narain Sinha and others (A.I.R.1965

S.C. 282) 222, 237,239 .••Indicates the page, from which the Judgment starts.

E.L-R.] TABLE OF CASES CITED (iii)

*PAGE NO.

Champa Devi v. JamunaPrasad and ors. (15 E.L.R. 443) . . . 382Chandeshwar Narain v. Basu Prasad (M.J.C. No. 36 of 1954) . . 178,201Chandra Sekhar Singh v. Sarjoo Prasad Singh and another (A.I.R. 1961

Patna 189) 178,199,382,395Charter v. Mills (1874) (L.R. 9 C.R. 117) 243,251,252Chaturbhuj Vithaldas Jasani v. Moreshwar Parashram and others

(1954 S.C.R. 817/9 E.L.R. 301) 39Chudalavada Subbarao v. Kasu Brahmananda Reddy and others . . 383, 385, 410

420,451ChunilalKenv. Radhacharan Sharma and others (21 E.L.R. 320) . . 384,437Daryao and others v. State of U.P. and others (A.I.R. 1965 S.C. 1457) 222,230Devasharan v. Sheo Mahadev Prasad and ors. (10 E.L.R. 461) . . 54,70Dharanidhar Mohaptra v. Pradipata Kishore Das and ors. (17 E.L.R. 427) 269,292Dhwamvir v. Bhalaram and ors. (7 E.L.R. 64) . . . . 53,66Dina NathKaul Nadim v. Peer Mubarak Shah (A.I.R. 1962 J. & K. 28) 383,413Didar Singh Cheeda v. Sohan Singh Ram Singh and ors.(A.I.R.1966 Pun-

jab 282) 384,448Dinesh Misra v. Ram Nath Sharma and others (A.I.R. 19b9 Assam 139) . 384,422Durga Shankar Mehta v. Raghuraj Singh and others (A.I.R. 1954 S.C. 520) 306Gangadhar Maithani v. Narendra Singh Bhandari 18 E.L.R. 124 . 120,126,129GhasiRamv. Dal Singh and others (C. A. No. 1632 of 1967 (S.C.) . . 120,131,178Ghasiram Majhi v. Onkar Singh(34 C.L.T. 328) 452,455Goon Durga Prasad Rao al ias Pedda Babu and anr. v. Goona Sudarshana

Swami and 28 others (I.L.R. 1940 Madras 653) . . . 39,50Gopala Karup Samuel v. Arulappan Paul and others (Doabia's Elec-

tion Cases 1961, p. 185) 354,378GulabBai and others v. ManphoolBai (A.I.R. 1962S.C.214). . . 222,226GulabChand ChhotelalParikh v. State of Gujarat (A.I.R. 1965 S.C. 1153) 222,230Gulab Chand Palliwal v. Gobind Sahai and others (A.I.R. 1964 Rajasthan

155) 382,390T. Gulab Singh v. Rai Bahadur Kharajit Singh Misra (Case No. XXII)

Reportsoflb Election Petitions, 1927, Ahmmond Vol.HI p. 178 . 354,366,367K. N. Guruswamy v. The State of Mysore and others (A.I.R. 1954

S.C. 592) 243,250Guruswamy Nadar v. Irulappa Konar (died) and others. (67 M L.J.

Reports 389) 39,50HibibBhaiv. Pyarelal and others (A.I.R. 1964 M.P. 62) . . . 54,70Hanamant Govind Nargurdkar and others v. State of M. P. (A.I.R. 1952

S.C. 343) 383,410Har Swarup and another v. Brij Bhushan Saran and another (A.I.R.

1964 S.C. 1366) 382,390Hiriram Singh v.Kamtaprasad Sharma (A.I.R. 1966 M.P. 255) . . 120,128,382

383,406,410Harish Chandra Bajpai and another v. Triloki Singh and another (A.I.R.

1957 S.C. 444/12 E.L.R. 461) 120, 123Hegerston Case (5 O'M and H 70) . . . . . . . 54,90HukamSinghv. Banwari LaiBapra (A.I.R. 1965 All. 552) . . . 9 6 , 1 1 1 , 112

114Jabar Singh v. Genda Lai (A.I.R. 1964 S.C. 1200) . . . . 96, 115,118Jaduaandan Mehton v. Mosaheb Singh and others . . . . 305,322Jagan Nath v.Jaswant Singh and others (A.I.R 1954 S.C. 210) . . 342,389•Indicates the page from which the Judgment starts.

(iv) TABLE OF CASES CITED [VOL XXXVIII

•PAGE NO.

Jagdev SinghSidhanti v. Pratap Singh Daulta and others (A.l.R. 1965S.C. 183)

Jagan Prasad Rawat v. Krishna Dutt Paliwal, (20 E.L.R. 443)Dr. JagjitSinghv.Giani KartarSingh andothers (A.l.R. 1966S.C.773)

Jai Singh v. Ram Kishan and others (E.P.No 37 of 1967(Dt. 4-12-1967) .Jamuna Prasad Singh v. Shri Ramnivas and others(A.I.M.1959. P 226Janak Singh v. Mahanath Ram Kishore Das, (E.P. No. 4 of 1967

(Patna) dated 12-4-1968) .Jang Bahadur Singh v. Basant Lai and others (8 E. L. R. 429)'.Jujhar Singh v. Bhairon Lai and others (7 E.L.R. 457)Kamalnarain Sharma v. Pt. Dwarka Prasad Mishra and others (A.l.R.

1965 M. P. 15, A.l.R. 1966 S.C. 436)S. Kandaswami v. S.B. Adityan and Ors.(21 E.L.R.) . . . .Karwadav.Shambhakar(I. L.R.I 959 Bombay 229) . . . .Kataria Takandas Hemroy v. Pinto Fredrick (18 E.L.R. 403) .

Keshav Lakshman Barkar v. Deorao Lakshman Anande (A.I.rl. 1960 S.C.131)

Khader Sheriff v.Manuswami(A.l.R. 1955 S.C. 775) . . . .

Keaje Khanawar Khadaskhan Hushenkhan andanr. v. S.Najalingappaand anr. (A.l.R. 1968 Mysore 18)

Kondaveti GurunathReddy v. V. Seshaiahandothers(A.l.R.1966 A.P.331)KothepallyNarasayya v. Jammana Jogiand Pinninti Jammayya (Election

Petition No. 9 of 1957)Krishna Kumar v. Krishna Gopal (I. P.R. 1963,13 Rajasthan 726) .KrishnajiBhimrao Antrolikar v. Shanker Shantaram More and others

(7 E.L.R. 100)KuitarSingh v. Mukhtiar Singh (A.l.R. 1965 S.C. 141/24 E.L.R. 419 ) .

54,86,161,170178,189,243,256,268,282,312,410,446

243, 25954,86, 96,111,113, 384,410,

449120,149

54,75

178,188405

384,445

382, 295,396

38,46269, 299, 384,

440

384,451383,420, 452,

475

354, 374410

50120,149

Kumara Nand v. Brij Mohan Lai Sharma (A.l.R. 1967 S.C. 808)

383,413. 161, 170,268

280,305,306,312, 320,384,

44654,70,305,322,

384,448KattimaniChandappa Jimpanna,Settlement, Hubli v. LaxmanSiddappa

Naik and others (A.l.R. 1967 Mysore 182) . . . .Lachiram v. Jamuna Prasad Mukhariya and others (9 E.L R. 149)Laisingh Keshrising Rehvar v. Vallabhdas Shankerlal Thekdi and

others (A.I.R. 1967 Gujarat 62)

Lancaster's case (5 O'M & H. 39, 44)Madan Singh v. Kalyan Singh and ors. (6 E.L.R. 405)Madhu Singh Mukha Ram v. Ram Saran Chand Mittal and others

(A.I.R. 1966 Punjab 66)

Maganlal Radhakishan Bagdi v. HariVishnuKamath(15E.L.R..205lA.I.R. 1960 M. P. 362)

Mahadeo v. BabuUdai Pratap Singhand ors. (A.l.R. 1966 S.C. 824) .

451268,281

383, 384,

269,

414,447

5453,66

300, 382,406

305,321,383,384,412,436

96

•Indicates the page from which the Judgment starts.

E.L.R.J TABLE OF CASES CITED (V)

*PAQB NO.

Marshal v. James (1874) L.R. 9 C.R. 702) 243,251,252,Mast Ram v.Hiraam Singh Sethi and ors. (7.E.L.R. 301) . . . 54,91MsghTmal Kothari v. Delimitation Cxnmission and others (A.I.R.

1967 S.C. 669.) 383,418S. MeharSinghv. Umrao Singh (A.I.R. 1961 Punjab 244) . . . 120,128,129

MehtaGjvardhan Das Girdharlal v. Chavada Akbar Dalumiyan andothers ( 7 E.L.R. 374) 305,323

G.Michael v. S. Vaakiteswaran, Addl.Snretary to Government Pub-lic (Elections) Dspirtment, Madras (A.I.R. 1952 Madras474) . . 38

MisirRaghobardia!v.SheoBakshSingh(I.L.R.9Cal.439) . . . 222,226MohammedAyubKhanv.B?liRam&ors.(A.I.R.1962 J .&K.24) . 342,348Mohammad Razaani others v. Mst. Abbas 3ani3ibi(A.I.R. 1932P.C.158) 243,251Mhhan Singh v Banwarlal and others (A.I.R. 1964 S.C. 1366) . 382,390

410,448Neel Chand v. Rul iaRam Panna Lai and anr. (A.I.R.1963 Punjab 516) 382,389Motilal v. ManglaPrasad and others(A!.R. 1958 Allahatad 794) . . 384,422Mubarak Mazdoorv. LalBahadur(20E.L.R. 176) . . . . 5 4 , 9 0Mula i and another v. Lai Dan Bahadur Singh and others (9 E.L.R. 8) . 53,66Murarka Radhey Shyam Ram Kumar v. Rup Singh Rathore and others

(A.I.R. 1964 S.C. 1545) 382,391D. M irlidhar Reddy v. Pagafulia Reddy and another (Doabia's Election

Cases (1964)p.218 Special Appeal No. 34 0 f 1963) . . . . 378D.Murlidhar Singh v. Mmga Ram and ors. (Doabia's Election Cases

1966, p. 192) 354M.A.MuthiahChcUiar v. Sa Ganssan and another(A.I.R.1958Mad. 553/

21 E.L.R. 215) 5 4 , 8 8 , 2 4 4 , 2 6 5 ,384,424

NandKishore Saraf v. The State of Rajasthan and another (A.I.R. 1965S.C. 1992) 243 250

Nand Kishore Rath v. Himanshu Sskhara Pandhi (Doabia's ElectionCisesVol.1 (1955)Elition, p . 186) 354,378

NaniGopal Swami v Abdul Himid Choudhury and another (A.I.R.1959Assam200/19 E.L.R. 175) 1 2 0 , 1 4 9 , 3 8 3 ,

384, 411,412,436,446

K. Narasimha Reddy v. V. G. Bhupathi and Manik Rao (ElectionPet i t ionNo 18 of 1967 in Andhra Pradesh High Court) . . . 50

NathuramShikshakv.R.P .Dixi t (1965ALJ.P . 25) . . . . 96,117Naunihal Singh v.KishorilalPaliwal(A.I.R. 1961 M.P. 84) . . . 269, 3 0 0 , 3 8 2

406NazmulHaquev.AmjadAli andothers(18E.L.R.253). . . . 161,171The North Norfolk Case (1 O'M & H. 236) 268,286Nyalchand Virchand Ssth v. Election Tribunal Ahmedabad and others

(8 E.L.R. 417) 383>413Mrs. Om PrabhaJain v. Abnash Chand and another (C.A. No. 1862 of

1967 S.C. dated 7-2-68) 3 8 3

Panjab Rao v D. P. Meshram and others 1965 1 S C R 849) . . 38,46K. Paramalai v. N. Alangaram and anr. H.C. Madras (decided on 5-10-

1967) 50Pashupati NathSinghv.HariharPrasad Singh(A.I.R. 1968 S.C. 1064) . 354,372,374PeareyLalv. Amba Prasad and anr. (Doabia's Election Cases, Vol. I

(1864-1935)) 353.366N.PothuReddiarv. Muthiahand anr.(A.I.R. Madras 390) . . . 382,406•Indicates the page from wh'ch the Judgment starts.

1—3 Elec. Com./71

(vi) TABLE OF CASES CITED [VOL. xxxvm

•PAGE NO.

Prabhu Das v. Jor!Jingh (18 E.L.R. 110) 90Pyndah Venkatanarayana v. G.V. Sudhakar Rao and others (A.I.R.

1967 A. P. I l l ) 410Queen v.Ownes(Vol. 121 English Reports p. 36) 368Radha Krishna Shukla and anr. v. T. C. Miheshwar and others (12

E.L.R. 378) 120,126,129Raja Bahadur K. C. Deo Bhanj v. Raghunath Misra and others

(A.I.R. 1959 S.C. 589) 306,325Raj Krushna Bose v. Binod Kammgo and others (A.I.R. 1954 S.C. 202) 243,251,383,

413Rajendra Prasad Yadav v. Suresh Chandra Mishra (11 E.L.R. 222) . 383,413Rajinder Singh v. Manga Ram and others Doabia's Election Cases

1966 p. 192 353,364V. B. Rajuv.V.RamachandraRaoandors.(21E.L.R. 1) . . . 54,91,354,378Rameshwarv.StatcofRajasthan(A.I.R.1952S.C54) . . . . 383,419Ram Sevak Yadav v. H.K. Kidwai and ors. (A.I.R. 1964 S.C. 1249) . 96,112Rani Abhilakh Tiwari v. Election Tribunal Gonda and others (14

E.L.R. 375) 54,85RamPhal Raghunath Sahai v. BrahmPrakashand others (A.I.R. 1962

Punjab 129) 120,127RamKishan v. Jai Singh(C.A. No. 1949 (NCE) of 1967 dated 23-4-1968) 120,149RananjayaSingh v. Baijnath Singh and others(10 E.L R. 129) . . 54 ,88 ,92 ,244 ,

264, 265Ranjit Singh v.Pritam Singh and others (A.I.R. 1966 S.C. 1626) . . 342,348C.V.K.Raov. DantuBhaskar Rao (A.I.R. 1965 S.C. 93) . . . 306,332Ratan Singh aad anr. v.PadamChind Jain and others (9 E.L.R. 189) . 53Rattan Anmol Singh and anr. v. Ch.Atma Ram and others (A.I.R.1954

S.C. 510) 53,65,342,348,350

RikhabDas v. Ridhichand Palliwal and ors. (9 E.L.R. 115) . . 382,384,406,422

W. L. Ross v. Regional Transport Authority, Lucknow (A.I.R. 1962Allahabad 574) 243,250

RunBahadurSinghv. LachoKoer(I. L.R. ll ,Cal.301) . . . 222,226Rustom Satinv.Dr. Sampoornanand and ors. (20 E.L.R. 221.) . . 161,171,SaGanesanv. M. A. MuthiahChettiar(19 E.L.R. 16) . . . . 54,85,268L.P. Sahiv. Bateswar Prasad and others (A.I.R. 1966 S.C. 580) . 306,333Sant Prasad Singh v. Dasn Sinha (A.I.R. 1964 Patna 26) . . . 268,282Sarat Chandra Rabhaandors. v. Khagendranathandother.s(A.l.R. 1961

S.C. 334) 292Sardul Singh Caveeshar v. Hukaai Singh and ors. (6 E.L.R. 316) . 383,411:S.uis Kumar v. Election Tribunal (District Judge) Alwar and another

(A.I.R. 1963 Rajasthan 157) 382,395Satyaketu v. Election Tribunal, Barelly (A.L. J. 1963, 841) . . 96SavitriDevi v. Prabhawati Misra & anr. (15 E.L.R. 358) . . . 54,85Shanta Devi Vaidya v. Bashir Hussain Zaidi and others (8 E.L.R. 300) . 382,405Shah Umair Sahib v. Ram Charan Singh and ors. (10 E.L.R. 162) . . 382,405K.C. Sharmav. Rishabh Kumar and others (20 E.L.R.401). . . 5 4,85ShantiLal v. Bi Lai and ors. (A.I.R. 1964 ML P. 92) . . . 306,327ShcopatSinghv.Harishchandra(16E.L.R.103) . . . . . 85,87

•Indicates the page from which the Judgment starts.

B.L.R.] TABLE OF CASBS CITBD

ingh v. RamPratap(A.I.R. 1965S.C. 677) . . . . ^Cs, 321,384

S'livRams-. SliivCairan Singh (A.I.R. 1964 Raj, 126) . . . . 222,239Shivram Sawant Bhonsalev. Pratap Rao Dsorao Bhonsale (17 E.L.R.3T) 54,85ShubnathDJogamv Ram NarainPrasad and ors. (A.I.R. 1960 S.C. 148) 161,171B.Shyvmuxlir v. Shankar D20 Vedatankar and others (A.I.R. 1960

Mysore 27) 39.49SoowaIalv.P.K.Cfiaudharyors.and(21E.L.R. 137) . . . . 120.127,130State of Uttar Pradesh v. Singhara Singh and others (A.I.R 1964 S.C.358) '68,274Watrap) S. Subrahnuny.-. Iyer and ors. v. United India Life Insurance

Co-Ltd.,Mtdrasand others (A.I.R. 1928 Madras 1215) . . . <07, 339Ch. Subbi Rao v. M?.nb3r Plestion Tribunal, Hyderabad and others

(A.I.R. 1964 S.C. 1027) 382 391,392Sudhir Kumar Mondal v. Abhoy PadaSaha(A.I.R. 1966 Cal. 141) . 382,385,406

451Saifiir Laxmin H;alre v. Sripat Amrit Dange aad others (A.I.R. I960

Bombay 249/17 E.L.R. 373) 268:91,383,412

SwaminathaMirkonJar v. Ramalingam and ors. (2E-L.R. 390) . . 383,420Tain worth Case ( l O ' M & H . 75 at 81) 268,285TauntonCase (10 'M &H.181 at 185) 268,286Thakur Udaya Vir v. Arjuna Hammond page 326 305,323Thungabhadra Industries Ltd. vs. Government of Andhra Pradesh

(A.I.R. 1964 S.C. 1372) 303TniajhanSin'h v. Karniil Singh and others (Election Petition No.

33 of 1967 (Punjab) 32O,13frTriloki Singh v. Shivrajwati Nehru and others 268,292Trivsni Ram v. Satyaiso Singh and others (A.I.R. 1966 AH.20) . . 382.389,395G. Vasantha Pai v. A. Srinivasan and others (22 E.L.R. 221). . . 54,88Vaihist NirainSharma v. Dsv Chand and others(A.I.R. 1954 S. C. 513/

10 E.L.R. 30) 382,406Vengss Manufacturing Company v. Suraj Mall ( 5 Calcutta 669) . . 107,340N. L. Vermav. Munibal andors,(15E.L.R.495) . . . . 54,85Virendrav. State of Punjab and anr. (A.I.R. 1957 S.C. 896) . . . 268,275Vithaldasv. MoreshwarP. Ram (9 E.L.R. 301) 306,333

•Indicates the page from which the Judgment starts.

IN THE SUPREME COURT OF INDIA

S. HARCHARAN SINGH

F.

S. MOHINDER SINGH

(}. C. SHAH, AND V. BHARGAVA JJ.)

May 1, 1968

Representation of the People Act, 1951—Sections 33(5), 36(3)—Filing ofcopy of electoral roll—Age and house number not shown in copy—// defect ofsubstantial character.

Sub-section (5) of S. 33 provides that where a candidate is an elector ofa different constituency, a copy of the electoral roll of that constituency or ofthe relevant part thereof or a certified copy of the relevant entries in such rollshall, unless it has been filed along with the nomination papers, be producedbefore the Returning Officer at the time of scrutiny. By sub-section (3) of S. 36the Returning Officer is enjoined not to reject the nomination paper unless thedefect is of a substantial character.

The appellant produced with the nomination paper a certified extract fromthe electoral list. But the house number and age in the electoral list were notset out. The respondent challenged the election of the appellant on the groundthat the appellant's nomination was improperly accepted. The High Courtupheld the contention and declared the election void under S. 100(l)(d) (i) ofthe Act. Allowing the appeal to the Supreme Court.

HELD : On a review of the proceedings before the Returning Officer ithas to be held that the Returning Officer did not err in not rejecting the nomi-nation paper. The details for identifying the appellant as an elector were dulyfurnished. His age was mentioned in the nomination paper. No objection wasraised to the acceptance of the nomination paper at the scrutiny. The ReturningOfficer satisfied himself by personal enquiry that the appellant was above theage of twenty five. Though he did not apply his mind to the absence of housenumber he did not come to the conclusion that the defect was of a substantialcharacter.

Baru Ram v. Shrimati Prassani and Ors. (1959 S.C.R. 1403 referred to.)

, Civil Appeal No. 1558 of 1967.

JUDGMENT

SHAH ].

At the general elections held in February 1967 the appellant polledthe largest number of votes and was declared elected to thePunjab Vidhan Sabha from the Zira Constituency. The first respon-dent S. Mohinder Singh, who was a candidate at the election, applied.

2—3 Elec Com/71

2 S. HARCHARAN SINGH V. S. MOHINDER SINGH [VOL. XXXVIII

to the High Court of Punjab for setting aside the election of theappellant on the ground that the nomination of the appellant whowas not a voter in the Zira Constituency was improperly accepted bythe Returning Officer, for the appellant had failed to file before thescrutiny a copy of the electoral roll or the relevant part thereof or acertified coy of the relevant entries of the roll pertaining to theconstituency to which he belonged, and that the result of the electionto the Zira Constituency in so far as it concerned the appellant wasmaterially affected by improper acceptance of his nomination. TheHigh Court upheld the contention and set aside the election of theappellant and declared the election of the appellant void unders. 100(1) (d)(i) of the Representation of the People Act, 1951. Againstthat order the appellant has appealed to this Court.

The name of the appellant is included as a voter in the GiddarbhaConstituency, and his name is not included in the list of electors inthe Zira Constituency. But on that account he was not disqualifiedfrom standing for election from the Zira Constituency. The validity ofthe election of the appellant was challenged only on the ground thatthe appellant had failed to produce before the scrutiny of nominationpapers, the electoral roll, or a certified copy of the relevant entries inthat roll concerning him.

By sub-s. (4) of s. 33 of the Act the returning officer is directedto satisfy himself when the nomination paper is presented that thenames and electoral numbers of the candidate and his proposer asentered in the nomination paper are the same as these entered in theelectoral rolls. Sub-section (5) provides that where the candidate isan elector of a different constituency a copy of the electoral roll ofthat constituency or of the relevant part thereof or a certified copyof the relevant entires in such roll shall, unless it has been filed alongwith the nomination papers, be produced before the returning officerat the time of scrutiny. The appellant not being an elector in theZira Constituency, he had to produce either with the nominationpaper or at the time of scrutiny the relevant part of the electoral roll,or a certified copy of the relevant entires in the electoral roll. Section36 deals with the scrutiny of nomination. By sub-s. (2) of s. 36 it isprovided :

"(2) The returning officer shall then examine the nominationpapers and shall decide all objections which may be made to anynomination, and may, either on such objections or on hisown motion, after such summary inquiry, if any, as he thinksnecessary, reject any nomination on any of the following grounds :

(a) that on the date fixed for the scrutiny of nominations thecandidate either is not qualified or is disqualified for being

E.L.R.] S. HARCHARAN SINGH V. S, MOHINDER SINGH 3

chosen to fill the seat under any of the following provisionsthat may be applicable, namely :—

Articles 84, 102, 173 and 191.

(b) that there has been a failure to comply with any of the provi-sions of section 33 or section 34 ; or

(c) * # # # # "

By sub.-s. (4) the returning officer is enjoined not to reject any nomi-nation paper on the ground of any defect which is not of a substantialcharacter. Sub-section (7) of s. 36 provides :

''For the purposes of this section, a certified copy of an entryin the electoral roll for the time being in force of a constituencyshall be conclusive evidence of the fact that the person referredto in that entry is an elector for that constituency, unless it isproved that he is subject to a disqualification mentioned in sec-tion 16 of the Representation of the People Act, 1950".

This Court in Sri Baru Ram v. Shrimati Prasani &• OrS. (1) observ-ed at p. 1418 :

"Sub-section (5) of s. 33 deals with the stage of the scrutinyof the nomination papers and it provides that where a candidateis an elector of a different constituency, a copy of the electoralroll of that constituency or the relevant part thereof or a certifiedcopy of the relevant entry of such roll shall, unless it is filed alongwith the nomination paper, be produced before the returning officerat the time of the scrutiny. It is thus clear that when the stage ofscrutiny is reached the Returning Officer has to be satisfied that thecandidate is an elector of a different constituency and for that pur-pose the statute has provided the mode of proof. Section 36, sub-s.(7) lays down that the certified copies which are required to beproduced under s. 33(5) shall be conclusive evidence of the factthat the person referred to in the relevant entry is an elector ofthat constituency. In other words, the scheme of the Act appearsto be that where a candidate is an elector of a different consti-tuency he has to prove that fact in the manner prescribed andthe production of the prescribed copy has to be taken as conclu-sive evidence of the said fact".

The appellant concedes that with his nomination paper he didnot produce the electoral roll or a copy of the relevant part thereofof the Giddarbaha Constituency. He, however, pleaded that at the timeof the scrutiny of the nomination papers he had produced before the

.(.Ij) ' 1959) S. C.R. 1403. :

4 S. HARCHARAN SINGH V. S. MOHINMR SINGH [VOL. XXXVIII

returning officer copies of the electoral roll, and had requested thatofficer to keep the copies of the roll on his file if he needed them, andthe returning officer had said that he did not need the copies of theelectoral roll. This case was not set up by the appellant in his replyto the election petition. The returning officer Sher Singh Sindhu wassummoned to appear before the High Court to produce certain docu-ments in his custody. Shri Singh Sindhu personally appeared inCourt and tendered the documents called for, but the appellant didnot ask the Trial Judge to administer him oath and to examine him asa witness. There is no written record about the production of theelectoral roll before the returning officer in the order passed by theReturning Officer dated January 21, 1967, the returning officer hasreferred to the production of a certificate, but not to the production ofthe electoral roll. We therefore agree with the High Court that the caseset up by the appellant that he had produced copies of the electoralroll or relevant parts thereof before the returning officer at the timeof the scrutiny of nomination papers cannot be accepted as true.

The appellant contends that he had produced with the nomina-tion paper a certified extract from the electoral list of the GiddarbhaConstituency supplied to him by the Tahsildar of Muktsar, who alsoheld the office of Electoral Registration Officer, and the requirementsof s. 33(5) were satisfied. With his nomination paper the appellanthad produced an Ext. P.W. 1/4 to the following effect:—

"Certified that the names of Harcharan Singh s/o Teja Singhand Gurdial Singh s/o Harcharan Singh are there on the voterslist of V. Budian H. B. No. 24, Tehsil Muktsar, in the voters' listof Lambi Constituency ; for the year 1965.

S. No. Name of the voter. Voter No.

1. Harcharan Singh S/o Teja Singh 1825

2. Gurdial Singh S/o Harcharan Singh 1827

Sd. Illegible

18-1-67"

The circumstances in which this document was obtained may first beset out. On January 18, 1967, the appellant submitted an applicationbefore the Sub-Divisional Magistrate, Muktsar, to the following effect;

1E.L.R.] , S. HARCHARAN SINGH V. S. MOHINDER SIKGH 5

The appellant begs to submit as under:

"It is submitted that I want to contest for Punjab Assemblyseat from Zira Constituency. My name is entered as a voter inthe voters list of village Badian. I have received a voters list fromthe Panchayat of the village and another list from the candidateof Giddarbaha circle. One list of voters is (part) 30 and in theother (part) 31 is written in red ink. Both of them relate to year1966. Kindly certify after verification from the election qanungo,whether there is also another voters list for the year 1966. Ifthere is one, what is my voter No. therein.

My son Gurdial Singh, is my covering candidate. Kindlyverify voters Nos. of both (of us)."On this application it was recorded by the Sub-Divisional Magistrateon January 19, 1967— "Allowed certified copy today". On the reverseof the application is recorded a certificate of the Tahsildar, Muktsar,which is marked P.W. 1/4. The entries in the voters list relating tothe appellant may be set out: "Voters list of Giddarbaha AssemblyConstituency — Village Badian (Continued).

1825 211 Harchar an Singh Teja Singh Male 60

Below this entry and at the end of page of the electoral roll, this note appears:

Serial House Name of the Father's/Male/AgeNo. No. voter Mother's/Female/

Husband's name.

The entries in P.W. 1/4 do not tally in all respects with the entriesin the voters list. P.W. 1/4 purports to be an abstract from the voterslist of Lambi Constituency whereas the voters list in which the nameof the appellant is entered is of the Giddarbha Circle. But it appearsthat in transcribing the name of constituency a clerical mistake wasmade. The electoral roll it appears was prepared in 1965, and sincethen the original Lambi general constituency was named Giddarbahaconstituency as a result of delimitation of constituencies. But in Ext.P.W. 1/4 the house number and the age of the voter which are foundin the voters' list arc not set out. There can be no doubt that thecopy supplied is defective and it does not comply with the requirementsof s. 33(5). Under s. 36(2) (b) the returning Officer has to holda summary inquiry on objections raised, or on his own motion, whetherconstitutional requirements are prescribed in cl. (a) or the statutoryrequirements in cl. (b) have been fulfilled. No objection to thenomination paper was raised before the returning officer. Apparently,the returning officer held some inquiry and recorded the followingorders: . , . . , . . : < ; . .

6 S. HARCHARAN SINGH V. S. MOHINDER SINGH- [VOL. XXXVIII

"I have examined the nomination paper in accordance with section36 of the Representation of the People Act, 1951, and decide asfollows:—

'Particulars correct. The candidate's age is not shown in the cer-tificate. But the candidate is an old man and is certainly abovethe age of 25 years and as such he is fully qualified. No objectionis raised. Fee deposited. Oath taken. Valid. Accepted.'"

By s. 36(4) the returning officer is enjoined not to reject any nomina-tion paper on the ground of any defect which is not of a substantialcharacter. Exhibit P.W. 1/4 which accompanied the nomination paperwas defective in two respects, but it still remains to be determinedwhether the defects were of a substantial character. The appellanthad produced a document which certified his roll number, his name,his father's name, his village, H.B. number of Tahsil Muktsar, butdid not certify his house number and his age. On the application sub-mitted by the appellant the returning officer had asked the Tahsildarto make a report. Niranjan Singh who was the Sub-Divisional OfficerMuktsar, and also the Electoral Registration Officer of GiddarbahaAssembly Constituency at the relevant time deposed that the applica-tion Ext. R.W. 1/6 was presented before him and that he had orderedthat the application be referred for disposal to the Tahsildar who heldthe office of the Assistant Electoral Registration Officer. In cross-exa-mination the witness stated that he had "desired the Tahsildar tosupply a certified copy of the electoral roll" and that he had neverasked him to submit a report like the one endorsed on the reverse ofthe application. But the Tahsildar purported to make a report andthe application with that report was delivered to the appellant inpursuance of his application. We see no reason to disbelieve thestatement of Niranjan Singh. The answer referred to earlier is elicitedin cross-examination by counsel for the respondent, and no reason hasbeen suggested as to why the witness should bear false testimony. Therecitala in the application filed by the appellant are somewhat obscure.It was written in Punjabi and the official translation and the translationmade by the learned Judge in the High Court did not wholly tally.The order passed by the Electoral Registration Officer which he hasdeposed to is not amongst the papers. But at the foot of the applica-tion it is recorded that a certified copy was allowed on January 19r

1967. If the story of the Electoral Registration Officer is to be be-lieved, he had directed that a certified copy of the electoral roll befurnished and by some mischance the Tahsildar made a report inwhich there was first a clerical mistake with regard to the name ofthe Constituency, and again the two entries relating to the house num-ber and the age of the appellant were omitted. Exhibit P.W. 1/4was filed with the nomination papers and the returning officer was-

B.L.R.] S- HARCHARAN SINGH V. S. MOHINDER SINGH 7

apparently satisfied that the requisite details were duly furnished. Exhi-bit P.W. 1/4 was also before the returning officer at the time of thescrutiny of the nomination papers. The contesting candidate and hisagents were present and no objection was raised to the validity or thesufficiency of the document produced with the nomination paper inpurported compliance with s. 33(5). The returning Officer, however,thought it necessary to make an inquiry as to the age of the appellantand recorded that he was satisfied that the appellant was above theage of twenty-five. Absence of the number of the house in which theappellant lived from the copy produced does not appear to have beenregarded as of any consequence. It was not suggested in the HighCourt, nor is it suggested before us that the appellant was not com-petent to stand as a candidate for the Zira Constituency either onaccount of any disqualification or on the ground that he was not anelector of any constituency; it is only urged that Ext. P.W. 1/4 wasnot a certified copy of the relevant entries in the electoral roll.

The statutory requirements of election law must be strictly ob-served. An election dispute is a statutory proceeding unknown to thecommon law it is not an action at law or in equity. As a copy of therelevant entries from the electoral roll relating to the appellant it wasindisputably defective. But under s. 36(4) the returning Officer isentitled to accept the nomination paper even if it be defective, if thedefect is not of a substantial character indeed he is enjoined not toreject the nomination paper unless the defect is of a substantial cha-racter. The details for identifying the appellant as an elector wereduly furnished. His age was mentioned in the nomination paper,though it was not to be found in the certified copy produced by theappellant. No objection was raised to the acceptance of the nominationpaper on behalf of the contesting candidate and his agents present atthe scrutiny. The returning officer satisfied himself by personal in-quiry that the appellant was above the age of twenty-five and thereforecompetent to stand for election. It is true that he did not apply hismind to the absence of house number entered in the electoral register.But he did not come to the conclusion that even though the copyproduced was defective the defect was of a substantial character. Thedecision of the returning officer in the matter is not final and inappropriate cases it is open to the Court to reach a different conclusionin an election petition. But on a careful review of the proceedingsof the Returning Officer we are of the opinion that the returning officerdid not err in not rejecting the nomination paper; the defect in Ext.P.W. 1/4 were not of substantial character.

The primary purpose of the diverse provisions of the election lawwhich may appear to be technical is to safeguard the purity of theelection process, and the Courts will not ordinarily minimise theiroperation. If there was any reason to think that the appellant was

8 JANARDHAN YADHAV SAKHARE V. [VOL. XXXVII1

HUK.UND VITHOBA ALONE

negligent, or that on account of defects which were found in the copyproduced by the appellant the purity of the election process was likelyto be affected, we would have been loath to disagree with the HighCourt. But in this case the appellant moved the Electoral RegistrationOfficer for a copy certifying the correctness of the entries in the listwhich had been supplied to him, and the Electoral Registration Officersupplied to him a copy which though defective, did include sufficientparticulars for identifying the appellant. No objection was raised be-fore the returning officer and that officer after holding an inquiry wasapparently of the view that there was no defect which could be re-garded as of a substantial character. We do not think that any groundis made out for disagreeing with the view of the returning officer.

The order passed by the High Court is set aside and the petitionfiled by the first respondent S. Mohinder Singh stands rejected. Theappeal is allowed: there will be no order as to costs throughout.

Appeal Mowed.

IN T H E SUPREME COURT OF INDIA

JANARDHAN YADHAV SAKHAREF.

MUKUND VITHOBA ALONE AND ANR.

(J. C. SHAH AND V. BHARGAVA JJ.)

May 2, 1968.

Scheduled caste Reserved constituency—elected candidate shown to havebeen converted to Buddhism—ceased to be a member of the Scheduled caste.

The appellant's election from a Scheduled Caste reserved constituency for theMaharashtra Legislative Assembly in February 1967 was challenged on theground that he had been converted to Buddhism in May 1958; and after thatconversion had ceased to be a member of the Scheduled Caste to which he earlierbelonged by birth. The High CourtJ, having held that conversion was established,declared the appellant's election void.

On appeal to the Supreme Court,

HELD: On the evidence, theellant's conversion was proved.

Civil Appeal No. 1558 of 1967.

HELD : On the evidence, the High Court had rightly held that theappellant's conversion was proved.

S.L.R.] JANARDHAN YADHAV SAKHARE V. 9MUKUND VITHOBA ALONE

JUDGMENT

BHARGAVA, J.—The appellant, Janardhan Yadhav Sakharc, wasdeclared elected to the Maharashtra Legislative Assembly from theSironcha Scheduled Caste Reserved Constituency of Chanda Districtin the General Elections held in February, 1967. The election wascontested by three other candidates, Mukund Vithoba Alone, respon-dent No. 1 (hereinafter referred to as "the election petitioner"),Ltxman Khobragadc, and Adku Raoji Gcdam. The appellant andAdku Raoji Gcdam stood as Independent candidates. The election peti-tioner was a candidate on behalf of the Congress Party and LaxmanKhobragade on behalf of the Republican Party of India. The appellantreceived the largest number of votes and the next largest number wasreceived by the election petitioner. The appellant defeated the electionpetitioner by 15,920 votes to 14,275 votes. Mention may also be madeof the fact that Laxman Khobragadc, the candidate on behalf of theRepublican Party, received only 6,425 votes. The election petitionerchallenged the election of the appellant on the ground that the appel-lant had been converted to Buddhism on or about the 26th May, 1958and after that conversion he ceased to be a member of the ScheduledCaste to which he earlier belonged by birth. It was urged that, sincehe had started professing a religion other than Hindu or Sikh, theappellant was not eligible to stand for election for a seat reserved formembers of a Scheduled Caste, so that his nomination and electionwere void. Some other grounds were also taken in the election peti-tion with which we arc not concerned in the present appeal.

The appellant contested the election petition by denying that hewas ever converted to Buddhism and claimed that he had throughoutremained a Hindu, so that he never lost the right to stand as a candi-date for the reserved seat, because he continued to be a member of theScheduled Caste in which he was born. The question that thus cameup for decision before the High Court of Bombay was whether theappellant had or had not been converted to Buddhism. That was thesole question of fact requiring decision and it was decided by theHigh Court against the appellant. The High Court, having held thatthe conversion was established, declared the election of the appellantvoid and set it aside. The appellant has, therefore, come up in appealto this Court under section 116A of the Representation of the PeopleAct, 1951.

The election petitioner, in order to establish conversion of theappellant to Buddhism, examined seven witnesses, including himself.In his own evidence, he admitted that he had no personal knowledgeof the conversion ceremony and only related how he had succeededin finding out material to prove this conversion. His* evidence is.

10 JANARDHAN YADHAV SAKHARE V. [VOL. XXXVIIftMUKUND VITHOBA ALONE

therefore, of little importance. The other six witnesses, however, allproved the conversion ceremony. The case put forward by these wit-nesses is that a ceremony for mass conversion of a large number ofHindus to Buddhism was held in village Armori on the 26th May,1958, and at that ceremony the appellant was actually the Chairmanof the Reception Committee. He not only took an active part in theceremony, but was also himself converted to Buddhism after goingthrough the detailed process of the ceremony adopted for conversionof Hindus to Buddhism.

The two principal witnesses, on whom, the High Court has reliedto hold that these allegations against the appellant have been proved,,are P.W. 2, Sakharam Masah Meshram, an advocate, and P.W. 7,Bhaurao Dewaji Khobragade, a Barrister. These two witnesses as wellas all other witnesses examined on behalf of the election petitionerhave stated that P.W. 2 presided at that ceremony and P.W. 7 gavethe Diksha at that ceremony, so that he acted as the principal personconducting the rites for conversion. They have also stated that theappellant was present, functioned as Chairman of the Reception Com-mittee, and was himself converted to Buddhism at the same time. Theycould remember the appellant as one of the persons converted, becausehe took a prominent part at the ceremony and was on the dais wherethe main office-bearers organising the ceremony were seated. Thewitnesses who corroborate the evidence of these two witnesses areP.W. 3 Laxman Narayan Khobragade, P.W. 4 Dinkarrao Karuji Ram-take, P.W. 5 Ramnath Sitaramji Wakade, and P.W. 6 DharmajiZaduji Khobragade. The principal ground, on which the reliabilityof these witnesses is challenged is that all these witnesses are membersof the Republican Party or supporters of the candidate of that Partyand, consequently, they are interested in having the election of theappellant set aside. P.W. 3 was himself the rival candidate who wassponsored by the Republican Party. P.W. 2 and P.W. 7 both admitthat they are active workers of that party. P.W. 4, P.W. 5 and P.W. 6also admit their interest in or membership of that party. We do not,however, consider that this can be held to be a sufficient reason todisbelieve the evidence of the witnesses who are very respectable per-sons and include an Advocate and a Barrister. We have alreadynoticed earlier that, though P.W. 3 was a candidate sponsored by theRepublican Party, he received only 6,425 votes. The appellant andthe election petitioner received very much larger number of votes anddefeated him by a very big margin. If the election of the appellant isset aside, it would ensure to the benefit of the election petitioner, buthardly be of any advantage to P.W. 3. In these circumstances, weconsider it highly improbable that persons of such standing as P.W. 2and P.W. 7 would come and give false evidence in order to have theelection of one Independent candidate set aside so as to favour another

E.L.R.] JANARDHAN YADHAV SAKHARB V. 11MUKUND VITHOBA ALONE

Independent candidate. We are not, therefore, prepared to accept thesubmission that these witnesses cannot be treated as independentwitnesses.

Very strong corroboration of the evidence of these witnesses isprovided by a letter Ext. P. 25 written by the appellant himself priorto the time when this conversion ceremony was held. The appellanthimself admits in his evidence, and that is also clarified by the letterExt. P. 25, that the appellant was approached by the Organisers ofthe ceremony to accept the office of Chairman of the Reception Com-mittee. This letter has been admitted by the appellant as having beensent by him in reply to a letter received by him from Dr. Wankhede.That letter, which was received by the appellant, has not been pro-duced, and the explanation is that the appellant did not preserve itas he considered it unnecessary. In the letter Ext. P. 25, the appellanthas shown his modesty by pleading that he did not possess the capa-bility required for the post of the Chairman of the Reception Com-mittee, but, thereafter, he thanked all the persons who had decided toentrust this responsibility to him and to give him an opportunity tospeak, before the public on that auspicious occasion. He went on tosay that he could not disobey an elderly and learned person like Dr.Wankhede; and, thereafter, made a suggestion that he will be avail-able if the ceremony is held after his examination for the M.A. andLL.B. Degrees, which were expected to and in the month of April.In the last paragraph, he said that if the Diksha ceremony is fixedafter his examination, he would be able to fulfill his responsibility,otherwise not. Then he gave a definite assurance that, if the functionis fixed after dates mentioned by him, he would come positively. Herequested the addressee to show that letter to Dinkarrao, by whichhe was referring to P.W. 4 Dinkarrao Ramtake. This letter providesvery strong e%'idence against the plea of the appellant that he hadnothing to do at all with the conversion ceremony. The appellanthas pleaded that, though he wrote this letter, the plans were changedsubsequently and he did not, in fact, participate in the ceremony atall and did not function as Chairman of the Reception Committee. Nodocumentary evidence is, however, available to show that the appellantat any stage later on went back on the promise given by him in thisletter and, in the circumstances, there is no reason to disbelieve theevidence of witnesses examined by the election petitioner who havestated that the appellant did, in fact, discharge the function which wasentrusted to him. That the appellant intended to become a Buddhistat the conversion ceremony finds some indication in this letter inwhich, at the very top, the appellant has written "Namo Buddhaya".If the appellant was not desirous of conversion to Buddhism, thereis no reason why he should have started his letter by obeisance toBuddha rather than any other Sant or God. When questioned on this

12 JANARDHAN YADHAV SAKHARE V. [VOL. KXXV1IIMUKUND VITHOBA ALOKE

point, the appellant was unable to give any satisfactory explanationfor starting his letter in this manner. This is another circumstancethat indicates that the witnesses of the election petitioner who havestated about the conversion of the appellant and his active participationas an office-bearer, are speaking the truth.

It was argued by learned counsel for the appellant that no evi-dence has been given by the election petitioner to show that, at theorganisational meetings held prior to the actual conversion ceremony,the appellant also attended and took any active part; and from this,learned counsel wanted to infer that the appellant must have droppedout of the organisation. In fact, the appellant stated that, after he hadwritten this letter, he received no further communication and, there-fore, he did not participate in the ceremony at all. We are unableto accept that there is any force in this argument. Once the appellanthad definitely given his consent to become the Chairman of the Recep-tion Committee and had given a positive assurance that he will bepresent to discharge his duties, it cannot be expected that he wouldbe dropped completely without any further communication at all.

Reference was also made by learned counsel to the admissionsmade by the witnesses for the election petitioner that the persons ori-ginally proposed as the President and the Master of ceremony at thisconversion festival were not those who actually discharged those func-tions. Advocate Sakharam Masah Meshram, and Barrister BhauraoDewaji Khobragadc were not the persons originally selected for thispurpose, but they later took over these offices, because the personsoriginally selected did not attend. An analogy was sought to bedrawn that, similarly, the appellant might also have dropped out andmight not have functioned as Chairman of the Reception Committee.The mere fact that some persons originally chosen to discharge func-tions at that festival could not do so and other persons were called uponto take over their functions cannot mean that every person selected forevery office must have been similarly changed. There is definite evi-dence that, so far as the appellant is concerned, he did, in pursuanceof his promise contained in the letter Ext. P. 25 participate in theceremony and carry out the functions of the office entrusted to him.

In order to show that this ceremony was held on 26th May, 1958,and that the appellant functioned as Chairman of the Reception Com-mittee, reliance was also placed on two pamphlets Exts. 28 and 29purported to have been circulated in connection with the holding ofthis ceremony. The fact that pamphlet Ext. 28 was issued appearsfrom the evidence of P.W. 4 Dinkarrao Karuji Ramtakc. That pam-phlet is however, not of great importance, because it does not containthe name of any person organising the ceremony. Further, it mentions

E.L.R.] JANARDHAN YADHAV SAKHARB V. 13MUKUND VITHOBA ALOKE

the proposed date for the ceremony as 31st January, 1958, and it isno party's case that the ceremony was ever proposed to be held onthat date. In fact, the High Court has also commented on this cir-cumstance and has come to the view that this date in the pamphletappears to have been printed by some mistake. The pamphlet thatis really of importance is Ext. 29, the issuing of which shortly beforethe date of ceremony has been deposed to by P.Ws. 3, 4, 5, 6 and 7.In this pamphlet, names of a large number of persons concerned withthe organisation of the ceremony appear at the end of the pamphlet.The pamphlet also indicates the names of the office-bearers elected fororganising that ceremony and it mentions Reception Chairman as ShriJanardhan Sakhare, Manapur, M.A. (Final), which clearly refers to theappellant. The Chief Secretary is named as Shri Dinkarrao Ramtake,P.W. 4. Amongst additional members appears the name of NamajiSakhare, Nagpur, who, the appellant has admitted, was his real brother.This pamphlet mentions that the Buddha Religion 'Diksha' Ceremonyis going to be held. The place of the ceremony is mentioned as Ar-mori, District Chanda, Weekly Bazar, Opposite Police station, and thedate and time of the ceremony are mentioned as 26-5-58, Monday,6 p.m. It is true that no evidence has been given on behalf of theelection petitioner to prove that the original draft; of this pamphlet,which was sent to the press for having this pamphlet printed, wasactually signed by the appellant or to prove who printed this pamphletand got it distributed. The witnesses have, however, clearly statedthat this pamphlet was, in fact, distributed before the ceremony tookplace and, in our opinion, it confirms the evidence of the electionpetitioner's witnesses that the appellant's name was put forward as oneof the active workers for this ceremony in his capacity as Chairman,Reception Committee. When this pamphlet is read with the letterExt. P. 25 written by the appellant himself, it provides very goodsupport to the evidence of the witnesses who have stated that theappellant participated in the function as Chairman, Reception Com-mittee.

Additional evidence in support of the case of the election petitioneris provided by some other documentary evidence. Four such docu-ments are Passes Exts. 54 to 57 which were purported to be issued topersons attending the ceremony in order to give them the right to sitnear the dais. These passes purport to bear the signatures of the appel-lant on their back for authenticating them. It appears to be quitenatural that the signatures on such passes should be those of the Chair-man of the Reception Committee, because he would be the Head ofthe Committee entrusted with the task of arranging the seating at thetime of the actual ceremony. It is true that the appellant has deniedhis signatures on these passes; but the fact that these are signatures ofthe appellant has been proved clearly by P.W. 4 Dinkarrao Karuji

'14 JANAKDHAN YADHAV SAKH4RE V. [VOL. XXXVIIIMUKUND VITHOBA ALONE

Ramtake who has stated that he is familiar with the handwriting andsignature of the appellant. In this connection, we may also take noticeof the fact that the learned Judge of the High Court, on a comparisonof these signatures on the Passes with the admitted signatures of theappellant, found a very close similarity between them. It is true thatthe learned Judge was not a handwriting expert; but the fact that suchclose similarity exists is a sufficient reason for placing reliance on theevidence of P.W. 4 Dinkarrao Karuji Ramtake and for not acting onthe evidence of the appellant himself who, of course, was greatly inte-rested in denying these signatures in order to escape from the conse-quences of this election petition.

Similarly, signatures of the appellant were also proved by P.W. 4Dinkarrao Karuji Ramtake on some counter-foils of Receipts in respectof moneys collected by the appellant in connection with the organisationof this ceremony. The amounts collected through those counter-foilreceipts were entered by P.W. 4 himself in the statement of account Ext.62 which was prepared and signed by him. It will thus be seen that,apart from the fact that the conversion of the appellant to Buddhismis deposed to be very good and reliable witnesses, there is a lot of othermaterial supporting and corroborating their evidence.

On behalf of the appellant, this evidence tendered by the electionpetitioner was sought to be rebutted by the appellant's own sworntestimony that he did not attend any such ceremony, was not convertedto Buddhism, was not even present at Armori on that day and was, infact, in Calcutta. This statement of the appellant has remained un-corroborated and no attempt was made on his behalf to prove by exa-mining witnesses who could have deposed that he was in Calcutta onthat day.

The evidence of P.W. 7 Bhaurao Dewaji Khobragade was soughtto be challenged on the ground that he issued a certificate to the appel-lant, after this ceremony had been held, to the effect that the appellantbelonged to the Mahar community which was declared as a ScheduledCaste. The appellant, however, failed in this attempt because he wasunable to produce the actual certificate issued by P.W« 7. Accordingto P.W. 7, he did not give any such certificate to the appellant after26th May, 1958. He stated that, if any certificate of his certifying thatthe appellant belongs to the Mahar community which is a ScheduledCaste is in existence, it must have been issued by him before that date.The appellant has relied on a certificate Ext. 40 purported to be signedby Chief Presidency Magistrate, Bombay, and Additional District Magis-trate, Chanda certifying the appellant as a member of a Scheduled Castein which there is a mention that the particulars of proof which were

1E.l,R.] . JANARDHAN YADHAV SAKHAJJE V. 1MUKUND VITHOBA ALONE

submitted included the certificate from Sri B. D. Khobragade, M.P.P.W. 7, Barrister Khobragade, was a member of Parliament for a num-ber of years. That certificate Ext. 40 does not, however, contain anyentry showing when the certificate of P.W. 7 Barrister Khobragaderelied upon as proof had been issued by the latter. This is significantwhen we find that amongst the particulars of proof was another certifi-cate from Sub-Divisional Magistrate, Chanda and the year of thatcertificate is mentioned as 1961. Since the year of issue of the certificateby P.W. 7 does not appear at all anywhere, there seems to be no reasonto disbelieve the evidence of P.W. 7 that he did not issue any suchcertificate after 26th May, 1958. It appears that this certificate men-tioned in Ext. 40 must have been issued by him before 26th May, 1958as stated by him in his evidence. It is true that the appellant hassucceeded in proving that this certificate issued by P.W. 7 is no longeravailable, because the papers which were submitted by the appellantto the Additional District Magistrate, Chanda in order to obtain certi-ficate Ext. 40 have been weeded out in accordance with rules. Theappellant cannot take advantage of the fact that this certificate ofP.W. 7 mentioned in Ext. 40 has been weeded out to urge that thatcertificate must necessarily have been issued after 26th May, 1958 and,consequently, we are unable to accept the submission that the evidenceof P.W. 7 Barrister Khobragade about the conversion of the appellantto Buddhism cannot be relied upon.

Reference was also made to this very certificate Ext. 40 as well asto another certificate Ext. 53 issued by the District Magistrate, Nagpur,in support of the plea of the appellant that he had continued to belongto the Mahar community as a member of a Scheduled Caste. Certifi-cate Ext. 53 was obtained by the appellant from the District Magistrateof Nagpur on 26th June, 1958 on the basis of two other certificates, onedated 20th August, 1957, and the other of one B. K. Wasnik dated22nd June, 1958. It was urged that this certificate shows that within aperiod of one month from the alleged date of conversion, the appellantput himself forward as a member of the Mahar community and didnot claim to be a Budhist. The other certificate Ext. 40 was obtainedon 18th February, 1964. This certificate also mentions the appellantas a member of the Mahar Community and reliance is placed on it alsoto urge that he continued to belong to that community. It appearsto us that both these certificates were obtained by the appellant in spiteof his conversion to Buddhism in order to take advantage of the privi-leges which were being afforded to the members of the ScheduledCaste and it was solely for the purpose of personal advantage that heobtained the certificates showing him as belonging to Mahar com-munity. The fact that he succeeded in obtaining such certificates fromthe authorities on the basis of representations made does not mean thatno conversion ceremony in f acttggkjplace.,. These documents produced

/ -Gr

16 NA.THURAM MIRDHA V. GORDMAK SONI [VOL. XXXVIU

do not thus disprove the conversion which has been amply establishedby the evidence given on behalf of the election petitioner. We may addthat the learned Judge of the High Court, who had the benefit ofwatching the demeanour of the witnesses when they were examinedbefore him, was also impressed by them and held them to be truthful.In the circumstances, we can find no reason at all to differ from theview taken by the High Court and to upset the finding of fact recordedby it

The appeal fails and is dismissed with costs.

Appeal Dismissed*

[ IN THE SUPREME COURT OF INDIA]

NATHU RAM MIRDHA

V.

GORDHAN SONI & ANR.

(J. C. SHAH AND V. BHARGAVA JJ.)

May 3, 1968.

Recount—Circumstances justifying—Application for recount—duly to give-reasons while rejecting request.

The appellant filed a petition for setting aside the election of the firstrespondent on the ground that the result of the election in so far as it concernedthe first respondent had been materially affected by improper reception of votes.It was his case that bundles of doubtful ballot papers were mixed up withbundles of valid ballot papers in favour of the first respondent. Protests were madeby both the parties when the counting was proceeding and after the countingwas completed. The Returning Officer rejected the application for a recountwithout recording any reason in support of his order. The High Court re-corded the conclusion that it was not proved that the bundles of doubtful voteswere mixed up with the valid votes secured by the first respondent. The HighCourt did not deal with the application filed by the appellant for inspection ofthe ballot papers. Setting aside the order of the High Court and remandingthe case.

HELD: (i) A party is not entitled at the trial of an election petition toclaim recount as a matter of course. He must establish a prima facie case thatthere has been improper reception, refusal or rejection of votc9 or reception ofvoid votes before an order for recount is made by the Court.

E.L.R.] NATHU RAM MIRDHA V. GORDHAN SONI 17

(ii) On the facts of the present case a prima facie case was made out by theappellant. There are certain broad considerations which justify an order forrecount. They are :

(1) That both sides had before the counting was completed made allegatiomsof irregularities;

(2) that the order made by the Returning Officer lends some support to theplea raised by the appellant that the conditions in the counting roots

i were unsatisfactory ;

• (3) that the procedure followed by the Returning Officer was irregular.Form 16 was not filled in as required by the rules and he madestatements in the orders which have been found on scrutiny of evidence

t to be untrue; and

' (4) that the Returning Officer gave no reasons for coming to the conclusionthat the application was unreasonable. He apparently heard argumentsbut did not hold any investigation to determine whether there wasprima facie, justification for the plea raised by the appellant.

Civil Appeal No. 1482 of 1967.

JUDGMENT

SHAH, J.—On February 22, 1967, the first respondent was declaredelected to the Rajasthan State Assembly. The appellant who was acandidate at the election filed a petition for setting aside the electionof the first respondent on the ground that the result of the electionin so far as it concerned the first respondent had been materiallyaffected by improper reception of votes. It was the case of the appel-lant that at the counting a large number of doubtful ballot paperssorted out and wrapped in packets of 50 votes and reserved by thecounting supervisors and counting assistants for closer scrutiny, whenpassed on to the Returning Officer were mixed up with packets ofsorted out valid ballot papers in favour of the first respondent andthe doubtful ballot papers were on that account wrongly included inthe valid ballot papers for the first respondent and were counted in hisfavour. It was further averred that 1500 doubtful ballot papers sortedout for rejection had been wrongly counted as valid in favour of thefirst respondent, and that in six polling stations, full particulars whereofwere specified in Sch. 2 annexed to the petition, ballot papers whichwere valid and should have been counted as valid for the appellantwere wrongly rejected. The appellant in his election petition submitteda schedule setting out a list of 22 polling stations in which a consider-able disparity was disclosed between the number of votes cast in favourof the first respondent as announced by the Returning Officer and thenumber of ballot papers on the counting table with the counting super-visors. In another schedule he set out the particulars of the ballotpapers wrongly rejected as invalid and which he claimed should harebeen counted as valid in his favour. —

$—3 Elec. Com/71

18 NATHU RAM MTRDHA V. GORDHAN SONI [VOL. XXXVIII

The first respondent denied the allegations made in the petitionand submitted that a large number of valid votes cast in favour of thefirst respondent were rejected by the Returning Officer "on the flimsygrounds that they bore ink impressions other than the 'X' marks orthat they contained an additional 'X' mark or that the cross marksover them were faint," that if a recount and re-scrutiny be orderedby the Court he was confident that he will be entitled to have thosevotes counted for him, and that about 500 ballot papers (details whereof ,were submitted in Sch. B to his written statement) which were countedas valid votes for the appellant should also be excluded in the count.

One extraordinary feature of the trial of the election petition wasthat the Returning Officer was impleaded as a party-respondent to thepetition, and he filed a written statement denying the allegations madeby the appellant that mistakes were committed in counting doubtfulor rejected ballot papers in favour of the first respondent. He adopteda contentious attitude and examined himself as a witness. He submittedan application on August 7, 1967, praying for an order recalling certainwitnesses who were earlier examined before the Court, and claimed anepportunity to rebut the case by leading evidence relating to tamperingwith the ballot papers. He claimed also to file a rejoinder to the replyfiled by the first respondent in respect of the allegations which hadbeen made against him about the defective counting of votes.

The High Court dismissed the application holding that the appel-lant failed to make out the case that the bundles of doubtful ballotpapers were mixed up with the bundles of valid votes of the first res-pondent and were counted in his favour, and also that one bundle of50 valid votes of the appellant was counted for the first respondent.The appellant has appealed against the order.

It is necessary in the first instance to refer to certain applicationswhich were submitted before the Returning Officer protesting againstirregularities in the counting of votes. The appellants election agentG. D. Ajmera submitted an application on February 22, 1967, beforethe Returning Officer stating that "the system of counting and checkingadopted by the supervisors was defective and mistakes were appre-hended," that "the number of rejected votes were announced along withthose secured by the two candidates boothwise, but it was feared thateither the checking parties were committing mistakes deliberately orwere giving wrong figures inadvertently, and according to the infor-mation given by the counting agents on the basis of rough calculationsmade by them, the number of valid votes secured and rejected weredifferent from those announced", and he prayed that all the packets andalso the valid votes cast in the 19 named polling stations and generallyin respect of all polling stations be checked before the final resultwas announced so that there may be no "mistake of counting of valid

E.L.R.] NATHU RAM MfRDHA V. GORDHANSONl 19

and rejected votes." This was followed by a list of 19 polling stations.On this application the Returning Officer passed an order that the"counting was being started, counting assistants and supervisors andagents were forbidden to go hither and thither. Now there will beno doubt whatsoever. Even if the counting agent wishes then hecan give an application according to law for recounting after the count-ing is over. The counting of votes had commenced on February 21,1967, and this application was given early on the next day. After thecounting was over, Ajmera submitted another application requestingthat the mistakes he had referred to in the earlier application "beascertained and that along with the checking of valid and invalid votes"of those polling stations, the recounting be also made of five morepolling stations, as he "apprehended that the same mistakes" were"repeated while announcing the figures", and that the result of theelection be announced only after a recount as prayed in his applications.On that the Returning Officer passed a laconic order : "Heared both theparties. I find the application unreasonable and hence rejected." Thefirst respondent also was not satisfied with the counting. He submittedan application on February 22, 1967, when the counting was going on,requesting, for the reasons mentioned therein, that a recount of pollingstations Pahalodi, Basni Seja, Mokala, Gagrana, Kaidu, Merta City, Javiland Dhandhlas be ordered. The Returning Officer recorded an orderon that application that the allegations made in the application were"absolutely wrong and that the counting had been done in a propermanner", and further ordered "Full opportunity was given to all count-ing supervisors. The ballot paper account was filled up properly bycounting supervisor. Application for recounting can only be made aftercompletion of the counting." Thereafter the result of the election wasannounced.

The relevant provisions of the law having a bearing on the casemay first be noticed. An election petition under s. 81 of the Represen-tation of the People Act, 1951, calling in question any election may bepresented on one or more of the grounds specified in sub-s* {1) ofs. 100 and s. 101 by any candidate at such election or by any ekctor. Anelection may be declared void, if the High Court is of the opinion thatthe election was vitiated on any of the grounds specified in s. 100(1)including the ground that the result of the election, insof§f• as it con-cerned a returned candidate, had been materially affected by improperreception, refusal or rejection of any vote or the reception 6f any votewhich is void: cl. (d) (iii). It is open to a defeated candidate of toan elector by a petition under s. 81 to show that the election had beenmaterially affected as a result of wrong counting of votes, or improperreception of votes or refusal or rejection of votes or reception of voteswhich were void, Chapter V deals with counting of votes. It providesby s, 64 that at every election where a poll is taken, votes shall becounted by, or under the supervision and direction of the Returning

2 0 NATHU RAM MIRDJHA V. GORDHAN SONI [VOL. XXXV III

Officer and each contesting candidate, his election agent and his count-ing agents, shall have a right to be present at the time of counting,.Section 66 provides that when the counting of the votes has beeacompleted, the Returning Officer shall, in the absence of any directionby the Election Commission to the contrary, forthwith declare the resultof the election in the manner provided by the Act or the rules madethereunder. In exercise of the power conferred by s. 169 of the Actthe Central Government has framed r. 63 of the Conduct of ElectionsRules, 1961 relating to recount of votes. Rules 56A, 57, 57A relate tothe counting of votes. By r. 63, insofar as it is relevant, It is provided:

"(1) After the completion of the counting, the returning officershall record in the result sheet in Form 20 the total number of votespolled by each candidate and announce the same.

(2) After such announcement has been made, a candidate or,in his absence, his election agent or any of his counting agents mayapply in writting to the returning officer to recount the votes eitherwholly or in part stating the grounds on which he demands suchrecount.

(3) On such an application being made the returning officershall decide the matter and may allow the application in whole orin part or may reject it in toto if it appears Ho him to be frivolousor unreasonable.

(4) Every decision of the returning officer under sub-rule (3)shall be in writing and contain the reasons therefor".

Part I of Form 16 of the Conduct of Elections Rules, 1961 is 'Ballotpaper account', and Part II is 'Result of counting.' The Form requiresdetails to be furnished about the ballot papers received, ballot papersnot used, ballot papers issued to voters, ballot papers cancelled andballot papers used as tendered ballot papers in Part I, and in Part II asagainst the name of each candidate the number of valid votes cast, therejected ballot papers and the total number of ballot papers found inthe ballot boxes to be entered under the signature of the CountingSupervisor and of the Returning Officer.

The appellant was dissatisfied with the manner in which the count-ing of vote took place. Two applications were successively submittedchallenging the method of counting. The first respondent was alsonot satisfied with the counting and applied for a recount. Rule 63requires the Returning Officer to deal with the application for recounton its merits and it is implicit in cl. (3) that it would, if prima fadeground is made out, be granted. The Returning Officer is bound to-record his reasons in support of his order and he would ordinarily bejustified in rejecting it in whole if the application is frivolous orunreasonable.

E.L.R.] KATHU RAM MIRDHA V. GORDHAN SONI 21

In the present case applications were filed both during the countingand after the counting was completed for ordering recount and specificdetails were set out in the applications. The order passed by the Re-turning Officer on the first application gives reasons to think that theReturning Officer was of the opinion that there was some justificationfor the application. The Returning Officer passed an order rejectingthe second application on the ground that it was "unreasonable." Whytiic Returning Officer found unreasonable, he has not chosen todisclose. The statutory rules require him to set out the reasons insupport of his view cither granting the application or refusing to grantit on the ground that it is frivolous or unreasonable. But no groundshave been given.

In this connection the answers given by the Returning Officer toquestions put to him may be set out;

"Q. On Ext. 3 you passed the order "Heard both the parties. Ifind the application unreasonable and hence" reject it." Howdid you say that the request was unreasonable?

A. On 22nd we counted each and every ballot paper and duringthat cent per cent checking there could be no mistake. SoI found that the request for recount of the entire consti-

' tuency was unreasonable.Counting was done of polling stations numberwise. Therewere 83 polling stations. 56 were counted on the first dayand 27 on the second day. Polling stations 80 to 83 werecounted at the end.

Q. You did not do cent per cent checking in respect of thesepolling stations?

A. Yes. After lunch I did not do cent per cent checking.

Q. In Ext. 2 request was made for recounting only 19 pollingstations in Ext. 3 for 5 polling stations. They wanted only24 polling stations to be recounted. Out of these you hadchecked only polling station No. 65 cent per cent. The re-quest was for partial recount only. How did you say thatit was unreasonable?

A. During arguments on the application Shri Ajmera did notpoint out to me that it was an application for partial recount.He prayed for the entire recount, whereas Shri Lekihraj wasopposing it. Two days has already been spent; over countingall we were behind the schedule. Only one day was keptfor counting of Merta. So I rejected the application.

22 NATHU RAM MIRDHA V. GORDHAN SOW [VOL. XXXVIIt

Q. Shall I take it that you would have allowed partial recount-ing if Shri Ajmera had not pressed for the recounting ofthe whole?

A. I would have allowed partial recounting if Shri Lekhraj hadnot opposed it and Shri Ajmera had not pressed for recount-ing of the whole."

The answers clearly indicate that the evidence of the Returning Officeris unsatisfactory.

The learned Trial Judge observed that according to InstructionNo. 9 of the "Instructions to Counting Supervisors and Assistant",,part II of Form No. 16 should have been filled in by the countingsupervisors after they had completed the counting of a polling station,and the counting supervisors should have noted the total number ofvalid votes polled by each candidate and the total number of doubtfulballot papers : that there was no separate column provided for notingthese numbers by the supervisors, but the instructions lay down thatthese should be noted in the same column in which the final result ofcounting is to be noted by the Returning Officer : that the Returning"Officer was unable to give satisfactory explanation for not followingthe instructions even when his attention was pointedly drawn to themby the first respondent in his application, and that flhe conduct of theReturning Officer in writing in his order on the application that theform was being filled in by the supervisors was "utterly irresponsible",,for he knew that the form was being filled in at his Cable by one JigarMohammed after the final scrutiny by him.

A party is not entitled at the trial of an election petition to claimrecount as a matter of course. He must establish a prima facie casethat there has been improper reception, refusal or rejection of votes,,or reception of void votes, before an order for recount is made by theCourt. In coming to the conclusion whether a recount should beordered, the High Court would give due weight to the reasons recordedby the Reurning Officer for declining to order a recount. Undoubtedlythere must be good grounds before directing a recount that there hasbeen some error or irregularity in the procedure of the ReturningOfficer, and a recount may be ordered if a prima fade case is made out..

But on the facts of the present case, we have no doubt that a primafacie case was made out by the appellant. It is some what unfortunatethat the learned Judge did not consider whether the order passed bythe Returning Officer suffered from any infirmity. The proceedingsof the Returning Officer were highly irregular. Protests had been madeby both the parties when the counting was proceeding and by theappellant after the counting was completed. The Returning Officerrejected the application for a recount without recording any reasons.

E.L.R.] NATHU RAM MlRDHA V. GORDHAN SONI 23

in support of his order, even though specific grievances were madeabout the mixing up of bundles of doubtful votes with the bundles ofvotes of the first respondent. The first order passed by him also indi-cates that the conditions prevailing in the counting room were not onlynot conducive to a correct counting, but a reasonable possibility ofserious error could not be ruled out.

The witnesses examined on behalf of the contesting candidates,were interested and not much reliance can be placed upon their testi-mony. The High Court observed that the Returning Officer has made"utterly irresponsible statement" in his order on the application Ext.9 that the form No. 16 of instructions was "being filled by the •super-visors", when in fact it was being filled in by Jigar Mohammed afterthe scrutiny. The High Court's criticism in that behalf and also aboutthe failure of the Returning Officer to act according to rules is amplyjustified. The fact that in the order on the application Ext. 2 theReturning Officer found it necessary to order that the supervisors, count-ing assistants and agents were forbidden on February 22, 1967 to go"hither and thither" naturally leads to the inference that there wassome substance in the plea that the supervisors, counting assistants andagents were roaming about in the counting room.

But the High Court has recorded the conclusion that it was notproved that the bundles of doubtful votes were mixed up with thevalid votes secured by the first respondent either deliberately or inadver-tently and the allegation that one bundle of 50 valid votes which weresecured for the appellant was counted for the first respondent was alsonot proved. In reaching his conclusion the learned Judge entered upona painstaking analysis of the oral evidence and quoted several excerptsfrom the oral evidence. But the oral evidence was, in our judgement,highly interested and unsatisfactory, and no firm conclusion could befounded merely upon the oral evidence. There are however certainbroad considerations which justify us in ordering a recount. Theyare:—

(1) that both sides had before the counting was completed madeallegations of irregularities;

(2) that the order made by the Returning Officer Ext. 2 lendssome support to the plea raised by the appellant that the

< conditions in the counting room were unsatisfactory;

(3) that the procedure followed by the Returning Officer was irre-gular. Form 16 was not filled in as required by the rules andhe made statements in the orders which have been found onscrutiny of evidence to be untrue; and

24 NATHU RAM MIRDHA r. GORDHAN SONI >l [VOL.[XXXVHI

(4) that the Returning Officer gave no reasons for coming to theconclusion that the application was unreasonable. He appa-rently heard arguments but did not hold any investigation todetermine whether there was prima facie justification for theplea raised by the appellant.

The High Court did not deal with the application filed by the appellantfor inspection of the ballot papers.

Taking an overall view of the evidence and the broad considerationswhich we have set out earlier, we are of the view that in this case arecount of the votes cast in favour of the contesting candidatei is calledfor. We therefore, set aside the order of the High Court, and remandthe case to the High Court. The High Court will appoint the Regis-trar of the Court or any other senior officer to preside over the recountof ballot papers. The ballot papers shall be counted by Court officersspecially appointed by the High Court for that purpose and under thepersonal supervision of the supervising authority. The High Courtwill ensure that in the counting of votes the secrecy of the ballot papersis adequately maintained. After receiving the report of the supervisingauthority, the High Court will give an opportunity to both the partiesto be heard on that report and will then proceed to dispose of theelection petition in the light of the conclusions reached on the questionwhether the election of the first respondent had been materially affectedby reception, refusal or rejection of any vote, or reception of any votewhich was void, within the meaning of s. 100(1) (d)(iii) of the Repre-sentation of the People Act, 1951. The High Court will further con-sider if it transpires that the appellant had secured a larger numberof valid votes than the first respondent, whether an order should bepassed in favour of the appellant declaring him duly elected to theRajasthan Vidhan Sabha from the Merta Assembly Constituency. Costsin this appeal will be costs in the High Court.

Case remanded.

E.L.R.] ' JAGPATI SINGH V. RAMANAND SINGH 25

IN THE SUPREME COURT OF INDIA

JAGPATI SINGH

V.

RAMANAND SINGH

(J. C. SHAH AND V. BHARGAVA JJ.)

May 3, 1968

Representation of the People Act, 1951 s. 123(1) and (2)—Corrupt Practices—Bribery and Undue influence—Corrupt practice of bribery in the nature ofquasi-criminal charge.

The appellant challenged the election of the respondent on the ground thatthe respondent exercised undue influence at the polling station and that he wasguilty of bribery. These allegations of corrupt practice were held by the HighCourt not to have been proved by the appellant. In the appeals to this Courtthe same grounds were urged.

Dismissing the appeal,

HELD : There was no reason to interfere with the findings of the HighCourt.

The charge of the corrupt practice of bribery under the Election Law is inthe nature of a. quasi-criminal charge and cogent reasons have to be advancedfor differing from the view taken by High Court.

Civil Appeal No. 1691 of 1967.

JUDGMENT .... « . . , . .

BHARGAVA, J.

The appellant Jagpati Singh, who was an elector for the ChitrakootAssembly Constituency, filed an election petition in the High Court o£Madhya Pradesh challenging the election of respondent RamanandSingh, who was declared elected on 22nd February, 1967 in the GeneralElection held for that Constituency. The election was sought to beset aside on two grounds. One was that the respondent had exercisedundue influence at the polling station Karigohi at about 3.30 p.m.when voting was actually going on on the 20th February, 1967 bycoming there accompanied by three other persons, one of whom wascarrying a gun, and threatening the voters with the gun to inducethem to vote for the respondent or to go away without voting, andby further threatening polling agents of various other rival candi-dates and driving them away from the polling station. The secondground was of bribery on the allegation that on 19th February, 1967,

26 JAGPATI SINGH V. RAMANAD SINGH [VOL. XXXVIUT

a day prior to the date of polling, the respondent paid a sum of• RJJ. 378 to one Lalji Tewari asking him to distribute that sum as labourcharges to a number of labourers who had carried out relief work ofconstruction of a tank in village Pipritola between 8th January, 1967and 10th January, 1967 which work had been done without thesanction of the Government or the village Panchayat and, at the sametime, asking Lalji Tewari, when distributing the wages, to tell thelabourers to vote for the respondent. The charge of bribery was putforward on one other ground which was to the effect that the respon-dent, on 20th February, 1967, the day on which the polling wasactually going on, distributed Milo and Jwar valued at Rs. 350/- tothe voters through one Shiv Kumar in order to induce them to votefor him. These allegations of corrupt practice were held by the HighCourt not to have been proved by the appellant.

One other ground, which was taken«for challenging the respon-dent's election, was that the respondent was not qualified to beelected as a member of the State Legislature, because he was holdinga post of profit under the Government of Madhya Pradesh at the rele-vant time. We are, however, not concerned with this ground in thisappeal, because the decision against the appellant on that ground forchallenging the election was not challenged before us at all by learnedcounsel for the appellant. In this appeal under section 116A of theRepresentation of the People Act, 1951, the two grounds of commis-sion of corrupt practices of undue influence and bribery rejected bythe High Court have been pressed again before us.

Even amongst these grounds, learned counsel for the appellantrelied mainly on the charge of exercise of undue influence by therespondent. In order to prove this charge, the appellant exa-mined 10 witnesses who are numbered as P. W. 11 to 20.The evidence of these witnesses was not accepted by the HighCourt as reliable. We were taken through the evidence of some ofthese witnesses by learned counsel and, after going through theirstatements, we are inclined to agree with the High Court that thesewitnesses cannot be held to be reliable enough to prove the chargeof undue influence which is in the nature of a quasi^riminal charge.Almost all the witnesses are persons who were interested in candidateswho were rivals of the respondent. Even the versions given by thesewitnesses are contradictory and the statements given by some of themshow that the charge of giving threats with the gun must be anexageration, even if it be held that any incident of the nature deposedto by these witnesses did take place. The principal witness, on whomthe case mainly rested, is P.W. 13 Laxmi Prasad, who was a workerand a polling agent of the candidate set up on behalf of the JanCongress Party. It may be mentioned that the respondent was

EX .R.] JAGPATI SINGH V. RAMANAKD SIKGH 2 7

sponsored by the Praja Socialist Party. There was another candidateput up by the Congress Party and his polling agent was P.W. 15Munishwar Prasad. Laxmi Prasad's version was that the respondentcame to the polling station at Karigohi at 3.30 p.m. in a jeep togetherwith his brothers Ram Narayan and Indrapal and another personSokhilal Pyasi. Soldhilal Pyasi was carrying the gun. He remainedseated in the jeep, while the other three came inside the pollingstation. These three persons threatened Laxmi Prasad saying that ifhe did not want to vote for the respondent, he should get out, where-upon he left the polling station. His sister Murti was standing in thequeue for entering the polling station to cast her vote and Ramnarayancaught her by her hand and turned her out. Sokhilal Pyasi pointedthe gun at some of the voters and asked them to go away if theywere not prepared to vote for the respondent. Thereupon, the variouspolling agents of the candidates, other than the polling agent of therespondent, and a number of voters left. This version is not fullysupported by the various other witnesses examined on behalf of theappellant. According to some of them, even Sokhilal Pyasi cameinside the polling station and did not remain seated in the jeep.According to another witness, P.W. 19 Bela Prasad, the gun was neverpointed at anyone and there were no threats given at the point of thegun to induce either the voters or the polling agents to go away. Thecase set up in the election petition was that threats were given to thepolling agents of all other candidates, except the polling agent of therespondent ; but, in the evidence, the witnesses only deposed about thethreat given to Laxmi Prasad. The nature of the threatcontained in the version of Laxmi Prasad is itself highly im-probable. Laxmi Prasad was the polling agent of a rival candidateand there could be no question of his casting his vote for the respon-dent, so that the respondent could not have said, when giving thethreat, that he should go away, because he was not prepared to votefor the respondent.

It is true that the same day at 8.13 p.m. Laxmi Prasad sent atelegram to the District Election Officer, Satna, giving his version ofsuch an incident and, later, he lodged a report at Police Station Sabha-pur at 10.00 p.m. The version given by Laxmi Prasad himself in thetelegram, the report to the Police, and the evidence given in Courtare not quite consistent with one another apart from being differentfrom versions given by other witnesses in their evidence. Even thetelegram was given after an interval of more than 4^ hours and, thoughLaxmi Prasad has tried to explain., the delay in sending the telegram,that explanation was not found by the High Court to be at all con-vincing. The telegram and the report lodged with the Police do not,therefore, in any way add to the value of the evidence given onbehalf of the appellant to prove this incident.

2 8 JAGPATI SINGH V. RAMANAND SINGH [VOL. XXXVII

On the other hand, a very important circumstance is that no com-plaint about such an incident was ever made by any one at all to thePresiding OflScer of the polling station whose duty it was to see thatthe voting takes place peacefully and without interruption. It isfurther obvious that the best and most independent witness to provesuch a charge could have been the Presiding Officer himself, but hewas not examined on behalf of the appellant. No doubt a summonwas got issued for his attendance in court to give evidence on 14th Sep-tember, 1967 and that summon was served on him on 27th August,1967. After the receipt of the summon, the Officer sent an applicationexpressing his inability to attend the Court on 14th September, 1967on the ground that he was ill and had been advised rest for eightdays. The medical certificate attached to the application was dated8th September, 1967. The period of eight days, which was advised forrest, was due to expire on 16th September, 1967. Evidence in this casecontinued to be recorded by the High Court right up to 20th Septem-ber, 1967. If the appellant really wanted to examine the PresidingOfficer, he could have easily requested the court to fix another datefor the evidence of this Officer subsequent to 16th September, 1967without dislocating the work of the court. The medical certificatemerely stated that the Officer was being treated for carbuncle. Thereis nothing to show that he could not have been examined at least on16th September, 1967, before the examination of witnesses of therespondent started on that day. Obviously, an excuse was being putforward for not producing the Presiding Officer as a witness and thismust be because he was not prepared to support the case set up bythe appellant.

Apart from the Presiding Officer, there were other independentpersons connected with the conduct of the election. They were anAssistant Presiding Officer and four Polling Officers. No attempt wasmade on behalf of the appellant to examine any one of them. Onthe contrary, one of the Polling Officers, Chhotelal Sharma has beenexamined by the respondent as R.W. 12. He has completely refutedthe version put forward on behalf of the appellant and has statedthat the polling continued peacefully till it was finished at 5.30 p.m.His veracity was challenged only on one ground on behalf of theappellant. That ground was that, according to him, the pollingfinished at 5.30 p.m., while the diary of the Presiding Officer showedthat polling continued till 7.45 p.m. In fact, reliance was sought tobe placed on the entry in this diary on behalf of the appellant tourge that the polling continued beyond the fixed hour only becausethere was a disturbance at 3.30 p.m. as alleged by the appellant. Insupport of this argument, the factual assertion was that the polling-continued till 9 p.m. and, in fact, some of the witnesses examined on'behalf of the appellant stated that they saw voters going to the polling

B L.R.] MGPATI SINGH V. RAMANAND SINGH 2 *

station till 9 p.m. These facts alleged could also have beenproperly established if the appellant had cared to examinethe Presiding Officer and asked him to prove his diaryand explain the reason why polling continued after the fixed hour.The diary was, no doubt, summoned in the High Court; but theHigh Court refused to admit it in evidence on the ground that it wasnot a public document and it could not be taken into account unlessit was proved by the writer, viz., the Presiding Officer. A grievancewas made before us that this evidence was wrongly excluded by theHigh Court, because the diary was maintained by the PresidingOfficer in the normal course of his duties under the Rules and was,consequently, a public document and admissible in evidence withoutproof. This argument is, however, of no assistance to the appellant,because no prayer was put forward in this Court to admit that diaryas additional evidence under Order 41 R. 27 of the Code of CivilProcedure. If the appellant wanted to rely on that diary in this appeal,it was open to him to make an application for its admission in evi-dence under O. 41 r. 27, C.P.C., on the ground that it; had beenwrongly excluded by the High Court and, in that case, he should haveapplied to this Court to summon the diary. The appellant failedto take any such steps and, consequently, no inference can be drawnin favour of the appellant on the basis of that diary.

It however, appears that that diary was actually examined by thelearned Judge of the High Court who tried the election petitionand he took notice of the fact that the polling on that day conclud-ed at 7.45 p.m. according to the entry in the diary. Even if this factbe taken into account, it does not help the appellant, because thereis no presumption that this continued polling after 5.30 p.m. was dueto any interruption at 3.30 p.m. On the other hand, the presumptionof regularity of official acts would lead to the inference that thepolling must have continued till 7.45 p.m. only because voters, whohad arrived and entered the polling station before 5.30 p.m., couldnot cast their votes earlier and had to be permitted to vote till 7.45 p.m.It is also significant that the learned Judge does not mention thatthere was any entry in the diary showing that any distur-bance had taken place at 3.30 p.m. To the extent that informationof the entries in the diary is available in the judgment of the HighCourt these entries thus disprove the case of the appellant rather thansupport it. It may be that R.W. 12 Chhotelal Sharma, Polling Officer,made a mistake when he stated that the polling ended at 5.30 p.m.;but that by itself is no sufficient ground for rejecting his evidencealtogether. In any case, his evidence is much more reliable than theevidence of the interested witnesses examined on behalf of the appel-lant in support of his case. We may also take notice of the factthat on behalf of the respondent also a number of witnesses were

30 JAGPATI SINGH V. RAMANAND SINGH [VOL. XXXVII 1

examined to prove that no such incident took place on the day ofpolling at about 3.30 p.m. as alleged by the appellant; and thatevidence was considered more reliable by the High Court than theevidence of witnesses examined on behalf of the appellant. In thesecircumstances, we agree with the High Court's finding that thischarge has not been established.

With regard to the charge of bribery, emphasis was laid onbehalf of the appellant on the first instance of payment of money tovoters with the consent of the respondent by Lalji Tewari in orderto induce them to vote for the respondent. A number of witnesseswere examined on behalf of the appellant to prove that relief workof construction of a tank was started in village Pipritola at theinstance of P.W. 3 Lalji Tewari himself, who was the Up-Sarpanchof the Village Panchayat of Pipritola. In our opinion, the HighCourt has rightly considered his evidence on this point unreliable,because, according to him, he got the work started without the sanc-tion of the Government or the Village Panchayat itself. He did noteven take the permission of the Sarpanch, P.W. 4 Aditya Narain.He admits that he got the work started knowing that payment wouldhave to be made to the labourers and that no arrangement at allhad been made in respect of the source from which the money forpayment was to become available. It is very difficult to believe thatLalji Tewari could have asked the labourers to start work on hisown initiative taking the risk that they would demand payment oftheir wages from him when he had no resources available formaking the payment. It is also significant in this connection that,in the original draft of the election petition, the dates on which thework was said to have been carried out were not 8-1-67 to 10-1-67,but later dates falling in the month of February, 1967, indicating howthis story was being made up in order to challenge the election ofthe respondent. It is true that the Sarpanch Aditya Narain has cometo support the version given by Lalji Tewari; but he is also veryobviously an interested witness, because he was in fact nominated asa dummy candidate for the Congress Party and only withdrew hiscandidature when the nomination of the main Congress candidate wasacceptable. He isj, therefore, a person interested in a candidate who wasrival of the respondent in the election.

Apart from this circumstance, was considered that the main reasonfor rejecting this allegation of bribery is that the evidence given onbehalf of the appellant to prove that the money was actually paid bythe respondent is not at all satisfactory. On this point, only twowitnesses have been examined. They are Lalji Tewari, the Up-Sarpanch himself, and one Ramsajivan, P.W. 10. Both of them havestated that this sum of Rs. 378/- was given by the respondent to LaljiTewari on 19th February, 1967 when the respondent visited villagePipritola in connection with the canvassing for his election. These

B.L.R.] JAGPATI SINGH V. RAMANAND SINGH 31

witnesses were not found by the learned Judge of the High Court tobe reliable and, in fact, they did not impress him as truthful wit-nesses. Lalji Tewari in his evidence did not state that the respon-dent asked him to tell the labourers that the respondent had paid themoney and they should vote for him. Ram Sajivan alone has madesuch a statement. Learned counsel for the appellant placed greatreliance on the evidence of Ram Sajivan because it appears that, ata later date, Ram Sajivan actually worked as one of the pollingagents of the respondent. It seems that, after the election was over,attempts were made to prepare evidence to challenge the election ofthe respondent and somehow or the other Ram Sajivan, who hadacted as polling agent for the respondent, was persuaded to becomeone of the witnesses against him. It has to be remembered that thecharge of corrupt practice of bribery under the Election Law is inthe nature of a quasi-criminal charge, and we do not consider thatthere will be any justification for us to intierefere with the findingrecorded by the High Court in favour of the respondent, who wasaccused of this charge, when the only evidence given in support ofit consists of two such witnesses, Lalji Tewari and Ram Sajivan.Ram Sajivan, of course stated that no other person, besides therespondent and the two of them, was present when this money waspaid by the respondent to Lalji Tewari. Naturally, in these circum-stances, the respondent was not in a position to give any otherevidence to disprove the charge, except his own statement. Therespondent did examine himself as a witness and denied havingmade any such payment. A payment supported by such oral evidenceis rarely accepted even in a case where a debtor alleges that he haspaid money to his creditor. In the case of a quasi-criminal charge ofbribery, such evidence is even more unsatisfactory and, consequently,we are unable to accept the submission that the appellant has succeed-ed in proving that the sum of Rs. 378/- was given by the respondentto Lalji Tewari to be distributed to the labourers after telling them tovote for the respondent. The finding given by the High Court onthis ground must also be affirmed.

The second charge of bribery related to distribution of grain atthe instance of the respondent by one Shiv Kumar in village Harsendto voters on the day of polling itself. The principal witness on thispoint was Shiv Kumar himself ; but Shiv Kumar is a brother ofP.W. 4, Aditya Narain, who was a dummy candidate for the rivalCongress Party against the respondent He is, therefore, clearly aninterested witness. The High Court has discussed the evidence ofShiv Kumar in detail, indicating the improbability of his having beenasked to distribute the grain and his being able to obtain the grainfor distribution when rationing was in force. Learned counsel forthe appellant was unable to advance any cogent reasons for our

32 AMRIT LAL AMBALAL PATEL V. H1MATBHAI GOMANBHAI PATEL [VOL. XXXVII*

differing from the view taken by the High Court, so that this groundin the appeal also fails.

The appeal is dismissed with costs.

Appeal Dismissed*

IN THE SUPREME COURT OF INDIA ',,

AMRIT LAL AMBALAL PATEL

V. .

HIMATBHAI GOMANBHAI PATEL

(J. C. SHAH AND V. BHARGAVA JJ.)

May 3, 1968

Constitution of India Article 173(b)—Representation of the People Act,1951—Sections 100(l)(a) and s. 100(l)(d)(i) and 16{2)—Disqualification—can-didate must attain the age of 25 years on the date fixed for nomination and notwhen election ta\es place.

The election of the appellant was challenged on the ground that theappellant was not qualified to be chosen to fill the seat in the State Legislatureon the date of nomination because he was less than 25 years of age and his no-mination paper was wrongly accepted. The High Court set aside the election of theappellant under s. 100(l)(a) of the Act. In the Supreme Court it was contendedthat the High Court wrongly arrived at the finding regarding the date of birthand in the alternative that the appellant was more than 25 years of age whenthe election took place and therefore it should be held that he was qualified tobe chosen as a member of the State Legislature in view of the provisions containedin Article 173(b) of the Constitution and Section 100(l)(a) of the Act. It wasurged that all that was required was that he should have attained the age of25 years prior to the declaration of election.

HELD : The order of the High Court setting aside the election of theappellant was in accordance with law. Apart from Article 173 and Section100(l)(a), effect has to be given to the additional provision contained inS. 36(2) of the Act. This provision makes a departure in as much as it laysdowns that the nomination paper is to be rejected if the candidate is notqualified under Article 173 of the Constitution on the date fixed for thescrutiny of nominations. In the present case the appellant had not attained theage of 25 years on the date fixed for scrutiny of nominations. Consequenlty his-nomination paper was liable to be rejected under s. 36(2) (a) of the Act.

On the face of it the consequence of the improper acceptance of the nomi-nation of the appellant was that the result of tht election was materially affected.

E.L.R.} AMRIT LAL AltlBALAL PATEL V. H1MATBHAI GOMANBHftl PAT1&L 33

The election of the appellant had to be declared void in these circumstances bythe High Court not under s. 100(l)(a) but under s. 100(l)(d)(i) of the A<Et.

Civil Appeal No. 1603 of 1967.

JUDGMENT

BHARGAVA, J.—There were three candidates for election to the Guja-rat State Legislative Assembly from Ankleshwar Constituency No. 144.Respondent No. 1 in the appeal was one of the candidates who, onbeing unsuccessful, field the election petition against the appellant whoas a rival candidate, succeeded in the election. Respondent No. 2 was

another defeated candidate in the General Elections. The last datefor nomination was 20th January, 1967. The nominationpapers were scrutinised on 21st January, 1967. 23rd January,1967 was the date for withdrawals and the actual polling took

place on 18th February, 1967. The result was declared on 22ndFebruary, 1967. The election of the appellant was challenged by theelection petitioner on the ground that the appellant was not qualifiedto be chosen to fill the seat in the State Legislature on the date ofnomination, because he was born on 19th February, 1943 and wasless than 25 years of age. The appellant; contested this assertion andpleaded that he was born on 15th January, 1942, so that he hadattained the age of 25 years even before the date of nomination. TheHigh Court of Gujarat, after taking evidence of both parties, arrivedat the finding that the appellant's date of birth was 25th January,1942, and set aside the election of the appellant on the ground thathis nomination paper was wrongly accepted when it should havebeen rejected under section 36(2) (a) of the Representation of thePeople Act, 1951 (hereinafter referred to as "the Act"). The appel-lant has challenged this decision of the High Court in this appealunder s. 116A of the Act on two grounds. The first ground is thatthe High Court has wrongly arrived at the finding that the date ofbirth of the appellant was 25-1-1942 and should have held that theappellant was actually born on 15-1-1942. The second ground urgedin the alternative is that, in any case, even if the appellant was bornon 25-1-1942, he was more than 25 years of age on the 18th February,1967 when the election took place, so that his election could not beset aside on the ground that he was disqualified from being chosenas a member of the state Legislature.

The first ground raise only a question of fact on which theHigh Court has recorded a finding against the appellant even thoughthe finding does not fully accept the case put forward by the electionpetitioner. The election petitioner had pleaded that the date of birth

4—3 Elec. Com/71

34 AMRIT fcALAMBALAL PATEL V. HIMATBJHAI GOMANBHAI PATEL [VOL. XXXVII

of the appellant was 19th February, 1943. During the course ofhearing this appeal before us, no attempt was made on behalf ofthe election petitioner to persuade us to accept the original case putforward on his behalf that the appellant was born on February 19,1943 and, consequently, it is not at all necessary to discuss the

xevidence which was put forward on behalf of the election petitionerin support of that case. We need only deal with the evidence givenon behalf of the appellant to prove that his date of birth was 15thJanuary, 1942, and the evidence on the basis of which the HighCourt has arrived at the finding that the correct date of birth is25th January, 1942. The evidence which is decisive on this questionis the entry in the birth register in which the birth of the appellantwas recorded when he was born. The original birth register wassummoned in the High Court and it showed the date of birth as atpresent entered as 15-1-1942. Reliance was placed on this entry onbehalf of the appellant to urge that the High Court has wronglyfound the date of birth to be 25-1-1942.

The entry in the register was found by the High Court to behighly suspicious and containing alterations. The learned Judge, whotried the election petition, himself examined this entry in the registerand found that the figure " 1 " in the figure "15" was an alteration,indicating that the original date, which was "25", was changed to"15" by changing the figure "2" into figure " 1 " . This observationof the learned Judge was fully borne out by our own examinationof the entry in the register under a magnifying glass. It appears that,in order to make the alteration, an attempt was made to partially rubout the original figure "2", with the result that there is thinning ofthe paper at that place. This thinning of the paper is clearly visiblewhen the paper is held against bright light. Further, when thefigure is examined with t'xe aid of a magnifying glass, the figure "2"earlier written becomes visible. It is also significant that in the entriesrelating to the birth of the appellant in various columns, the writingis not in uniform ink. Different shades of ink have been used indi-cating subsequent alteration.

On behalf of the appellant, our attention was drawn to altera-tions in some other entries in the same register where also similarfeatures exist, in order to urge that the alteration in this particularentry relating to the appellant should be treated as a more correctionand not a deliberate alteration from the correct date to an incorrectdate of birth. It is true that there are alterations in some of theother figures also ; but there is one very important circumstance thatthe distinguishes the case relating to the entry of birth of the appel-lant as compared with other entries which contain alterations. Onbehalf of the election petitioner, one witness examined was P.W. 3

E.LiR ] AMRIT LAL AMBALAL PATEL V. HIMATBHAI GOMANBHAI PATEt 35

Kanaiyalal Chhotalal Hindia who is Head Clerk in JayendrapuriArts & Science College at Broach. He has deposed that the appellantjoined the First Year Arts Class, now known as Pre-University ArtClass, in that College, in the year 1960-61. At the time of admissionin that College, the appellant's date of birth was entered as 19thFebruary, 1943. Subsequently, at the instance of the appellant, thisdate was changed to 25th January, 1942. The change was actuallycarried out in the admission register by this witness himself. Thewitness has stated that, in order to obtain this change, the appellantproduced a certified copy of the entry in the birth register and thatcertified copy showed the date of birth as 25-1-1942. There is noreason to disbelieve the evidence of this witness. His evidence thusproves that, when the first certified copy of the entry in the birthregister was obtained by the appellant in order to get the entiy inthe college admission register corrected, that certified copy showedthe date of birth as 25-1-1942. This means that at that time, whenthat certified copy was issued, the entry in the birth register read as25-1-1942 and not 15-1-1942. The necessary conclusion fol-lows that the alteration found in the original registermust have been made subsequent to the issue of thatcertified copy. It is true that, later on, the appellant obtainedanother certified copy in December, 1966 and, in that certified copy,the date of birth is entered as 15-1-1942. This does not, however,help the appellant, because, at best, it shows that by December, 1966,the entry in the original register had already been altered so as toread as 15-1-1942. This whole evidence thus leads to the conclusionthat the date of birth, which was originally entered as 25-1-1942, wasaltered to 15-1-1942 some time between the issue of the first certifiedcopy, which was produced in the College, and the second certifiedcopy which was obtained in December, 1966. This evidence, in ouropinion, is conclusive to show that the appellant was in fact born on25th January, 1942 and not on 15th January, 1942 as contended onbehalf of the appellant. The High Court accepted this case and wehave no hesitation in affirming that finding of the High Court onthis point.

The alternative ground urged on behalf of the appellant is that,even if it be held th'at the appellant was born on 25th January, 1942,it should be _ held that he was qualified to be chosen as a member ofthe State Legislature in view of the provision contained in Art. 173of the Constitution, the relevant part of which reads as follows :— '

"173. A person shall not be qualified to be chosen to fill aseat in the Legislature of a State unless he—

(a) * * * *

3 5 AWBHT LAL AMBALAL PATEL V. HIMATBHAI GOMANBHAI PATEL [VOL. XXXVIH

(b) is, in the case of a seat in the Legislative Assembly, not lessthan twenty-five years of age and, in the case of a seat inthe Legislative Council, not less than thirty years of age ; and

(c) * * * *

It was urged that, under this Article, the requirement is that theperson must not be less than 25 years of age to be qualified to bechosen to fill a seat in the Legislative Assembly and, since a personcan be held to be chosen when he is declared elected, all that isrequired by this article is that he should have attained the age of25 years prior to the declaration of the result of the election. Simi-larly, reference was also made to section 100(1) (a) of the Act whichis as follows :—

"100. (1) Subject to the provisions of sub-section (2) if theHigh Court is of opinion—

(a) that on the date of his election a returned candidate wasnot qualified, or was disqualified, to be chosen to fill theseat under the Constitution or this Act or the Governmentof Union Territories Act, 1963, or

(b) *(c) *

(d) *

#

*

##

*

##

#

*

#

#

*

the High Court shall declare the election of the returned candi-date to be void."

The argument was that, under S. 100 ( l ) (a ) , the question that fallsfor determination is whether the returned candidate was not qualifiedon the date of his election, and the date of election must be the datewhen the result of the election was declared, or, at the earliest, thedate on which the polling took place. In the present case, theresult was declared on the 22nd February, 1967, while the pollingtook place on 18th February, 1967, and before these dates the appel-lant had attained the age of 25 years.

No doubt, these arguments advanced on behalf of the appellantare correct, but apart from these provisions, effect has to be givenalso to the additional provision contained in section 36(2) of theAct which reads as under :—

"36. (2) The officer shall then examine the nomination papersand shall decide all objections which may be made to any nomina-tion and may, either on such objection or on his own motion, aftersuch summary inquiry, if any, as he thinks necessary, reject any.Domination on any of the following grounds :—

I.L.R.] AMRIT LAL AMBALAL PA TEL V. jilMAT BBAI GOMANBHAI PATEl 37

(a) that on the date fixed for the scrutiny of nominations, thecandidate either is not qualified or is disqualified for beingchosen to fill the seat under any of the following provisionsthat may be applicable, namely :—Articles 84, 102, 173 and 191,Part II ot this Act, and sections 4 and 14 of the Governmentof Union Territories Act, 1963 ; or

/ c \ * * * * * *

It is to be noticed that this provision makes a departure inasmuch asit lays down that the nomination paper is to be rejected if the candi-date is not qualified under Art. 173 of the Constitution on the datefixed for the scrutiny of nominations. In the present case, the appel-lant had not attained the age of 25 years on 21st January, 1967, whichwas the date for scrutiny ot nominations. Consequently, the nomina-tion paper of the appellant was liable to be rejected under s. 36(2) (a)6i the Act. Since it was liable to be rejected on this ground, it mustbe held that his nomination had been improperly accepted. In sucha case, under s. 100(1) (a), the High Court is to declare the electionvoid, if the result of the election, in so far as it concerns the returnedcandidate, is found to have been materially affected. On the face ofit, the consequence of the improper acceptance of the nomination ofthe appellant was that the result of the election was materiallyaffected, because he was declared as duly elected when he was notentitled to that right on the ground that his nomination paper shouldhave been rejected by the returning officer under s. 36(2) (a) of theAct. The election of the appellant had to be declared as void in thesecircumstances by the High Court not under s. 100(1) (a), but under100(1) (d)(i) of the Act. The order made by the High Court settingaside the election of the appellant is, therefore, in accordance with law.There is no ground for interfering with it.

The appeal fails and is dismissed with costs.

Appeal Dismissed.

, 38 . ; . S. RAJAGOPAL V. C. M. ARMUGAM & OTHERS [VOL. XXXVIII,

I N THE SUPREME COURT OF INDIA

S. RAJAGOPAL

V.

C. M. ARMUGAM & ORS. '

(I. C. SHAH AND BHARGAVA, JJ.)

May 3, 1968.

Constitution {Scheduled Castes) Order, 1950—Adi Dravida converting toChristianity—Reconversion to Hinduism—// becomes a member of the originalcaste.

The respondent challenged the validity of the election of the appellant onthe ground that he was not qualified to be a candidate to fill the seat reservedfor a member of the Scheduled Caste. The respondent contended that theappellant was originally born as an Adi Dravida Hindu but he got himselfconverted as a Christian some time in 1949; that thereafter the appellant con-tinued to be a Christian including at the time of the election in 1967; consequentlyhe could not be held to be a member of the Scheduled Caste for the candidaturefor the reserved seat under the Constitution (Scheduled Castes) Order, 1950.The appellant pleaded that he never became a convert to Christianity and thatin any case he was professing the Hindu religion at the relevant time in theyear 1967. The High Court declared the appellant's election void.

Dismissing the appeal. :

HELD : On the evidence, the finding of the High Court had to be affirmedthat the appellant was converted to Christianity in the year 1949 so that he lostthe capacity of an Adi Dravida in which capacity alone he could have been held"to be a member of a Scheduled Caste under the Constitution (Scheduled Castes)Order, 1950.

At the relevant time in 1967, the appellant was professing Hindu Religion,so that Paragraph 3 of the Constitution (Scheduled Castes) Order, 1950 didnot apply to him but the appellant had to show that at the relevant time hewas a member of the caste specified by the President in that Order. When theappellant got converted to Christianity in 1949 he ceased to belong to the AdiDravida caste.

Even on the assumption that a reconvert to Hinduism can acquire the mem-bership of the original caste, it has to be held that the appellant had failed toestablish that he became a member of the Adi Dravida Hindu caste after hestarted professing the Hindu Religion.

(Whether a membership of a caste can be acquired by conversion to Hinduismor after reconversion to Hinduism, left open).

Punjab Rao v. D. P. Meshram & Others, (1965) 1 S.C.R. 849; Karwada v.Shambha\ar, I.L.R. 1959 Bombay 229; G. Machael v. S. Ven\atesweran, Additional

E.L.R.] S. RAJAGOPAL V. C. M. ARMUGAM & OTHERS 39

Secretary to Government Public (Elections) Department, Madras. A.I.R. 1952,Madras 474; B. Shyamsunder v. Shan\ar Deo Vedalankar and others, A.I.R. 1960Mysore 27; Chatturbhuj Vithaldas Jasani v. Moreshwar Parashram and others,1954 S.C.R. 817; Administrator General of Madras v. Anandachari and others,I.L.R. 9 Madras 466; Gurusami Nadar v. lrulappa Konav (died) and others,67 M.L.J. Reports 389; Mrs. Agnes Dorothy Vermani v. Mr. Bayant DavidVermani, A.I.R. 1943 Vol. 30 Lah. 51; Goona Durgaprasada Rao alias PeddaBabu and another v. Goona Sudarasanaswami and 28 others, I.L.R. 1940 Mad.653; referred to :

Civil Appeal No. 1553 of 1967.

JUDGMENT

BHARGAVA, J.—The appellant, S. Rajagopal, the first respondentC. M. Armugam, and the other three respondents all filed nominationsfor election to the Legislative Assembly of the State of Mysore in thelast General Elections held in 1967. The nomination papers werescrutinised on 21st January, 1967, when respondent No. 1 (hereinafterreferred to as "the respondent") raised an objection against the nomi-nation of the appellant on the ground that the nominations were in res-pect of a seat reserved for a member of a Scheduled Caste, and the ap-pellant was not an Adi Dravida Hindu, but an Indian Christian, so thathe was disqualified to stand as a candidate for this reserved seat. TheReturning Officer rejected the objection and accepted the nominationpaper of the appellant. Respondent Nos. 2 to 4 withdrew their candi-dature, so that, when actual election took place, the two contesting can-didates were the appellant and the respondent. The Constituency con-cerned was Kolar Gold Fields and polling in the constituency took placeon 15th February, 1967. The appellant was declared as the successfulcandidate on the ground that he received a larger number of votes thanthe respondent. The respondent then filed an election petition undersection 81 of the Representation of the People Act 1951, challengingthe validity of the election of the appellant on the same ground that hehad taken before the Returning Officer, viz., that the appellant was notqualified to be a candidate to fill the seat reserved for a member of theScheduled Caste from the Kolar Gold Fields Constituency. The respon-dent admitted that the appellant was originally born as an AdiDravida Hindu, but it was pleaded that he got himself converted as aChristian some time in the year 1949, shortly before he obtained admis-sion in Woorhees High School at Vellore and to the Woorhees ChristianHostel attached to that School. The respondent's case was that, there-after, the appellant continued to be a Christian and, consequently, hecould not be held to be a member of the Scheduled Caste for his candi-dature for the reserved seat under the Constitution (Scheduled Castes)Order, ]950. The appellant resisted this plea taken in the election peti-tion on various grounds, but we are only concerned in this appeal with

4 0 S, RAJAGOPAL V. C. M. ARMUOAM & OTHERS [VOL. XXXVHl

two of those grounds which formed the subject-matter of issues 1 and 3framed by the High Court of Mysore at the trial of the election petition.Those issues are as follows :—

"(1) Does the petitioner prove that on the date of election therespondent No. 1 was an Indian Christian (Protestant) by conver-sion and not a member of the Scheduled Caste (Adi Dravida), pro-fessing Christian Religion and therefore, not qualified to stand forelection to the Mysore Legislative Assembly as a candidate for theseat reserved for Scheduled Castes from the Kolar Gold Fields Con-stituency and his election should be declared void under section100(1) (a) of the Representation of People Act, 1951 ?

(3) Even if it is true that respondent No. 1 got himself con-verted to Christianity, does the respondent prove the facts and thecircumstances set put in para 11 of the written statement and dothey constitute in fact and in law conversion back to Hindu religionas alleged ; and is it enough in law to give him the benefit of theConstitution (Scheduled Castes) Order 1950 ?"

The High Court took the evidence, both documentary and oral, adducedby the parties on these issues and then decided both the issues againstthe appellant and in favour of the respondent. That Court, therefore,held that the election of the appellant was void, because he was not qua-lified to be a candidate for the seat reserved for a member of the Sche-duled Caste and, consequently, set aside the election of the appellant.The appellant has now come up in appeal against that judgment undersection 116A of the Representation of the People Act, 1951.

The Constitution (Scheduled Castes) Order, 1950 was made by thePresident in exercise of his powers conferred by clause (1) of Article 341of the Constitution which is as follows :—

"341. (1) The President may with respect to any State orUnion Territory, and where it is a State, after consultation with theGovernor thereof, by public notification, specify the castes, races ortribes or parts of or groups within castes, races or tribes which shallfor the purposes of this Constitution be deemed to be ScheduledCastes in relation to that State or Union Territory, as the case maybe."

The relevant provisions of this Order, with which we are concerned,are contained in paragraphs 2 and 3 and item 1(2) of Part VIII ofthe Schedule to the Order, which are as follows :—

"2. Subject to the provisions of this Order, the castes, races ortribes or parts of, or groups within, castes or tribes, specified in

E.I..R,] S. RAMGOPAi V. C. U, ARMUGAM & OTHERS 41

Parts I to XIII of the Schedule to this Order shall, in relation to theStates to which those parts respectively relate, be deemed to beScheduled Castes so far as regards members thereof resident in thelocalities specified in relation to them in those Parts of thatSchedule.

3. Not withstanding anything contained in paragraph 2, noperson who professes a religion different from the Hindu or theSikh religion shall be deemed to be a member of a Scheduled Caste.

THE SCHEDULE

PART VIII.—MYSORE

1. Throughout the State except Coorg, Balgaum, Bijapur, Dharwar,Kanara, South Kanara, Gulbarga, Raichur and Bidar districts and Kol-legal taluk of Mysore district:—

1. * * *2. Adi Drivida.3 # # # * »

These provisions make it quite clear that a person, who is an Adi Dra-vida, is qualified to be a candidate for the seat reserved for a memberof the Scheduled Caste from this Kolar Gold Fields Constituency inthe State of Mysore, provided he satisfies the additional requirement ofparagraph 3 of the Order of not professing a religion different from theHindu or the Sikh religion at the time when his qualification to be acandidate has to be determined. In the present case, therefore, thevalidity of the candidature of the appellant depended on the questionwhether, in January and February, 1967, when he was nominated asa candidate for the reserved seat and was declared elected, he was orwas not professing a religion different from the Hindu or the sikhreligion. The case of the respondent, as mentioned above, was thatthe appellant had become a Christian in 1949 and was still professingthe Christian religion at the time of the elections in 1967. This pleawas met by the appellant by pleading that he never became a convertto Christianity and that, in any case, even if it be held that he had oncebecome a Christian in the year 1949, he was professing the Hindu reli-gion at the relevant time in the year 1967. These are the pleas that arereflected in issues 1 and 2 reproduced above.

The High Court, in deciding the first issue in favour of the res-pondent and against the appellant, relied primarily on the evidence ofP.W. 9, I. J. Rajamanikyam, who, in the year 1949, was employed asan Assistant Master in Woorhees High School at Vellore and was the

42 S. RAJAGOPAL V . C M. ARMUGAM & OTHERS [VOL. XXXVIII

Assistant Manager of the Woorhees Christian Hostel. P.W. 9 statedthat an application, Ext. P. 11, for admission of the appellant as an in-mate of the Woorhees Christian Hostel was made by C. A. Josephwho was the Manager of the Hostel. This Hostel was meant for theresidence exclusively of persons belonging to the Christian faith. Inthe application, Ext. P. 11, the appellant was shown as an Indian Chris-tian and not as Adi Dravida or Hindu. At that time, it became neces-sary to ascertain whether the appellant was in fact a Christian. Accord-ing to him, C. A. Joseph ascertained all the particulars of the appellantand it was on that basis that he showed the appellant in the applica-tion as an Indian Christian. C. A. Joseph, who was the Manager, inter-viewed the appellant and then asked P.W. 9 to admit him to theHostel. P.W. 9 further stated that, in that connection, the appellantshowed to him his baptismal certificate which indicated that he hadbeen baptised as a Christian at Ponnai Anicut Festival which is heldby the Christians in the month of March or April every year. On being"cross-examined, he indicated that the certificate had been issued by thePresbyter of Yehamur Church situated in North Arcot District, 15miles from Vellore. He also deposed that, during his stay in the Hostel,the appellant was observing the Christian Religion and was takingkindly towards the religious activities of the hostel, though it appearedthat, being a recent convert to Christianity, he was not quite conversantwith the forms of worship or service. P.W. 9 was himself supervisingthe religious observances by the inmates of the Hostel. This evidencegiven by P.W. 9 is further corroborated by the document, Ext. P. 12,which is the register of admissions and withdrawals of the WoorheesHigh School. In that admission register, against item No. 14—Religionof the student pertaining to the appellant the entry is Indian Christian.Thus, the oral evidence given by P.W. 9 showing that the appellant wasa Christian when he was admitted to the Woorhees High School andthe Woorhees Christian Hostel is corroborated by the entry made inExt. P. 11 by C. A. Joseph as guardian of the appellant and the entryin the Register of admissions and withdrawals of the Woorhees HighSchool Ext. P. 12. On this corroboration, the High Court believed thestatement of this witness that the appellant had shown to him his Bap-tismal Certificate also. The High Court noted the fact that there was no-reason at all for this witness to give false evidence against the appellant ;and the only suggestion made that he bore a grievance to the appellant,as the appellant refused to make a recommendation for him for a parti-cular appointment, has not been established and has no basis. TheHigh Court also took notice of various other pieces of evidence whichcorroborated the statement given by P.W. 9. Learned counsel for theappellant has not been able to advance before us any cogent reason fordisagreeing with this assessment of the evidence of this witness by thelearned Judge of the High Court who had the benefit of watching thiswitness when his evidence was actually recorded before him.

E.L.R.] S. RAJAGOPAL V. C. M. ARMUGAM & OTHERS 43

! The iriam argument for challenging the evidence of this witnesson behalf of the appellant was that the respondent, in adducing evidencebefore the High Court to prove the conversion of the appellant to Chris-tianity, did not summon the Baptismal Register of the Church whichwould have been the best evidence available for this purpose. Thisargument was considered and rejected by the High Court and we agreewith the view taken by that Court. There was no clear evidence thatevery Church was maintaining a baptismal register. It was only in hiscross-examination that it was elicited from P.W. 9 that the baptismalcertificate shown to him by the appellant had been issued by the "Pres-byter of Yehamur Church. The respondent, when he came in the wit-ness-box, stated that he had not been informed of this fact earlier byP.W. 9, so that he was not in a position to summon the baptismal registerof that Church. No doubt, the appellant examined some witnesses ofwhom particular mention may be made of P.W. 9, Rev. Ashirvadam,who stated that, as a general practice, in all Churches several registersare maintained and one of these registers is the Baptismal Register.Even if this evidence be accepted at its full value, the only conclusionto be drawn from it is that a baptismal register must have been main-tained by the Presbyter of Yehamur Church ; but there is no evidenceat all to indicate that in such a register entries were used to be madeeven of baptisms which took place not in the Church itself, but at a fairlike the Ponnai Anicut Festival. It is significant that even the appellanthimself, who had a better opportunity of summoning the baptismalregister of Yehamur Church than the respondent, because the fact thatthe baptismal certificate had been issued by the Presbyter of that Churchwas disclosed by P.W. 9 only in his cross-examination on 27th July,1967 during the trial of the election petition and not earlier, did notcare to have that register summoned. A request was put forward be-fore us during the hearing of this appeal to direct the production of thatregister, but we do not think that there is any justification under O. 41r. 27 of the Code of Civil procedure for summoning it at this stage,particularly because, even if that register is brought, a lot of oral evi-dence would have to be recorded in order to have the register properlyproved and to give an opportunity to the party, against whom infer-ences follow from it, to meet those inferences. In the circumstances, wehave not entertained the request for summoning of that register at thisstage. This is all the more so as we find that there is no evidence toshow that an entry relating to the baptism of the appellant must neces-sarily find a place in the register in view of the fact that the appellantwas baptised at the Ponnai Anicut Festival and not in the Church.Consequently, the non-summoning of that register by the respondentdoes not detract from the value to be attached to the statement ofP.W. 9.

This evidence finds support from other documentary and oral evi-dence which has been relied upon by the High Court. P.W. 10, S. A.

4 4 s. RAJAGOPAL V. C- *f. ARMUGAM & OTHERS [VOL. XXXVHI

Thomas, is a P.W.D. Contractor aad lias stated that, in the time of hisfather, who was also working as Contractor, the appellant took servicewith his father. At that time also, the appellant was employed as aChristian and his service card was prepared showing him as a Chris-tian. Then, there is evidence that, subsequently, the appellant enteredGovernment service and even there in the service cards he was shown asa Christian. Some witnesses have come to prove- that the appellantactually attended Church for prayers after his conversion in 1949. Evi-dence was also given to show that the appellant worked as the organizerof a body known as the Kavinjar Nataka Sabha where his name wasshown as Victor Rajagopal, indicating that he had adopted a personalname after conversion as a Christian which is not adopted by Hindus.We do not think that it is necessary for us to discuss that evidence indetail. We are inclined to agree with the High Court that all this oraland documentary evidence provides very strong corroboration of thestatement of the principal witness P.W. 9 and establishes the fact thatthe appellant had been converted to Christianity in 1949 before he joinedthe Woorhees High School.

We were also taken through the evidence of the respondent's wit-nesses, some of whom tried to prove that the appellant had never attend-ed any Christian Church. The principal witness, on whose evidencereliance was placed in this behalf was R.W. 9, the Presbyter of the Mas-kam Church. It was elicited from him that the appellant was not en-tered in the register of members of the congregation of the Church ;but the cross-examination of the witness shows that it is not necessaryevery one attending the Church for prayers must also be a member ofthe congregation and his name must find a place in that register. Theevidence of some other witnesses, who have come to state that theynever saw the appellant going for prayers to the Church, can hardlycarry any weight, because it is not necessary that they should have beenpresent on those occasions when the appellant actually attended theChurch services. The learned Judge of the High Court, who had thebenefit of watching the demeanour of all the witnesses examined beforehim, did not consider the evidence of these witnesses sufficient to rebutthe proof given on behalf of the respondent.

Reference was also made by learned counsel to some documentaryevidence before us, but none of those documents established that theappellant was not converted to Christianity in 1949. Some of these docu-ments are of the period prior to 1949 and consist of papers relating toschools attended by the appellant in which the appellant is shown as anAdi Dravida Hindu. They are consistent even with the case of therespondent, because the plea put forward was that the appellant wasconverted to Christianity in 1949 and that he was a Hindu earlier.Particular reliance was placed on a transfer certificate issued by the

E.t.R.] S. RAJAGOPA& V. C. U- AI4MBGAJ* & OTHERS 4 5

R. G. F. High School which mentions the date of issue of the TransferCertificate as 10th June, 1949. In that certificate there is an. entry thatthe appellant was studying free, because he was Adi Dravida Hindu.It was urged that this document would indicate that right up to 10thJune, 1949, the appellant was a Hindu. This is not correct. The certi-ficate mentions the actual date of leaving die school as 1st March, 1949,and the capacity in which the appellant was allowed to study free canonly refer to the period ending on that date. The case set up by therespondent and accepted by the High Court is that the appellant wasconverted to Christianity at the Ponnai Anicut Festival which took placein the end of March or beginning of April, 1949, so that this entry show-ing the appellant as a Hindu up to 1st March, 1949 does not militateagainst the finding that he was converted to Christianity at thatFestival.

The remaining documents relied upon by the appellant relate tomuch later period and they also cannot, therefore, show that the appel-lant was not converted to Christianity in the year 1949. The earliest ofthese documents is of die year 1956. That document is the entry in thebirth register in respect of the first child born to the appellant's wife.Then, there are entries relating to birth of other children in 1959 and1961. In tliese documents also however, the caste or the religion of theappellant is not mentioned. The community of die appellant's wifealone is shown as Adi Dravida. In this case, it is not disputed thatwhen the appellant married in 1955, his wife was a Hindu, so that theseentries showing her as Adi Dravida cannot prove that the appellant wasa Hindu and not a Christian. There are subsequent entries in schoolrecords where the appellant showed the caste of his children as AdiDravida Hindus. These documents are of a very much later period andrelate to a time when the appellant had already been elected from areserved seat as a member of the Scheduled Caste in the election of 1962.It, however, appears that, before this election in 1962, the appellant de-cided to show himself as a Hindu and, consequently, he made applica-tions and got entries altered in his service cards so as to show him asAdi Pravida Hindu instead of a Christian. It was thereafter that hecontested the election to the Mysore Legislative Assembly in 1962 fromthe reserved constituency claiming himself to be a member of a Sche-duled Caste. This evidence relating to this period cannot again be heldto disprove the conversion of the appellant to Christianity in the year1949 which has been amply established by the evidence given by therespondent discussed above. At best, it can only show that by this timethe appellant started putting himself forward as a Hindu. Conse-quently, we affirm the finding of the High Court that the appellant was

' converted to Christianity in the year 1949, so that he lost the capacityof an Adi Dravida in which capacity alone he could have been held tobe a member of a Scheduled Caste under the Constitution (ScheduledCastes) Order, 1950.

4 6 S. RAJAGOPAL V. C. M. ARMUGAM & OTHERS [VOL. XXXVIII

This brings us to the second question whether the appellant, at thetime of election in the year 1967, was professing Hindu religion asalleged by him and whether on that account he could claim that hewas a member of a Scheduled Caste, having again become an AdiDravida Hindu. We are inclined to accept the evidence given on behalfof the appellant that, though he had been converted to Christianity in1949, he did later on profess the Hindu religion. The circumstanceswhich established this fact are :

(i) that he married a Hindu Adi Dravicla woman in the year1955;

(ii) that against the entries 6f the children in birth registers of theMunicipality, the caste of the mother was shown as Adi DravidaHindu ;

(iii) that his children were brought up as Hindu ; '

(iv) that, when his children were admitted in school, they wereshown as Hindus in the school records ;

(v) that, in 1961, the appellant made an application for correctionof his service cards and had the entry of his religion as Chris-tianity altered, so that he was subsequently shown as Adi Dra-vida Hindu in those cards ;

(vi) that, in 1962, in the general elections, he stood as a candidatefrom a Reserved Scheduled Caste Constituency ; and

(vii) that he again stood as a candidate in this general election of1967 from the . ame Reserved Scheduled Caste Constituency.

We do not consider it necessary to discuss in detail the evidencewhich has been given on behalf of the appellant to prove all these factsenumerated above. Almost all of them are supported by documentaryevidence. The only question that needs consideration is whether thesefacts establish that, at the time of the general election in 1967, the appel-lant was professing Hindu religion. The word "profess" used in para-graph 3 of the Constitution (Scheduled Castes) Order, 1950 came upfor interpretation by this Court in Punjab Rao v. D. P. Meshram &"Others Q). After referring to the decision of the Bombay High Courtin Karwada V. Shambha\ar (~) and the meaning of the word "pro-fess" given in Webster's New World Dictionary, and Shorter OxfordDictionary, the Court held :—

"It seems to us that the meaning "to declare one's belief in: asto profess Christ" is one which we have to bear in mind while con-struing the aforesaid Order, because it is this which bears upon

(1) (1965) 1 S. C, R. 849 at P. 859,(2) I. L. R 1959 Bom. 229.

E.L.R.] S. RAJAGOPAt:V. C. M. ARMUGAM & OTHERS 47

religious belief and consequently also upon a change in religiousbelief, it would thus follow that a declaration of one's belief mustnecessarily mean a declaration in such a way that it would be knownto those whom it may interest. Therefore, if a public declaration ismade by a person that he has ceased to belong to his old religionand has accepted an other religion he will be taken as professingthe other religion. In the face of such an open declaration it wouldbe idle to enquire further as to whether the conversion to anotherreligion was officacious. The word "profess" in the PresidentialOrder appears to have been used in the sense of an open declarationor practice by a person of the Hindu (or the Sikh) religion."

In our opinion, if this test is applied to the present case, it must beheld that at least by the year 1967, when the present election in questiontook place, the appellant had started professing the Hindu religion. Hehad openly married a Hindu wife. Even though the marriage was notcelebrated according to the strict Hindu rites prevalent amongst AdiDravidas, the marriage was not in Christian form and is alleged to havebeen in some reformed Hindu manner. Thereafter, the appellant in1961 took the step of having his service cards corrected so as to showhim as an Adi Dravida Hindu instead of a Christian. This was follow-ed by his candidature as a member of the Adi Dravida Hindu Caste inthe general elections in 1962 ; and, subsequently, he gave out the castqof his children as Adi Dravida Hindus. These various steps taken bythe appellant clearly amount to a public declaration of his professingthe Hindu faith. The first step of the marriage cannot, of course, byitself be held to be a sufficient public declaration that the appellant be-lieved in Hindu religion ; but the subsequent correction of entries inservice cards and his publicly standing as a candidate from the reservedScheduled Caste Constituency representing himself as an Adi DravidaHindu taken together with the later act of showing his children as AdiDravida Hindus in the school records must be held to be a completepublic declaration by the appellant that he was by this time professingHindu religion. Finally, in the 'general elections of 1967 also, the appel-lant, by contesting the seat reserved for a member of a Scheduled Casteon the basis that he was an Adi Dravida Hindu, again purported tomake a public declaration of hjs faith in Hinduism. In these circum-stances, we hold that, at the relevant time in 1967, the appellant wasprofessing Hindu religion, so that paragraph 3 of the Constitution (Sche-duled Castes) Order, 1950 did not apply to him.

This, however, does not finally settle the matter in favour of theappellant, because, even if it be held that paragraph 3 of the Constitu-tion (Scheduled Castes) Orderj 1950 did not disqualify the appellant,it is necessary for the appellant o show that he satisfied all the require-ments of paragraph 2 of that Order. Under paragraph 2, a person to be

48 S. RAJAGOPAL V. C- M. ARMUGAM & OTHERSVOL. XXX VHJ

eligible for a reserved seat must be a member of a caste specified by thePresident in the Order. The appellant claims that, when he started'professing Hindu religion again, he reverted to his original caste of birth•viz., Adi Dravida Hindu. It is the justification of this claim that is con-tested on behalf of the respondent. It has been urged that, when theappellant became a Christian, be ceased to be a member of the AdiDravida caste as specified in the Presidential Order and, on again pro-fessing the Hindu religion, the appellant cannot claim that he automa-tically reverted to a membership of that caste.

We agree with the High Court that, when the appellant embracedChristianity in 1949, he lost the membership of the Adi Dravida Hinducaste. The Christian religion does not recognise any caste classifications.All Christians are treated as equals and there is no distinction betweenone Christian and another of the type that is recognised between mem-bers of different castes belonging to Hindu religion. In fact, caste sys-tem prevails only amongst Hindus or possibly in some religious clearlyallied to the Hindu religion like Sikhism. Christianity is prevalent notonly in India, but almost all over the world and nowhere does Chris-tianity recognise caste division. The tenets of Christianity militateagainst persons professing Christian faith being divided or discriminatedon the basis of any such classification as the caste system. It musttherefore, be held that, when the appellant got converted to Christianityin 1949, he ceased to belong to the Adi Dravida caste.

In this connection, we may take notice of a decision of the MadrasHigh Court in G. Michael V. Mr. S. V en\ateswaran, Additional Secre-tary to Government Public {Elections) Department, Madras, where thatcourt held :—

"Christianity and Islam are religions prevalent not only inIndia but also in other countries in the world. We know that inother countries these religions do not recognise a system of castesas an intergral part of their creed or tenets."

Attention of that Court was drawn to the fact that there were severalcases in which a member of one of the lower castes, who had been con-verted to Christianity, had continued not only to consider himself asstill being a member of the caste, but had also been considered so byother members of the caste who had not been converted. Dealing withthis aspect, the Court held :—

"This is somewhat analogous to cases in which even after con-version certain families and groups continue to be governed by thelaw by which they were governed before they became converts.

(3) A. I. R. 1952 Mad. 474.

E-L.R.] S. RAJAGOPAL V. C M. ARMUGAM & OTHERS 49

But these are all cases of exception and the general rule is conver-sion operates as an expulsion from the caste ; in other words, aconvert ceases to have any caste."

In the present case, therefore, we agree with the finding of the HighCourt that the appellant, on conversion to Christianity, ceased to belongto the Adi Dravida caste and, consequently, the burden lay on the appel-lant to establish that, on his reverting to the Hindu religion by proces-sing it again, he also became once again a member of the Adi DravidaHindu caste.

Reliance was also placed on behalf of the appellant on a decision ofthe Mysore High Court in B. Shyamsundar v. Shan\ar Deo Vedalan\arand Others (5). Neither of these two cases, in our opinion, is applicablenot automatically cease to be a member of the caste in which he wasborn. For the same principle, reference was also made to a decision ofthis Court in Chatturbhuj Vithaldas Jasani V. Moreshwar Parashramand Other s(5). Neither of these two cases, in our opinion, is applicableto the present case, because, in both those cases, though the persons con-cerned had started professing religious beliefs different from those oforthodox Hindus, they still continued to be Hindus. The Mysore HighCourt in its decision took notice of this fact by holding :—

"It is, therefore, plain that Arya Sarna^, unlike Christianity orIslam, is not a new religion entirely distinct from Hinduism andthat the mere profession of Arya Samajism by a person does notmake him cease to be a Hindu and cannot have the effect of ex-cluding him from Hinduism although he was born in it. It isequally clear that such a person never becomes separated from thereligious communion in which he was born. The contention urgedto the contrary by Mr. Reddy must, therefore, fail."

In the case of Chatturbhuj Vithaldas Jasani (supra), this Court wasdealing with''the status of a person who belonged to the Mahar Caste,which was one of the Scheduled Castes under the Presidential Order,and the question arose whether, on his conversion to the tenets of theMahanubhava Panth, he ceased to belong to that Scheduled Caste. Itwas held that, whatever the views of the founder of this sect may havebeen about caste, it was evident that there had been no rigid adherenceto them among his followers in latter years. The Court; therefore, didnot determine whether the Mahanubhava tenets encouraged a repudia-tion of caste only as a desirable ideal or make it a fundamental of thefaith, because it was evident that present-day Mahanubhavas admitted totheir fold persons who elect to retain their old caste customs. It wason this basis that the Court held that it was easy for the old caste to re-gard the converts as one of themselves despite the conversion which

(4) A. I. R 1960 Mysore 27.(5) 1954 S. C. R. 817.

5—3 Elec. Com/71

50 S. RAJAGOPAL V. C. M. ARMUGAM & OTHERS [VOL. XXXVIII

for all practical purposes was only ideological and involved no changeof status. The final conclusion was expressed in the following words:—

"On this evidence, and after considering the historical material; placed before us, we conclude that conversion to this sect imports

little beyond an intellectual acceptance of certain ideological tenetsand does not alter the convert's caste status, at any rate, so far asthe householder section of the Panth is concerned."

Thus, neither of these two cases is similar to the case before us wherethe appellant was converted to Christianity, a religion which militatesagainst the recognition of division of people on caste basis. Having goneout of the Hindu religion, the appellant could not claim thereafter thathe still continued to be a member of the Adi Dravida Hindu caste.

In support of the claim that the appellant reverted to the AdiDravida Hindu caste when he again started professing the Hindu reli-gion, learned counsel relied on a number of decisions of various HighCourts. The cases relied upon can be divided into two classes. Thefirst set of cases are those where this question was examined for thepurpose of determining the rules of succession, the validity of marriages,or the legitimacy of children. Such cases which have been brought toour notice are3 Administrator-General of Madras V. Anandachari andOthers (6) Gurusami Naddar V. lrulappa Konar (died) 'and Others (7),Mrs. Agnes Dorothy Vermani V. Mr. Bryant David Vermani($), andGoons Durgaprasada Rao alias Pedda Rabu and another V. Goons Su-•dersaneswami and 28 Others(9). In addition,reliance was! also placedon the Report of Proceedings of the Appellate side dated 8th Novem-ber, 1966 printed at page vii of the Appendix in Vol. Ill of the MadrasHigh Court Reports. The second set of cases consist of recent judg-ments of the High Courts of Andhra Pradesh and Madras in electionpetitions arising out of the general elections of the year 1967 itself. Inorder to rely on these judgments, learned counsel produced before uscopies of the Gazettes in which those judgments have been published.The cases referred to are: Kothepalli Narasayya V. Jammana Jogi andPinninti Jammayya (Election Petition No. 9 of 1967), K. NarasimhaReddy V. G. Bhupathi and Mani\ Rao (Election Petition No. 18 of1967), Allam Krishnaiah V. Orepalli Venkata Subbdah (Election Peti-tion No. 10 of 1967) decided by the High Court of Andhra Pradesh on28th August, 1967, 28th September, 1967, and 5th September, 1967 res-pectively, and K. Paramalai V. N. Alangaram and Another (ElectionPetition No. 9 of 1967) decided by the High Court of Madras on 5thOctober, 1967.

(6) I. L. R. 9 Mad. 466.(7) 67 M. L. J. Reports, 389.(8) A. I. R. 1943, Vol. 30 Lah. 51.(9) I. L. R. 1940 Mad. 653.

B.L.R.] S. RAJAGOPAL V. C. M. ARMUGAM & OTHERS 51

Almost all these cases laid down the principle that, on reconversionto Hinduism, a person can become a member of the same caste in whichhe was born and to which he belonged before having been converted toanother religion. The main basis of the decisions is that, if the membersof the caste accept the reconversion of a: person as a member, it shouldbe held that he does become a member of that Caste, even though hemay have lost membership of that caste on conversion to another reli-gion. In the present case, we do not consider it necessary to expressany opinion on the general question whether, if a person is born in aparticular caste and is converted to another religion as a result of whichhe loses the membership of that caste, he can again become a memberof that caste on reconversion to Hinduism. That is a question whichmay have to be decided in any of the appeals that may be brought tothis Court from the judgments of the Andhra Pradesh and the MadrasHigh Courts referred to above. So far as the present case is concerned,we consider that, even if it be assumed that a reconvert can resume themembership of his previous caste, the facts established in the presentcase do not show that the appellant succeeded in doing so. All thesecases proceed on the basis that, in order to resume membership of hisprevious caste, the person must be reconverted to the Hindu religionand must also be accepted by the caste in general as a member afterreconversion. We do not think it necessary to refer to specific sentenceswhere these principles have been relied upon in these various judgments.It is, in our opinion, enough to take notice of the decision in GoonaDurgaprasada Rao alias Pedda Babu (Supra), where these two aspectswere emphasised by a Full Bench of the Madras High Court. In thatcase, the first question that arose was whether a person could become aconvert to Hinduism without going through a formal ceremony ofpurification. It was held that no proof of any particular ceremonial hav-ing been observed was required. Varadachariar, J., held that when onthe facts it appears that a man did change his religion and was acceptedby his co-religionists as having changed his religion, and lived, died andwas cremated in that religion, the absence of some formality should notnegative what is an actual fact. Considering the question of entry intothe caste, Krishnaswami Ayyanger, J., held that, in matters affecting thewell-being or composition of a caste, the caste itself is the supreme judge.It was on this principle that a reconvert to Hinduism could become amember of the caste, if the caste itself as the supreme judge acceptedhim as a full member of it. In the appeal before us, we find that theappellant has not given evidence to satisfy these requirements in orderto establish that he did become a member of Adi Dravida Hindu Castehy the time of general elections in 1967.

As we have already held earlier, there was no ceremony held forreconversion of the appellant to Hinduism. We have found that hestarted professing the Hindu religion because of his conduct at various

52 S. RAJAGOPAL V. C. M. ARMUGAM & OTHERS [VOL. XXXVIIf

stages. The first step in that conduct was the marriage with an AdiDravida Hindu woman. Then, there were other steps taken by him,such as correction of his service records, declaration of the religion ofhis sons as Hindu and his standing as a candidate for elections in 1962and 1967 as a member of a Scheduled Caste. These have been held byus to amount to a public declaration of his belief in Hinduism. Thequestion is whether, by merely professing the belief in Hinduism, theappellant can also claim that the member of the Adi Dravida HinduCaste re-admitted him as a member of that caste and started recognisinghim as such. In various cases, importance has been attached to the factof marriage in a particular caste. But, in the present case, the marriagewas the first step taken. By the appelant and, though he was marriedto an Adi Dravida woman, the marriage was not performed accordingto the rites observed by member of that caste. The marriage not beingaccording to the system prevalent in the caste itself, it cannot be heldthat that marriage can be proof of admission of the appellant in the casteby the members of the caste in general. No other evidence was givento show that at any subsequent stage any step was taken by members ofthe caste indicating that the appellant was being accepted as a memberof this caste. It is true that his close relatives, like his father and bro-ther-in-law, treated him again as a member of their own caste, but themere recognition by a few such relatives cannot be held to be equiva-lent to a recognition by the members of the caste in general. The can-didature from the reserved seat in 1962 cannot also be held to implyany recognition by the members of the Adi Dravida Hindu caste ingeneral of the appellant as a member of that caste. Consequently, ithas to be held that the appellant has failed to establish that he becamea member of the Adi Dravida Hindu caste after he started professingthe Hindu religion; and this conclusion follows even on the assump-tion that a convert to Hinduism can acquire the membership of caste.Ordinarily, the membership of a caste under the Hindu religion is ac-quired by birth. Whether the membership of a caste can be acquiredby conversion to Hinduism or after reconversion to Hinduism is a ques-tion on which we have refrained from expressing any opinion, becauseeven on the assumption that it can be acquired, we have arrived at theconclusion that the appellant must fail in this appeal.

The appeal is, consequently, dismissed with costs.

Appeal Dismissed.

E.L.R.] RAM DAYAL V. BRIJ RAJ SINGH & OTHERS 53

I N THE H I G H COURT OF MADHYA PRADESH, INDORE

RAM DAYAL

V.

BRIJ RAJ SINGH AND OTHERS

(M. A. RAZZAQUE, J.)

May 5, 1968.

Representation of the People Act, 1951, Sections 77, 100(l)(c), 123(2)(3)(4){6)—Conduct of Election Rules 1961, Rule 2(2)—Corrupt Practice—Burden ofproof—Rejection of nomination paper of one of the candidates—Thumb impres-sion of proposer not attested under Rule 2(2)—whether fatal—whether suchrejection could render the election of the returned candidate void—False state-ment by another candidate under Section 123(4)—Consent or knowledge of thereturned candidate not proved—Effect of—Expenditure incurred by politicalparty which incidentally supported the returned candidate—Whether that ex-penditure could be debited to the returned candidate.

The petitioner, an elector of the Sabalgarh Assembly constituency, challengedthe election of the first respondent alleging inter alia various corrupt practicescommitted by the first respondent. It was alleged that he induced the fifth,res-pondent by bribery not to file his nomination; and that the first respondent andhis workers made statements attacking the personal character of the Congresscandidate; it was also alleged that the nomination paper of one of the candidateswas improperly rejected by the Returning Officer, and that the second respondentand the third respondent solicited votes on the ground ot their respective casteand community which amounted to a corrupt practice under Section 123(3) ofthe Act and that the result of the election had been materially affected as aresult of the various corrupt practices. The first respondent was also allegedto have exceeded the permissible limit of election expenses.

HELD : Dismissing the petition.

(i) The rejection of the nomination papers of one of the candidates on theground that his proposer's thvimb impression was not properly attested as requiredby Rule 2(2) of the Conduct of Election Rules, 1961, will not render the electionof the returned candidate void under Section 100(l)(c) of the Act.

Rattan Annul Singh and another v. Ch. Atma Ram and others, A.I.R. 1954S.C. 510; Madan Singh v. Kalyan Singh, 6 E.L.R. 405; Dharamvir v. Bhalramaand others, 7 E.L.R. 64; Ratansingh and another v. Padam Chand Jain andethers, 7 E.L.R. 189; Mulai and another v. Lai Dan Bahadur Singh and others,9 E.L.R. 8; referred to.

(ii) In order to bring an alleged oral statement made by the fourth respon-dent, that the Congress nominee was an associate of dacoits, within the mischiefof the definition of a false statement under Section 123(4) of the Act, it mustbe a statement of fact as opposed to a statement or expression of opinion. Thepetitioner has to prove the circumstances in which it was made and that it wasa statement of fact. The petitioner had failed to establish that this corruptpractice was either committed by the first respondent or his agent or by anyother person with his consent or that of his election agent.

54 RAM DAYAL V. BRIJ RAJ SINGH & OTHERS [VOL. XXXVIII

Devasharam v. Sheo Mahadeo Prasad and others, 10 E.L.R. 461; HabibBhai v. Pyarelal and others, A.I.R. 1964 M.P. 62; Kumaranand v. Brij Mohan LaiSharma, A.I.R. 1967 S.C. 808; referred to :

(iii) On the evidence, the petitioner had failed to establish by positive, relia-ble and conclusive evidence that the expenditure on the helicopters and thecars used by the Maharaja and his mother was incurred or authorised by thefirst respondent or the said expenditure was incurred or authorised by his electionagent and that the same was incurred or authorised in connection with the firstrespondent's election. Simply adducing evidence which does nothing more thancreating suspicion would not be sufficient to establish the corrupt practice, becausesuspicion is not the same thing as proof of the corrupt practice with whichthe respondent was charged. The expenditure incurred by a political organisationor a political party, even though in some of the meetings the first respondentwas present and even though knowledge may be imputed to him that theelection propaganda carried on by the party would incidentally benefit him,cannot be debited to him.

Jumna Prasad Singh v. Shri Ramnivas and others, A.I.R. 1959, M.P. 226;N. L. Verma v. Munilal and others, 15 E.L.R. 495; Sheopatsingh v. Harishchandra,16 E.L.R. 103; Shivram Sawant Bhonsale v. Pratap Rao Deorao Bhonsale, 17 E.L.R.37; Ram Abhilahji Tiwari v. Election Tribunal Gonda and others, 15 E.L.R. 375;S. Kandaswami v. S. B. Adityan and others, 21 E.L.R. 435; Savitri Devi v.Prabhawati Mishra and another, 15 E.L.R. 358; Pandit K. C. Sharma v. KrishiPandit Rishab\umar and others, 20 E.L.R. 401; C. R. Narasimha v. M. G. Nate-san Chettiar, 20 E.L.R. 1; Biresh Misra v. Ram Nath Sarma and others, 17 E.L.R.243; Shivram Sawant Bhonsale v. Pratap Rao Deorao Bhonsale, 17 E.L.R. 37;Sam Ganesan v. M. A. Buthiah Chettiar, 19 E.L.R. 16; Jagdev Singh Sidhantiv. Pratapsingh Daulta and others; A.I.R. 1965, S.C. 183; Dr. jagjit Singh v. GiantKartar Singh and others, A.I.R. 1965 S.C. 775; M. A. Buthiah Chattiar v. SawGanesan, 21 E.L.R. 215; Ranjajaya Sinh v. Baijnath Singh and others, 10 E.L.R.129; G. Vasantha Pai v. A. Srinivasan and others, 22 E.L.R. 221; Lencasters' case,5 O'M and H 39, 44; Elgin case, O'M and H. 2; Hegerston case, 5 O'M and H. 70;Biresh Misra v. Ram Nath Sarma and Ors, 17 E.L.R. 423; Mubara\ Mazdoor v.Lai Bahadur, 20 E.L.R. 176; V. B. Raju v. V. Ramchandra Rao and Ors. 21 E.L.R.1; Mastram v. Harnam Singh Sethi and Ors. 7 E.L.R. 301; Ranajaya Singh v.Baijnath Singh and others, 10 E.L.R. 129; referred to :

(iv) The petitioner had failed to prove that the first respondent had anyconnection with the issue of the impugned pamphlet by the fourth respondentnor was the first respondent responsible for the corrupt practice of undue influenceof soliciting the votes on the basis of caste by the second respondent; the firstrespondent was therefore not responsible for corrupt practices committed underSection 123(2), (3) and (4) of the Act, by the second and the fourth respondents.

Election Petition No. 39 of 1967.

G. L. Oza Udai Dwivcdi for the petitioner.

P. B. S. Nair for respondent Nos. 2, -4 and 5.

! ORDER

RAZZAQUE, J.—The petitioner Ramdayal, who is an elector of theSabalgarh Assembly Constituency in question of the State of Madhya

E.L.R.] RAM DAYAL V. BRIJ RAJ SINGH & OTHERS 55

Pradesh has filed this election petition under section 81 of the Represen-tation of Che People Act (hereinafter called the Act) challenging theelection of respondent No. 1, Shri Brijrajsingh of mouza Panihari,tahsil Sabalgarh, who on 23-2-1967 has been declared as a duly electedcandidate from the said constituency in the last general election heldin February 1967. His election has been assailed on nhe grounds ofseveral corrupt practices said to have been committed by him, and hisagents and workers with his consent and also because of the improperrejection of the nomination paper of one Dhaniram, who was also oneof the contesting candidates in this election.

2. The admitted facts are that a notification calling upon theSabalgarh Legislative Assembly Constituency in question to elect amember was issued on 13-1-1967, the last date for making nominationswas 19-1- [967, the date for the scrutiny of the nominations was 21-1-1967,the last date for the withdrawal of candidatures was 22-1-1967, the datefor polling was 20-2-1967 and the resulc was declared on 23-2-1967.There were 13 candidates in the arena to contest the said assemblyseat. They included Raja Panchamsingh of Pahargarh, a Congressnominee, respondent No. 1, Shri Brijrajsingh, the returned candidateand respondent Nos. 2 to 4, Shri DaCaram, Shri Gangaram and ShriChhotelal Bharadwaj. One Shri Soneram of mouza Bhilsaiyan, tahsilSabalgarh has also been impleaded as co-respondent No. 5 probablybecause a corrupt practice of bribery is alleged against him in thepetition. Respondent No. 1 Shri Brijrajsingh was declared as a dulyelected candidate defeating his next rival, the Congress nominee RajaPanchamsingh by a margin of 1706 votes.

3. As to improper rejection of Dhaniram's nomination paper, theelection petitioner's case was that the said Dhaniram, one of the con-testing candidates was duly proposed by an elector Gokul, who, beingilliterate, put his thumb mark on Dhaniram's two nomination papers(Ex. P. 7 and P. 8) filed on 19-1-1967 and that the Returning Officerrejected the nomination papers on 21-1-1967, the date of the scrutinyon the ground that the said thumb-impression had not been authenti-cated as required by the rules. It was alleged that Shri Gokul was notpresent at the time of the scrutiny and no opportunity was given toShri Dhaniram or to Shri Gokul to prove that the thumb impressionon the two nomination papers were of Shri Gokul as Dhaniram'sproposer and, therefore, the Returning Officer improperly rejectedDhaniram's nomination papers and hence the entire election from theSabalgarh Legislative Assembly has become void under section 100(1) (c)of the Act.

4. As to corrupt practices, the petitioner alleged that on 19-1-1967,the respondent No. 1 Shri Brijraj&ingh paid a sum of Rs. 250 torespondent No. 5, Shri Soneram at Morena as bribe and thus success-fully induced him not to fill in his nomination form and so both

56 RAM DAYAL V. BRIJ RAJ SINGH & OTHERS [VOL. XXXVIII

committed the corrupt practice of bribery under section 123(1) of theAct and therefore, the election of the returned candidate Shri Brijraj-singh is void under section 100(1) (b) of the Act. It is further allegedthat the returned candidate made statements to the Ex-Zamindars ofvarious villages and delivered speeches in the said villages between1-2-1967 and 18-2-1967 to the effect that Rajmata Smt. Vijayaraje Scindiawould become the Chief Minister of this State and the Zamindari willbe restored and on this account he is accused of having committed thecorrupt practice, of undue influence under section 123(2) of the Act.

5. Similarly the petitioner's case was that while canvassing anddelivering speeches on various dates from 2-2-1967 to 15-2-1967 in tenvillages, the returned candidate and his workers Shri Laxmichand andShri Shankar with his consent made the statement of facts in relationto the personal character of Raja Panchamsingh, the Congress candidateto the effect that he was an associate of dacoits, that he had misappro-priated the funds of Pahadgarh School etc., that the said statements werefalse and not believed to be true by the makers and were made to pre-judice the election prospects of Raja Panchamsingh and hence thereturned candidate Shri Brijrajsingh was guilty of corrupt practiceunder section 123(4) of the Act. The petitioner further pleaded thatfrom 20-1-1967 to 19-2-1967 respondent No. 4, Shri Chhotelal Bharadv/ajmade statements of facts in seven villages in relation to the personalcharacter of Raja Panchamsingh to the effect that he was mixed upwith dacoits, that the dacoits had robbed cultivators and businessmanin Pahadgarh forest depriving them of a huge sum of about Rs. 10lacs and the Raja Panchamsingh duly received his share of Rs. 2 lacsand to vote for Raja Panchamsingh would be tantamount to cast votesfor dacoits. Similarly he alleged that the pamphlet (Annexure A)containing false statements against the personal character of RajaPanchamsingh was distributed by Shri Chhotela! Bharadwaj in a meet-ing at Kdaras held on 29-1-1967, that the said pamphlet was circulatedwidely throughout the entire constituency by him and his workersand supporters, namely Shri Kalyansingh Tyagi, Shri Sawaklas Gupta,Shri Babulal Gupta and Shri Kanhaiyaial Singal, with his consent, thatall the statements of facts made against the personal character of RajaPanchamsingh were false and not believed to be true by the makersand, therefore, respondent No. 3 Shri Chhotelal Bharadwaj committedthe corrupt practice under section 123(4) of the Act. It was also thecase of the petitioner that Shri Chhotelal Bharadwaj was made tocontest the election by respondent No. 1 Shri Brijrajsingh to split theCongress votes., that subsequently Shri Chhotelal Bharadwaj supportedthe candidature of the returned candidate, Shri Briirajsingh and thatthe pamphlet (Annexure A) was issued or circulated bv Shri ChhotelalBharadwaj and his workers with the consent of Shri Brijrajsingh and,therefore, Shri Briirajsingh is also guilty of the corrupt practice under•.section 123(4) of the Act.

E.L.R.] RAM DAYAL V. BRIJ RAJ SINGH & OTHERS 5?

6. It was also the case of the petitioner that respondent No. 2 ShriDataram, who is Kirad by caste and respondent No. 3Shri Gangaramsingh, who is Gujar by caste solicited votes on theground of their respective caste and community and, therefore, com-mitted the corrupt practice under section 123(3) of the Act and thesecorrupt practices have materially affected the result of the election inso far as the respondent, No. 1 Shri Brijrajsingh is concerned.

7. The election petitioner's further case was that respondent No. 1Shri Brijrajsingh was set up as a candidate by H. H. MadhavraoScindia, his mother Smt. Vijayaraje Scindia and his sister Usha RajeScindia of Gwalior to contest the election in question. He pleaded thatMaharaja Scindia accompanied by Shri Brijrajsingh visited Kelaras,Pahadgarh, Sujarma, Budhrehta, Kulholi, Sabalgarh, Jhundpura andNarhela in a helicopter for addressing election meetings in support ofShri Brijrajsingh, that at these places Maharaja Scindia acted as ShriBrijrajsingh's agent and the expenses over the helicopter which wereabout one lac of rupees were incurred by Shri Brijrajsingh and MaharajaScindia with his consent. It was also alleged that Maharani Scindiavisited Kelaras and Sabalgarh with a fleet of cars for the same purposeand incurred expenses. According to him these two items of expensesfar exceeded the permissible amount of Rs. 7,000 and have not beenshown by Shri Brijrajsingh in his election return though the expenseswere incurred and authorised by him. On this account, Shri Brijrajsinghis said to have committed corrupt practice under section 12.3(6) of theAct for having incurred and authorised expenditure in contravention ofsection 77 of the Act. Accordingly, he prays that the election of thereturned candidate should be declared to be void.

8. In his written statement, the returned candidate Shri Brijrajsingh,respondent No. 1 denied that he was set up by H. H. MaharajaMadhavrao Scindia and his mother and sister to contest this electionand asserted that he was an independent candidate. He pleaded thatthroughout the country there was grave dissatisfaction against theGovernment of the country which was being carried out by the CongressParty and out of that frustration, public spirited forces emerged foraccomplishing a clear-administration and amelioration of the conditionof the public. H. H. Maharaja Madhavrao Scindia responded to thatcall and organised forces and established "The Central Election Officeof Maharaja Gwalior", which was a compendious expression represent-ing the alliance of such forces. The respondent No. 1 also was alive tothe situation stood up for achievement of the above purpose and accord-ingly he offered himself as an independent candidate at the election andthe above organisation in propagating its views and policies alsosupported him incidentally.

9. He denies that the nomination paper of Shri Dhaniram wasimproperly rejected by the Returning Officer. He has further denied all

58 RAM DAYAL V. BRIJ RAJ SINGH & OTHERS [VOL. XXXVIII

the corrupt practices attributed to him. He also pleaded that he took allreasonable means for preventing corrupt practice at the election andthat the election in all other respects was free from such corrupt prac-tices. Accordingly he prayed that the petition be dismissed.

10. Respondent Nos. 2, 4 and 5 also filed their written statementsand they have denied the respective corrupt practices of which they orthe returned candidate have been accused. Respondent No. 5 ShriSoneram has further pleaded that he has been unnecessarily impleadedas a co-respondent in the petition. They all prayed that the electionpetition be dismissed.

11. Respondent No. 3 Shri Gangaramsingh allowed the case toproceed ex parte against him.

12. On these pleadings of the parties, the following issue have beenframed and my findings thereon are as under :—

ISSUES FINDINGS

(1) (a) Whether respondent no. 1 Brijrajsingh, No.the returned candidate, was set up byH. H. Madhao Rao Scindia, Smt.Vijaya Raje Scindia and Smt. UshaRaje Scindia of Gwalior as alleged bythe petitioner ;

Or

Whether the respondent no. 1 was an Yes.independent candidate as allegedby him?

(b) Whether H. H. Maharaja Scindia Yes.established the "The Central ElectionOffice of Maharaja Gwalior" represen-ting the alliance of various forces asalleged by respondent no. 1 ?

(c) Whether the said organisation in Yes.propagating its views and policyduring the election in question, alsosupported respondent no. 1 inciden-tally as alleged by him?

(2) (a) Whether the nomination paper of one No.Shri Dhaniram, resident of villageUduaka Pura, was improperly rejectedby the Returning Officer as alle-ged by the petitioner?

(b) Whether on account of such rejection No..of Dhaniram's nomination paper, theentire election from the SubalgarhLegislative constituency in questionhas become void under section 100 (1)(c) of the Representation of the PeopleAcE, 1951, as alleged by the petitioner?

B.L.R.] RAM DAYAL V. BRIJ RAJ SINGH & OTHERS

(3) (a) Whether on 19-1-1967, the respondent No.No. 1 paid R.s. 250/- to respondent No.5 Soneram at Morena as bribe and thussuccessfully persuaded him not to fillin his nomination form as alleged?

(b) Whether, therefore, his election is void No.under section 100 (1) (b) of the Act?

(4) (a) Whether during the course of the elec- No.tion between 1-2-1967 to 18-2-1967,the respondent no. 1 made statementsto Ex-zamindars—Shri Rajendrasingh,Shri Jagannath, Shri Jhandusingh,Shri Chimmensingh at villages Sikroda,Sagoria, Kotsirthara, Kurroli andNewalpura to the effect that RajamataShrimati Vijaya Raje Scindia wasgoing to be the Chief Minister of M.P. When she will again introduce zamin-dary system and all the zamindarswill get their zamindary back as allegedby the petitioner?

(b) Whether respondent No. 1 also made No.speeches during the same period andat the same villages as mentionedabove to the same effect as alleged bythe petitioner?

(c) Whether in ?the said speeches the No,respondent No. 1 had declared that hewas a candidate of Maharani Scindiaas alleged by the petitioner ?

(d) Whether the said statements about the No.Rajmata becoming the Chief Ministerand about restoration of the Zamindarisystem amount to corrupt practice andwere made to exercise undue influenceon the Ex-zamindars and cultivatorsin the constituency in question as alle-ged by the petitioner ?

(5) (a) Whether respondent No. 1 accompa- No.nied by Shri Laxmichand of Sabaigarhand Shankar Brahmin of Bajna touredin a jeep fitted with mike and visitedvarious villages on various dates asalleged in para 4 (iii) (a) of thepetition ?

(b) While canvassing and delivering spe- No.eches for his own election in the saidvillages and on the said dates, therespondent No. 1 and with his con-sent, Shri Laxmichand and Shri Shan-kar made the statements (i), (ii), (iii)and (iv) as alleged in para 4 (iii) (b)of the petition?

,60 RAM DAYAL V. BRIJ RAJ SINGH & OTHERS [VOL. XXXVIII

(c) Whether the said statements were Yes, statementsstatements of facts in relation to the (ii) and (iii).personal character, conduct and candi-dature of shri Panchansingh as allegedby the petitioner?

(d) Whether the said statements were falseand which were not believed to be trueby the matters as alleged by thepetitioner?

(e) Whether this was done for furtheringthe prospects of the election of respon- . No findingsdent No. 1 and prejudicing those of ^ are necessary.Shri Panchan Singh as alleged by thepetitioner?

(f) Whether 'this constitutes corruptpractice under section 123(4) of theAct as a'leged? J

(6) (a) Whether Shri Chhotelal Bharadwaj, No.respondent No. 4 was made to contestthe election by the returned candidaterespondent No. 1 Shri Brijraj Singhto divide the votes so that theCongress candidate Raja PanchamSingh does not get majority of votesas alleged by the petitioner?

(b) Whether Shri Chhotelal Bharadwaj,respondent No. 4 made the state-ments as mentioned in para 4 (IV)(a) of the petition to the voters atvarious villages as mentioned inpara (b) between 20-1-1966 to13-2-1966 as alleged by the petitioner?

(c) Whether the same statement wasmade by Shri Chhotela! Bhara-dawaj on 29-1-1966 at Kelarasmeeting and he had also distributedleaflets containing the same matteras alleged?

(d) Whether the said statements were state-ments of facts in relation to the perso-nal character and conduct of RajaPancham Singh, as alleged ?

No.

No.

Yes, distributed.Annexturc A.

Yes.

(e) Whether th? said statements were falseand Shri Chhotelal Bharadwaj did notbelieve them to be true as alleged?

Does not arise.

(7) (a) Whether the said leaflet was printedby Shri Kalyansingh Tyagi with theconsent of Shri Chhotelal Bharadwajin the Cooperative Press Limited,Morena, as alleged ?

Yes.

E.L.R.] RAM DAYAL V. BRU RAJ SINGH & OTHERS 61

(b) Whether the same was printed underthe signatures of Shri SanwaldasGupta, Shri Babulal Gupta, ShriKanhaiyalal Singal, and Shri Kalyan-singh Tyagi and whether they werethe workers and supporters of ShriChhotelal Bharadwaj, as alleged ?

(c) Whether the said leaflet was circula-ted widely throughout the constituen-cy in question as alleged ?

(d) Whether the said leaflet contains thestatement of facts relating to thepersonal character and conduct ofRaja Panchamsingh ?

(e) Whether the said statements men-tioned therein were false and theywere not believed to be true byShri Chhotelal Bhardwaj, ShriSanwaldas Gupta, Shri BabulalGupta, Shri Kanhaiyalal Singal.and Shri Kalyansingh Tyagi asalleged ?

(f ) Whether subesquently, Shri Chhote-lal Bhardwaj supported the can-didature of the returned candidateShri Brijraj Singh, as alleged ?

(g) Whether the pamphlet mentionedabove was issued or circulated withthe consent of the returned candidateShri Brijaraj Singh ?

(h) Whether it has materially affectedthe result of the election so far asthe returned candidate Shri BrijrajSingh is concerned, as alleged bythe petitioner ?

(8) (a) Whether the respondent No. 2 ShriDataram collected the persons of hiscaste KIRAD (Dhakad) in villageMamchon of Tahasil Sabalgarh on1-2-1967 as alleged ?

(b) Whether he addressed the said ga-thering and made an appeal to allKIRAD caste voters to cast theirvotes for him as he belonged totheir caste, as alleged ?

(c) Whether he also threatened that thosewho did not vote for him on theground of his caste would be out-casted, as alleged ?

Yes, underthe signatureof KalyansingTyagi.

Yes.

Yes, statements Ato A C to C andlast lime of D to D.

Yes.They were false andnot believed to be trueby Shri Chhotelal Bha-radwaj and Kalyan-singh Tyagi.

No.

No.

No.

No.

No.

No.

62 RAM DAYAL V. BRIJ RAJ SINGH & OTHERS [VOL. XXXVIII

(d) Whether, therefore, the respondentNo. 2 Shri Dataram had committedcorrupt practice of soliciting voteson the ground of his caste and alsoit constitute as corrupt practice ofundue influence because of the threatof expulsion, as alleged ?

(e) Whether it has materially affectedthe result of the election so for asthe respondent No. 1 Shri BrijrajSingh is concerned, as alleged ?

(9) (a) Whether on the occasion of the"SAPTAH" in village Mara, TahsilJaura, the respondent No. 3 ShriGangaram Singh appealed to thevoters of his caste (GUJAR) tovote for him on the ground of hiscaste, as alleged ?

(b) Whether he asked the voters pre-sent to take a vow that they wouldvote for him and not betray theircaste and whether such a vow wasactually taken by the voters presentthere by extending their hands to-wards the book of Shri Mat Bhagvatas alleged ?

(c) Whether this has materially affectedthe result of the election so far asthe respondent No. 1 Shri BrajrajSingh, the returned candidate isconcerned, as alleged ?

(10) (a) Whether the Maharaja of Scindiaaccompanied by Shri Brijraj Singhthe respondent No. 1, visitedKelaras, Pahadgarh, Sujarma. Budh-rehta, Kulholi, Sabalgarh, Jhoundpura,and Narela, for addressing electionmeetings in support of the respondentNo. 1 in a helicopter, as alleged ?

(b) Whether at these places, theMaharaja of Scindia acted as anagent of respondent No. 1 ShriBrijraj Singh, and the said expensesof the helicopter were incurred bythe Maharaja with the consentof the respondent No. 1 forcarrying on election propaganda ofrespondent No. 1, as alleged ?

(c) Whether such expenses on heli-copter were about one lac asalleged ?

No.

Does not arise.

No.

No.

No finding is necessary.

Maharaja visited only5 villages i.e., Kalearas,Pahadgarh, Budhretha,Jhundpura and Sabal-gara in the helicopter.But he was not acco-mpanied by BrijrajSingh.

No.

No. Actual expenses onhelicopter not provedaffirmatively. On conja-ctural basis, these ex-penses and others didnot exceed the ma-ximum prescribed limitof Rs. 700/-

E.L.R.] RAM DAYAL V. BRIJ RAJ SINGH & OTHERS 63

(d) Whether Maharani Scindia visitedkelaras, and Sabalgarh with afleet of cars for furthering the pro-spects of the respondent No. l'selection, as alleged ?

(e) What were the expenses incurred byher on these visits ?

(f) Whether any of these expenses men-tioned in the above two items wereincurred or authorised by the retur-ned candidate-respondent No. 1Shri Brijraj Singh ?

<g) Whether the expenses incurred orauthorised by this respondent ex-ceeded the limit of Rs. 7,000/- asalleged ?

(h) Whether the respondent No. 1 didnot maintain the accounts in properform as alleged ?

(i) Whether the respondent No. 1 isguilty of any corrupt practice undersection 123(6) of the Act, asalleged ?

(11) Whether Shri Soneram, respondentNo. 5 has been unnecessarily joinedas co-respondent ?

(12) Whether the returnedfcandidate res-pondent No. 1 Shri Brijraj Singh,took all reasonable means forpreventing corrupt practice at theelection and that in all other res-pects the election was free fromany corrupt practice on the part ofthis respondent or any of the agentof the returned candidate, asalleged by the respondent No. 1 ?

(13) Whether the election of the res-pondent No. 1 Shri Brijraj Singhshould be declared void as allegedby the petitioner ?

(14) Relief?

Yes. Visited them in acar followed by anothercar.

Not proved affirma-tively. On conjecturalbasis, they were Rs.45-50 Paise.

No.

No.

Not proved.

No.

The issue left open.

Does not arise.

No.

Petition dismissed withcosts.

13. Issue No. 2(a) and (b).—The main question for our considera-tion is whether the nomination paper of Shri Dhaniram (P.W.9) ofUdva-ka-pura, who was one of the contesting candidates at the electionin question was improperly rejected by the Returning Officer. Dhaniram

64 RAM DAYAL V. BRIJ RAJ SINGH & OTHERS [VOL. XXXVIII

delivered two nomination papers (Ex. P. 7 and P. 8) with his signa-tures to the Returning Officer on 19-1-1967, the last date for makingthe nominations. Each of these two nomination papers purport to bearthe thumb impression of one Gokla as Dhaniram's proposer. Gokla putthe said thumb mark as he is illitearte. The said thumb mark on eachof these two documents does not bear any endorsement showing that itwas authenticated and attested in the presence of the Returning Officeror any such other officer as specified in this behalf. In fact it has not beenattested even by a private person. The simple endorsement on the saidthumb impression is "Ni. Aa. Go\la" meaining thumb impression ofGokla. The learned Returning Officer held on 21-1-1967 the date ofthe scrutiny that as the thumb impression on each of the two nomi-nation papers (Ex. P. 7 and P. 8) was not authenticated and attestedas required by he provisions of the Act and the Rules made thereunderhe rejected both the nomination papers. The question is whether hewas right in rejecting them.

14. Narayan (P. W. 7) one of the contesting candidates andanother Dhaniram of Barha (P.W. 12) who was also one of suchcandidates at the election would have us believe that on the date ofthe scrutiny Gokla (P.W. 10) was present at Morena outside theOffice of the Returning Officer and though Dhaniram of Udva-ka-pura(P.W. 9) brought to the notice of the Returning Officer that hisproposer Gokla (P.W. 10) was present, the said Officer did not payany heed and forthwith rejected the nomination papers on theground that the thumb impression thereon was not attested. Thisevidence relating to Gokla's presence outside the Returning Officer'sOffice on the date of the scrutiny is utterly false because in the pleadingthe petitioner himself has pleaded that Gokla (P.W. 10) was notpresent at Morena on this date. In fact Dhaniram of Udva-ka-pura(P.W. 9) and Gokla (P.W. 10) have themselves deposed that Gokla(P.W. 10) was not present on the date of the scrutiny at Morenaand that Gokla (P.W. 10) was at his house at mouza Udva-ka-puraon that date. The grievance of the petitioner is that the ReturningOfficer did not give any opportunity either to Dhaniram (P.W. 9)or his proposer Gokla (P.W. 10) to prove that the said thumb markwas of Shri Gokla (P.W. 10) and, therefore, his decision rejecting thetwo nomination papers was wrong. It is, therefore, contended that thedefect in the nomination papers which existed at the time of theirpresentation to the Returning Officer and also on the date of thescrutiny could be cured at the scrutiny stage as the defect was not ofa substantial character within the meaning of section 36(4) of theAct. These contentions are wholly without substance.

15. The law on the point that, the nomination papers must berejected if not duly attested seems to have been almost settled. Section33(1) of the Act requires that each candidate shall "deliver to the

E.L.R.] ' RAM DAYAL V. BRIJ RAJ SINGH & OTHERS 65

Returning Officer a nomination paper completed in theprescribed form and signed by the candidate and by an elector of theconstituency as proposer.

[In the unamended section originally the word was 'subs-cribed'. This has been substituted by the word 'signed' by theAmendment Act 27/1956. This amendment was brought about inview of the Supreme Court ruling in Rattan Anmol Singh and ano-ther V. Ch. Atma Ram and othersQ), decided on 21-5-1954].

As regards signing by the candidate and the proposer clause (i) ofsub-section (1) of section 2 of the Act as amended by Act No. 27 of1956 is as under :—

"(i) 'sign' in relation to a person who is unable to writehis name means authenticate in such manner as may be pres-cribed."[Section 2(1) clause (k) of the original unamended Act has beenrelettered as clause (i) mentioned above by the Amendment Act.]

Then sub-rule (2) of rule 2 of the Conduct of Election Rules 1961(hereinafter referred to as 1961 Rules) provides as follows :—

"(2) For the purposes of the Act or these rules, a person whois unable to write his name shall, unless otherwise expressly pro-vided in these rules, be deemed to have signed an instrument orother paper if—(a) he has placed a mark on such instrument or other paper in

the presence of the returning officer or the presiding officer orsuch other officer as may be specified in tihis behalf by theElection Commission, and

(b) such officer on being satisfied as to his identity has attested(the mark as being the mark of that person."

[This rule is identical with rule 2(2) of the Representation of thePeople (Conduct of Elections and Election Petitions) Rules, 1951(hereinafter referred to as the 1951 Rules.).]

16. It will thus be clear that where a person cannot write hisname it will not suffice for him merely to place his thumb mark orother mark on the instrument or other paper. The placing of markshould be in the presence of any of the officer mentioned in clause (a)of rule 2(2) and such officer should attest the mark as being themark of that person on being satisfied as to the identity of the saidperson. What will be the effect if the mark of an illiterate proposeris not put in the presence of and attested by an Officer as requiredunder rale 2(2) quoted above?

(1) A. I. R. 1954 S. C. 510.6—3Elec. Gom./71

66 RAM DAYAL V. BRIJ RAJ SINGH & OTHERS [VOL. XXXVHI

17. First this question came to be considered in Madansingh v.Kalyansingh (2), and it was held that the nomination paper cannotbe rejected merely because the thumb mark of the proposer was notput in the presence of and attested by the Returning Officer. Thereason advanced was that it was not a defect of a substantial characterand there was no dispute about the thumb mark having been of theperson by whom it purported to have been made. A contrary view wastaken, however, in Dharamvir v. Bhalarama and others(3), Ratansinghand another v. Padam Chand Jain and others^, and Kfulai andanother v. Lai Dan Bahadur Singh and others(5), and in these casesit was held that want of due attestation is a substantial defdet andwould invalidate the nomination paper. It was furher held that thedefect of non-attestation of thumb mark could not be remedied bythe Returning Officer subsequently on the date of scrutiny by callingupon the proposer and seconder to admit their thumb marks beforehim.

18. The controversy has been set at rest by the Supreme Court inRattan Anmol Singh and another v. Ch. Attna Ram and others^).It was pointed out there that the word 'subscribe' as existed in theunamended section 33 originally, included element of signing (andthat is why 'subscribed' has now been substituted by 'signed' in sec-tion 33 as amended) and signature whenever it is necessary, must bein strict accordance with the requirements of the Act and where sucha signature cannot be written it must be authorised in the mannerprescribed by rule 2(2) of the 1951 Rules (now 1961 Rules) andaccording to this rule attestation in the prescribed manner is requiredin the case of proposers, who are not able to write their names. TheirLordships of the Supreme Court also held as under :—

'' "Where the nomination papers are not signed either in oneway or the other as contemplated by section 33, they have notbeen 'subscribed' because 'subscribing' imports a 'signature' andas the Act sets out the only kinds of 'signatures' which it will re-cognise as 'signing' for the purposes of the Act, there are no validsignatures of either a proposer or a seconder in the nominationpapers. The Returning Officer is, therefore, bound to reject themunder section 36(2) (d) of the Act [section 36(2) (b) of the Actas amended] because there is a failure to comply with section 33,unless he can have resort to section 36(4)."

(1) A. I. R. 1954 S. C. 510.(2) 6E.L. R. 405;(3) 7 E. L. R. 64;(4) 7 E. L. R. 184;(5) 9 E. L. R. 8;

E.L.R.] RAM DAYAL V. BRIJ RAJ SINGH & OTHERS 67

"Attestation to the mark placed by an illiterate person onnomination papers is as necessary and as substantial as attestationin the cases of a will or a mortgage and is on the same footing asthe 'subscribing' required in the case of the candidate himself. Ifthere is no signature and no mark the forms would have to Herejected and their absence could not be dismissed as technical andunsubstantial. The 'satisfaction' of the Returning Officer whichRule 2(2) of the Rules, 1951 [Rule 2(2) of the 1961 Rules] re-quires is not any the less important and imperative. Thus, thequestion of attestation in such cases is not mere technical orunsubstantial requirement."

"The attestation and the satisfaction contemplated by section2(1) (k) [by section 2(1) (k) of the Amended Act] read withRule 2(2) of Election Rules, 1951 [Rule 2(2) of the 1961 Rules]must exist at the presentation stage. A total omission of such anessential feature cannot be subsequently validated any more thanthe omission of a candidate to sign at all could have been. Theonly jurisdiction the Returning Officer has at the scrutiny stage isto see whether the nominations are in order and to near anddecide objection. He cannot at that stage remedy essential defectsor permit them to be remedied. It is true he is not to reject any

i nomination paper on the ground of any technical defect which isnot of a substantial character but he cannot remedy the defect. Hemust leave it as it is. If it is technical and unsubstantial it willnot matter. If it is not, it cannot be set right."

19. In short Their Lordships of the Supreme Court held that themark of an illiterate proposer must be duly attested by the Officer inthe manner prescribed by rule 2(2) and want of due attestation insuch a case is not a technical defect of an unsubstantial nature. Theyalso went on to hold that the defect of want of attestation at the timeof presentation of the nomination papers cannot be remedied byadding attestation at the time of scrutiny and, therefore, the rejectionof such a nomination paper by the Returning Officer is proper. Inthe instant case we have found that Gokla (P.W. 10) the proposerof Dhaniram (P.W. 9) did not put his thumb mark in the presenceof any of the officers as mentioned in rule 2(2) of the 1961 Rulesand such officer did not attest the mark as being the mark of Gokla(P.W. 10) on being satisfied as to his identity. In fact the evidenceshows that Gokla (P.W. 10) had put the thumb mark on the saidnomination papers at the residence of a Vakil and it was after thatthe candidate Dhaniram (P.W. 9) delivered the two nominationpapers (Ex. P. 7 and P. 8) to the Returning Officer in his office inthe Collectorate at Morena on 19-1-1967. Accordingly the ReturningOfficer was right in rejecting the nomination papers. I therefore hold

68 RAM DAYAL V. BRIJ RAJ SINGH & OTHERS [VOL XXXVIH

that Dhaniram's nomination papers were not improperly rejected andhence the election was not void under section 100(1) (c) of the Act.I decide both these issues in the negative.

20. Issue No. 3(a) and {b).—The solitary witness on the point isShankarlal (P.W. 24) who would have us believe that on 19-1-1967respondent No. 1 Shri Brijrajsingh met respondent No. 5 Shri Sone-ram in the Collectorate Morena and induced him not tio contest theelection and offered to pay a bribe of Rs. 250/-. He further says thatShri Brijrajsingh paid a sum of Rs. 250/- to respondent No. 5 ShriSoneram (R.W. 13) under a Piped tree in the compound of tjhe Collec-torate and thus successfully persuaded him not to contest the election.His own testimony shows that besides Soneram and Brijrajsingh, threemore persons, namely, Badri, Lohare, Tikaram (R.W. 20) were pre-sent and in their presence the inducement was given and the bribewas paid but none of these persons have been examined by thepetitioner. The witness has also admitted in cross-ejamination that hedid not bring this fact about the payment of bribe or the talk aboutinducement to the notice of any person till today. I am satisfied thathe is an untruthful witness. Respondent Soneram (R. W. 13) whowas studying in previous LL.B. at Law College, Gwalior at the rele-vant time has deposed that he had deposited a sum of Rs. 250/- on16-1-1967 after borrowing a sum of Rs. 200/- from his maternal unclebut as subsequently his father was not prepared tio bear the expensesof the election and dissuaded him from contesting it, he dropped theidea. He further deposed that on this account he did not fill in hisnomination paper and withdrew his deposit sometime after. He hasclearly denied that respondent No. 1 Shri Brijrajsingh ever inducedhim not to stand for the election or paid him Rs. 250/- or any amountas a recompense. Tikaram (R. W. 20) has denied that Brijrajsingh paideither Rs. 250/- or any amount to respondent Soneram either in theCollectorate or at any other place. Brijrajsingh (R. W. 25) says thesame thing I believe them as their testimony is consistent with thefacts and probabilities of the case. Accordingly, I decide both theseissues in the negative.

21. Issue No. 4(a), {b), and (d).—The Ex-Zamindars Chiman-singh (P.W. 5) of Kurroli, Jagannath Haripal of Sagoria (P.W. 13)and Rajendrasingh of Sikoda (P.W. 27) would have us believe thatthe respondent Shri Brijrajsingh visited their respective villages duringthe election period and stated to them that Rajmata of Gwalior wouldbecome the Chief Minister of the State of Madhya Pradesh and so thezamindaris shall be restored to the Ex-Zamindars. It was also allegedby the petitioner that Shri Brijrajsingh made similar statements in hisspeeches, said to have been delivered in these very villages on thesame dates but on this points there is hardly any evidence on record.The evidence of these Ex-Zamindars is fantastic to say the least, and

E.L.R.] RAif DAYAL V. BRIJ RAJ SINGH & OTHERS 69

therefore, it cannot be believed. The election propaganda attributed tothe respondent Shri Brijrajsingh is undoubtedly suicidal. These Ex-Zamindars are only a few and far between while the tenants or culti-vators are in thousands and such a propaganda if any, was bound toantagonise the tenants and no sane candidate would report to this typeof election campaign unless he wanted to Court his defeat at theelection.

22. Girwarlal (R.W. 4) of Sagoria has deposed that Ex-ZamindarJagannath (P.W. 13) has not been living at Sagoria for the last 15 or16 years and has been living at mouza Kiraoli. He also deposed thatShri Brijrajsingh never visited mouza Sagoria nor did he make thestatement attributed to him either to the villagers or any Zamindars.Respondent Shri Brijrajsingh (R.W. 25) has stated that during theperiod of the election, he had not visited mouza Sagoria and Sikroda.He admitted that he had visited villages Kot Silthara, Karoli andNawalpura but he denied that he ever stated at these villages that theRajmata will become the Chief Minister and that he Zamindari systemwould be restored. The testimony of these two witnesses is quiteconsistent with the facts and probabilities of the case and so I believethem. I reject the evidence adduced by the petitioner for the reasonsalready given. For all these reasons, I decide issue 4(a), (b) and (c)in the negative.

23. I am further of the opinion that the statements about theRajmata becoming the Chief Minister and consequent restoration ofthe zamindari system does not amount to any corrupt practice asmentioned in section 123 of the Act. During the course of the argu-ment, the petitioner's learned counsel did not bring to my noticeanything to show as to how such an election campaign was going tocreate undue influence on the cultivators to vote in favour of theauthor of such propaganda, namely, Shri Brijrajsingh. As alreadystated such a propaganda, if any, would antagonise the entire tenantryof the constituency. I hold that the said statement does not amountto any corrupt practice under the Act and accordingly decide issueNo. 4(d) in the negative.

24. Issue No. (5) (a) and (£).—In Paras 4(111) (a) and (b) of thepetition it has been pleaded that respondent Shri Brijrajsingh and hisalleged workers Shri Laxmichand of Sabalgarh (R.W. 9) and Shankar-lal of Bajna (R.W. 12) visited ten villages on various dates from2-2-1967 to 16-2-1967 as mentioned therein in connection with Brijraj-singh's election campaign and made false statements against the charac-ter of the Congress nominee Shri Panchamsingh in meetings anddoor-to-door canvassing in the said villages. This has been totally deniedby Shri Brijrajsingh (R.W. 25).

7 0 RAM DAYAL V. BRIJ RAJ SINGH & OTHERS [VOL. XXXVIII

[After considering the evidence on issues Nos. 4(a), (b), (c) and(d), on the allegation of the petitioner that the first respondent alongwith his workers visited several villages and made false statementsagainst the personal conduct and character of the petitioner, thejudgment proceeded] :

# * # # * * # # # * * #

30. The result is that the petitioner has miserably failed to establishthat the respondent Shri Brijrajsingh (R.W.25) or Shri Laxmichand andShri Shankarlal made any statements of facts against the personalcharacter of Shri Panchamsingh in any of the ten villages on the datesmentioned in the relevant pleading. On the other hand Shri Brijraj-singh (R.W. 25), Shri Laxmichand (R.W. 9), Shri Shankarlal (R.W.12) and Shri Tikkaram (R. W. 20) have all denied these facts. Ireject the evidence adduced by the petitioner and believe that of therespondent and his witnesses and decide both these issues in thenegative.

31. Issue No. (5) (c).—Statement No. (i) is that "Shri Pancham-singh was responsible for getting the school at Pahadgarh closed" andstatement No. (iv) is to the effect "that he lets loose ferocious dogstowards the persons who go to see him." In my opinion, these state-ments fall within the category of trivial or limited statements as theydo not involve any moral turpitude or the like. Accordingly they wouldnot be attracted by section 123(4) of the Act.

32. Statement No. (ii) is "that he is an assosiate of dacoits". Inorder that the statement should come within the mischief o{: the defini-tion of false statement under section 123(4) of the Act, it, must be astatement of fact as opposed to a statement or expression of opinion.In Deveshran Sinha v. Sheo Mahadeo Prasad and othersi6) and HabibBhai v. Pyarelal and othersQ), it was held that the mere statement of adefamatory opinion, unless coupled by particulars and the groundsupon which it is formed, is not a statement of fact. Now the case ofKumar a Nand v. Brijmohan Lai Sharma(s) was brought to my notice..In this case it was observed that the question whether the statement isa statement of fact or mere expression of opinion depends on facts ofeach case and has to be judged in circumstances in which the statementis made and in the context of the writing in which it appears in caseit is* part of a writing. The mere fact that the statement is a boldstatement not accompanied by particulars as to time, place etc. does

(6) 1QE. L. R.461.(7) A. I. R. 1964 M. P. 62.(8) A. I. R. 1967 S. C- 808.

E.L.R.] RAM PAYAL V. BRU RAJ SINGH & OTHERS 7 1

not necessarily mean that it is expression of opinion and not statementof fact. It would, therefore, be clear that the proposition of-law in theabove two rulings has been widely stated when viewed in the light ofthe Supreme Court authority. In the present case the statement inquestion was oral. The circumstances in which it was alleged to havebeen made are not quite clear. Thus the said statement remains a boldstatement unaccompanied by any concrete facts or particulars. There-fore, considering the said statement in this settling, I am of the opinionthat it was merely an expression of opinion and not a statement offact. Accordingly I hold that it does not fall within the mischief ofsection 123(4) of the Act. Assuming it is a statement of fact againstthe personal character of Shri Panchamsingh even then the petitioner'scase is not bettered because he has failed to establish that this corruptpractice was committed either by the respondent Shri Brijrajsingh(R.W. 25) or his agent or by any other person with his consent orthat of his election ^gent.

33. As regards statement No. (iii) "that he has misappropriatedthe funds of Pahadgarh school", I have no hesitation to say that this isa statement of fact against the personal character of Shri Panchamsinghand would fall within the provisions of section 123(4), if otheringredients have been established. As already said, the petitioner failedto establish that either Shri Brijrajsingh or his agent or workers madethe said statement either with his consent or with that of the electionagent. Hence he cannot be held guilty of the said corrupt practice onthis account.

34. I decide this issue accordingly.

35. Issue No. (5)(d), (e) and (/).—In view of my findings onissues (5) (a) and (b), no findings are necessary on these issues andI hold them accordingly.

36. Issue Nos. (6) (a) to (e) and (7) (a) to (A).—The broad ques-tions constituting fhese issues are : (i) whether respondent No. 1Shri Brijrajsingh (R. W. 25) induced respondent No. 4 Shri ChhotelalBharadwaj to contest the election in question to split the votes goingto the Congress nominee, Raja Panchamsingh; (ii) whether ShriChhotelal Bharadwaj made the false statement that Raja Panchamsinghhad received a sum of Rs. 2 lacs out of the ransom amount of Rs. 10lacs received by the dacoits; (iii) that the leaflet (Annexure A) containsfalse statements against the personal character of Raja Panchamsingh,whether the same was issued and published by Shri Chhotelal Bharad-waj, his workers and agents with his consent and that the same waswidely distributed throughout the entire constituency; and (iv) subse-quently Shri Chhotelal Bharadwaj supported the candidature of ShriBrijrajsingh and whether the pamphlet (Annexure A) was issued and

*?2 RAM DAYAL V. BRIJ RAJ SINGH & OTHERS [VOL. XXXVIII

circulated with Brijrajsingh's consent. The principal witnesses, amongstothers, examined by the petitioner on these points are Sanwaldas Gupta(P.W. 26), Kalyansingh Tyagi (P.W. 28) and Kanyaiyalal Singal(P.W. 21). These three witnesses were the main and active workers ofShri Chhotelal Bharadwaj but now they have defected from his campand have gone over to the side of the Congress nominee Raja Pancham-singh, who in the beginning of this election was supposed to be theirsworn enemy. This defection shall have to be kept in view in assessingthe evidence of these three witnesses on various points involved in theseissues.

[After considering the evidence on (issues Nos. 6(a) to (e) and7 (a) to (h) the allegations that the first respondent induced the fourthrespondent to contest the election to split the votes of the petitioner,and the fourth respondent made serious allegations against the personalconduct and character of the petitioner, through pamphlet (Annexure*A') of the petition and later on the fourth respondent supported thecandidature of the first respondent, the judgment preceded] :

52. The evidence of Budharam Ex-M.L.A. (P.W. 18), Kanhaiya-lal Singal (P. W. 21), Sanwaldas Gupta (P. W. 26), KalyansinghTyagi (P.W. 28) and Raja Panchamsingh (P.W. 32) shows thatportions marked A to A, B to B, C to C and D to D in the pamphlet(Annexure A) are against the personal character of Raja Pancham-singh and that these statements are false. These portions are in Hindiand their free English translation is as under :—

Portion A to A :—"On the 7th May 1947 at about noon timethe three tried and old Congress leaders, Shri BalmukundMudgal, Shri Visram Sharma and Shri Chhotelal were flagged ontheir backs with wet hunters in the scorching heat and werethrew out from the Pahadgarh fort on the backside of the fortand thus the entire region was groaning under the atrocitiescommitted by Raja Panchamsingh."

Portion B to B:—"The souls of Gandhi and Jawaharlal weresheding tears of blood from heaven on the conditions obtainingin the Sabalgarh region."

Portion C to C :—"Having committed atrocities and bruta-lities through the instrumentality of dacoites, Police and the dogsof his own palace on the orphan public of the Jora region forfive years now Shri Panchamsingh has been dreaming to becomeM.L.A. from Sabalgarh constituency."

Portion D to D :—"(The earlier portion is a piece of poeticpress and there is no evidence on record to show what is actuallymeant by the various references mentioned therein such as a

5.L.R.] RAM DAYAL V. BRIJ RAJ SINGH & OTHERS 73

moving zoo human tigers, ferocious jackels and fleeing, rabbitsand deers etc. Accordingly this part of this portion is ignored).Only the last sentence of this portion has to be taken into consi-deration and this means that Raja Panchamsingh got his fortconstructed by forcibly obtaining be gar labour of Han} anlabourers, who were paid two paise a day as their wages andwants to repeat the same process after obtaining votes (andbecoming M.L.A. thereby).

52A. Regarding corrupt practice relating to false statement as con-templated by section 123(4) of the Act the essential ingrediants areas under :—

"(i) The publication must be by a candidate or his agent orby any other person with the consent of the candidate or hiselection agent.

(ii) It must be a publication of a statement of fact, which isfalse as a matter of fact and which the publisher either believesto be false or does not believe to be true.

(iii) The statement of fact must relate to the personal charac-ter or conduct of the candidate (as distinguished from his publicconduct in connection with his political or other activities) orin relation to his candidature or withdrawal.

(iv) It must be a statement which is reasonably calculatedto prejudice the prospects of that candidate's election.

In order that the statement should come within the mischief of thedefinition of false statement under section 123(4) of the Act, it mustbe a statement of fact as opposed to a statement or expression ofopinion. Thus the statement of opinion, however, unjust or harshit may be, without reference to any concrete fact, does not comewithin the mischief of this section. Secondly, the statement of factmust be in relation to the personal character or conduct of the candi-date but if it relates to his public arid political character, it would notbe covered by this section.

53. Now in the light of the law as discussed above, we shallproceed to consider whether the impugned portions mentioned afbovefall wichin the mischief of section 123(4) of the Act I am satisfiedthat the portions A to A, C to C and the last sentence of portion Dto D are statements of facts (and not statements or expression ofopinion.) and they relate to the personal character or conduct ofRaja Panchamsingh and not to his political or public character. Theportion B to B in my opinion is not a statement of fact against

7 4 RAM DAYAL V. BRIJ RAJ SINGH & OTHERS [VOL. XXXVIU

the persu/nal character of Raja Panchamsingh and, therefore, it doesnot fall within the provision of section 123(4) of the Act and henceit is ignored.

54. Raja Panchamsingh (P.W. 32) and Shri Budharam Ex-M.L.A. (P.W. 18) have deposed that these statements of facts againstthe personal character of Raja Pamchamsingh are false. The samething has been said by Kanhaiyalal Singal (P.W. 21), SanvaldasGupta (P.W. 26), Kalyansingh Tyagi (P.W. 28) and some otherwitnesses examined by the petitioner. Against this there is no •evidence to show that these offensive allegations were true. Thecircumstances of the case also indicate that these false statements weremade deliberately knowing them to be false. There is no evidenceon record jto show that they were made bona fide. Thus these allega-tions were very grave and highly offensive. They have painted RajaPanchamsingh (P.W. 32) in very bad colours. They were made atthe eve of election and the said pamphlet was widely distributed inthe constituency in question by Shri Chhotelal Bharadwaj and hisworker Kalyansingh Tyagi (P. W. 28) with his consent. All thesecircumstances taken collectively go to establish that these false state-ments were reasonably calculated to prejudice the prospects of RajaPanchamsingh's election.

55. It has been established that the original manuscript (Ex. P. 4)of the pamphlet (Annexure A) was drafted by respondent No. 4Shri Chhotelal Bharadwaj and it is further established that the originalwas signed by his worker Kalyansingh Tyagi (P.W. 28). It is alsoestablished that Kalyansingh Tyagi (P.W. 28) got it printed withthe consent of Shri Chhotelal Bharadwaj. Also there is positive anddefinite evidence on record that Kalyansingh Tyagi (P.W. 28) andChhotelal Bhardwaj widely distributed the copies of this pamphlet invarious villages of the constituency in question. All these facts takencollectively coupled with the facts stated above would establish thatrespondent No. 4 Shri Chhotelal Bharadwaj committed the corruptpractice of making false statement as provided under section 123(4)of the Act. He committed it personally as also through his workerKalyansingh Tyagi (P.W. 28) with his consent.

56. But the same thing cannot be said about Kanhaiyalal Singal(P.W. 21), Sanvaldas Gupta (P.W. 26) and Babulal Gupta thoughthey were his workers. It is not established that any of them hadsigned the manuscript (Ex. P. 4) the original of the pamphlet(Annexure A). Also there is no definite evidence on record to -establish that Sanvaldas Gupta (P.W. 26) or Kanhaiyalal Singal •(P.W. 21) or Babulal Gupta circulated this pamphlet in the consti-

tuency in question. Kanhaiyalal Singhal (P.W. 21)- and SanvaldasGupta (P. W. 26) have given explanation Ohat as Shri Chhotelal

E.L.R.] RAM DAYAL V. BRIJ RAJ SIMQH & OTHERS 75

Bharadwaj had taken the entire responsibility for the consequencesof publishing this pamphlet they did not take any steps to dissociatethemselves from the said pamphlet though it purported to bear theirnames. The explanation appears to me unsatisfactory but the factremains that the original manuscript was not signed by them andShri Babulal Gupta. That being the position it cannot be said thatShri Chhotelal Bharadwaj committed the corrupt practice undersection 123(4) of the Act through Kanhaiyalal Singal (P.W. 21) andSanvaldas Gupta (P.W. 26).

57. Therefore, as far as issue No. (7) (a) is concerned, I holdthat the leaflet (Annexure A) was printed by Shri Kalyansingh Tyagi(P. W. 28) with the consent of Shri Chhotelal Bharadwaj in the Co-operative Press Ltd. Morena and decide issue No. (7) (a) in theaffirmative. It was printed under the signature of Shri KalyansinghTyagi (P.W. 28) the worker of Shri Chhotelal Bharadwaj and withhis consent but it was not printed under the signatures of SanvaldasGupta (P.W. 26), Babulal Gupta and Kanhaiyalal Singal (P.W. 21)and decide issue No. (7)(b) accordingly. It has been establishedthat the said leaflet was circulated widely by Shri Chhotelal Bharad-waj—personally and also through his worker, shri Kalyansingh Tyagi(P.W. 28) throughout the various villages of the constituency inquestion and decide issue (c) in the affirmative. The three statementsA to A, C to C and last line of D to D in Annexure A as stated abovecontained the statements of facts relating to the personal characterand conduct of Raja Panchamsingh and decide issue (d) in theaffirmative. The said statements were false and they were not believ-ed to be true by Shri Chhotelal Bharadwaj and his worker Kalyan-singh Tyagi (P.W. 28) and decide the issue accordingly. At nostage of the election period Shri Chhotelal supported the candidatureof Shri Brijrajsingh and decide issue (f) in the negative. As alreadyheld the pamphlet (Annexure A) was never issued or circulated withthe consent of Shri Brijrajsigh. In fact he had no connection what-soever with the printing or publishing of the said pamphlet. Accor-dingly I decide issue (g) in the negative.

58. As regards issue (7)(h), we have found above that it is res-pondent No. 4 Shri Chhotelal Bharadwaj who is guilty of corruptpractice under section 123(4) of the Act. The question is whetheron this account the election of the returned candidate Shri Brijraj-singh can be declared to be void or can it be said that the result ofthe election so far as Shri Brijrajsingh the returned candidate is con-cerned has been materially affected. In Jamuna Prasad Singh v.Shri Ratnnivas and others ("). Their Lordships observed as under :—

"A bare perusal of section 100 of the Representation of thePeople Act clearly shows that corrupt practices committed with;

(9) A. I. R- 1959 M. P- 226.

7 6 RAM DAYAL V. BRIJ RAJ SINGH & OTHERS [VOL. XXXVIII

the consent of the returned candidate or his election agent or byany other person in the interests of the returned candidate canalone be the subject matter of enquiry, and it is on the basis ofsuch corrupt practices alone that the election can be declared tobe void. It is quite clear that if corrupt practices are committedby other candidates in the field they can not be put to the accountof the returned candidate and a case made out against him."

There are no pleadings muchless any evidence on record to show thatShri Chhotelal Bharadwaj who committed the said corrupt practiceunder section 123(4) of the Act was the worker or agent of ShriBrijrajsingh the returned candidate or that Shri Chhotelal Bharadwajcommitted the said practice with Shri Brijrajsjngh's consent. Simi-larly there is no material on record to show that Shri ChhotelalBharadwaj's workers or agents were the workiers or agents of ShriBrijrajsingh or they or any of them committed the corrupt practicewith Shri Brijrajsingh's consent. In short, there is nothing on recordto show that the returned candidate Shri Brijrajsingh was in anyway connected with the corrupt practice committed by Shri Bharad-waj. That being so the said corrupt practice committed by ShriChhotelal Bharadwaj cannot be put to the account of the returnedcandidate Shri Brijrajsingh as held in the above mentioned ruling.In other words it has to be ignored as far as the result of electionof the returned candidate Shri Brijrajsingh is concerned. AccordinglyI decide this issue in the negative.

59. As regards issue No. (6), I have already discussed the evidenceand held that Shri Chhotelal Bharadwaj was not made to contestthe election by the returned candidate Shri Brijrajsingh to divide thevotes going to Raja Panchamsingh and hence decide issue No. (6) (a)in the negative.

60. As regards issue No. (6)(b), there are only three witnesseson the point and they are Sanvaldas Gupta (P.W. 26), KalyansinghTyagi (P.W. 28) and Gajadhar (P.W. 25). The first two witnesses•say that Shri Chhotelal Bharadwaj held some meetings in somevillages and in those meetings he stated that Raja Panchamsingh hadreceived his share of a sum of Rs. 2 lacs from the dacoits who intheir turn had received the ransom amount of Rs. 10 lacs from theagriculturistis and business-men and, therefore, to vote for RajaPanchamsingh would be tantemount to vote for the dacoits. Theevidence of these two witnesses has been found to be utterly false onmany points as already discussed and, therefore, I reject their evidenceon this point also as it is not supported by other independent evidenceof the persons of the villages concerned. Gajadhar (P.W. 25) ofMouza Sagoria says that Shri Chhotelal Bharadwaj had made similar

E.L.R.] RAM DAYAL V. BRU RAJ SINGH & OTHERS 77

statements in a meeting held at Sagoria but this village is not includedin the seven villages as mentioned in para 4(IV)(b) of the petitionand, therefore, no reliance can be placed on his evidence. Hisevidence also shows that he was already busy in the alleged Santahjiat his house and therefore, it is highly improbable that he had at allattended the alleged meeting said to have been held by Shri Chhote-lal Bharadwaj in which he is alleged to have made the said statement.I reject his evidence.—Accordingly I decide issue No. 6(b), in thenegative.

61. As to issue no. 6(c), there is not an iota of evidence on recordto show that the same statement was made by Shri Chhotelal Bharad-waj on 29-1-1967 at Kelaras meeting and hence I decide first part ofthis issue in the negative. It is true as already discussed that in thismeeting the pamphlet (Annexure A) was distributed by him and?therefore, I decided the latter part of this issue in the affirmative.

62. As to issue No. (6)(d), I am clear in my opinion that thesaid statement was statement of facts in relation to the personalcharacter and conduct of Raja Panchamsingh and so I decided issue(6)(d) in the affirmative. In view of my findings on the above issues,the finding on issue No. (6)(e) does not arise and I decide itaccordingly.

63. Even if we assume that Shri Chhotelal Bharadwaj made thesaid statement and that it was false and he made it not believing itto be true and committed the corrupt practice under section 123(4)of the Act, it cannot be put to the account of the returned candidateShri Brijrajsingh for the reasons already given on issue No. (7)(h).Thus it would have no effect upon the result of the election as far asthe returned candidate Shri Brijrajsingh is concerned.

64. hsue No. (8)0) to (e)

The evidence on the point that respondent No. 2 Shri Dataram,,who is Kirad by caste collected the persons of Kirad caste in villageNamchon and appealed to them that they should vote for him as hewas also a Kirad else they would be out-casted, is extremely meagreand utterly unreliable. Yeshwantsingh (P.W. 6) of Konda has beenexamined on this point but his evidence appears to me highly arti-ficial. I reject it. Angatram (R. W. 5) of Mamchon has deposedthat no such meeting was called by Shri Dataram at Mamchon andno votes were asked by him in his favour on the basis of Kirad castenor did he give any threat to out-caste the Kirads. I believe him.The charge regarding corrupt practice has to be proved by reliable,positive and definite evidence, which has been wanting in this case.Accordingly I decide issues (8) (a), (b), (c) and (d) in the negative.

7 8 RAM DAYAL V. BRU RAJ SINGH & OTHERS [VOL. XXXVIII

In view of these findings, on these issues no finding on issueNo. (8)(e) would arise. Assuming for the sake of argument thatrespondent No. 2 Shri Dataram who was one of the contesting candi-dates committed the said corrupt practice on the ground of undueinfluence and caste under section 123(2) and (3) of the Act, eventhen it cannot be debited to the account of the returned candidateShri Brijrajsingh for the reasons already stated earlier as it is notshown that Shri Brijrajsingh was in any way connected with the cor-rupt practice, if any, committed by Shri Dataram.

65. Issue No. (9) (a), (b) and (c).

The evidence on this point also is extremely meagre. Tikaram(P.W. 15) of Pahadgarh would have us believe that he attended theSaptah in village Mara and there respondent No. 3 Shri Gangaram-singh, who is Gujar by caste appealed to the voters of his caste tovote for him on the basis of his caste and that Gujars assembled theretook the oath that they would vote for him by extending their handstowards the book Shri Mad Bhagwat. He belongs to Pahadgarh,the very village from where the petitioner hails. His evidence isunreliable and artificial. As against this respondent No. 3, ShriGangaramsingh (R.W. 22) has entered the witness-box and denied onoath the corrupt practice assigned to him. Similarly Shri Angatram(R.W. 5) has stated that Tikaram (P.W. 15) did not attend the saidSaptah. I believe these witnesses and decide issues (9) (a) and (b)in the negative. In view of my findings given on these issues nofinding arises on issue No. 9(c) and hence I hold it accordingly.Even otherwise the election of Shri Brijrajsingh cannot be declaredvoid for the reasons already given if it is assumed that respondentNo. 3 Shri Gangaramsingh has committed the said corrupt practice.

66. Issue No. (1)(«), (3) and (c).

The question is whether the returned candidate respondent No. 1Shri Brijrajsingh was set up by H. H. Madhao Rao Scindia and hismother Rajmata Smt. Vijya Raje Scindia to contest the election inquestion or whether he was an independent candidate as contendedby the parties. The petitioner has tried to support his contention onthe ground that at some places the Maharaja and the Rajmataaddressed election meetings and in these meetings they declared thatShri Brijrajsingh was sponsored as a candidate by them and thevoters should support him. On the other hand, Shri Brijrajsinghhas laid evidence to show that H. H. Maharaja Scindia had esta-blished "The Central Election Office of Maharaja Gwalior" represen-ting the alliance of various political parties and individuals opposed

- to the Congress candidate and in propagating its views and policyduring the election this organisation also supported Shri Brijrajsinghincidentally. This issue has a material bearing on the question of

^.L.R . ] RAM DAYAL V. BRIJ RAJ SINGH & OTHERS 79

expenses said to have been incurred by H. H. Maharaja Scindia onthe helicopter in which he visited some villages in the constituencyin question for election propaganda and those incurred by his mother,the Rajmata, who visited two villages in cars for the same purpose.The petitioner's contention is that the election expenses on these twotypes of conveyances were more than Rs. one lac and, therefore, ShriBrijrajsingh committed the corrupt practice under section 123(6) ofthe Ace as the said expenses exceeded the permissible limit ofRs. 7000/- in contravention of section 77 of the Act. The latter partof this contention is a subject matter of issue No. 10 and this will bedecided at its appropriate stage. At this stage we have to consider

the question whether Shri Brijrajsingh was an independent candidateor whether he was set up by H. H. Maharaja Scindia and his mother.

67. The evidence adduced by the petitioner on this point may bedivided into four parts. The first part consists of the witnesses ofthe type of Dataram (P.W. 1), who simply say that Shri Brijrajsinghwas sponsored as a candidate by the Rani Sahiba of Gwalior but theydo not give the basis or particulars on which they say so. Hence infinal analysis this type of evidence turns out to be a mere guess and,therefore, I do not place any reliance on such evidence.

68. The second part of the evidence is of such witnesses asSanvaldas Gupta (P.W. 26) and Kalyansingh Tyagi (P.W. 28) whotried to show that they visited H. H. Maharaja Scindia at Gwaliorand requested him to adopt Shri Chhotelal Bharadwaj, respondentNo. 4 as their candidate for election in question and they were toldby the Maharaja that they were late as he had already decided to setup Shri Brijrajsingh as his candidate and, therefore, they shouldactively support him. I have already rejected their evidence as utterlyunreliable on this point. Hence this type of evidence too has to beignored.

69. The third part of the evidence consisted of the facts consti-tuting issue (4)(b) and (c) to the effect that in his speeches deliveredin certain villages and on certain dates as mentioned in issue No. 4(a),Shri Brijrajsingh had declared that he was the candidate of MaharaniScindia. I have already found earlier that there is not an iota ofevidence on record about such speeches and such declaration anddecided the issue No. 4(c) in. the negative. Thus this type of evidencetoo has to be ignored.

70. The fourth part of the evidence relates to the facts that theRajmata, namely, the mother of H. H. Maharaja Scindia visited thevillages Kelaras and Sabalgarh on 4th or 5th February 1967 in a caraccompanied by four or five cars and delivered speeches there andamongst other things she declared that Shri Brijrajsingh was set up by

80 RAM DAYAL V. BRIJ RAJ SINGH & OTHERS [VOL. XXXVIII

her and the persons present there should vote for him and strengthenher hands. Similarly H. H. Maharaja Scindia visited eight villages,namely, Kelaras, Pahadgarh, Sujaram, Budhreta, Kulhouli, Sabalgarh,Jhundpura and Narela on 11th or 12th February 1967 in a heli-copter and addressed the meetings in these villages and in his speecheshe amongst other things declared that Shri Brijrajsingh was sponsoredas a candidate for the election in question by him and his mother andthat the voters should vote for him. [After considering the evidenceon the allegations in issue Nos. (l)(a)» (b) and (c) that the first res-pondent, the returned candidate, was set up by H. H. Madhao RaoScindia and his mother, the Rajmata, and that both addressed electionmeetings at several places, supporting the candidature of the first res-pondent, who was their alliance candidate and that the expenditureincurred by Maharaja and the Rajmata on helicopter and cars, shouldbe debited to the account of the first respondent's election expenses, thejudgment proceeded] :

However, the evidence as discussed above would show that theRajmata and her son propagated the views and policy of the organi-sation, which was an alliance of various political parties opposed tothe Congress and in doing so, they also stated that they supportedShri Brijrajsingh (R.W. 25), and Atamdas but the voters were atliberty to vote for any other candidate but not the Congress candidate.

80. This conclusion receives appreciable support from the testi-mony of some of the witnesses examined by the petitioner. Kanhaiya-lal Singal (P.W. 21) of Kelaras has admitted in cross-examinationthat in the meetings addressed there by the Maharaja and his motherrespectively, they referred to the mal-administration headed by theCongress-party and that same required to be replaced by pure admini-stration and incidentally requested the voters to vote for Shri Brijraj-singh and Atamdas. What the witness exactly admitted in cross-examination is as under :

" . .he (Maharaja) had said that the then administrationwas not good ; there were several evils in the administration,they have to be removed and a pure administration is to be givento the masses. Rajmata Gwalior too made the statement as this . . .besides for the election Prachar, the Maharaja Saheb and Rajmatatoured the whole State of Madhya Pradesh..."

Similarly, Sardarsingh (P.W. 11), who also attended the Kelarasmeetings addressed by the Rajmata and her son, admitted in cross-examination that—

"It is correct that in both these meetings, Rani Sahiba andMaharaja Saheb respectively referred to the corruption rampantin the administration and mal-administration. They also stated

E.L.R.] , RAM DAYAL v. BRIJ RAJ SINGH & OTHERS 81

there in these meetings respectively that they wanted to removethese ills from the administration and give the masses a pureadminisration..."

Again, Dhaniram (P.W. 12) of Barha, it he is to be believed, hasadmitted in cross-examination as under :

"Maharaja Gwalior, during his address in the meeting, refer-red to the mal-administration of the Congress and corruption,prevailing in the administration. He also stated there that hewould try to remove the evils of the mal-administration. After hemade these statements, then he asked the persons assembled inthe meeting to vote for Shri Brijrajsingh and Shri Atamdas-:....".81. If these statements are read in the light of petitioner's other

witnesses, namely, Chimansingh of Kurroli (P.W. 5), Narayan ofKelaras (P.W. 7) and Shri Budharam Ex-M.L.A. of Sabalgarh(P.W. 18), who state that Shri Brijrajsingh was an independentcandidate and contested the election in question in that capacity, itwould be clear that the Rajmata and his son propagated the views andthe policy of the Organisation referred to above and in doing so, theyalso extended their support to the respondent Shri Brijrajsingh andAtamdas in the meetings addressed by them respectively. This wouldindicate that the support from the Rajmata and her son to Shri Brij-rajsingh came incidentally. It is true that some of the respondent'switnesses who gave evidence on this point are interested in him, butit is also equally true that their testimony receives corroboration frompetitioner's own witnesses as discussed above, and, therefore, the testi-mony of respondent's witnesses cannot be discarded. I am consciousof the fact that some other witnesses of the petitioner simply statedthat the Maharaja and his mother, in their speeches, said only thismuch that Shri Brijrajsingh and Shri Atamdas were their candidatesas set up by them and the voters assembled there should cast theirvotes in favour of these candidates and that beyond this, they didnot say anything else. Some of these witnesses tried to be theatricalin as much as they said that Shri Brijrajsingh and Shri Atamdas wereactually called on the dias by the Maharaja and his mother and theyasked them to stand up which they did and then asked the personsassembled there to vote for these two candidates and take a vow thatthey would vote for them and in token thereof, the persons assembledthere actually raised their hands. It may, however, be noted that thislast part was not supported by other witnesses of the petitioner. Whenthese witnesses were asked in their cross-examination whether theMaharaja and his mother referred to alleged corrupt administrationof the Congress rule and the various vices from which it was saidto be suffering, they replied in the negative. This is undoubtedlyfalse as some witnesses of the petitioner referred to above have actually,admitted these facts.

7—3 Elec. Com/71

$ 2 RAM DAYAL V. BRU RAJ SINGH & OTHERS [VOL. XXXV1U

82. I am also conscious of the pamphlet 'Y' (Ex. P-17) whichwas produced by Shfi Girwar Singh (P.W. 30), the election agent ofthe Congress candidate, Raja Panchamsingh, during the course of hisevidence. This pamphlet shows that Shri Brijrajsingh was supportedby Rajmata Vijya Raje Scindia and her son. The witness says thathe received it at Kelaras from a worker of Shri Brijrajsingh but heis unable to give the name of the said worker or the date on whichhe received it. His guess is that it was got printed either by theMaharaja or with his consent by Shri Brijrajsingh. This is merely aconjecture. The press line shows that it was printed in ShrikantPress, Lashkar and the best person to throw light about the authorof this pamphlet would have been the Manager of the Press or oneof its employees but none of them has been examined in this case norits manuscript has been brought on record. As already stated, theevidence of this witness is vague and merely conjectural. In thecircumstances, therefore, it cannot be held that the said pamphletwas got printed either by Shri Brijrajsingh or the Maharaja or thatthe same was distributed by Shri Brijrajsingh's worker. Even if weassume that it was got printed by any of these two persons, the peti-tioner's case is not bettered because it simply says that the Rajmataand her son extended tl^ir .suppoit to Shri Bri nsjsingh. It does notsay that Shri Brijrajsingh was set up by them as their candidate. Alsothe police report (Ex. P. 16) relating to Sabalgarh meeting addressedby the Rajmata has little evidentiary value as its scribe has not beenexamined and as also S. I. Shri Umashankar Dube (P.W. 31) doesnot vouchsafe for the truth or otherwise of its contents.

83. Taking an over-all view of the evidence discussed above, Ihold that the respondent No. 1 Shri Brijrajsingh was not set up asa candidate by Rajmata and her son but he was an independent can-didate and contested the election in that capacity and thus decideissue No. ( l ) (a ) in the negative and the alternative issue in theaffirmative. I further hold that "The Central Election Office ofMaharaja Gwalior" represented the political organisation which wasan alliance or combination of various political parties and indepen-dents as stated earlier ; that it was an anti-congress front and wasestablished with the objects and policy as stated above ; and that inpropagating its views and policy during the election in question, thisorganisation supported Shri Brijrajsingh, respondent No. 1, and thusthe support was incidental. Accordingly, I decide issues (a), (b) and(c) in the affirmative.

84. Issue No. 10(a) :

We have already found that Maharaja Scindia visited the fivevillages (and not eight as alleged by the petitioner) namely\ Kelaras,

I.L.R.J RAM DAYAL V. BRIJ RAJ SINGH & OTHERS 8 3

Pahadgarh, Budhreta, ]hundpura and Sabalgarh, in a helicopter on11th or 12th February 1967, and addressed the meetings there. Thequestion is whether the respondent Shri Brijrajsingh (R.W. 25) hadaccompanied him in the said helicopter to these five villages. Thesuggestion is that the expenses, if any, incurred by the Maharaja inconnection with the helicopter, were borne by him with the consentof Shri Brijrajsingh.

[After considering the evidence on the allegations in issue No.10(tf) that the Maharaja accompanied by the first respondent visitedfive villages in a helicopter, where the Maharaja addressed meetingssupporting the candidature of the first respondent, and that the ex-penses incurred on the helicopter should be to account of the firstrespondent, the judgment proceeded] :

I also hold that the Maharaja was not accompanied by the respon-dent Shri Brijrajsingh in the helicopter when the former visited the fivevillages. I decide this issue accordingly.

93. Issue No. (10) (c), (d) and (e).—It is common ground that theRajmata visited Kelaras and Sabalgarh but according to the petitionershe did so with a fleet of cars and according to the evidence adduced bythe petitioner this fleet has been reduced to four or five cars. Accordingto the evidence adduced by the respondent, she visited these two placesin one car followed by one other car. I believe the evidence adduced bythe respondent, Shri Brijrajsingh and disbelieve that adduced by thepetitioner in the circumstances of the case. Accordingly I hold thatshe visited these two places in a car followed by another car. On thepoint of expenses incurred on these two cars the petitioner has not ad-duced any evidence. It is true that some expenses must have been in-curred on pertol, mobile oil etc., for these two cars but what those ex-penses actually were have not been proved. The testimony of the peti-tioner, Ramdayal (P.W. 29) that about Rs. 5000 were spent on theseitems and others in connection with the Kelaras meeting addressed bythe Rajmata stands self-condemned by his own admission that he wasnot present in the said meeting. We are thus left simply to guess theexpenses incurred for petrol etc., for these two cars. Such guess workis not permissible when the corrupt practice under section 123(6) of theAct is to be established as under the section the amount of expenses hasto be proved by positive and definite evidence.

After considering the evidence on the allegations in issues Nos. (10)(c), (d) and (e) that, Rajmata visited some places in cars and in a heli-copter to canvass votes for the first respondent, and that the expensesincurred on cars and helicopter should be shared or borne by the firstrespondent, the judgment proceeded :

84 RAM DAYAL V. BR1J RAJ SINGH & OTHERS [VOL. XXXVIII

101. Even otherwise on the basis of evidence of the petitioner Ram-day al (P.W. 29) the expenses would not exceed Rs. 7000/-. Accordingto him the helicopter remained in each village for about 45 minutes.We have seen above that the Maharaja visited the five villages in thishelicopter. Therefore, the total period comes to 3f hours. At the rateof Rs. 1400/- per hour the hire for this period would come to Rs. 5250/-.Add to it Rs. 91/- the expenditure incurred on the two cars andRs. 890.18 Paise shown in the election expenses return (Ex. P. 23). Thusthe total expenditure would amount to about Rs. 6231/- well below thepermissible limit of Rs. 7000/-. This would be so if the apportionmentis disregarded and the entire amount is debited to the account ofShri Brijrajsingh (R.W. 25) ; but if the apportionment is taken intoconsideration then the expenditure would certainly be far far belowthe permissible limit. Therefore, even on the basis of the petitioner'sown evidence, the election expenses of Shri Brijrajsingh would not ex-ceed Rs. 7000/- even if they are calculated on conjectural basis.

102. For all these reasons I hold that the petitioner failed to estab-lish that the expenses on the helicopter were about Rs. one lac and decideissue No. 10(c) accordingly. I further hold that such expenses includ-ing others did not exceed the permissible limit of Rs. 7000/- even if wegive the best case to the petitioner.

103. Issue No. (10)(b), (/) and (g).—Even if we assume that res-pondent Shri Brijrajsingh (R.W. 25) incurred or authorised the expen-diture on the helicopter and the two cars in connection with his election,that would not render him guilty of corrupt practice under section123(6) of the Act because we have found above that the total expensesincluding these two items did not exceed Rs. 7000/-. If, however, byany arithmetical process the petitioner succeeds in establishing that theexpenses on the helicopter and the two cars exceeded Rs. 7000/- or suchexpenses plus the expenses shown in election expenses return (Ex. P. 23)exceeded the limit of Rs. 7000/- then the question would arise whetherhe personally incurred the two items of expenses, namely, on the heli-copter and the two cars or whether he had authorised the Maharajaand his mother to incur those expenses.

104. Section 77 of the Act provides that—

"(1) Every candidate at an election shall, either by himself orby his election agent, keep a separate and correct account of all ex-penditure in connection with the election incurred or authorised byhim or by his election agent between the date of publication of thenotification calling the election and the date of declaration of theresult thereof, both dates inclusive.

E.L.R.] RAM DAYAL V. BRIJ RAJ SINGH & OTHERS , 85

(2) The account shall contain such particulars, as may be pres-cribed. .

(3) The total of the said expenditure shall not exceed suchamount as may be prescribed."

Under clause (6) of section 123 of the Act incurring or authorising ex-penditure in contravention of section 77 of the Act is a corrupt practice.The question arises whether 'contravention' means contravention ofclause (3) of section 77 only, i.e. exceeding the prescribed maximumlimits, or also contravention of clauses1 (1) and (2). It has been heldin the following rulings that clause (6) of section 123 relates only tocontravention of clause (3) of section 77, vide N. L. Verma v. Munilaland others(lO), Sheopatsingh v.. Hari$chandra(\l), Shivram SwantBhonsale v. Pratap Rao Deorao Bhonsale (12), Ram Abhila\h Titvariv. Election Tribunal, Gonda and others (14), 5. Kandaswami v. S. B.Adityan and others{\5), Savitri Devi v. Prabhawati Mishra and ano-ther'(16), and Pandit K. C. Sharma v. Krishi Pandit Rishab\umar andothers(Yl). Failure to keep accounts in the prescribed manner or non-maintenance of true accounts is not a corrupt practice vide C. R. Nara-simhan v. M. G. Natesan Chettiar(IS) and Biresh Misra v. Ram NatkSarma and others(19) and various cases cited above. Thus failure tomaintain election accounts in accordance with sub-section (1) and (2)of section 77 does not amount to a corrupt practice. It is a matter to beconsidered by the Election Commission vide Shivram Sawant Bhonsalev. Pratap Rao Deorao Bhonsale(12). A contrary view was taken in theTribunal's decision in Saw. Ganesan v. M. A. Muthiah Chiettiar (20)but this decision does not lay down good law in view of numerous deci-sions to the contrary quoted above.

105. So the position boils down to this that now under the Act theaccount is to be kept "of all expenditure in connection with the electionincurred or authorised by the candidate or his election agent". In otherwords the expenses to be taken into account must thus be either incur-red by the candidate or by the election agent or authorised by either ofthe two. Thus the word "authorised" very much limits the scope of

(10) 15 E. L. R. 495;(11) 16E.L.R. 103;(12) 17 E. L. R. 37;(14) 14 E. L. R-375;(15) 21 E. L. R.435;(16) 15 E. L. R. 358;(17) 20E. L. R-40S;\18) 20E.L.R. 1;(19) 17E-L. R. 243;(20) 19 E. L. R. 16.

86 RAM DAYAL V. BRIJ RAJ SINGH & OTHERS [VOL. XXXVlli

the expenses which are to be taken into account for the purposes o£maintenance of account, maximum expenses and lodging of account ofexpenses.

106. Therefore, in order to hold respondent, Shri Brijrajsingh(R.W. 25) guilty of corrupt practice under section 123(6) of the Actfor contravening the provision of sub-clause (3) of section 77 that heexceeded the maximum limit of Rs. 7000/- prescribed under the Rules.The following essential ingredients shall have to be established by posi-tive, reliable and conclusive evidence :—

(i) That the expenditure on the helicopter and the two cars usedby the Maharaja and his mother respectively was incurred orauthorised by Shri Brijrajsingh (R.W. 25);

Or

the said expenditure was incurred or authorised by his electionagent; and

(ii) That the same was incurred or authorised in connection withShri Brijrajsingh's election.

107. It is now settled that the burden of proof of a charge of cor-rupt practice under the Act is on the petitioner, who assails the electionof the returned candidate on the ground that he has committed suchcorrupt practice. In Jagdevsingh Sidhanti v. Pratapsingh Daulata andothers(2V). Their Lordships of the Supreme Court held as under :—

"In the trail of an election petition, the burden of proving thatthe election of a successful candidate is liable to be set aside on theplea that he was responsible directly or through his agents for cor-rupt practices at the election, lies heavily upon the applicant andunless it is established in both its branches, i.e., the commission ofacts which the law regards as* corrupt, and the responsibility of thesuccessful candidate directly or through his agents or with his con-sent for its practice not by mere preponderance of probability, butby cogent and reliable evidence beyond any reasonable doubt, thepetition must fail."

Similarly in Dr. Jagjitsingh v. Giant Kartar Singh and others(22), itwas held as under :—

"Where an Election Tribunal deals with allegations about thecommission of corrupt practice by a returned candidate, the chargesframed are in the nature of quasi-criminal charges. The proof of

(21) A. I. R. 1965 S. C 183(22) A. I. R. 1966 S. C. 773

E.L.R.] RAM DAYAL V. BRU RAJ SINGH & OTHERS gl

the charge has a double consequence ; the election of the returnedcandidate is set aside, and he incurs subsequent disqualification aswell. Therefore, when a charge of this kind is framed against a

v returned candidate, it has to be'proved satisfactorily."Thus this corrupt practice under section 123(6) of the Act with whichthe respondent was charged should have been proved beyond any rea-sonable doubt by cogent, positive and reliable evidence. Simply addu-cing evidence which does nothing more than creating suspicion wouldnot be sufficient to establish the corrupt practice because suspicion isnot the same thing as proof of the corrupt practice with which therespondent was charged.

108. I have already said that the expenditure on the helicopter andthe two cars and what was the actual amount of such expenditure hasnot been established by positive evidence. I have further said above thateven on conjectural basis the expenses incurred do not exceed the maxi-mum prescribed limit. If, however, the petitioner somehow or the othersucceeds in showing that such expenditure exceeded the said limit eventhen he is not out of the woods. In addition to this he shall have toestablish the essential ingredients as mentioned above. This, therefore,brings us to the consideration of the ingredients referred to above.

109. As regards the ingredient No. (1), it may be noted that pre-vious to the passing of the Amendment Act No. 27 of 1956, the returnof the election expenses had to include not only the expenses incurred orauthorised by the candidate or his election agent, but also those incurredby any other agent \vide old section 123(7) read with old section 761.Now as expressly provided by the new section 77(1) only expenses in-curred or authorised by the candidate himself or by his election agentare required to be included in the account or return of election expensesThus expenses incurred by any other agent or person without anythingmore need not be included in the account or the return as such incurringwould be purely voluntary. It may be accepted that the expenses on thehelicopter and the two cars whatever they may be might have been in-curred by the Maharaja and his mother, the Rajmata. It is, however,nobody's case that either the Maharaja or his mother was an electionagent of respondent Shri Brijrajsingh and, therefore, they cannot betaken into account as expenses in connection with Shri Brijrajsingh'selection as they were neither incurred nor authorised by Shri Brijraj-singh's election agent.

110. Now the question is whether Shri Brijrajsingh (R.W. 25), in-curred or authorised the said expenditure. In Sheopatsingh v. Harish-chandra{\\). Their Lordships of the Rajasthan High Court held that"One incurs expenditure when one actually spends money, one autho-rises expenditure when one incurs a pecuniary liability " Their

(U) 16 E. L. R. 103

&8 RAM DAYAL V. BRIJ RAJ SINGH & OTHERS K'<i'•! !

Lordships of the Raiasthan High Court have also held in this very casethat "We are of the opinion that it was for the petitioner to show thatin obtaining these vehicles, the appellant authorised any expenditure,that is to say, that he incurred a pecuniary liability which could be en-forced against him in a Court of Law." The same view was also adopt-ed by the Madras High Court in M. A. Muthiah Chattiar v. Saw Ganc-san(23), in which Their Lordships: relied on the Rajasthan decision re-ferred to above and also the Supreme Court decision in Rananjaya Singhv. Bapnath Singh and others(2§). Similarly the same view was takenby the Madras High Court in G. Vasantha Pai v. A. Srinivasan andothers {25).

111. In the case in hand, there is not an iota of evidence on recordto show that the respondent Shri Brijrajsingh (R.W. 25) actually spentany money on the helicopter used by the Maharaja in visiting the fivevillages and the two cars used by his mother in visiting the two villages.Similarly there is not an iota of evidence on record either direct or cir-cumstantial to show that respondent Shri Brrrajsingh (R.W. 25) hadauthorised the Maharaja and his mother either expressly or impliedlyto incur the expenditure on the helicopter and two cars so as to incur apecuniary liability, which could be enforced by them against him in aCourt of law. Therefore, it must be held that the petitioner failed toestablish that the expenditure on the helicopter and the two cars wascither incurred oi authorised by the respondent Shri Briirajsingh (R.W.25). If the—Maharaja and his mother incurred the ..aid expenditurethen they must have done so either as volunteers or in propagating theobjects, the views and the policy of the political organisation which wasan alliance of various political parties as stated earlier and, in eithercase, this expenditure cannot be debited to the account of respondentShri Brijrajsingh (R.W. 25). Thus the petitioner has failed to establishthe first essential ingrediant.

112. Now, we go over to the second essential ingredient, namely,whether the said expenditure was in connection with Shri Brijraisir.i-rh'selection. I have already said that a political organisation or a politicalparty had come into existence on the eve of the general election heldin February 1967 for assembly and parliamentary constituencies. Thispolitical organisation was an alliance or combination of various politicalparties, such as Bhartiya Jansingh, Bhartiya Kranti Dal, P.S.P., S.S.P.,Communist and independents. Thus, it was a political party or a poli-tical organisation or association and was the creation mainly of theRajamata and her son Maharaja Madhao Rao Scindia who were itsmoving spirits. It was established on the grounds that there was" agreat dissatisfaction throughout the country against the Congress-rule

(23) 21 E . T T R . 215(24) 10 E. L. R. 129 S. C.(25) 22 E. L. R. 221.

E.L.R.] RAM DAYAL V. BRIJ RAJ SINGH & OTHERS 89

which had come to stay in the wake of its twenty years regime and thatthe same was alleged to be riddled with various vices such as corruption,.bribery etc. The object of this organisation was to replace the Congressrule by a pure and better administration and thus alleviate the troublesand difficulties of the masses. In order to achieve these objects, this orga-nisation picked up such candidates for assembly and parliamentary seatsfrom the area oi; the erst-while Gwalior State, as had fair chances ofsuccess in the election. The material on record also shows that to edu-cate the constituencies and promote the views and the policy this orga-nisation stood for, the Rajmata and her son extensively toured thevarious assembly and parliamentary constituencies in this State in a heli-copter and cars. Thus, this political organisation was an ante-congressfront and its main object was to oust the Congress party from politicalpower.

113. As far as the present case is concerned, the Maharaja visi-ted the five villages in a helicopter and his mother the Rajmata of•Gwalior toured two villages in two cars, held meetings there to propa-gate the views and the policy of this political organisation and whiledoing so, they also extended their support to the respondent Shri Brij-rajsingh and as already stated this support was only incidental. Canit be said that these expenses were in connection with the election ofrespondent Shri Brijrajsingh'?

114. The law appears to be settled that money spent by a politicalfiarty carrying on broad based propoganda to promote its views andpolicy and educate the electoral constituency, cannot be characterisedas expenses in connection with the election of its candidate. Here Imay refer to page 184 of the Law of Election and Election Petitions byVeda Vyasa and P. N. Chadha where the learned Authers observed asunder :—

"The law is well established that the expenses incurred in pio-moting the political views of a party even though the candidatewas associated with them, are not election expenses to be includedby him in his account or return. Thus the expenses of a meetingheld by a party to diffuse its political views or educate the consti-tuency would not constitute election expenses even though heldafter the commencement of the candidature and the candidate was

, . present (Lancaster/ case, 5O'M. and H. 39, 44) or spoke (Elgin; case O'M. and H.2) at the meeting ; for political associations are

entitled to hold meetings to promote their principle and the pre-sence of a candidate at a meeting does not make it one to promoteor procure his election. (Lancaster case, supra). Such expensesamount to expenses incurred in cultivating the support of the con-

stituency and recommending the candidate to it. (Elgin case,

9 0 RAM DAYAL V. BRIJ RAJ SINGH & OTHERS [VOL. XXXVH

supra). The mere fact that the prospects of the particular candi-date are advanced by lectures given at a meeting would not make-expenses incurred at the meeting as election expenses. {Haggerstoncase, 5 O'M. and H. 70). Brace J.5 in Haggerston case [(1896) 5O'M. and H.70] made it clear that the true test was whether theprinciple purpose of the meeting was to promote the election of thecandidate or merely a meeting called for some other purpose butfrom which the candidate derived some indirect or remote advan-tage."

In India the same view was taken in Prabhudas v. Jorsang(26), inwhich it was observed by Their Lordships of the Bombay High Courtthat money spent by a political party in carrying on propaganda in:favour of the party as such, cannot be said to have been incurred as anagent of the candidate set up by the party even though the amount wasspent with the consent of the candidate. It was further held that theknowledge of the candidate that any person was incurring expenditureand the candidate was getting the benefit, will not make any difference.It was also held that propaganda relating to the principles or policy ofthe party cannot be regarded as expenses incurred for or on behalf ofthe candidate. Similarly, in Biresh Misra v. Ram Nat/i Sarma andothers(17). Their Lordships of the Assam High Court held asunder :—

"Expenses incurred by the Congress Committee for printingand distribution of leaflets to induce people to support the Congresscandidate cannot be deemed expenses incurred or authorised by thecandidate himself ; and the candidate is not, therefore, bound toinclude such expenses in his account of election expenses."

Again, in Mubara\ Mazdoor v. Lai Bahadur(2%). Their Lordships ofthe Allahabad High Court also took the same view. In this case, thelate lamented Jawaherlal Nehru who was the leader of the Congressparty had visited the constituency and addressed meetings in support ofthe candidature of the respondent (namely, the late lamented Lai Baha-dur Shashtri who was the Congress-candidate) and the petitioner con-tended that the expenses incurred by the All India Congress Committeeand the District Congress Committees in this behalf must be includedin the election expenses of the respondent. The learned Judges repelled,these contentions holding as under :—

"(i) that, under rule 131 of the Rules as amended in 1956'(now Rule 86 of the 1961 Rules) only such expenditure as had beenincurred or authorised by the candidate or his election, agent had;to be included in the election expenses ;(26) 18E.L. R. 110(27) 17 E. L. R. 423(28) 20 E. L. R. 176.

E.L.R.] RAM DAYAL V. BRIJ RAJ SINGH & OTHERS 9 1

(ii) that the word "authorised" was not equivalent to the ex-pression "with the consent or the knowledge of," and that even ifthe respondent knew that the All India or the District CongressCommittees had incurred some expenditure in this behalf, such,expenditure could not be treated as expenditure "incurred or autho-rised" by the respondent ;

(iii) The burden of proving that the All India and the Dis-trict Congress Committees had incurred some expenses in this mat-ter and the amount of the expenses that they had incurred, was onthe petitioner and not on the respondent."

This ruling also indicates that the general principle to the effect thatfacts in the knowledge of a particular person must be proved by himcannot normally be applied in cases where the petitioner has to proveaffirmatively the corrupt practice with which the successful candidateis charged. Further in V. B. Raju v. V. Ramchandra Rao and others(29). Their Lordships of the Andhra Pradesh High Court took thesame view and held that "expenditure incurred by a party organisationfor holding public meetings in the general campaign conducted by theparty for the purpose of getting support for all the party candidates ofa particular locality is not expenditure incurred by any of the particularcandidates and need not be included in their return of election expenses."In the earlier case, namely, Mastram v. Harnam Singh Sethi and others(30), decided by the Election Tribunal, Ludhiana, the same view wastaken, namely, expenses incurred by the Congress organisation or otherpersons for a meeting held with the main object of propagating thecause of the Congress in general, cannot be held to be election expensesof the candidate set up by the Congress.

115. The organisation referred to above was a political organisationof a political party and the expenditure was incurred to propagate theviews and the policy of the said organisation and even though in someof the meetings, respondent Shri Brijrajsingh was present and eventhough, knowledge may be inputed to him that the election propa-ganda carried on by the Maharaja and his mother would incidentallybenefit him, such expenses cannot be debited to him in view of thevarious authorities cited above.

116. It was not argued before me that these rulings only apply t»recognised political parties and to which election symbols have beenallotted and not to political organisation which has not been so recog-nised. Such contention even if it had been raised would have deservedrejection. When vehicles are lent by friends gratuiously to a candidate

(29) 21 E. L. R. I.(30) 7 E. L. R. 301.

9 2 RAM DAYAL V. BRIJ RAJ SINGH & OTHERS [VOL. XXXVIII

the reasonable rent of such vehicles need not be shown in the accountof election expenses because in such a case it cannot be said that an ex-penditure is incurred or authorised by the candidate vide Biresh Misrav. Ram Naih Sarma and others (19). Similarly in the Supreme Courtcase of Rananjaya Singh v. Baijnath Singh and others(24) (supra), itwas held that the salary of the servants employed by the candidate'sfather could not be debited to the candidate if the said servants inciden-tally worked for the candidate in his election and they were charac-terised as 'mere volunteers as far as the candidate was concerned. Whenin such cases the expenses cannot be called as expenses incurred inconnection with the candidates election the same result would followin the case of political organisation though not recognised by theGovernment. In any case the principle underlying the rulings citedabove would apply to this political organisation which was an allianceof various political parties.

117. It was also the petitioner's contention that the Maharaja actedas Shri Brijrajsingh's agent when he delivered his speeches in these fivevillages and that as Shri Brijrajsingh had accompanied him to thesevillages in the helicopter the expenses thereon must be held as incurredby the Maharaja with Shri Brijrajsingh's consent and, therefore, autho-rised by him. This contention has no substance. I have already heldthat Shri Brijrajsingh did not accompany the Maharaja in the heli-copter to any of these places and, therefore, it is wrong to say that theMaharaja incurred the expenses with the consent of Shri Brijrajsingh.Also there is no evidence on record to show that Shri Brijrajsingh "hadgiven his consent or authorised the Maharaja either expressly or implied-ly to incur expenses on the helicopter. So this contention is rejected.

118. As regards the contention that the Maharaja acted as Shri Brij-rajsingh's agent in these meetings the authorities cited above andthe history of the circumstances. in which tiie Maharaja addressedthe meetings in the live villages are a complete reply to this allegation.More incidental support extended to him by the Maharaja (or hismother) while propogating the views and the policy of the politicalorganisation or educating the constituency in that behalf would notmake him (or his mother) as the agent of Shri Brijrajsingh. Assumingthat either the Maharaja or his mother was Shri Brijrajsingh's agentand if they incurred the expenditure mentioned above that cannot besaddled on Shri Brrrajsingh because the expenditure has to be incurredor authorised by the election agent and not by any agent. On thisground also Shri Brijrajsingh cannot be held responsible for this ex-penditure.

(19) 17 E. L. R. 243(24) 10 E. L. R. 129 S. C-

E.L.R.] RAM DAYAL V. BRIJ RAJ SINGH & OTHERS 93

119. For all these resons I decided issue no. 10(b), (f) and (g) inthe negative.

120. Issue No. 10(A).—There is no evidence on record to show thatrespondent No. 1 Shri Briirajsingh did not maintain the accounts inproper form. Even otherwise contravention of clauses (1) and (2) ofsection 77 of the Act would not constitute corrupt practice under sec-tion 123(6) of the Act as already stated. I, therefore, hold that the peti-tioner failed to establish that the accounts were not properly maintain-ed and decide this issue accordingly.

121. Issue No. 10(z).—In view of my findings given above onvarious parts of issue No. 10, I hold that respondent Shri Brijrajsingh.is not guilty of the corrupt practice under section 123(6) of the Actand thus decide this issue in the negative.

122. Issue No. 11.—At the time of the argument this issue wasnot pressed and so no arguments were addressed to me on this point.Accordingly I leave this issue open.

123. Issue No. 12.—It is not established that either the returnedcandidate Shri Brijrajsingh or any of his agents or workers committedany corrupt practice. Accordingly no finding arises on this issue andI hold it accordingly.

124. Issue No. 13.—It is clear from the findings given on variousissues in this case that respondent No. 1 Shri Brijrajsingh is not guiltyof having committed any corrupt practice either personally or throughhis agents or workers and, therefore, his election cannot be declared tobe void and hence I decide this issue in the negative.

125. It has been established that the manuscript (Ex. P. 4) of thepamphlet (Annexure A) is in the hand-writing of respondent No. 4Shri Chhotelal Bharadwaj and the same was prepared by him. It wasgot printed by his worker Shri Kalyansingh Tyagi (P. W. 28) withthe consent of Shri Chhotelal Bharadwaj. The said leaflet was circu-lated widely by Shri Chhotelal Bharadwaj personally and also throughhis worker Shri Kalyansingh Tyagi (P.W. 28) through-out or variousvillages of the constituency in question. It is also established that thethree statement, A to A, C to C, and last line of D to D in the saidpamphlet contained the statement of facts relating to the personal cha-racter and conduct of the Congress candidate Raja Panchamsingh. Itis further proved that the said statements were false and they were notbelieved to be true by Shri Chhotelal Bhardawaj. Further the saidpamphlet was published on the eve of the election and Raja Pancham-singh has been painted therein in worse colours and, therefore, I amof the opinion that these statements were reasonably calculated to pre-judice the prospects of the election of Raja Panchamsingh. Hence res-pondent No. 4, Shri Chhotelal Bharadwaj is guilty of corrupt practice

•94 RAM DAYAL V. BRIJ RAJ SINGH & OTHERS [VOL. XXXVIII

under section 123(4) of the Act as already stated. He is already aparty to the petition. As he is found guilty of corrupt practice undersection 123(4) of the Act, he shall be disqualified for a period of sixyears under section 8A of the Act from the date of this order. It is,however, needless to say that the corrupt practice committed by ShriChhotelal Bharadwaj cannot be debited to the account of the returnedcandidate Shri Brijrajsingh as the latter has not been shown to be con-nected, in any manner, with this corrupt practice.

126. The result, therefore, is that the petitioner failed to establishthat the returned candidate, respondent No. 1 Shri Brijrajsingh com-mitted any corrupt practices with which he was charged. I further holdthat the nomination paper of Shri Dhaniram resident of village Udve-ka-pura was properly rejected by the Returning Officer. Accordinglythe election of the returned candidate, Shri Brijrajsingh is upheld andthe election petition is dismissed with costs. The petitioner shall paythe costs of respondent No. 1 Shri Brijrajsingh and respondents No. 2Dataram, No. 4 Shri Chhotelal Bharadwaj and No. 5 Shri Soneramand bear his own. Counsel's fee for respondent No. 1 Shri BrijrajsinghRs. 350/- and that for respondents Shri Dataram Chhotelal Bharadwajand Soneram jointly Rs. 150/- if certified. Respondent No. 3, Shri Gan-garamsingh allowed the case to proceed ex parte and, therefore, he shallbear his own costs. Counsels fee for the petitioner Rs. 850/- if certified.

127. As already stated, respondent No. 4 Shri Chhotelal Bhardwaj,who has been found guilty of the corrupt practice under section 123(4)of the Act shall be disqualified for a period of six years from the dateof this order under section 8A of the Act.

Petition dismissed.

S.L.R.] RAM MILAN SINGH V. H. S. PRASAD GUPTA & ORS. 95

[IN THE COURT OF THE ELECTION TRIBUNAL, GORAKHPUR]

RAM MILAN SINGH

V.

HARI SHANKAR PRASAD GUPTA AND OTHERS

(SRI R. S. SINGH, MEMBER ELECTION TRIBUNAL)

May 8, 1968.

Representation of People Act, 1951, Sections 83(l)(a), 92, 97(1), 101(a),169—Conduct of Elections Rules, 1961, Rules 73(l)(d), 83(l)(d)— Constitution ofIndia, Article 324, Sub-Clause (1), 327—"Rejected" ballot papers not endorsed bythe Returning Officer under Rule 73(1)(d),—Whether illegal—Plea of petitionerfor inspection of ballot boxes—Rejection of plea by Returning Officer against theRules—llequirements of Section 83(1)(a)—Whether such plea is sustainable beforeTribunal—Recrimination under Section 97(1)—failure by returned candidate tofile—Whether the returned candidate is entitled to amend his written statementfor recounting of votes—Power of inspection given to Election Commission byamendment of Rule 93(d), whether ultra vires of the Constitution.

The petitioner, a defeated candidate, challened the election of the firstrespondent to the U.P. Legislative Council from the Basti-Cwfw-Gorakhpur LocalAuthorities constituency, alleging inter alia that there was illegal and improperrejection of at least 200 valid votes polled in favour of the petitioner, and thatthe result of the election had been materially affected since there was illegalreception of at least 200 void votes in favour of the first respondent. It wasfurther alleged that the rejected ballot papers of the petitioner did not bear theendorsement of "Rejected" of the Returning Officer nor was the ground ofrejection recorded as required by Rules 73(1) (d) of the Conduct of ElectionsRules. It was also alleged that there had been flagrant non-compliance with theprovisions of the Conduct of Elections Rules and the pleas raised by the petitionerand his election agents for inspection of rejected ballot papers were not allowed.The petitioner prayed for a declaration that the election of the first respondentwas void and for a declaration that he himself was duly elected under Section101 (a) of the Act.

The first respondent contended that the allegations made in the petition werevague and that there was a prima facie want of evidence. It was further urgedthat the amendment of Rule 93(d) of.the Conduct of Elections Rules, 1961,giving power to the Election Commission to allow inspection of the ballot paperwas ultra vires* of the Constitution, since under Section 92 of the Act, this powerhad already been conferred on the Tribunal. It was also contended by the firstrespondent that the election petition had not been properly verified and the•copy of the petition served on him was not duly attested in accordance with law.

(The Tribunal passed separate orders on the three applications made by thefirst respondent that the petition was vague, and that no recounting of votesshould be allowed on the vague allegations. The orders of the Tribunal arepublished after the main judgement).

96 RAM MILAN SINGH V. B. S. PRASAD GUPTA & ORS. [VOL. XXXVIIt

HELD : Allowing the petition :

(i) The rejection of ballot papers at the time of counting which did notbear the endorsement "rejected" in the handwriting of the Returning Officer wasillegal in view of rule 73(l)(d) of the Conduct of Elections Rules, and the ballotpapers so rejected would have to be re-checked.

When the petitioner had substantially established after a recount of therejected ballot papers, that the votes were wrongly counted and that the votescast in his favour were wrongly rejected, his subsequent plea for a recount ofother ballot papers alleged to have been illegally accepted in favour of the firstrespondent was sustainabie and could be granted in the interest of justice by theTribunal in exercise of the powers under Section 92 of the Act. It would netamount to a fishign or roving inquiry, since the petitioner was denied theopportunity of giving the details of such ballot papers in his petition, as requiredunder Section 83(l)(a) of the Act. •

Hukflm Singh v. Banwari Lai, A.I.R. 1965 All. 552; Dr. Jag jit Singh v..Gaini Kartar Singh and others, A.I.R. 1966 S.C. 773; Mahadeo v. TJdai PartapSingh and others, A.I.R. 1965, S.C. 824; Ram Sewak, Yadav v. Hussain KamilKidwai, A.I.R. 1964, S.C. 1349; referred to:

(ii) Where the petitioner had pleaded before the Tribunal for proceedingsto be taken under the provisions of Section 101 (a) of the Act, the respondent,the returned candidate, had no right to amend his written statement asking forrecounting of the votes cast in favour of the petitioner, and his own rejectedvotes. As the respondent failed to take the opportunity under Section 97(1) tofile a recrimination petition within the period of limitation, he was precludedfrom raising such a plea at the trial stage. In th? circumstances of the case, theTribunal would have to deal with the dispute under Section 101 (a) of the Act.

Nathu Ram Shi\sha\ v. R. P. Dixit, 1965 A.L.J.P. 25; Johar Singh v.Genda Lai, A.I.R. 1964, S.C. 1200; Satyaketh:: v. Election Tribunal, Bareilly,A.L.J. 1963, 841; Bhimsen v. Gopali, 22 E.L.R. 288 (S.C);

(iii) So long as the rule making power in Section 169 of the Act remainsin tact, any amendment of Rule 93(d) of Conduct of Elections Rules, conferringthe power of inspection of records on the Election Commission would not beultra vires the Constitution. The provision contained in Article 324(1) of theConstitution is not co-terminus with the declaration of results, but also includesappointment of Election Tribunal. Under Section 92 of the Act, the Tribunalhas the powers of a Civil Court and the power of inspection derived by theTribunal from Order II of the Civil Procedure Code, would not create anyconflict of jurisdiction between the Tribunal and the Election Commission.

Election Petition No. 7 of 1966.

JUDGMENT

On 24-4-1966 election for the U.P. Legislative Council for theBasti-cMW-Gorakhpur Local Authorities Constituency was held. SriRam Milan Singh, the petitioner and respondents Hari Shanker PrasadGupta No. 1, Brahmdeo No. 2, Ramakant Shukla No. 3 and Bhrigu-nath No. 4 were the candidates. The counting of votes was done on26-4-1966 and respondent No. 1 Sri Hari Shanker Prasad was declaredas duly elected.

E.t.R.] BA$jMILAN SBN0H V, H. S. PRASAPeUPTA&ORS. 97

Sri Ram Milan Singh has filed this election petition on the groundthat the election of the respondent 1st set is invalid because}

(i) the result of the election has been materially affected in sofar as it concerns the respondent 1st set on the ground ofillegal and improper rejection of at least 200 valid votes (about180 first preference and about 20 second preference from theballot papers of Bhrigunath, Rama Kant and Brahnideo) incontravention of Rule 73(2) (a) to (d) of the Conduct ofElectjbns Rules, 1961, polled in favour of the petitioner ;

(ii) the result of the election has been materially affected in sofar as it concerns the respondent 1st set on the ground ofillegal reception of at least 200 void votes by the ReturningOfficer irv favour of respondent 1st set;

(iii) in any case the respondent 1st set was credited by the Return-ing Officer with at least 200 votes tainted with the same legalflaws as characterised and equal number of votes polled inthe petitioner's favour that were rejected by the ReturningOfficer as invalid votes;

(iv) the 200 rejected ballot papers of the petitioner did not bearthe endorsement of 'Rejected' in the handwriting of the Re-turning Officer nor his signature* nor the ground of their re-jection as required by rule 73(1) (d) of the Conduct of Elec-tions Rules, 1961, and

(v) in the counting of votes there has been flagrant non-complianceof the provisions of Rule 76 to rule 81 and the schedule toRule 83 appended for observance of the Returning Officer.

It was further contended that the votes were not properly counteddespite objections by the petitioner and he was not allowed inspection.

Sri Ram Milan Singh prayed that the election of the respondentJ.st set be declared void and that he be declared returned as a memberof the U.P. Legislative Council from the Basti-c«fw-Gorakhpur LocalAuthorities Constituency.

Respondent No. 1 alone filed written statement and contested thepetition. The proceedings went exparte against respondents 2, 3 and4. It appears that respondents 2, 3, and 4 have no interest in the resultof the election and the main Contest is between the petitioner andrespondent No. I.

Respondent No. 1 in his written statement pleaded that the resultof election has not been materially affected by any improper rejectionor improper acceptance of ballot papers or by any non-compliance of8—3 Elec. Gom./71 -

98 RAM MILAN SINGH V. H- S. PRASAD GUPTA & ORS. [VOL. XXXVlU

the Act or Rules, that the petitioner was present at the time of count-ing of votes and it was wrong to say that the petitioner or his agentswere not allowed to see the ballot papers and raise objections, thatRule 73(2) of the Conduct of Elections Rules was not contravened,that there was no violation of Rules 76 to 81 as alleged, that the rejec-tion of ballot papers was done in accordance with the provisions ofrule 73(2) of the Conduct of Elections Rules and cannot be questionedin these proceedings, that all the ballot papers rejected bore the en-dorsement of the Assistant Returning Officer, and that the petitioner'sallegation that his 200 valid votes were illegally rejected was wrong.It was also wrong that invalid votes were counted in favour of res-pondent No. 1.

It was further pleaded that the petitioner succeeded in obtainingan order of the Election Commission dated 12-5-1966 for inspectionof some election records and the order of the Election Commission isvoid and illegal because the amendment of Rule 93 clause (b) ofproviso to Rule 93(1) is ultra vires of the Constitution of India andbeyond the rule making power under the Representation of the PeopleAct and that the Election Commission by its illegal order assumedjurisdiction which legally vested in the Election Tribunal.

In the written statement the conduct of local officers has also beencriticised, that some officers were transferred and inspection was al-lowed and there was some tampering.

It was also pleaded that the election petition is vague and fit to berejected and that the petitioner was not entitled to any relief.

The following issues were framed by my learned predecessor-in-office Sri R. K. Sircar:—

1. Whether the election petition has been properly verified? Ifnot, its effect?

2. Whether the amendment of Rule 93 (d) of the Conduct ofElections Rules framed under S. 169 of the Representation ofthe People Act 1951 by the Central Government on 7th Sep-tember, 1962, is ultra vires of the Constitution ?

3. Whether the result of the election has been materially affectedby improper rejection of valid votes cast in favour of thepetitioner and respondents 2, 3, and 4 and illegal reception ofvoid votes cast in favour of the respondent No. 1?

4. Whether there was any tampering on the rejected ballot pa-pers as alleged by respondent No. 1?

; 5. To what relief, if any, is the petitioner entitled?

E.L.R.] RAM MltAN SINGH V. H. S. PRASAD GUPTA & ORS. 99

On 2-3-1968 an application 86/G was presented ori behalf of res-pondent No. 1 to the effect that he Was not supplied with a copy ofthe election petition under the signatures of the petitioner to be a truecopy. It was urged that the details with regard to improperly acceptedand rejected ballot papers have not been given in the petition andthat the election petition should be thrown out. Thereafter issuesNos. 6 and 7 were framed by me on 3-3-1968.

Issue No. 6: Whether the copy of the election petition suppliedto respondent No. 1 is duly attested under the law? If not, its effect?

Issue No. 7: Whether the petitioner should have given the detailsof all the valid and invalid ballot papers in the petition on which herelies? If not, what is its effect?

FINDINGS

Issues No. 1 & 6 : It is the case of respondent No. 1 that theelection petition has not been properly verified and that the copy ofelection petition supplied to him is not duly attested under the law.

Under S. 83 (c) of the Representation of the People Act 1951 anelection petition shall be signed by the petitioner and verified in themanner laid down in the Code of Civil Procedure 1908 (Act 5 of1908) for the verification of pleadings.

Under S. 81(3) of the same Act every election petition shall beaccompanied by as many copies thereof as there are respondents men-tioned in the petition and one more copy for the use of the ElectionCommission, and every such copy shall be attested by the petitionerunder his own signature to be true copy of the petition.

The election petition originally was verified by Sri Ram MilanSingh as follows:—

"I Ram Milan Singh petitioner do hereby verify to-day onJune 2, 1966, in the Civil Court Vakalatkhana, Basti, U.P., thatthe contents of paragraphs No. 1, No. 2, No. 3, No. A, No. 5 andNo. 6 and No. 9 are true to my personal knowledge and the con-tents of clause (2), paragraph 7 and Schedule are based on informa-tion received and believed to be true."

This verification was amended by order dated 29-7-67 as follows:—

"I Ram Milan Singh petitioner verify today in the Civil Courtcompound, Gorakhpur, that the contents of paras 1, 2, 3, 4, 5 and6 and 9 are true to my personal knowledge and that of paras. 7and 8 partly on personal knowledge and partly on informationreceived, which I believe to be true."

100 RAM MILAN SINGH V. .JB< S. PRASAD GUPTA & QRS. [VOL. XXXVIII

This amendment was necessitated because in the first, verificationthere wa8 no reference to para 8 a tbd the petition had. bgeri verifiedat BastL .-.

Application No t 72/Ka-2 was filed with the allegation that thepetition was originally verified at Basti on 2-6-1966 because the peti-tioner had to leave for Delhi t& present the petition before the Elec-tion Commission. The security was deposited in the Reserve Bankon 3-6-1966 and it was on 4-8-1966 that it was presented before theElection Commission;

It was mentioned in the application that due to typing omissionthere was no reference in the verification to para 8 of the electionpetition.

The election Tribunal allowed the application by order dated29-7-1967 and the petitioner was allowed to amend the verification.

Nothing has been pointed out to me as to how the verification isfaulty. The verification is complete in all respects and I think therespondent No. 1 should not have any grouse about the correctnessof the verification. The verification is complete in all respects withinthe meaning of the Civil Procedure Code.

Now the question is whether the copy given to the respondenthas been duly attested within the, meaning of S. 81(3) of the Repre-sentation of the People Act or not.

It is conceded that the; petitioner presented 5 copies before theElection Commission.

The respondent filed the copy of the Election Petition which wasgiven to him by the petitioner. It is Ex. Al on the record. Thereis an endorsement by Sri A. N. Sen, Under Secretary, Election Com-mission, on the first page of the petition^ on the left side, to the effectthat it was presented by Sri Ram Milan Singh "whose signature hasbeen obtained on the margin and attested as having been signed beforeme this the fourth day of June, One Thousand Nine Hundred andSixty Six."

Thereafter the signature of Sri Ram Milan Singh has been. attestedby Sri A. N. Sen, Under Secretary, Election Commission, India. Thereis the official seal of the Under Secretary, Election Commission, India,below the signature of Sri A. N. Sen. It appears that Sri Sen has notsigned on this copy and his signature has been copied as "Sd/- A. N.•Sen". But oft the; original petitida which is on the file of the Tribunalthere is the signature of Sri A. N. Sen. ' j • ... '

E.t.*.] RAM MILAN SING& V, H. S. PRASAD GtJPTA & &BS. 101

On the Copy as well as oft the 0*igifta1, on every page, there isthe signature of Ram Milan Singh. There is also his $%nattire atthe bottom <rf the petition and also after the verification of the petition?.

•»*

As the copy given to the respondent bears the signature of RamMilan Singh at every page and as his signature has been attested bythe Under Secretary, Election Commission, I think the provisions ofSec. 81(3) of the Representation of the People Act have been substan-tially complied with.

My finding therefore on issue No. 1 is that the election petitionhas been properly verified.

My finding on issue No. 6 is that the copy of the election petitionsupplied to respondent No. 1 is d^ly attested under the law.

Issue No. 2: The Central Government, on 7th September,amended R. 93 (d) of the Conduct of Elections Rules under S. 169 ofthe Representation of the People Act 195jJ, and the Election Commis-sion was. given the power to allow inspection of the ballot papers,

It is the contention of respondent No. 1 that this amendment isultra vires oi the Constitution of India.

Und£r S. 169 of the Representation of the People Act the CentralGovernment has been given power to make rules for carrying outthe purposes of the Representation of the People Act after consultingthe Election Commission. Under clause (2)(h) of section 169 theCentral Government has power, to ijiake rules for ^the safe custodyof ballot boxes, ballot papers and other election papers, the period forwhich such papers shall be preserved tod the inspection and producrtion of such papers."

It is therefore dear that under sep. 169 of the Representation ofthe People Act the Central Government has power to make rules forcarrying out the purposes of the Representation of the People Act andit is within the meaning of this section that R. 93 (d) of the Conductof Elections Rules 1961 was amended and the Election Commissionwas given power to order inspection of the ballot papers.

It was argued on behalf of the respondent No. 1 that as underS. 92 of the Representation of the People Act 1951 power has beenconferred on the Tribunal for discovery and inspection and thereforethe power of inspection could not have been given to the ElectionCommission.

So long as the rule making pqwer under S. 169 remains intact inthe Representation of the People Act any amendment of rules cannotbecome ultra vires. The contention of respondent No,* I that £ . 92

102 RAM-MILAN SINGH V. H.S.PRASAD GUPTA & ORS. [VOL. XXXVIII

of the Representation of the People Act gives power of inspection onlyto the Tribunal and so long as that section remains intact in the Act,the power of inspection given to the Election Commission/ is beyondthe rule making powers of the Central Government.

S. 92 defines and confers specific power to the Tribunal as a court.The powers of Civil Court are given in the Givil Procedure Code andthe powers of the Civil Procedure Code would not be exercised by theTribunal unless they are specifically provided and conferred on theTribunal by some provision of the Act etc.

The powers under the Civil Procedure Code of discovery or ins-pection are provided in Order 11 of the Civil Procedure Code. Thatpower of discovery and inspection has been conferred on the Tribunal.The foot note given under Order*31 which is in respect of discoveryand inspection has been mentioned in sub-sec. (1) of S. 92 of theRepresentation of the People Act. I, therefore, do not think that onlybecause '.t there is a power given to the Tribunal for inspection, theCentral Government could not giVe power to the Election Commission,by amending the rules which the Central Government is competent toframe under S. 169 of the Representation of the People Act. UnderS. 92 it has to be made clear that the Tribunal .has the powers of theCivil Court in certain respects and the powers given under Order 11of the Civil Procedure Code were conferred on the Tribunal.

It was next argued that the Election Commission has only thepower of Superintendence, direction and control of elections under Arti-cle 324 of the Constitution of India. According to the respondent'scontention it was contended that the superintendence, direction and con-trol of an election terminates With the declaration of the election resultsby the Returning Officer and thereafter any power given to the Com-mission would become ultra-vires of the constitution. This contentionhas been based on the.construction of "Conduct of Elections". Accord-ing to the contention of the learned counsel for the respondent "Con-duct of Election" is conterminous with the declaration of electionresults.

Sub-clause (1) of Article 324 of the Constitution of India runs asfollows:—

"Superintendence, direction and control of election to be ves-ted in the Election Commission.

(1) The Superintendence, direction and control of the prepa-ration of the electoral rolls for, and. the conduct of, all electionsto Parliament and to the Legislature of every State and of elec-

. tions to; the offices of President and Vice President held under thisConstitution, including the" appointment of election tribunals for

E.L.R.] RAM MILAN SINGH V. H- 5- RRASAD GUPTA & ORS. 103

the decision of doubts and disputes arising out of or in connectionwith elections to Parliament and to the Legislatures of States shallbe vested in a Commission (referred to in this Constitution as theElection Commission)". -

The learned counsel for the respondent wants to confine the words"conduct of" only till the declaration of results by the Returning Officer.But the words "the conduct of" includes appointment of election tri-bunal also and there; is a coma after the words 'conduct of and acoma again after the words ' held under the Constitution' andbefore 'including the appointment of election tribunal,' which meansthat the conduct of election also includes the appointment of electiontribunal for the decision of election cases. If the words 'conduct ofwere to exclude the appointment of election tribunal, the appointmentof election tribunal should have been provided separately in someother sub-section and not in the very sub-section which vests all powersof conducting elections to the Election Commission including theappointment of election tribunal in sub-clause (1) of Article 324 ofthe Constitution of India.

This Article enumerates as a whole and it is the only clausewhich vests powers to the Election Commission of superintendence andcontrol of elections held under the Constitution.

Article 327 gives powers to Parliament to make provisions withrespect to the election to Legislatures. It is as under:

327. Power of Parliament to make provision with respect toelections to Legislatures.

"Subject to the provisions of this Constitution, Parliament mayfrom time to time by law make provision with respect to allmatters relating to, or,.in connection with, elections to. eitherHouse of Parliament or to the House or either House of theLegislature of a State including the preparation of electoral rolls,the delimitation of constituencies and all other matters necessaryfor securing the due constitution of such House or Houses."

The Representation of the People Act was enacted under thepowers given by Article 327. Therefore so long as sec. 169 of theRepresentation of the People Act remains any change in rule enactedunder the rule making power of the Central. Government cannot bechallenged.

I, therefore, do not agree with the learned counsel for respondentNo. 1 that the amendment of R. 93(d) of the Conduct of ElectionsRules is ultra vires of the Constitution.

104 RAM MILAN SINGH V. H. S. PRASAD GUPTA & 0*8. [VOL. XXXVHI

Even if it is granted for the sake of argument that the power ofinspection conferred on Election Commission under die rule makingpower of the Central Government was ultra vires and the exercise ofpower of ordering inspection by the Election Commission was illegal,respondent's counsel has not made out any case as tp how it affectsand takes away the jurisdiction of the tribunal to decide the electionpetition pending. The tribunal has to decide the election petition inthe light of assertions of the petitioner made in the petition and denialthereof by respondent in the written statement. The tribunal could notsit to decide the effect of inspection carried out under the Order of theElection Commission, nor the respondent has taken any plea in hiswritten statement that because of inspection of ballot papers under theorder of the Election Commission the petitioner has lost all rights topresent any election petition questioning the propriety of the electionon counting of votes or the declaration of the result thereof.

It is therefore clear that the objection of the respondent about theillegality or otherwise of the power of the Commission, about orderinginspection of ballot papers has no bearing on the election petition andhas no force.

My finding therefore on issue No. 2 is that the amendment ofR. 93 (d) of the Conduct of Elections Rules is not ultra vires.

Issues No. 3 \and 7: These two issues are inter-connected andtherefore I want to deal with them together.

In para. 7 of the election petition it has been mentioned that theresult of election has been materially affected in so far as it concernsthe respondent first set on the ground of illegal and improper rejectionof at least 200 valid votes (about 180 first preference and about 20second preference) from ballot papers of Bhirgunat^ respondent No.4, Ramakant respondent No. 3 and Brahmdeo respondent No. 2, incontravention of Rule 73(2) (a) to (d) of the Conduct of ElectionsRules 1961 polled in favour of the petitioner as detailed in the scheduleof petition by the Returning Officer.

It has also been mentioned in para 7(2) that the result of theelection has been materially affected in so far as it concerns the res-pondent first set on the ground of illegal reception of at least 200 voidvotes by the Returning Officer cast in favour of respondent first set.

A Schedule has been attached to the petition detailing the catergories of rejected votes as below:—

E.L.R.] RAMMILAN &NGHV.H.S. FRASAD GUPTA & ORS. 105

(1) Ballot papers containing horizontal lines instead ofvertical against petitioner's name .. .. .. 23

(2) Ballet papers containing tick marks against thename ©f the petitioner .. 8

(3) Figure 1 made against the petitioner's name on theballot paper but smudged due to overflow of ink .. 67

(4) Figure 1 in Hindi preceded by short form of word'number' written against the name of the petitioneron the ballot paper 1

(5) The figure of longish zero, or an egg made againstthe petitioner's name on the ballot paper .. ,, 3

(6) Figure 1 made against the petitioner's name withiak an the ballot paper but its impression caused onthe other half of the ballot paper as a result of fold-ing due to excess of ink 77

(7) Ballot paper left blank with the name of the candi-date being printed and the voter himself making upthe deficiency by writing out petitioner's name andexercjsing his vote by making the figure 1 againsthis

Total .. 179

Then there is a list of second preference votes and the grand totalis about — 200.

It is the case of respondent No. 1 that the petitioner should havegiven details of all the valid and invalid ballot papers in the petitioncast in h}s favour.

It is the case of the petitioner that he could not give full detailsbecause his agents were not allowed to see the ballot papers, that hisobjections were rejected and that his application for recounting wasalso rejected.

The petitioner came in the witness box and stated that injusticewas done to him because in Basti, which was his strongJiold, thevoters were supplied ink and pen with the result that lots of votescast in his favour were smudged and they were rejected, that in Go-rakhpur the voters were provided with pencil and that there wasno question of any smudging ttc. He stated that large number ofvoters were illiterate and did hot know how to mark the ballot papersand due to the supply of ink and pen they were largely handicapped.

106 RAM MILAN SINGH V. H. S. PRASAD GUPTA & QRS. [VOL. XXXVIII

He stated that 76 or 77 ballot papers were smudged, that on severalballot papers the names of the candidates were not written and whenthe voters wrote the name the ballot paper was rejected 23-24 votersput a vertical line in his favour and those votes were also rejected butsimilar votes cast in favour of the respondent were accepted and about200 valid votes cast in favour of the petitioner were rejected but similarvotes cast in favour of respondent No. 1 were accepted to be valid. Hestated that during the counting he raised objections but his objectionswere not heard. He filed certain objections but they were rejected.He applied for recounting which too was rejected.

None of the respondents has come in the witness box. Respon-dent No. 1 against whom these allegations were made too did not liketo enter into the witness box and to deny the allegations on oath. Theresult is that there is the sworn testimony of the petitioner againstwhich there is no other sworn testimony on behalf o i respondent No. 1or any other respondent.

So far as the applications are concerned, Ex. 1 is a copy of thetelegram to the effect—

"Counting in Basti Gorakhpur Local Bodies Council Consti-tuency continuing Myself candidate Returning Officer favouringHari Shankar Gupta Votes wrongly validated and invalidated Re-turning Officer ignorant of counting procedure Third fourth fifthpreference of eliminated candidates not counted Pray order, recountResult be with-held until recount."

This telegram was addressed to the Chief Election Officer, Luck-now. A similar telegram, Ex. 2 was addressed to the Election Com-mission, Delhi.

Ex. 8 is the copy of an application filed by the petitioner beforethe Returning Officer on 26-4-1966 to the effect that on some tables theimpressions made by the voters are accepted to be valid and on othersthey were declared invalid, and therefore, there was great irregularityin the counting. Reference has been made to poll No. 41 in the appli-cation on which invalid votes were declared to be valid. The prayerwas that the votes cast at Gorakhpur and Basti may be recounted.

There is another application Ex. 7 on the file to the effect that thepetitioner got 1585 votes in the first preference and Sri Hari ShankarPrasad got 1632 votes but many of the votes of the petitoner have beenwrongly invalidated and many invalid votes of the opponent Sri HariShankar Prasad have been wrongly accepted to be valid. Besides, anobjection has been made that the procedure of counting is incorrectand third, fourth and fifth preference of eliminated candidates have

E.L.R.] RAM MILAN SINGH V H. S. PRASAD GUPTA & ORS. 107

not been counted. It was prayed that the announcement of result ofelection be withheld until those had been recounted. The applicationwas rejected.

It is the contention of respondent No. 1 that the application isvague, that it is a roving and fishing inquiry and that it should havebeen rejected. The petitioner has stated on oath that a number of theballot papers were cancelled and therefore he could not know aboutthe ballot papers, that as he was not allowed recounting therefore hecould not give true picture of the rejected and valid votes. The con-

. tention of the petitioner appears to be correct. After a close scrutinyof the contention of both the sides and after consideration of all therules on the point I allowed scrutiny of the rejected ballot papers bymy order dated 20-3-1968 (Annexure 'A') and thereafter scrutiny wasalso made of the valid ballot papers polled by respondent No. 1. Myorder in this respect is on the file as (Annexure 'B') and I need notreproduce those reasons which I have given for recounting. I was ofthe view that the petition was not vague, that the petitioner was notmaking fishing and roving inquiry and that the interest of justicerequired that I should allow recounting.

The petitioner applied to the Election Commission and got ins-pection of the rejected ballot papers only before filing the petition.He has given details about the rejected ballot papers. I am thereforeof the view that the petition is not vague. The petitioner could notgive details of all valid and invalid ballot papers in the petition onwhich he relies. My finding on issue No. 7 is that in view of the factnarrated, the petitioner could not have given the details of all the validvotes on which he relies. "

After scrutiny I find that large number of valid votes cast in favourof the petitioner were improperly rejected. The scrutiny made by meis part of the record and it clearly shows that injustice has been doneto the petitioner and his valid votes were improperly rejected and in-valid votes cast in favour of respondent No. 1 were improperly accepted.My finding therefore on issue No. 3 is that the result of election hasbeen materially affected by improper rejection of valid votes cast infavour of the petitioner and illegal acceptance of invalid votes cast infavour of respondent No. 1.

Issue No. 4: It is the case of respondent No. 1 that there are tam-perings on the rejected ballot papers as the petitioner inspected themafter the order of the Election Commission. The petitioner has statedon oath that there was no tampering. The respondent No. 1 did notcome in the witness box to rebut his allegations. The Officer in whosepresence the rejected ballot papers were inspected by the petitioner

108 RAM MILAN SINGH V. H. S. PRASAD GUPTA & ORS. [VOL. XXXVIIj

has not been examined. I, therefore, hold that there is no materialbefore me to hold that there was tampering on rejected ballot papers.On the contrary the evidence is that there was no tampering. I, there-fore, hold that there was no tampering on the rejected ballot papers asalleged by respondent No. 1. My finding on issue No.'4 is accordingly.

Issue No. 5 : After scrutiny of the rejected ballet papers it wasfound that 67 votes polled in favour of the petitioner were wronglyrejected and they should have been counted in his favour, and about24 other votes polled in favour of Ram Milan Singh no final decisionwas taken at that stage. Some of the voters made tick marks, hori-zontal lines or some other figures on the ballot papers. It was arguedon behalf of the petitioner that the intention of the voter has to beseen. The tick marks are clearly indicative of the fact that the parti-cular voter voted for Ram Milan Singh. But reference may be madeto R. 37(A) of the Conduct of Election Rules 1961. It provides methodof voting and directs that the elector shall place on the ballot paperfigure 1 in the space opposite the name of the candidate for whom hewishes to vote in the first instance.

It is therefore clear that the intention of the Rule is that the votermust put figure 1. If a particular voter has not put figure 1 but hasmarked the ballot paper with tick mark or with some other figure,I think such votes cannot be taken as valid, I therefore, do not countthese 24 votes with tick marks or other marks in favour of Ram MilanSingh.

After close of re-checking of the rejected ballot papers the petitionermade an application for recounting of the ballot papers polled forrespondent No. 1. There was an objection and, after hearing thelearned counsel for the parties, and after considering the law on thepoint, I directed further scrutiny of the ballot papers in the interest ofjustice. My order is on paper No. 120/A1. This shall be part of thisjudgment as (Annexure 'B').

The respondent No. 1 went in writ before the Hon'ble HighCourt. The writ was rejected. Thereafter he went to the Hon'bleSupreme Court against this order and that too was rejected.

After recounting of the ballot papers it was found that one votewhich was cast in favour of Ram Milan Singh was placed in the packetof votes polled by respondent No. 1. This vote must have been countedin favour of Ram Milan Singh.. .,..,

After scrutiny it was found that 31 votes found as passed in favourof respondent No. 1 were invalid and should not have been countedin his favour.

. RAM MILAN SIJNGHV.H.S.PRASADGU.PTA.&O.RS. 109

E votes counted in favour of respondent No. 1 were left forconsideration. In some there were horizontal lines, in some there werefigures like 4 or 6 with two lines below. The details of these ballotpapers are given in the English Notes.

In view of R. 37 (A) referred to above the voter must put figure 1and therefore horizontal line or some other figure are not contemplatedby the Conduct of Elections Rules 1961. Therefore these horizontallines should not have been counted as it was argued that the votermight have liked to put a figure like 1 but due to folding of thepaper in wrong way that line might have become horizontal. I have,,therefore, counted these votes in favour of respondent No. 1. I havenot deducted them from his votes polled.

In the result 68 votes should have been counted in favour of thepetitioner and 31 votes counted in favour of respondent No, 1 shouldhave been rejected.

In the polling respondent No. 1 got 1892 votes. Out of them 31votes were invalid in view of my scrutiny and thus respondent No. 1polled 1861 valid votes.

The petitioner got 1799 votes when the result of the election was.declared by the Returning Officer. As 68 valid votes polled by himwere not counted in his favour and these 68 votes are counted to hi^side, the petitioner had actually polldd 1867 valid votes whereas res-pondent No. 1 had polled only 1861 valid votes.

After my scrutiny an application Was presented On behalf of res-pondent No. 1 for amendment of the written statement to the effectthat the ballot papers accepted in favour of the petitioner and the re-jected ballot papers of respondent No. 1 should also be scrutinized and*recounted in order to rebut the result of the recounting of ballot papers,and that he had a right of rebuttal without filing any recrimination.I was of the view that the application of amendment was miscon-ceived and that respondent No. 1 had no right when he claimed to-get the ballot papers, valid or rejected cast in his favour and in favourof the petitioner, recounted, I have discussed the law on the point ir*my order dated 8-5-1968, paper Nd. 164/A1 on the file (Annexure'C'). I need not repeat those very reasons here. Paper No. 164/A1shall, therefore, be part of this judgment.

In the result of the scrutiny the petitioner has polled 6 votes moreand the result of the election so far as it concerns the returned candi-date Lie., respondent No. 1 has been materially affected by improperreception of invalid votes cast in favour1 of the respondent and rejec-tion of valid votes cast in favour of the petitioner.

110 RAM MILAN SINGH V. H. S. PRASAD GUPTA & ORS. [VOL. XXXVIII

There was also a plea that the result of the election has beenmaterially affected by the non-compliance of provisions of the Repre-sentation of the People Act because the rejected ballot papers do notbear the endorsement of the Returning Officer but the parties did notpress for any issue, nor any evidence was led on this point. ThereforeI have not taken into consideration this aspect of the allegation.

The petitioner has claimed that he be declared returned as amember of the U.P. Legislative Council from the Basti-cum-GorakhpurLocal Authorities Constituency and that the election of respondent firstset be declared void.

In view of my finding that valid votes cast in favour of the peti-tioner were illegally rejected, that invalid votes cast in favour of res-pondent No. 1 were wrongly accepted and that one vote cast in favourof the petitioner was placed in the packiet of ballot papers polled infavour of respondent No. 1 and that in the result the petitioner haspolled 6 more votes than respondent No. 1. I allow the petition,declare the election of respondent No. 1 to be void and declare thepetitioner to have been duly elected as a member of the U.P. Legisla-tive Council from the Bastkrwra-Gorakhpur Local Authorities Consti-tuency, as provided in S. 101 of the Representation of the People Act.My findings on the issue are accordingly.

I allow the petition, declare the election of respondent No. 1 tobe void and declare Sri Ram Milan Singh petitioner to have been dulyelected member to the U.P. Legislative Council from Basti-^wm-Gorakh-pur Local Authorities Constituency.

The petitioner shall get Rs. 500/- by way of costs from respondentNo. 1.

The order dated 20-3-1968 and papers Nos. 120/A1 and 164/A1shall be part of the judgment as (Annexures 'A', 'B' and 'C').

Petition allowed.

ORDER

(20/h March 1968).—This is an application on behalf of the respon-dent that I should first decide whether the petition is vague and thereis prima facie want of evidence and thereafter I should order scrutiny.

I am hearing the arguments in the election petition since Monday,the 18th of March, 1968. Today the petitioner was going to concludehis reply when this application was presented on behalf of the res-pondent.

3.L.R.] RAM MILAN SINGH V. H. S. PRASAD GUPTA & ORS. I l l

The application is opposed on behalf of the petitioner on theground that a similar application filed by the respondent, being appli-cation No. 85/C, was not pressed and was decided against him.

85/C was an application presented by the respondent on 20-2-1968to the effect that I should delete issue No. 3. But it was conceded onbehalf of the respondent that, if the petition was vague, it would bethrown out and that, it is a question of law whether the petition isvague or not. My order dated 2-34968 shows that the application waslater on not pressed.

On behalf of the petitioner reliance has been placed on Hu\umSingh v. Banwari Lai ( i ) , in which the question was whether thevotes had been mixed up. The Election Tribunal had believed thestatement of the Returning Officer. It was held by the High Courtthat it was the duty of the Tribunal to have looked into the ballotpapers to find out if the votes had been mixed up. The case wasremanded with the direction that the Tribunal should get the ballotpaper re-checked.

It is conceded that the Election Tribunal has wide powers in theinterest of justice to allow re-checking or to look into the ballot papersif the rules and regulations have been properly followed and if theballot papers have been properly rejected. The authorities on thepoint are Dr. Jag jit Singh v. Giant Kartar Singh and others (2), Mahchdeo v. Udai Partap Singh and others (3).

There is a schedule attached to the fact of the petition givingdetails of the various kinds of votes declared invalid. It was contendedon behalf of the respondent that items Nos. 3 and 6 relate to the samekind of rejected votes. But it is not correct because No. 3 refers tofigure 1 having been smudged due to overflow of ink and item No. 3relates to the impressions due to ink on account of folding.

The learned counsel for the respondent, in the alternative, arguedthat, even if the contention of the petitioner is correct, t|here is only adifference of 81 votes in respect of items 5, 6 and 7.

Even in order to see if any mistake was caused due to foldingof the ballot papers and if the votes were rightly rejected, the re-checking has to be ordered.

My attention has been drawn to para 7(8) of the Election Petitionwherein it has been mentioned that about 200 rejected ballot papers ofthe petitioner do not bear the endorsement of rejected in the hand-writing of the Returning Officer, which is illegal in view of Rule

(1) A. I. R. 1965 All 552(2) A. I. R. 1966 S. C. 773(3) A. 1. R. 1966 S. C. 824

112 RAM MIL^N SINOH V. H- S- PRASA© GUPTA & ©RSi [VOL. XXXVIII

73(1) (d) of the Conduct of Elections Rules. There is no specific denialof this allegation by the respondent. He has only mentioned in theW.S. that all the rules were observed.

As the difference is only of 92 votes, as detailed above, and, asthe interest of justice requires that I should order re-checking of theballot papers about the rejected votes first, I order that the rejectedvotes should be re-checked today after lunch interval in presence of theparties.

ORDER

(30*A March 1968).—By my order dated 20-3-1968 I directed thatthe rejected ballot papers should be recounted. When the recountingof the rejected ballot papers was over there was an application onbehalf of the petitioner that I should order recounting of other votes.There is objection on behalf of respondent No. 1.

The objection is to the effect that the grounds given in the petitionare vague and that no recounting should be ordered on such vagueallegations.

On behalf of the petitioner it has been argued that as in substancethe allegation of the petitioner that votes were wrongly counted, thatvotes cast in his favour were wrongly rejected and when after therecount of the rejected ballot papers it has been established that theallegations are correct, recounting should be ordered. It has furtherbeen argued that the allegations for recounting given by the petitionerare not vague, that nothing definite could have been given in view ofthe fact that recounting was not ordered by the Returning Officer, thatthe petitioner submitted three applications before the Returning Officeron which no heed was paid and that the Tribunal has wide powersto order recounting in the interest of justice.

The petitioner has relied on a ruling reported in Hu\um Singhv. Banwari Lai d ) , in support of his contention that his allegations arenot vague and that the Allahabad High Court, under similar circum-stances, approved recounting done by the Tribunal.

On behalf of the respondent No. 1 reliance has been placed ontwo authorities of Supreme Court, one reported in Ram Sewa\ Yadavv. Husain Kamil Kidwai and others (4). This ruling has been refeiredto in Hu\um Singh v. Banwari Lai d ) , relied upon by the learned

(1) A. I. R. 1965 All 552(4) A. I. R. 1964 S. C. 1249

E.L.R.] RAM MILAN SINGH V. H. S. PRASAD GUPTA & ORS. 113

counsel for the petitioner, and the other reported in Dr. Jagjit Singh v.Giani Kartar Singh and others (2). The Supreme Court has laid downthe principles under which the Tribunal should order recounting.Discussing S. 92 of the Representation of the People Act 1951 theirLordships of the Supreme Court observed that S. 92 of the Act whichdefines the powers of the Tribunal, in terms, confers on it, by Cl. (a),the powers which are vested in a Court under the Code of Civil Pro-cedure when trying a suit, inter alia, in respect of discovery and ins-pection. Therefore, in a proper case, the Tribunal can order the ins-pection of the ballot boxes and may proceed to examine the objectionsraised by the parties in relation to the improper acceptance or rejectionof the voting papers. But in exercising this power, the Tribunal hasto bear in mind certain important considerations. Section 83(1) (a)of the Act requires that an election petition shall contain a concisestatement of the material facts on which the petitioner relies ; and inevery case, where a prayer is made by a petitioner for the inspectionof the ballot boxes, the Tribunal must enquire whether the applicationmade by the petitioner in that behalf contains a concise statement ofthe material facts on which he relies. Vague or general allegationsthat valid votes were improperly accepted, would not serve the purposewhich S. 83(1)(a) has in mind. An application made for the inspec-tion of ballot boxes must give material facts which would enable theTribunal to consider whether in the interest of justice, the ballot boxesshould be inspected or not. In dealing with this question, the import-ance of the secrecy of the ballot papers cannot be ignored, and it isalways to be borne in mind that the statutory rules framed under theAct are intended to provide adequate safeguard for the examinationof the validity or invalidity of votes and for their proper counting. Itmay be that in some cases, the ends of justice would make it necessaryfor the Tribunal to allow a party to inspect the ballot boxes andconsider his objections about the improper acceptance or improper re-jection of votes tendered by voters at any given election but in consi-dering the requirements of justice, care must be taken to see thatelection petitioners do not get a chance to make a roving or fishinginquiry in the ballot boxes so as to justify their claim that the returnedcandidate's election is void. No hard and fast rule can be laid down,in this matter; for, attempt to lay down such a rule would be inexpe-dient and unreasonable. ;,

Thereafter their Lordships proceeded to examine the scheme of therules and observed,

"The scheme of the rules prescribed in Part V of the Conductof Elections Rules, 1961, emphasises the point that the electionpetitioner who is a defeated candidate, has ample opportunity to,

(2) A. I. R. 1966 S. C. 7739—3Elec. Com/71

114 RAM MILAN SINGH V. H-S. PRASAD GUPTA & ORS. [VOL. XXXVIII

examine the voting papers before they are counted, and in caseof objections raised by him or his election agent have been impro-perly over-ruled, he knows precisely the nature of the objectionsraised by him and the voting papers to which those objectionsrelated. It is in the light of this background that S. 83(1) of theAct has to be applied to the petitions made for inspection ofballot boxes".

Now the question is whether the petitioner wants to make a fishingor roving inquiry by not giving complete details while he could havegiven complete details.

There are 3 applications on the file in which the petitioner com-plained before the Returning Officer that valid votes cast in his favourwere wrongly rejected, that similar votes cast in favour of the respon-dent No. 1 were illegally accepted. He further claimed recountingbut it was refused.

Thus, although the rules provide a safeguard but the petitioner wasnot allowed that safeguard by the Returning Officer.

The petitioner has given a list of the rejected ballot papers. Sofar as the other ballot papers are concerned his case is that the votescast in his favour were improperly rejected.

After scrutiny when the Tribunal has found that the allegationsof the petitioner are substantially correct, I think the interest of justicecertainly requires that the other ballot papers should be scrutinized.The same view was taken in Hukum Singh v. Banwari Lai d ) , reliedupon by the learned counsel for the petitioner.

Thus considering all the facts and circumstances of the case andin the interest of justice I am of the view that I should order furtherscrutiny of the ballot papers.

I order accordingly.

ORDER

(Stk May 1968).—These are two applications on behalf of therespondent No. 1. By application No. 157/Ka the respondent seeksamendment of the written statement and wants to add "that this res-pondent is, in any case, in the event of scrutiny and recounting entitled,In law, to have the ballot papers accepted in favour of the petitioneras well as the rejected ballot papers of the respondent No. 1 also scru-tinised and recounted in order to rebut the result of recounting ofballot papers made. This right of rebuttal the respondent No. 1 canclaim without filing any recrimination."

(1) A.I .R. 1965 A11525

E.L,R] RAM MILAN SINGH V. H. S. PRASAD GVPTA & ORS. 115

Thus, respondent No. 1 wants the counting of the ballot papersaccepted in favour of the petitioner as well as the rejected ballot papersof his.

This is also the purport of the other applications papers No. 153/Ga and 162/C. It is convenient to dispose of these two applicationsby a common order.

Shri Ram Milan Singh, the petitioner, alleged that invalid voteswere counted in favour of the respondent No. 1, that he raised objec-tion and applied for scrutiny but no attention was paid and, therefore,he prayed by the election petition that the election of respondent No.1 be declared void and that the petitioner be declared returned as aMember of U.P. Legislative Council from Basti-cww-Gorakhpur LocalAuthority Constituency.

In the written statement filed by the respondent No. 1 it was allalong claimed that no illegality was committed by the ReturningOfficer at the time of counting. When the votes were counted it wasfound that a large number of votes, which are to be rejected, wereillegally counted in favour of respondent No. 1 and, when the respon-dent No. 1 came to know that the petitioner was leading with regardto the valid votes, the application for amendment of the written state-ment was filed.

The respondent No. 1 claims that he has right to get the ballotpapers cast in favour of the petitioner counted and he has also rightto get his rejected ballot papers recounted.

I have heard the learned counsel for the parties and gone throughthe law on the subject. I am of the view that the application ofrespondent No. 1 is misconceived and that he has no right, as heclaims, to get the ballot papers in favour of the petitioner or hisrejected ballot papers recounted.

On behalf of the respondent reliance has been placed on a rulingreported in Nathu Ram Shi\sha\ v. R. B. Dixit (B) in support of hiscontention. It is argued on behalf of the petitioner that the respondenthas no right to get the ballot papers recounted, without filing recrimi-nation as provided under section 97 of the Representation of PeopleAct, 1961, and he has relied on a Supreme Court case reported inJabar Singh v. Genda Led (6). In this case the Supreme Court wasdeciding whether recrimination is necessary in a petition under sec-tions 100 and 101 of the Representation of Peoples Act. Their Lord-ships of the Supreme Court were of the view that, if the petitioner

(5) 1965 A. U J. 25(£) A. I. R. 1964 S C. 1900

116 RAM MILAN SINGH V. H. S. PRASAD GUPTA & ORS. [VOL. XXXVIII

only wants that the election of returned candidate be declared void,the respondent need not file recrimination under section 97 of theRepresentation of Peoples 'Act. But once he claims the relief of get-ting himself or some other defeated candidates duly returned and, ifthe respondent wants to challenge, he must file recrimination undersection 97 of Representation of People Act. Their Lordships expressedthemselves thus "There are, however, cases in which the election peti-tion makes a double claim; it claims that the election of the returnedcandidate is void, and also asks for a declaration that the petitionerhimself or some other person has been duly elected. It is in regardto such a composite case that S. 100 as well as S. 101 would apply, andit is in respect of the additional claim for a declaration that some othercandidate has been duly elected that S. 97 comes into play. Section97(1) thus allows the returned candidate to recriminate and raise pleasin support of his case that the other person in whose favour a declara-tion is claimed by the petition cannot be said to be validly elected, andthese would be pleas of attack anct it would be open to the returnedcandidate to take such pleas, because when he recriminaties, he reallybecomes a counter-petitioner challenging the validity of the electionof the alternative candidate. The result of S. 97(1) therefore, is thatin dealing with a composite election petition, the Tribunal enquiresinto not only the case made out by the petitioner, but also the counter-claim made by the returned candidate. That being the nature of theproceedings contemplated by Section 97(1), it is not surprising thatthe returned candidate is required to make his recrimination and servenotice in that behalf in the manner and within the time specified byS. 97(1) proviso and Sec. 97(2). If the returned candidate,does notrecriminate as required by S. 97, then he cannot ma\e any attac\against the alternative claim made by the petitioner. In such a case anenquiry would be held under S. 100 so far as the validity of the re-turned candidate's election is concerned, and if as a result of the saidenquiry, declaration is made that the election of the returned candidateis void, then the Tribunal will proceed to deal with the alternativeclaim, but, in doing so, the returned candidate will not be allowed tolead any evidence because he is precluded from raising any pleas againstthe validity of the claim of the alternative candidate".

Their Lordships considered the earlier decision of Supreme Courtand came to the conclusion that recrimination was necessary in a casefalling under S. 100 and 101 of Representation of Peoples Act.

In Allahabad case relied upon by the learned counsel for the res-pondent No. 1, it was held that, inspite of recrimination, the respondenthad an inherent right to disprove the case of the petitioner but theruling is distinguishable. In that case and also in other Allahabadcases relied upon in his case the respondents had made a counter-claimthat invalid votes were counted in favour of the petitioner also. In

E.L.R.] RAM MILAN SINGH V. H. S. PRASAD GUPTA & ORS. 117

1965 A.LJ. page 25 the petition was allowed to amend the petitionand thereafter the respondent was allowed to file supplementary writtenstatement by which he challenged that invalid votes were also countedin favour of the petitioner. The Tribunal suo moto struck off someparagraph of the supplementary written statement filed by the respon-dent in that case it was held by the hon'ble High Court that therespondent had an inherent right to disprove the case of the petitioner.

In 1963 A.L.J. page 841 the respondent has taken a similar plea.

In Nathu Ram v. Dixit(5)} relied upon by the learned counsel forthe respondent a ruling of Supreme Court Bhitnsen v. Gopali(S) wasalso discussed and distinguished. The facts of that Supreme Courtcase are that Bhim Sen had filed an election petition to challenge theelection of Gopali on the ground that (1) that the result of the electionhad been materially affected because some votes counted in Gopali'sfavour were void and some provisions of the Act and the Rules hadnot been complied with, and (2) that Gopali had been guilty of acorrupt practice. He claimed a declaration that he in fact had received,or but for the votes obtained by Gopali by corrupt practices wouldhave received, a majority of valid votes and would have been declaredduly elected. Gopali in his written statement simply traversed theallegations made by Bhim Sen. As regards' the allegation that he hadreceived void votes, his reply was simply a denial. It is important tonote that he did not plead that Bhim Sen had not received a majorityof valid votes even if his own void votes had been excluded. ThusBhim Sen had to prove that some of the votes received by Gopali werevoid and Gopali had simply to rebut this evidence of Bhim Sen. IfBhim Sen succeeded in proving that a sufficient number of votes re-ceived by Gopali were void he would have succeeded in proving thathe himself had received a majority of valid votes. If Gopali failed torebut Bhim Sen's evidence he would have failed to show that he hadnot received a majority of valid votes. Subsequently Bhim Sen, exa-mined the ballot papers and applied for amendment of the petitionby giving particulars of void votes received by Gopali and the amend-ment was allowed by the Tribunal. High Court quashed the order ofthe Tribunal allowing the amendment and Bhim Sen appealed fromits judgment to the Supreme Court. The Supreme Court set asideHigh Court's order and restored the amendment. It was urged onbehalf of Gopali before the Supreme Court that he also should havebeen allowed inspection of the ballot papers cast in favour of BhimSen so that he could see if he (Bhim Sen) also had got the benefit ofvoid votes. The Supreme Court rejected this plea, observing at page

e) 1965 A. L. J. 25.(') A.L.J. 1965 841.(') 22 E. L. R. 228 (S. C).

118 RAM MILAN SINGH V. H. S. PRASAD GUPTA &ORS. [VOL. XXXVIH

298. In our opinion, it is too late to raise such a contention nowin his first written statement respondent 1 made a positive avermentthat no void votes had been allowed to be used by the returning officerand that the returning officer had fully discharged his duties undersection 63. It is true that after it was discovered that he had received37 void votes respondent 1 attempted to make an allegation that theappellant may likewise have received similar void votes, but it was toolate then, because the time for making such an allegation by way of arecriminatory proceeding had elapsed In any event, we are notsatisfied that the Tribunal was in error in not giving respondent 1 theopportunity in question".

The present case is covered by the Supreme Court rulings. Therespondent No. 1 justified the action of the Returning Officer andjustified the counting of votes. He no where alleged not even in thepresent amendment that invalid votes were cast in favour of the peti-tioner and moreover he never claimed any recrimination. The learnedcounsel for the petitioner is, therefore, correct in his arguments thatthe respondent No. 1 has no right to get the ballot paper in favour ofthe petitioner recounted.

Now the question is that after the scrutiny the petitioner has gotmore votes. Will it be justified to say that he got more votes thanrespondent No. 1 without the votes cast in favour of the petitionerbeing scrutinised or the rejected ballot papers of the respondent (No.1) recounted ?

The law is clear on the point. There is presumption in rule 57of the Conduct Rules. The Supreme Court in ]abar Singh v. GendaLal(6), discussing this aspect of the case observed "It is, true that sec-tion 101 (a) requires the Tribunal to find the petitioner or such othercandidate for the declaration of whose election a prayer is made in theelection petition has in fact received a majority of the valid votes.It cannot be said that the Tribunal cannot make a finding thatthe alternative candilate has in fact received a majority of validvotes unless all the votes cast at the election are scrutinized andcounted. As a result of rule 57, the Election Tribunal will have toassume that every ballot paper which had not been rejected underrule 56 constituted one valid vote and it is on that basis that the findingwill have to be mlade under S. 101 (a). Section 97(1) undoubtedlygives an opportunity to the returned candidate to dispute the validityof any of the votes cast in favour of the alternative candidate or toplead for the validity of any votes cast in his favour which has beenrejected; but if by his failure to make recrimination within time as

(•) A. I. R. 1964 S. C. 1200

E.L.R.] B. KUMAR SHASTRI V. M. LAL SUKHADIA & ORS. 119

required by S. 97 the returned candidate is precluded from raising anysuch plea at the hearing of the election petition, there would be nothingwrong if the Tribunal proceeds to deal with die dispute under section101 (a) on the basis that the other votes counted by the ReturningOfficer were valid votes and that votes in favour of the returned candi-date, if any, which were rejected, were invalid."

In the light of all these authorities and in the absence of anyrecrimination by respondent No. 1, and in view of the pleading ofrespondent No. 1, I am of the view that respondent has no right toget the votes cast in favour of petitioner and his own rejected votesrecounted. The applications for amendment of written statement andfor recounting are misconceived. The respondent has no such inherentright.

The applications are, therefore, rejected.

IN THE HIGH COURT OF RAJASTHAN AT JODHPUR

BHANU KUMAR SHASTRI

V.

MOHAN LAL SUKHADIA AND OTHERS

(JAGAT NARAYAN J.)

May 10, 1968.

Representation of the People Act, 1951, Sections 83(l)(b), 100, 123(1) and(2)—Corrupt Practice—Undue influence—Respondent was Chief Minister onrelevant date—Execution of Public Wor\s for benefit of voters and grants ofconcessions in respondent's constituency on eve of election—Allegations that thesebenefits were made as inducement and bargaining for votes for the respondent—Whether respondent can be charged with corrupt practice--Party organisationdoing propaganda for party candidates—Publication of pamphlets issued by partyorganisation—Attac\ on the personal conduct and character of the petitioner—Burden of proof—Whether implied consent of the respondent can be presumed—Election petition, requirements of election expenditure by party organisation—Whether a limit is prescribed—Whether such expenditure can be charged to therespondent.

The petitioner, a defeated candidate, challenged the election of the first res-pondent alleging, inter alia, that he as the Chief Minister on the relevant date,committed several corrupt practices under Section 123 of the Act, and he

120 B. KUMAR SHASTRI V. M. LAL SUKHADIA & ORS. [VOL. XXXVIII

incurred election expenses in excess of the prescribed limit. It was further allegedthat the first respondent sanctioned and executed on the eve of his election,works for the construction of roads issuing of Pattas at concessional rates, openingof public taps in localities of his constituency, as inducement and bargaining forvotes, and further it was alleged that he was connected with the pamphlets issuedby his party organisation attacking the personal conduct and character of thepetitioner.

HELD : Dismissing the petition :

On the evidence, the petitioner had failed to prove any of the allegations.

(i) Unless there is cogent proof of evidence of bargain made by the ChiefMinister with the voters that if they promised to vote for him he would getthe public works started before the poll, he had a "reasonable excuse" to getpublic works done for the benefit of all sections of the public, his supporters aswell as his opponents, his action would not attract Section 123(1) or (2) ofthe Act. It was the duty of the Chief Minister to see the grievances of the peopleof the different parts of the State were redressed and a Minister cannot ceaseto function as such when his election is due.

Basawaraj K. Nagur v. B. R. Shidlingappa, 12 E.L.R. 168; Radha KrishnaShu\la v. T. C. Maheshwar, 12 E.L.R. 379; Biresh Misra v. Ram Nath Sarmaand others, 17 E.L.R. 243; Gangadhar Maithani v. Narendra Singh Bhandan,18 E.L.R. 124; Soowcdal v. P. K. Chaudhry, 21 E.L.R. 137; Ram Phal v. BrahamPra\ash, A.I.R. 1962, Punjab 129; Hariram Singh v. Kamtaprasad, A.I.R. 1966,Madhya Pradesh 255; S. Mehar Singh v. Umrao Singh, A.I.R. 1961, Punjab 244;Balwant Rai Tayal v. Bishan Saroop, 17 E.L.R. 101; Amir Chand Surendra Laif/ia, 10 E.L.R. 57; Ghasiram v. Dal Singh and others, C.A. No. 1632 of 1967(S.C.) Tirlochan Singh v. Karnail Singh and others, E. P. No. 33 of 1967,(Punjab); referred to.

(ii) Every false statement regarding the personal conduct and character ofa candidate cannot prejudice the prospects of his election. In order to find outthe effect of the false publication the court has to consider the nature of thestatement and the proximity of the impunged publication to the date of thepoll. Unless it is proved that the impunged pamphlet attacking the petitioner'spersonal conduct and character was published by the party organisation wtih theimplicit consent of the first respondent, he cannot be charged with the corruptpractice. Neither could it be held that the impunged pamphlet was reasonablycalculated to prejudice the prospects of the election of the petitioner to attarctSection 100(l)(d)(ii) of the Act.

Krishna Kumar v. Krishna Gopal, I.P.R. 1963, 13 Rajasthan 726; Inder Laiv. Lai Singh, A.I.R. 1961, Rajasthan 122; Nani Gopal Swami v. Abdul Hamitt,A.I.R. 1959, Assam 200; Ram Kishan v. fai Singh, C.A. No. 1949 (NCE) of1967 (Dt. 23-4-1964); fai Singh v. Ram Kishan and others, E.P. No. 37 of 1967(Dt. 4-12-1967), referred to.

(iii) The law contemplates that the petitioner should give the names of theparties and the date and place of the commission of the corrupt practice and otherparticulars in as much detail as he can in the petition!

Harish Chandra v. Trilo\i Singh, A.I.R. 1957, S.C. 444; referred to.

E.L.R.] B.KUMAR SHASTRI V. M. LAL SUKHADIA & ORS. 121

(iv) There is no limit prescribed for the expenriture which a political partymay incur for the election campaign of candidates sponsored by it. There isa distinction in law between an election campaign carried on by a candadite orhis election agent and that carried on by the party sponsoring him. The candidateis not liable for the expenditure incurred by the pary sponsoring him.

Election Petition No. 8 of 1967.

Guman Lai Lodha and J. S. Rastogi for the petitioner.

M. S. L. Bhargava, I. M. Gobhil, S. N. Bhargava and S. K. Goyal for thefirst respondent.

JUDGMENT

JAGAT NARAYAN J.—This is an election petition under section 80of the Representation of the People Act 1951 by Shri Bhanu KumarShastri, a defeated candidate, challenging the election of Shri MohanLai Sukhadia, respondent No. 1, to the Rajasthan Legislative Assemblyfrom the Udaipur City Assembly Constituency. The petition was con-tested by Shri Sukhadia.

The election was contested by the petitioner on the Jan Singhticket, by Shri Sukhadia on the Congress ticket and by Shri MadanLai, respondent No. 2, on the Communist ticket. Shri NarendraSingh, respondent No. 3, was the covering candidate of Shri BhanuKumar Shastri and Shri Girdhari Lai Sharma, respondent No. 4, wasthe covering candidate of Shri Sukhadia. When the nomination papersof Shri Bhanu Kumar Shastri and Shri Sukhadia were accepted boththese respondents withdrew their candidature. Shri Girdhari LaiSharma was also the election agent of Shri Sukhadia.

Polling took place on 15-2-67 and counting on 21-2-67. Accordingto the result declared by the Returning Officer Shri Sukhadia polled24272 votes, Shri Bhanu Kumar got 20841 votes and Shri Madan Laiobtained only 1262 votes. Shri Sukhadia was accordingly declared asduly elected, having secured 3434 votes more than Shri Shastri.

At the time of the election Shri Sukhadia was the Chief Ministerof the State. As a result of the general election the Congress Partywas reduced to a minority in the Legislature. Shri Sukhadia accord-ingly tendered the resignation of himself and members of his Cabinetafter the declaration of all the results. They were however requestedto continue in office till another Ministry was formed. On 13th March1967 President's Rule was proclaimed in the State without dissolvingthe Legislative Assembly. This proclamation was withdrawn after aperiod of 44 days and Shri Sukhadia was again sworn in as ChiefMinister on April 26, 1967.

122 B. KUMAR SHASTRI V. M. LAL SUKHADIA & ORS. [VOL. XXXVItt

Shri Sukhadia is an original resident of Udaipur. He joined theMewar Praja Mandal in 1939 and continued in it till it merged in theIndian National Congress after Independence. Since the merger he hasbeen a member of the Congress. He has been a Minister since theyear 1946 almost continuously. In the present State of Rajasthan hebecame a Minister in 1951 and the Chief Minister on 13-11-54. Heonly ceased to be the Chief Minister of the Rajasthan State for 44days when President's Rule was promulgated in March and April 1967.He successfully contested all the four assembly elections in 1952, 1957,1962 and 1967 from the Udaipur City Constituency on the Congressticket.

Shri Bhanu Kumar Shastri migrated from Sind to Udaipur soonafter Partition and has been residing there since then. He has been amember of the Bhartiya Jan Sangh ever since its inception in 1951.

In 1962 Shri Bhanu Kumar Shahstri contested the election fromthe Udaipur City Constituency against Shri Sukhadia and was defeatedby a margin of about 10000 votes.

In December 1963 elections to the Municipal Council of Udaipurtook place. As a result of this election the Jan Sangh Party secureda majority of seats and remained in control of the Municipal Counciltill the expiry of the period of the Council on 23-1-67. Shri MadanLai Dhupad (P.W. 2) was elected as the President of the MunicipalCouncil and Shri Bhanu Kumar Shastri, petitioner, was elected as itsVice-President. The Congress Party did not contest the Municipalelections of 1963 as a party. But individual Congress-man stood forelection and those who were elected formed a party in the Council inopposition to the Jan Sangh Party. The significance of this electionlies in the fact that the Udaipur City Assembly Constituency is co-extensive with the Udaipur Municipality. In 1967 the margin of votesby which Shri Sukhadia was able to defeat Shri Bhanu Kumar wasreduced to 3434 votes.

The present election petition was presented on 7-4-67. In thispetition the answering respondent was charged with no less than 6types of corrupt practices out of the seven specified in section 123. Thenecessary particulars of these corrupt practices as required under sec-tion 83(1) (b) were however not given. When the respondent appear-ed through counsel on 11-5-67 an application was moved on his behalffor striking off all the allegations of corrupt practices on the groundthat full particulars had not been given. The petitioner was directedto file a reply to the application. At the same time he was directedto give as full particulars in respect of each corrupt practice as hecould. Time was given to him upto 29th May 1967. Further parti-culars were furnished by him on that date. But in respect of some

E.L.R.] B. KUMAR SHASTRI V. M- LAL SUKHADIA & ORS. 12$

allegations even then sufficient particulars had not been given. Another1 opportunity was given to the petitioner to furnish these particulars.

Some more particulars were furnished, but even then in respect ofsome of the charges the petitioner was unable to give the necessaryparticulars. These charges were struck off. These two opportunitieswere given to the petitioner to supply particulars in accordance withthe decision of their Lordships of the Supreme Court in HarishChandra v. Trilo\i Singh d ) . The petitioner was allowed to amendthe petition so as to incorporate the further particulars furnished byhim on two occasions. Seven issues were framed. The petitioner didnot produce any evidence on issues 1, 2 and 6.

On a consideration of the oral and documentary evidence adducedby the parties on the remaining 4 issues the following findings arerecorded.

FINDINGS

Issue No. 3.—A. Are the allegations made in paras 8, 9 and 11of the election petition correct ? (Para 10 has beenomitted as no evidence was led to it).

B. If so, did respendent No. 1 commit the corruptpractice specified in section 123(1) or section123(2) of the Representation of the People Act?

Sub-section (1) and (2) of section 123 so far as they are relevant forthe purpose of this issue run as follows:—

"123. Corrupt practices.—The following shall be deemed to becorrupt practices for the purposes of this Act:—

(1) "Bribery" that is to say—

(A) any gift, offer or promise by a candidate ofany gratification, to any person whomsoever, with theobject, directly or indirectly of inducing—

(a)(b) an elector to vote at an elec-

tion

(2) Undue influence, that is to say, any direct or indirect inter-ference or attempt to interfere on the part of the candidate..

with the free exercise of any electoralright:

(a)

A. I. R. 1957 Supreme Court 444

124 B. KUMAR SHASTRI V. M. LAL SUKHADIA & ORS. [VOL. XXXVIII

(b) a declaration of public policy or a promise of public actionor the mere exercise of a legal right without intent tointerfere with an electoral right, shall not be deemed tobe interference within the meaning of this clause."

On behalf of the petitioner evidence has been led to prove that ShriSukhadia visited Baluchistan Colony on 31-1-67 and made a bargainwith the electors of that area that they would vote for him and hewould get the Nala in the Colony covered. It is not disputed nowthat the work on the Nala was started on 1-2-67 by the Urban Improve-ment Trust.

Similarly, it was alleged that he visited Alipura, Tekri and Jogi-wada on 5-2-67 and entered into bargains with the voters for gettingroads constructed in their areas with the object of inducing them tovote for him. Work of these roads was started before the date ofpolling. In Alipura the construction of roads was ordered by theUrban Improvement Trust, in Tekri by the Public Works Departmentand in Jogiwada by the Administrator of the Municipal Council. Itmay be mentioned here that on the expiry of the term of the Muni-cipal Council on 23rd January 1967 no fresh election was held, but anAdministrator was appointed who was an officer of the RajasthanState.

Further it was alleged that Shri Sukhadia visited the Raigar Co-lony on 5-2-67 and made a bargain with the voters there that theywould vote for him and he would get Pattas issued to them on anominal charge of rupee one per Patta. An order relating to thismatter was issued by the Social Welfare Department on 10-2-67. Butthat department was not competent to issue Pattas. Only the U.I.T.could have granted Pattas. That body however did not grant Pattasto the residents of the colony, as they had not paid development charges.

Lastly, it was alleged that Shri Sukhadia visited Tekri on 5-2-67and Teliwada, Khatikwada, Mahawatwadi, Jagdish Chowk and Pullanon 10-2-67 and entered into bargains with the voters of the localitiesthat they would vote for him and he would get public water tapsinstalled in their localities. Water taps were actually installed in mostof these localities before the day of polling by the Water Works De-partment at the instance of the Administrator of Municipal Council,Udaipur.

All the above works were executed by the local bodies or Govern-ment Departments which were not directly under Shri Sukhadia, asChief Minister. The authority which was competent to grant Pattasto the residents of Raigar Colony was also the U.I.T. But Shri Su-khadia was certainly in a position to use his influence as Chief Ministerto secure the above benefits for the residents of the localities concerned.So far as section 123(1) is concerned any gift, offer or promise of any

E.L.R.] B. KUMAR SHASTRI V. M. LAL SUKHADIA & ORS. 125

gratification does not amount to a corrupt practice unless it is madewith the object of inducing the voters to vote for the candidate con-cerned. If Shri Sukhadia went to any locality during his electioncampaign and made an appeal to the voters there to vote for him andthey put forward their demands and needs and he promised to get theirgrievances removed he did not commit any corrupt practice so longas he did not do so with the object of inducing these persons to votefor him. He had been elected from this very constituency in 1962 andwas the elected representative of these people even during his electioncampaign. He was the Chief Minister of the State and had not ceasedto function as such. He was bound to attend to the grievances of thepeople even at that time. The electors of the constituency were enti-tled to expect from him that he will use his influence for their benefit.

The charges of corrupt practice are in the nature of quasi-criminalcharges. The proof of the charges has a double consequence; theelection of the returned candidate is set aside and he incurs subsequentdisqualification as well. These charges must be proved beyond reason-able doubt like the charges in a criminal case.

Mere proof of promise or of its implementation before the poll isnot sufficient to bring home the charge of corrupt practice unless it isproved beyond reasonable doubt that the object of the promise was toinduce the electors to vote for the candidate. The mere fact that apromise is made or that relief or benefit is given on the eve of theelection does not raise any presumption that this was done for thepurpose of inducing the voters to vote for the candidate concerned.

Coming now to section 123(2) it is not alleged in this case thatthe answering respondent threatened any voter with injury of anykind. What is alleged is that there was interference on the part ofShri Sukhadia with the free exercise of their vote by the electorateof the above localities on account of the promises made by him. Pro-viso (b) to Sub-section (2) of section 123 lays down that a promise ofpublic action without intent to interfere with an electoral right shallnot be deemed to be interference within the meaning of sub-section.That means that in order that the promise might come under section123(2) it is necessary to prove that Shri Sukhadia intended to inducethe voters to vote for him by making the alleged promises. It followsthat to bring the case under section 123(2) the same ingredients areto be proved as are required to bring it under section 123(1).

I now proceed to refer to some decided cases which support theabove view.

In Basawara] K. Nagur v. B. R. Shidlingappa (2) it was held—

(2) 12 E. L. R. 168.

126 B. KUMAR SHASTRI V. M. LAL SUKHADIA & ORS. [VOL. XXXVHI

"A declaration made by a Deputy Minister during electionpropaganda that if the voters of a locality voted in favour of thecandidate set up by the Congress Party, he would take steps tosee that certain public grievances are redressed does not amountto undue influence within section 123(2)."

The same view was taken in Radha Krishna Shukja v. T. C. Me-heshwur (3). It was held—

"General promises by the agents and workers of a candidateor by the Ministers or Deputy Ministers, to redress certain publicgrievances or to erect certain public amenities likie hospitals, if theelectors voted for the candidate who has been put up by that party,do not amount to bribery or undue influence within the meaningof section 123(2) of the Representation of the People Act; suchpromises are promises of public action within the meaning of theproviso to section 123(2).

It is the right and previlege of every candidate and everyparty setting up a candidate to put before the electorate hisor its views and programme so that the electorate may decidewhich of the rival candidates to prefer, and the object of the pro-viso to clause (b) of section 123(2) is to protect this right."

In Biresh Misra v. Ram Nath Sarma and others (4) the respondentwho was the Chairman of a Local Board, on the eve of his election,sanctioned the construction of wells and tube wells and gave financialhelp to primary schools, but the evidence showed that these works wereduly sanctioned by the Board in the normal course of business. Itwas held that it cannot be said that the respondent had given anyillegal gratification to the residents of the Local Board for obtainingtheir votes and he was not guilty of the corrupt practice of bribery.

In Gangadhar Maithani v. Narendra Singh Bhandari (5) the can-didate pointed out that the election of a person other than a memberof the Congress Party had not proved beneficial to the constituencyand that if he was elected he would obtain such benefit because hewas a member of the Congress Party. It was held that the candidatewas not guilty of a corrupt practice under section 123(1) or (2). Itwas observed—

"The constitution of the State Government is that the Exe-cutive is responsible to the Legislature, The respondent was seek-ing election to the Legislature and consequently as a member of

(3) 12 E. L. R. 378.(4) 17 E. L. R. 243.(5) 18 E. L. R. 124.

13.L.R.] B. KUMAR SHASTRI V. M-IAL SUKHADIA & ORS. 127

it he could influence the decisions of the Executive. Being a re-presentative of the voters of his constituency it was one of hisduties and functions to influence the decisions of the Executivein such a manner that the residents of his constituency should beable to obtain full advantage of all plans prepared by and actionsought to be taken by the Executive Government."

In Soowalal v. P. K. Chaudhary (6) a Minister of a State addresseda meeting at which he canvassed support for the respondent, the candi-date set up by the Congress Party. The salt traders of the localitybrought to his notice the deterioration of salt trade in the locality. Thequota of salt for the locality was raised from 20 to 50 per cent oneweek before the date fixed for the polling and a pamphlet stating thatthe quota had been increased to 50 per cent by the Congress Govern-ment was widely circulated before the election by the salt traders andworkers of the respondent. It was held that as the evidence did notprove that the quota was increased for the purpose of inducing the salttraders to vote for the respondent or as consideration for getting theirvotes the act of the Government in increasing the quota did not amountto a corrupt practice under section 123(1). The mere fact that therelief was given on the eve of election does not raise any presumptionthat it was given for the purpose of inducing the voters to vote forthe candidate set up by the ruling party. It was also held that thecandidate was entitled to make propaganda about the benefits con-ferred by his party in order to secure votes in his favour.

In Ram Phal v. Braham Vra\aih (7) Shri Govind Ballabh Pant,Minister for Home Affairs, Central Government, delivered a speech on1st March 1957 in a meeting organised by the Delhi Pradesh CongressCommittee in connection with the Congress election campaign infavour of the Congress candidates. In this speech he assured the tra-ders of Delhi that the Government would try to meet their legitimatedemands. The Chief Commissioner thereafter ordered the Sales-taxCommissioner to issue a notification reducing the rates of sales-taxfrom 6\% to 1% on jewellery made of gold and silver with effect from1st March 1957. It was held that the promise made by the Home Ministerwith respect to a relief demanded by the tax-payers which he consideredto be legitimate could not possibly fall within the definition of 'undueinfluence'. It was a promise of public action within the meaning ofproviso (b) to section 123(2). It was observed—

"In a Welfare State like ours where the popularly elected repre-sentatives of the people hold reins of the Government and run theState administration solely for the general benefit of the people, it

(6) 21 E. L. R. 137 (Rajasthan High Court)(7) A. I. R. 1962 Punjab 129.

128 B. KUMAR SHASTRI V. M. LAL SUKHADIA & ORS. [VOL. XXXVIU

is only fit and proper that those in power actually and promptlyreact to the needs and demands of the people whose chosen repre-sentatives they profess to be. This basic and fundamental principleappears to me to underline proviso (b) to section 123(2). If theHome Minister in 1957 felt that a provision of law imposing taxon certain commodities was in fact too harsh and called for relaxa-tion in pursuance of the legitimate demands of the tax-payers con-cerned then I fail to see how the fact that the Minister concernedfavourably reacted to the just needs and demands of the people canpossibly be construed to amount to a corrupt practice of undue in-fluence. This public action may have influenced some voters in theirdecision as to for whom they should vote but it can hardly be des-cribed to be undue influence.

The appellant, however, contends that if such a conduct is likelyto influence the voters, then it is most unjust and unfair on thepart of the party in power to give relief at a psychological momentwhich is calculated to put the other candidate at a disadvantage. Imay state here that the Election Tribunal and this Court are notconcerned with the policy of the law."

In Hariramsingh v. Kamtaprasad (8) Hariramsingh, returned can-didate, was the Chairman of the standing committee of the MunicipalCouncil and Sumati Chand Shastri, his election agent, was the Presidentof the Municipal Council. They opened some public fountains on theeve of the election. It was denied that this was done with a view toinfluence the voters. It was held—

"If in carrying out routine civic public duties, the office-bearersof a municipal council, who are candidates for election, providenecessary civic amenities to the public or representation therefor bythe public, their activities even though they appear to indirectlyhelp them in their election activities cannot be characterised as cor-rupt practices of bribery in election. It may be that in carrying outhis public duties a candidate may be actuated by two motives one in-nocent and laudable and the other corrupt, but in judging of his ac-tives, it is always fair to give him the benefit of doubt unless thereis strong evidence justifying the only reasonable inference that cor-rupt motives alone operated to guide his actions. It would be highlydangerous and subversive of all good civic administration to startwith a presumption that all benevolent and public utility acts onthe eve of the election were done with a corrupt motive."

In S. Mehar Singh v. Umrao Singh (9) the candidates promised thathe would get allotment made to Bahawalpur refugees in Sirsa Tehsiland get the valuation of their lands in Bahawalpur State revised by

(8) A. I. R, 1966 Madhya Pradesh 255(9) A. I. R. 1961 Punjab 244.

E.L.R.] B. KUMAR SHASTRI V. M. LAL SUKHADIA & ORS. 129

Government if they voted for him. He got this promise reinforced bythe Revenue Minister of the State. It was held that this amounted onlyto a promise of public action and not individual benefit to such personsand did not amount to corrupt practice.

In Balwant Rai Tayal v. Bishan Saroop (10) the candidate promisedthe Harijans that he would help them to get land for building housesand to retain a mosque as their temple by trying to get their demandconceded by the Government. He accompanied a delegation of Hari-jans to the Rehabilitation Minister and recommended their case there.It was held that this is a sort of promise which any candidate is entitledto give to any section of his electorate and it does not constitute corruptpractice.

In Amirchand v. Surendra Lai ]ha (11) it was held that if a Minis-ter redresses the grievances of a class of the public of people of a localityor renders them any help on the eve of an election he would not beguilty of a corrupt practice unless he obtains a promise from such peopleor imposes conditions on them that they should vote for him or anyother candidate at the election.

The question as to when public action or a promise of it on thepart of a Minister on the eve of election amounts to corrupt practicehas recently been considered by their Lordships of the Supreme Court inChasiram v. Dal Singh and others (12). The following decisions towhich reference has been made by me have been cited with approval:—

Radha Krishna ShuJtfa v. T. C. Maheshwar (3).Gangadhar Maithani v. Narendra Singh Bhandari (5). „

S. Mehar Singh v. Utnrao Singh (9). '' «Balwant Rai Tayal v. Bishan Saroop (10). • ;Amirchand v. Surendra Lai Jha (11).

The view taken by me finds support from the decision in Ghasiram'scase (12).

In Gangadhar Maithani v. Narendra Singh Bhandari (5) A Divi-sion Bench of the Allahabad High Court took the view that a promiserelating to a public action cannot be deemed to be an offer of a grati-fication to any of the voters within the meaning of the word as used in

(10) 17 E. L. R. 101(11) 10 E. L. R. 57(12) Civil Appeal No. 1632/1967 decided on 7-2-68 (S.C.).(3) 12 E. L. R. 378.(5) 18 E. L. R. 124.(9) A. I. R. 1961 Punjab 244.

10—3 Elec. Gom/71

130 B. KUMAR StfASTRI V. It. LAL SUKHADIA & ORS. [VOL. XXXVIII

section 123(1) for the reason that such a promise is not a promise relat-ing to any private or personal benefit to any voter.

A Division Bench of our High Court however took a contrary viewin Soowalal v. P. K. Chaudhary (6). It held that the act of a Govern-ment in giving relief or special benefits to the voters of a particularlocality or section of the public would amount to corrupt practice withinsection 123(1) if the act is done with the motive of inducing them tovote for the candidate set up by the ruling party or in pursuance of abargain with them to vote for that candidate in consideration of therelief or bargain given by the Government.

This matter was considered recently by a Full Bench of the Punjaband Haryana High Court in Tirlochan Singh v. Karnail Singh andothers (13). It was pointed out that the word 'gratification' had notbeen defined either under the Representation of the People Act, 1951 oreven under the Indian Penal Code and the ordinary dictionary meaningshould be given to it, which is a very wide one and will cover an actwhich affords gratification or satisfaction or pleasure to the taste, appe-tite or the mind. An elector may be gratified in a number of ways.It may be by payment of money. If the money is paid directly to himthat would be a simple case and it would be bribe; or he may not liketo accept any money for himself but may like the same to be paid to apoor relation of his. An elector may be gratified in a number of otherwSys one of which may be say charitable or philonthopic work, whichis for the benefit of the entire community of which he forms a part.

The Full Bench answered the third question in the followingwords:—

"In view of the above, we are of the considered opinion, thatthe answer to the Question whether a gift or promise of such a giftmade for a public purpose does or does not fall within the definitionof 'bribery' under sub-section (1) of section 123, would mainly de-pend on the facts and circumstances of each case, but broadlyspeaking, it would so fall, if it satisfied the following conditions:—

(1) That it gives satisfaction or pleasure to an individual or indi-viduals;

(2) The gift or promise, which is to give such a gratification orpleasure to the individual, is of some value; and lastly

(3) The gift or promise by a candidate is made with the corruptmotive of directly or indirectly inducing the persons gratified tovote in his favour or to induce other electors to vote in hisfavour."

(6) 21 E. L. R. 137.(13) Election Petition No. 33/1967 decided on 12-12-1967.

E.L.R.] B. KUMAR SJHASTRI V. M. LAL SUKHADIA & ORS. 131

The decision of their Lordships of the Supreme Court in Ghasiram v.Dal Singh and Others (12) also supports the view that promise of pub-lic action or the benefit to a body of persons or a section of the com-munity would amount to a corrupt practice under section 123(1) if itis made either with the motive of inducing them to vote for the candi-date or in pursuance of a bargain that they should vote for the candidatein consideration of the promise.

I may here quote the following observations made by their Lord-ships of the Supreme Court in the above decision which are applicableto the present case:—

"But when a question does arise, corrupt practice which is acharge quasi-criminal in nature, must be proved like any otherfact. The gift must be proved to have a direct or indirect con-nection with votes. The gift must admit of no other reasonableexcuse.

In our opinion the law requires that a corrupt practice involv-ing bribery must be fully established. The evidence must showclearly that the promise or gift directly or indirectly was made toan elector to vote or refrain from voting at an election. The posi-tion of a Minister is difficult. It is obvious that he cannot cease tofunction when his election is due. He must of necessity attend tothe grievances, otherwise he must fail. He must improve the imageof his administration before the public."

Before dealing with the evidence on this issue I would like toobserve that the absence of essential details of the corrupt practices inthe original petition raises a doubt as to whether the allegations madein it were based on any genuine information about bargains or theywere made only on the information that public acts were performed onthe eve of the elections which might have tilted the balance in favourof Shri Sukhadia. The result of the election was declared on 21st Feb-ruary, 1967. The present petition was filed on 7th April 1967, that is45 days after the declaration of the result. It bears the signatures of asenior lawyer who must have been aware of the provisions of section83(1)(b) which runs, as follows:—

"83. Contents of petition.—(i) An election petition—

(a)(b) shall set forth full particulars of any corrupt practice that the

petitioner alleges, including as full a statement as possible ofthe names of the parties alleged to have committed such corruptpractice and the date and place of the commission of each suchpractice."

(12) Civil Appeal No. 632/1967 (S.C.) decided on 7-2-68.

132 B. KUMAR SHASTRI V. M. LAL SUKJHADIA & ORS. [VOL. XXXVIII

The law contemplates that besides the names of the parties and the dateand place of the commission of the corrupt practice the petitioner shouldgive all other particulars about it in as much detail as he can. Thepetitioner had his workers and supporters in every ward and if he re-ceived any genuine information that the corrupt practices alleged in thepetition were actually committed there was no reason why he wouldnot have got full details from them and incorporated them in hispetition.

In a criminal case considerable value is attached to the first infor-mation report as it shows what was the story originally told and whatwere the facts given out immediately after the occurrence before therewas time to ambellish. It is expected that the complainant would lodgea report without undue delay. Under the Representation of the PeopleAct, 1951, a petitioner is given 45 days time to collect his material andfile the election petition. If essential particulars are lacking in an elec-tion petition filed after the lapse of 45 days it is for the petitioner toexplain why they were not incorporated.

No direct question was put to the petitioner in cross-examinationas to why these details were not incorporated in the original petition.Learned counsel for the petitioner, in answer to a query made by me,offered this explanation after taking instructions from his client. WhenPresident's rule was proclaimed it was expected that the Legislaturewould be dissolved and there would be no necessity for filing an electionpetition but when the period of limitation was about to expire he cameto Jodhpur from the midst of his M.A. Examination on the last day oflimitation and filed the election petition in a hurry. This explanationcan be of no avail to the petitioner in the circumstances of the presentcase. Although he was not cross-examined directly on the point he wascross-examined indirectly and he stated that when he filed the presentpetition he did not have any information besides that which he gavein the petition. He said—

"My election petition is based on information given by othersto me. Some information I had noted when I got the electionpetition drafted and some I did not note. I have not got that re-cord here with me. I can bring it from Udaipur and can produceit. I can state orally what information was given by what personon which the petition is based. I filed the election petition on thebasis of information which already I had. When further particu-lars were required by the Court I made enquiries about them andfurnished them. The further particulars were given on the basis ofinformation collected by me after the order of the Court to givefurther particulars was passed."

All the information which was given in para 8 of the original petitionwas that respondent No. 1 misused his position as Chief Minister and

E.L.R.] B. KUMAR SHASTRI v. M. LAL SUKHADIA & ORS. 133

ordered the P.W.D. to construct roads in Alipura, Tekri, Kamlawadiand Jogiwada and Nala in Baluchistan Colony. It was stated that Res-pondent No. 1 visited the first 4 areas, held meetings there and promisedthe voters that he would get roads constructed provided they voted forhim. As for Baluchistan Colony it was stated that Respondent No. 1visited it and induced the voters of that colony to vote for him and inturn he promised to get the Nala constructed. It was not alleged thatany meeting was held in Baluchistan Colony. The dates of the allegedvisits of respondent No. 1 to the above localities were not given.

In para. 9 of the original petition it was alleged that respondentNo. 1, his agent and other persons with the consent of respondent No. 1promised the voters of the Raigar Colony in a meeting that he wouldget Pattas issued to them at the nominal rate of rupee one only andunder this inducement the voters were asked to vote for respondent No.1. It was not stated whether respondent No. 1 himself made the pro-mise or his agent made it or any other person with his consent madeit and if so when.

It was also stated that respondent No. 1 by his undue influenceas Chief Minister got issued an order No. 66/0077 dated 10-2-67 by theDirector, Social Welfare Department;, for the grant of Pattas to Raigarsof this colony on a nominal rate of rupee one only.

The information contained in para. 11 of the original petition ran,as follows:—

"That respondent No. 1 by exercising his influence as ChiefMinister of the State Government got 50 public water taps installedin different localities of Udaipur City Constituency — only two orthree days before the poll. These public water taps were got instal-led by Water Works Department at the instance of the respondentNo. 1 and his election and other agents. The respondent No. 1visited the following areas and asked the voters of those areas tovote for him and promised to get public water taps installed inthose areas as a reward of giving of vote to the respondent No. 1.The details of some of areas where water taps were fixed are asunder:—

1. Ganesh Ghati—Ward No. 5.2. Jagdish Chowk—Ward No. 4.3. Outside Chandpole Teliwara—Ward No.4. Alipura Bhiloki-Basti Ward No. 26.

5. Pullan Village Ward No. 23.

6. Devalji Village Ward No. 23.

7. Khanji Pir Ward No. 32. ;

134 B. KUMAR SHASTRI V. M. LAL SUKHADIA & ORS. [VOL. XXXVIII

Thus, the respondent No. 1 committed corrupt practice as definedunder section 123(1) and (2) of the said Act."

The date or dates on which respondent No. 1 visited the areas in ques-tion were not given.

Now if any one really had given information to the petitioner aboutthe above meetings, visits and bargains he would have done so soonafter they had taken place or at any rate soon after the result of electionwas declared and well before 13th March 1967 when President's rulewas proclaimed and the petitioner would have surely enquired from theinformant about the dates and times of the bargains under para 8, aboutthe person who gave the inducement alleged in para. 9 and the date andtime at which this was done and the dates and times at which respon-dent No. 1 made bargains alleged in para. 11. At that time the peti-tioner could not have foreseen that President's rule would be pro-claimed. The petitioner would have made a written note about thesedetails if he did not have a good memory, or a mental note if he had agood memory and would have given these details in the petition. Theomission of these details raises a doubt as to whether any such infor-mation was actually received by the petitioner or whether on the basis ofinformation that the public works mentioned in para. 8 were started,that the order mentioned in para. 9 was issued and that the public watertaps mentioned in para. 11 were installed before the date of polling, theallegations of corrupt practice made in these paragraphs were impro-vised by him and inserted in the petition with the intention of inventingfurther details later and propping them with concocted evidence.

I now proceed to deal with the allegations one by one.

Construction of Nala in Baluchistan Colony (Ward No. 27)—

In further particulars furnished on 29-5-67 it was alleged on behalfof the petitioner that the answering respondent visited BaluchistanColony on 31-1-67 where he addressed a small gathering of the inhabi-tants of the locality. He said that he had arranged for the covering ofthe Nala and they should vote for him. The covering work wouldstart within a day or two. On 1-2-67 Shri K. K. Joshi, Chairman,U.I.T. orally ordered Bhanwarlal, contractor, to cover the Nala imme-diately as Shri Sukhadia had directed him to start the constructionwithin 24 hours. On request by Bhanwarlal for an order in writingthe Chairman said that he would receive it in due course. The con-tractor was directed by the U.I.T. on 24-3-67 to stop further work. On29-3-67 the U.I.T. with a view to camouflage the illegal orders givenfor covering the Nala issued a letter to the contractor advising him thathis tender of 17-1-67 was accepted for the work of covering the Nala.In fact neither a tender was invited nor was any submitted by Bhan-warlal or anybody else.

E.L.R.] B. KUMAR SHASTRI V. M. LAL SUKHADIA & ORS. 135

In para 19 of the original petition it was alleged that respondentNo. 1 obtained and procured the assistance of some Government officersincluding Shri Chhail Behari Mathur for the furtherance of the pros-pects of his election. It was also stated that these were Gazetted officersand they all canvassed support for respondent No. 1. The petitionerwas asked to give particulars about the date, place and manner ofprocurement of assistance. These particulars were not furnished on29-5-67. Another opportunity was given to the petitioner to furnishthem by 31-7-67. In the amended petition filed on 31-7-67 the petitioneralleged in para. 19 that Shri Chhail Behari Mathur at the instance ofrespondent No. 1 passed orders for construction of Nala in BaluchistanColony and roads in various areas as stated in para 8 of the petition.The date and place when Shri Sukhadia asked Shri Chhail BehariMathur to pass these orders were not specified even then.

In his written statement the respondent repudiated these allegationsin the following words:—

(i) All allegations as to Nala covering in Baluchistan Colony aredenied.

(ii) It is denied also that respondent No. 1 visited or addressed anymeeting at Baluchistan Colony on 31-1-67 or made any promiseor held out any inducement or threat.

(iii) So far as the respondent No. 1 could now ascertain the workof covering the drain was undertaken by the Urban Improve-ment Trust, Udaipur, an autonomous body constituted underthe Rajasthan Urban Improvement Act, 1959, in the normalcourse of the discharge of its duties and functions. The matterwas initiated as far back as March 1966 and had no relationor proximity with the election.

Further it is submitted that construction was undertaken bythe Urban Improvement Trust as desired by a resolution ofthe Health Committee of Municipal Council Udaipur whichat the time was dominated by the petitioner and his party, theBhartiya Jan Sangh.

(iv) The details of covering the drain are not admitted. Even thetender notice for the work was published in Rajasthan Gazetteon 29-12-66. The petitioner has deliberately made false aver-ments. He was Vice-Chairman of the Municipal Council whichinitiated and member of Urban Improvement Trust which car-ried on the construction of the covering of the drain.

(v) It is further submitted that originally the drain was constructedby Mewar Government. The Irrigation Department uses thedrain as a supply channel. There is an improvement scheme to

136 B. KUMAR SHASTRI V. M. LAL SUKHADIA & ORS. [VOL. XXXVIII

cover the entire drain. Thus Urban Improvement Trust, Muni-cipality and Irrigation Department — all have their say in theaffair.

(vi) Even if the respondent No. 1 is found to have in any way en-couraged the construction or execution of any of the works,which are works of general public utility, that action of hiscannot amount to commission of any corrupt practice withinthe meaning of section 123, Representation of People Act. Itcan by no stretch of imagination amount to offer or attemptto offer or giving of any gratification."

Ex. 2, Ex. 6, Ex. 25, Ex. 30 and Ex. A.120 are the files of the U.I.T.or its predecessor the City Improvement Committee and Ex. 247 is theSecretariat file of the Town Planning Department relating to the Nalain Baluchistan Colony.

[After considering the evidence, oral and documentary, on the alle-gations in the petition that the first respondent committed corrupt prac-tices—that he in his official capacity as the Chief Minister, implementedcertain benefits and concessions to voters of his constituency on the eveof the elections, covering a Nala in the Baluchistan Colony, issuing",Pattas on nominal fee, construction of roads and installation of publictaps with the object of inducing the voters of the area to vote for himor as bargain for votes, the judgment proceeded]:

FINDINGS ON ISSUE NO. 3

I have held above that Shri Sukhadia got the work on the Nalain Baluchistan Colony started on 1-2-67 by exercising his influence butthat no inference can be drawn that he did so with the object ofinducing the voters of that colony to vote for him in the election. Thiswork was started in violation of rules in as much as funds had notbeen sanctioned and administrative approval had not been given beforeit was started. Even from this no inference can be drawn that theobject of Shri Sukhadia in getting the work started before the pollwas to induce the voters to vote for him. It has been pointed out abovethat there was a long standing demand of the people of Baluchistan Co-lony that the Nala should be covered, children had fallen in die Nala inrainy season and had died. It was the duty of Shri Sukhadia to seethat the grievances of the people of different parts of the State wereredressed. As was observed in Ghasi Ram's case (12) a Minister cannotcease to function as such when his election is due. He must of neces-sity attend to the grievances of the people, otherwise he must fail. Hemust improve the image of his administration before the public. Thishe has to do before the poll takes place. Shri Sukhadia had'startedmaking efforts to get the scheme of the Nala sanctioned before 14th

E.L.R.] B. KUMAR SHASTRI V. M. LAL SUKHADIA & ORS. 137

December 1966. I have held above that Shri Sukhadia was not inUdaipur on 31-1-67 and the allegation that he made a bargain with thepeople of Baluchistan Colony on that day is completely false.

I have also held above that Shri Sukhadia got order Ex. 44issued on 10-2-67 in respect of the grant of Pattas to the people of RaigarColony, on the nominal charge of rupee one only but it cannot beinferred that he did so to influence the voters. No order was issuedthat the Pattas should be given without recovering the developmentcharges. The Rajasthan Government had taken a decision about thismatter in 1959. I have held above that the allegation that Shri Sukha-dia made a bargain about the Pattas with the people of Raigar Colonyis not true.

I have also held above that construction work was started on theroads in Tekri village and Alipura without proper sanction in February1967 a few days before the poll and that a large number of water tapswere similarly installed before the poll. There is however no evidenceto connect Shri Sukhadia with the execution of these works. Even ifthese works were carried out under his influence no inference can bedrawn that his object was to influence the voters. As Chief Minister ofthe State it was his duty to remove the just grievances of the people.

I have held above that the allegation that Shri Sukhadia made abargain with the people of Alipura, Tekri and other localities in respectof the construction of roads and the installation of water taps is not true.

In this connection I may refer to the following statement made byShri Bhanu Kumar Shastri made in cross-examination at pages 70 and71:—

"Puranmal Agarwal was in charge of Jan Sangh election cam-paign in Udaipur City on behalf of the Jan Sangh. He used toget pamphlets and leaflets published and used to send news to thelocal Press. I used to read these pamphlets, leaflets etc. Puran Maimust be maintaining a record about these publications. I do notknow about it, whether he actually did maintain such record, butI can find out from him.

Q. Was it alleged in any publication that Shri Sukhadia offeredinducements to the voters on particular days and in particularlocalities as alleged in your petition?

A. It was mentioned in one or two publications. I do konw theparticulars about that publication.

Q. Are you willing to produce it after making enquiry ?A. Yes."

138 B. KUMAR SHASTRI V. M. LAL SUKHADIA & ORS. [VOL. XXXVIir

The learned counsel for the respondent wanted the petitioner to filethe publication, whether it was a pamphlet, a leaflet or a newspaper.I accordingly directed the petitioner to file it on Tuesday. The abovestatement was made on Friday. A number of leaflets were filed bythe petitioner on Tuesday in the afternoon. In none of them a specificassertion was made that Shri Sukhadia offered inducements to thevoters on particular days and in particular localities, as alleged in thepetition.

On the basis of the evidence on record I have no doubt that theonly information which the petitioner received was that public workswere executed in some localities and that order Ex. 44 was issued on10th February 1967 and on the basis of this information an allegationwas invented that Shri Sukhadia offered inducements to the voters indifferent localities and made bargains with them with the intention ofpropping them with false evidence. The dates of the alleged bargainsappear to have been invented in the further particulars after finding outwhen the execution of a particular work was commenced. It seemsthat he found that the work on the Nala was started on 1st February1967, and invented the allegation that Shri Sukhadia made a bargainwith the people of Baluchistan Colony on 31st January 1967. It turnedout that Shri Sukhadia was not in Udaipur at all on that date.

Another instance in which the allegation made by the petitioner inthe further particulars was found to be completely false is that madein the further particulars of para 19 namely that Shri Sukhadia address-ed a meeting at the house of Shri Phool Shankar on 14th February1967 in which Shri Prem Shankar, a gazetted Government Officerappealed to the people of his community to vote for Shri Sukhadia.

In view of what has been said above, I decide issue No. 3 againstthe petitioner.

Issue No. 5A. Are the allegations mentioned in Paras. 16 & 17 ofthe election petition correct?

Issue No. 5B. If so, did the respondent No. 1 commit the corruptpractice specified in s. 123(3) or 123(3A) of theRepresentation of the People Act, 1951?

No evidence was produced to prove the allegations made in Para.16 of the petition.

In para 17 of the original petition, it was alleged that RespondentNo. 1 his election agent and his other agents held several meetings inseveral Muslim localities 5 or 6 days before the poll and appealed tothe Muslim voters to vote for the respondent by promoting feeling ofenmity or hatred between Hindu and Muslim voters. While furnishing;

E.L.R.] B. KUMAR SHASTRI V. M. LAL SUKHADIA & ORS. 139

further particulars, an allegation was also inserted that Shri GirdhariLai addressed a meeting on 24-1-67, at Borwadi in which the corruptpractice defined under s. 123 (3A) was committed. Two witnesses werenamed as being present in this meeting, namely, Narainlal and Shefud-din. Neither of them was examined to prove this issue. One RamSingh P.W. 19 was examined to prove that Shri Girdharilal made aspeech at Borwadi three weeks before polling at 9.30 P.M. in whichhe asked the people not to vote for Shri Bhanu Kumar as he wasagainst Muslims. Shri Girdhari Lai was alleged to have said that ShriBhanu Kumar got shops of Muslims burnt and was arrested for thatreason and that if people voted for Jan Sangh, Bhanu Kumar wouldsend them to Pakistan and would get mosques demolished. Borwadiis a predominantly Muslim locality. Ram Singh was the only witnessexamined to prove this meeting. He is a member of the Jan Sangh andwas the polling agent of the petitioner. He stood for election to theMunicipal Council on the Jan Sangh ticket from Ward No. 8 but lostto the Congress candidate. No reliance can be placed on his evidence.Shri Girdhari Lai denied having made any such speech, and I am satis-fied that this denial is perfectly true.

Issue No. 5 is accordingly decided against the petitioner.

Issue No. 7A: Are the allegations made in Para. 19 of the electionpetition correct?

Issue No. 7fi: If so, did the respondent No. 1 commit the corrupti practice specified in s. 123(7) of the Representation! of the People Act, 1951 ?j

In the original petition it was alleged that Respondent No. 1 pro-cured the assistance of Shri Chhail Behari Mathur, Executive Engineer,P.W.D., Udaipur, and Shri Prem Shanker, Director, Ayurvedic Depart-ment, Governmjent of Rajasthan. It was stated that they canvassed forthe respondent. The petitioner was required to furnish full particularsas to the date, place and manner in which the assistance was procuredby the respondent and the date and place where they canvassed for theRespondent. So far as Shri Chhail Behari Mathur is concerned, noparticulars of canvassing on his part were furnished. As for Shri PremShanker, it was alleged that he was at Udaipur on 13th & 14th Febru-ary, 1967, and during his stay there, he called a meeting of Brahmins ofBrahmapuri at the house of Shri Phool Shanker where Shri Sukhadiawas invited. In this meeting Shri Prem Shanker appealed to membersof his community to vote for the respondent. It was also alleged thatShri Prem Shanker called the meeting at the instance of the respondent.

140 B. KUMAR SHASTRI V.M.LAL SUKHADIA & ORS. [VOL. XXXVIII

Evidence was led to prove that a meeting was held on 14-2-67, at11-30 A.M., which was attended by Shri Sukhadia. Shri Prem Shankerwas alleged to have made a speech appealing to the people of his com-munity to vote for Shri Sukhadia. Two witnesses Roshanlal (P.W. 11)and Bansilal (P.W. 24) were examined to prove tjhe meeting. Neitherof them is a Brahmin and was not likely to be invited to this meeting.Both these witnesses are students of M.A. class. Roshanlal was thepolling agent of the petitioner in the last election. Shri Prem Shankerappeared as R.W. 34 and stated that on 14-2-67 he was not in Udaipurat 11-39 a.m. but reached there only at 11-00 P.M. by bus from Aimer.He left Ajmer at 1-00 P.M. and was there till then. He was in Udaipuron 12-2-67 and reached Ajmer on 13-2-67 in the morning. From Aimerhe went to Jaipur by bus reaching there at 1-00 P.M. on 13-2-67. Hecame to Ajmer by train on 14-2-67 in the morning. He came to Udai-pur on 14-2-67 by bus to see a distant cousin who was lying ill there.Before leaving for Udaipur he sent a telegram to the Secretary, Health,Rajasthan Government, Jaipur, informing him that he was leaving head-quarters on a declared holiday for Udaipur on account of the illness ofhis sister. The office copy of this telegram is contained in file C-77of the office of the Director of Ayurvedic Department, Ajnier. On thisoffice copy it is noted that a phonogram was despatched from Ajmer at10-45 a.m. on 14-2-67. The telegraphic message was delivered to theSecretary, Health, at Jaipur on the same day. It is contained in fileC-75 of the Medical & Health Department of the Government of Raias-than at page 6. This telegraphic message bears the post mark dated14-2-67. It is mentioned in it that the message was handed in at Ajmerat 14 hrs. and was received at Jaipur at 16 hrs. on 14-2-67. This fullycorroborates the statement of Shri Prem Shankar that he left Ajmer on14-2-67 by bus for Udaipur and reached there at 11 p.m. and that he wasnot in Udaipur at 11-30 a.m. on that date.

Shri Prem Shankar was asked as to why he did not 5.:c his cousinat Udaipur on 12-2-67 when he was there. He stated that he could notget time on that day to see her. On 14-2-67 his nephew TribhuvanVallabh, who is the son of the cousin, who was ill, came to see ShriPrem Shankar at Ajmer and requested him to go with him to see hismother. That is why he went to Udaipur. Tribhuvan Vallabh is em-ployed as Vaidya in a dispensary near Ajmer.

On a requisition issued by this Court asking him to send the pro-gramme of his visits to Udaipur Shri Prem Shankar sent a programmeEx. A. 98. In this programme it was shown by him that he was atUdaipur and Kankroli upto 13-2-67. The witness however stated thathe left Udaipur on 12-2-67 in the evening and was not there at anytime on 13-2-67. His explanation was that as he drew travelling allow-ance for the journey from Udaipur upto the time of his arrival at Ajmer

E.L.R.] B. KUMAR SHASTRI V. M. LAL SUKHADIA & ORS. 141

on 13-2-67 he had shown in Ex. A. 98 that he was in Udaipur and Kan-kroli on 13-2-67. This explanation does not sound plausible. But Ibelieve that the witness was really under the erroneous impression thathe should show that he was in Udaipur and Kankroli on 13-2-67. Pro-gramme Ex. A. 98 was sent by the witness on 21-1-67. Roshanlal wasexamined on 8-1-68 and Banshilal on 11-1-68. Even in the amendedpetition the petitioner did not give the exact date of the meeting. Healleged that Shri Prem Shankar was at Udaipur on 13-2-67 and 14-2-67and during his stay there he called a meeting. Now if Shri Prem Shan-kar wanted to give false evidence in favour of Shri Sukhadia he wouldnot have admitted his presence in Udaipur on 13-2-67. He would haveavoided admitting his presence on both the dates mentioned in thepetition. I am accordingly satisfied that the evidence of Shri PremShankar is true. It follows therefore that the story told by Roshanlaland Bansilal is false.

Bans'ilal stated that Shri Sukhadia was garlanded by Shri PhoolShankar when he arrived at his house for the meeting. Shri PhoolShankar has appeared as R.W. 33. He was the Assistant Registrar ofthe Veterinary College, Bikaner at that time and he stated that on14-2-67 he was on duty at Bikaner. 14th February, 1967 has been dec-lared as holiday in Udaipur because polling took place there on 15thFebruary 1967. It was not a holiday in Bikaner.

In the summons the witness was asked to bring the college recordin which his presence on 14th February 1967 was recorded. He couldnot bring this record because he explained that the summons was notaddressed to the Head of the Institution.

I accordingly find that even Shri Phool Shankar was not in Udaipuron 14th February 1967. Shri Sukhadia has denied in his statement thathe went to the house of Shri Phool Shankar on 14th February 1967 oraddressed a meeting there.

In the result, I decide issue No. 7 against the petitioner.

Issue No. 4:

4A. Are the allegations mentioned in Paras No. 12, 13, 14 and 15of the election petition correct?

4B. If so, did Respondent No. 1 commit corrupt practice specifiedin section 123(4) of the Representation of the People Act1951?

I shall first deal with the allegations made in Paras. 12 and 13 of thepetition. They relate to leaflet Ex. 8. The respondent made a generaldenial of all the allegations made in these two paras. I shall first dealwith the evidence of distribution of leaflet Ex. 8 given by the petitioner.

142 B. KUMAR SHASTRI V. M. LAL SUKHADIA & ORS. [VOL. XXXVIII

DISTRIBUTION

In the original petition, Paras. 12 and 13 run, as follows :—

"(12) That the District Congress Committee;, Udaipur, of whichthe respondent No. 1 is also one of the members published a pam-phlet with a heading "GALIYON CHORAHON PAR CONG-RESS KI JEET GUNJ RAHI HAY." It was stated in that leafletthat Shri Bhanukumar Shastri, Vice-President of Jansangh, has illegallytaken possession of Government land in Shivajinagar and has forciblyleft a road of 9 ft. only. This is a statement of fact which the Res-pondent No. 1 and his agents believed to be false or did not believe tobe true in relation to the personal character and conduct of the peti-tioner. Such leaflets were widely published and distributed by the res-pondent No. 1, his agents and other persons with the consent of therespondent No. 1 in the whole of the Constituency and these leafletswere distributed to prejudice the election of the petitioner. Thus, theRespondent No. 1 and his agent committed corrupt practice as definedunder section 123(4) and section 100(1)(b) of the said Act."

"(13) That the petitioner's father purchased a piece of land inShivajinagar for construction of house from certain Mans who were theowners of those lands and the land in question did not belong to Gov-ernment, hence no question of taking illegal possession of Governmentland by the petitioner ever arose. The petitioner's father constructed ahouse on the land so purchased in that Shivajinagar according to theplan approved by the Municipal Council, Udaipur, and even today thereis a road of about 17 ft. wide on the northern side and 25 ft. wide onthe eastern side, hence there is no question of leaving 9 ft. wide roadforcibly. These facts were within the knowledge of the respondent No.1 and his agents who published and distributed the said pamphlets. Thesepamphlets were published calculating to prejudice the prospects of theelection of the petitioner. Due to such publication many voters weremisled and they did not vote for the petitioner. The leaflet is attachedand marked Ex. 1. Thus the respondent No. 1 committed corrupt prac-tice under section 123(4) and section 100(1) (b) of the said Act."

Before filing his written statement the respondent filed an appli-cation in which the following objection was taken with regard to theabove paras.:—

"That in respect to paras. No. 12 and 13 of the petition, it issubmitted that the petitioner has not specified date or dates, asalso the place or places at which the respondent No. 1 is said tohave distributed the impugned pamphlet nor the petitioner hasnamed and given particulars of the agent or agents of the respon-dent No. 1 who are alleged to have distributed the said pamphletwith the consent of the respondent No. 1."

E.L.R.] B. KUMAR SHASTRI V. M. LAL SUKjlADIA & ORS. 143

On this application, I passed the following order on 11-5-67:—

"The petitioner should file a detailed reply to this applicationgiving as full particulars in respect of each matter as he can."

The following further particulars were filed under the above order:—

"Professor K. Vasishth was nominated as the Election PublicityIncharge by the respondent No. 1 from the date of nomination. Thepublicity matter was published in the Krishna Printing Press ofShri Girdharilal the election agent of the respondent No. 1 ShriHanuman Prashad, Bhagwati Prasad Bhatt, and Ishtiaq Ahmedwere responsible for distributing the literature. Pamphlet referredto in para. 12 of the petition was distributed between 5th and 14thFebruary, 1967 through some boys employed for the purpose in thewhole of the city. Each passer-by, each shop-keeper was given thispamphlet."

The respondent specifically asked for dates and places at which respon-dent No. 1 was alleged to have distributed the leaflet. As these parti-culars were not furnished the petitioner was not allowed to give evidenceto prove that the respondent himself distributed the leaflet. The otherparticular which the respondent sought in his above application wasthe names of the agents of the respondent who were alleged to havedistributed the leaflet with his consent. The names of these agentswere given as Hanuman Prasad, Bhagwatilal Bhatt and Ishiaq Ahmad.In the above particulars it was stated that they were responsible fordistributing the literature. "Literature" obviously included the leafletreferred to in para 12. An objection was taken on behalf of the res-pondent when Lakslimi Narain (P.W. 4) was being examined that hecould not prove that Hanuman Prasad himself distributed the leaflet.

[After considering the evidence about the issue of the impugnedpamphlet (Ex. 8) by the District Congress Committee, Udaipur, con-taining a false attack, on the petitioner that he had illegally ta\en posses-sion of Govt. land and that the said pamphlet was issued by the CongressCommittee with the consent of the first respondent which was distri-buted widely in the constituency to prejudice the election of the peti-tioner, the judgment proceeded]:

The canvassing for Shri Sukhadia and Shri Dhuleshwar in UdaipurCity was joint and most of the expenditure incurred was for the benefitof both the candidates. Some of this expenditure was borne by the CityCongress Committee, some by the District Congress Committee andsome by the two respective candidates. So far as the accounts of theCity Congress Committee are concerned expenditure was incurred outof a sum of Rs. 11,200/-. Two items amounting to Rs. 8,000/- are

144 B. KUMAR SHASTRI V. M. LAL SUKHADIA & ORS. [VOL. XXXVIII

shown as having been received from the D.C.C. They are not enteredin the account books of D.C.C. Shri Bhatt stated that they were anony-mous donations earmarked for Shri Dhuleshwar and so they were notentered in the account books of D.C.C. In the account books of theCity Congress it is not specified that the amount was intended forelection expenditure of Shri Dhuleshwar.

Out of the sum of Rs. 11,200/- the City Congress Committee paidRs. 9,039.41 on behalf of Shri Dhuleshwar. These payments are shownin the election return of Shri Dhuleshwar. Bills for these were re-ceived and paid by the City Congress Committee. These bills were laterincluded in the election return of Shri Dhuleshwar and fictitious datesof payment have been shown in it. Bills paid by the City CongressCommittee on 28-2-67 have been shown as having been paid on 20-2-67.

Shri Sukhadia's election account was maintained by Shri GirdhariLai by making notes of payments on rough Parchas and preserving billsand receipts. The accounts were subsequently written in a bound re-gister by Ram Kumar who wrote the account books of the D.C.C. andthe City Congress Committee. In this register and in the election re-turn fictitious dates of payment were entered. Shri Bhatt stated thathe kept all the bills with himself and sent them to different candidatesafter 20-2-67 for payment. The payment of these bills has been shownby the candidates on earlier dates.

I have already pointed out above that payments to the extent ofRs. 9,039.41 which were actually made by the Citsy Congress Committeewere shown in the return of Shri Dhuleshwar Mina. Three paymentsmade by the D.C.C. were also shown in the returns of Shri Dhuleshwarand Shri Sukhadia. They are as follows:—

D.C.C. Account Book Ex. 288—

(1) Page 34—Bill No. 885 dated 20-2-67 for Rs. 211/- in the nameof Shri Sukhadia for printing specimen ballot papers and Par-chas paid by the D.C.C. on 28-2-67. This was included in thereturn of Shri Sukhadia at page 103 of file No. 16. In thereturn the date of payment was shown as 20-2-67.

(2) Page 35—Bill No. 881 dated 20-2-67 for Rs. 233/- for printingspecimen ballot papers and identity slips for the Rajsamand As-sembly Constituency in the name of Shri Amritlal Yadav,Congress candidate from Rajsamand constituency, paid on28-2-67 by D.C.C. Udaipur was included in the election returnof Shri Dhuleshwar Mina. Payment was shown to have beenmade on 20-2-67.

B.L.R.] B. KUMAR SHASTRI V. M. LAL SUKHADIA & ORS. 145

(3) Page 35—Bill No. 879 dated 20-2-67 for Rs. 91 for printingspecimen ballot papers for the Udaipur Parlimentay Consti-tuency in the name of Shri Dhuleshwar was paid by the D.C.C.on 28-2-67. This bill was included in the return of Shri Dhu-leshwar and payment was shown to have been made on 20-2-67.

The total expenditure shown in the election return of Shri Dhuleshwaramounted to Rs. 19,116.33. That shown in the election return of ShriSukhadia was Rs. 5,404.75. Part of these amounts was paid by theD.C.C. and the City Congress Committee Udaipur as has already beenmentioned above.

Donations both by name and anonymous were made to the D.C.C.Udaipur amounting to Rs. 2,93,500. Many of these were made atthe instance of Shri Sukhadia. The bulk of this amount was spentover the election campaign of the Congress candidates by the D.C.C.leaving a balance of Rs. 4,431. The City Congress Committee spentthe bulk of Rs. 11,200 over the election campaign of the two Congresscandidates in Udaipur City leaving a balance of Rs. 183. There wasone parliamentary candidate and 13 assembly candidates. The limit ofexpenditure prescribed under section 77 is Rs. 20,000 for a parliamen-tary candidate and Rs. 6,000 for an assembly candidate. The totalamount which the candidates themselves or their election agents couldspend over their election campaign could not have exceeded Rs, 98,000.But there is no limit prescribed for the expenditure which the partymay incur over the election campaign of candidates sponsored by it.There is a distinction in law between an election campaign carried onby the candidate or his election agent and that carried on by the partysponsoring him.

Shri Bhatt sent 3 bills for 3 leaflets which he got published to ShriGirdhari Lai for payment in the account of Shri Sukhadia and ShriGirdhari Lai made payment without verifying whether these leafletswere actually distributed. They are Ex. 90 at page 73, ^x. 290 at page86 and Ex. 291 at page 88 of file No. 16. Ex. 290 purports to be anappeal by Shri Sukhadia to the voters of Udaipur City to vote for theCongress on 15-2-67 which was the polling day. It bears his photo.The other two leaflets give more prominence to Shri Sukhadia althoughan appeal has been made for votes for ShA Dhuleshwar also in them.In all the leaflets distributed in Udaipur City an appeal was made tovote for both the Congress candidates. Shri Bhatt did not keep anyrecord to indicate whether he got any leaflet published more speciallyin the interest of any one candidate. He appears to have exercised hisdiscretion as to who was to pay for a particular leaflet, only after thepolling was over. ; .

I—3EIec. Com./71

146 B. KUMAR SHASTRI V. M. LAL SUKHADIA & ORS. [VOL. XXXVIII

It was of little consequence as to who bore a particular expenditureas most of the expenditure was incurred on the joint campaign of bothShri Sukhadia and Shri Dhuleshwar in Udaipur City.

Shri Sukhadia stated at page 306—

"So far as joint expenditure on the election campaign was con-cerned the election agents of Shri Dhuleshwar and myself used todecide how it was to be borne."

Shri Girdhari Lai on the other hand stated at page 484—

"No meeting took place between me and Shri Madhav LaiAgarwal or Shri Dhuleshwar Mina to settle how the expenses in-curred over the election should be distributed. Nor did I have anymeeting with Shri Bhagwati Lai Bhatt, Secretary of D.C.C. todecide what expenses should be borne by Shri Dhuleshwar Minaand what by Shri Sukhadia. Whatever bills he sent to me in theaccount of Shri Sukhadia, I paid."

Shri Madhav Lai stated at page 559—

"I never met Shri Girdhari Lai to settle what leaflets to getprinted and who was to bear what expenditure."

Some bills were received in the names of Shri Sukhadia and Shri Dhu-leshwar and they were paid by their election agents. No Bill was re-ceived in the name of Shri Madhav Lai. Several bills shown in theelection return of Shri Dhuleshwar Mina were received in the namesof the D.C.C. and the City Congress Committee. Some were receivedin the name of Shri Girdhari Lai. The evidence on record shows thatthe candidate or his election agent included in the election return what-ever bill was sent to him by the D.C.C. or the City Congress Committee.

Shri Sukhadia admitted that he had given full authority to ShriGirdhari Lai to publish whatever literature he thought proper to doin his interest. He stated at page 299—

Q. Did Shri Girdhari Lai inform you whenever you visited Udai-pur as to what matter he got published in support of your elec-tion propaganda or did he get it published without informingyou?

A. He did not get whatever he published approved by me beforepublication. Nor was it necessary for him to show everythingto me which he got published.

He stated that he had told Shri Girdhari Lai not to make a personnelattack on any candidate. Shri Girdhari Lai corroborated him. ShriSukhadia was asked if he considered Parcha Ex. 8 to be defamatory.He said that he thought it to be defamatory and if Shri Girdhari Laibad asked him if he should publish it he would not have given his

E.L.R.] B. KUMAR SHASTRI V. U. LAL SUKHADIA & ORS. 147

approval. Shri Girdhari Lai however continued to edit Aravali duringthe months of December 1966, and January and February 1967 and inthe Aravali dated 1-1-67 (Ex. 292 at page 79 of file part C-A) a refe-rence was made to an adjournment motion moved on 8-5-66 in connec-tion with the encroachment on Government road by Shri Bhanu KumarShastri in constructing his house.

Pragati is a weekly paper edited by one Durgesh Joshi, a Congressworker. Shri Bhatt admitted that for some days in January and Febru-ary 1967 a daily Pragati was published at the instance of the D.C.C.and that in each of the issues dated 15-1-67, 18-1-67, 26-1-67 and 13-2-67an item was published stating that Shri Bhanu Kumar had constructedhis house on Government land in Shivaji Nagar. The issue dated26-1-67 was a special issue introducing all the Congress candidates. Thecharge was about the publication of leaflet Ex. 8. There was no chargewith regard to the publication of Aravali and Pragati. From the factthat an allegation similar to that made in Ex. 8 was made in thesenews-papers it cannot be inferred that Shri Girdhari Lai who editedAravali consented to the publication of Ex. 8. In fact in the petitionit was nowhere alleged that leaflet Ex. 8 was printed with the consentof Shri Girdhari Lai.

It was admitted by Shri Sukhadia that Hanuman Prasad was oneof his important workers during the election. Shri Girdhari Lai wasin charge of his election campaign. He was also in charge of the elec-tion work in the City including the election campaign on behalf ofShri Dhuleshwar. Shri Bhagwati Lai Bhatt, Shri Hanuman Prasadand Shri Dhuleshwar used to sit in the D.C.C. office and Shri GirdhariLai used to sit in the office of the City Congress Committee, which isat a distance of 1£ furlongs from the D.C.C. office. According to ShriBhagwati Lai Bhatt Shri Girdhari Lai used to visit the D.C.C. officefrom time to time. There were telephones in the D.C.C. office as wellas in the City Congress Office and Shri Girdhari Lai and Shri BhagwatiLai Bhatt were able to communicate with one another on the telephoneas well. Shri Bhagwati Lai Bhatt stated at page 657 that the Press o£Shri Girdhari Lai was at a distance of 100 ft. from the City CongressOffice where Shri Girdhari Lai used to sit. 10,000 copies of leaflet Ex. 8were got printed by Shri Bhatt in die Press of Shri Girdhari Lai. Theycould only have been intended for distribution in Udaipur City as hasbeen held by me above. They were not found lying undistributed inthe office of the D.C.C. when a requisition was sent by this Court tothe D.C.C. to produce the draft of the leaflet. Shri Sukhadia himselfvisited Udaipur on 5-1-67, 16-1-67, 22-1-67, 2S-1-67, 5-2-67, 10-2-67, 12-2-67and remained there upto 15-2-67. He admitted that he used to meethis important workers whenever he visited Udaipur. On the basis ofthese facts it is contended on behalf of the petitioner that it is difficult tcbelieve that Shri Girdhari Lai did not visit his Press, that he and Shri

148 B. KUMAR SHASTRI V. M. LAL SUKHADIA & ORS. [VOL. XXXVIII

Sukhadia did not come to know about the distribution of leaflet Ex. $•in the City and that as they did not do anything to stop its distributionthe only inference which can be drawn isi that leaflet Ex. 8 was distri-buted with their consent.

In the further particulars it was alleged that the leaflet! was distri-buted from door to door in the City of Udaipur through boys. The peti-tioner however chose to produce evidence to prove that these leaflet*were distributed in meetings addressed by Shri Sukhadia and in a Con-gress procession between 5th and 14th February 1967. I have not beliey-ed this evidence. Although from the facts it can be inferred that 10,000copies of leaflet Ex. 8 must have been distributed in Udaipur City beforethe polling it cannot be said on what date they were distributed. Norcan it be said that they were distributed on several days. Both ShriSukhadia and Shri Girdhari Lai have denied that they saw leaflet Ex. 8at any time before the polling. No evidence was produced on behalf ofthe petitioner to prove that Shri Girdhari Lai used to visit his) Press inthe months of January and February 1967 or that he or Shri Sukhadiasaw leaflet Ex. 8. From the facts and circumstances narrated above itcannot be 'inferred that Shri Girdhari Lai or Shri Sukhadia had know-ledge of the distribution of leaflet Ex. 8. The question of their stoppingits distribution therefore does not arise.

Shri Girdhari Lai had authority of Shri Sukhadia to publish what-ever leaflet he thought proper in his interest. No such authority was givenby Shri Sukhadia to Shri Bhatt. As I have already mentioned above,in his capacity as the Secretary of the D.C.C. he carried on electionpropaganda for the furtherance of the prospects of the Congress candi-dates. He spent enormous sums of money over this propaganda, whichis not prohibited by law as I have said above. Shri Bhatt will be deemedto have carried on propaganda in furtherance of the prospects of theCongress candidates with their consent. He as well as the D.C.C. wereno doubt agents of the Congress candidates within the meaning ofExplanation (1) to section 123 which runs—

"In this section the expression 'agent' includes an election agent,a polling agent and any person who is held to have acted as aaagent in connection with the election with the consent of the can-didate."

The consent of the agent is however not the consent of the candidate.Under section 100(1) (b) election of the returned candidate can only beset aside on proof that any corrupt practice has been committed by himor by his election agent or by any other person with his consent orwith the consent of his election agent. The expression "any other per-son" includes an agent of the candidate other than his election agent*

«.L.R.] B. KUMAR SHASTRI V. M. LAL SUKJHADIA & ORS. 149

If an agent commits a corrupt practice without the consent of the candi-date or his election agent then the election can only be set aside undersection 100(1) (d)(ii) on proof that the result of the election has beenmaterially affected. In a Division Bench decision of this Court inKrishna Kumar v. Krishna Gopal (14) to which I was a party it washeld that section 100(2) is a proviso to section 100(1) (d)(i i) .

On behalf of the petitioner it was contended that where a candidateis sponsored by a party there is a presumption that every act of theparty or its members has the implied consent of the candidate. Reliancewas placed on observations made by Sarjoo Prasad, Chief Justice, inlnder hall v. Lai Singh (15) which are reported in paras 19 to 21 of theA.I.R. report. The learned Chief Justice followed his earlier decisionin Nani Gopal Swami v. Abdul Hamid (16) which he gave when he•was Chief Justice of the Assam High Court. In that decision the fol-lowing observations were made:—

"The case, however of an 'agent' who has been proved to beregularly working for the candidate during the election, stands ona somewhat different footing. In his case, approval or consent toany act done by him to promote the candidate's election is implied.Where, therefore, corrupt practice, in the course of the election pro-ceedings is attributed to an 'agent', it raises a strong presumptionthat it was done at the instance or with the express or impliedconsent of the candidate himself. The candidate is himself vica-riously responsible for the act and conduct of his 'agent' during theelection. The language of sub-section (2) of section 100 strengthensthe above inference."

The view taken in Nani Gopal's case (16) was fully considered inKrishna Kumar's case (14) and was not followed. Detailed reasons aregiven in the report of that decision and need not be repeated here. Aspointed out in that judgment section 100(2) is a proviso to section100(1) (d)(i i) .

The learned counsel for the petitioner also relied on the followingobservations made by their Lordships of the Supreme Court in RamKishan v. Jai Singh and others (17):—

"In view of the general power which Krishan Parshad Chopraenjoyed in the matter of the returned candidate's election cam-paign he must be held to be his agent for the purpose of s. 123(4)because of the Explanation already quoted. This general powerwas sufficient to establish a kind of prior consent which is rendered

(14) I. L- R. (1963) 13 Rajasthan 726.(15) A. I. R. 1961 Rajasthan 122.(16) A.I.R. 1959 Assam 200.<17) Civil Appeal No. 1949 (NCE) of 1967 (S.C.) decided on 23-4-1968.

150 B. KUMAR SHASTRI V. U. LAL SUKHADIA & ORS. [VOL. XXXVIIl'

more certain by the subsequent conduct of the candidate in notdisowning or contradicting the poster or refusing to pay the chargesfor the printing."

These observations arc to be read in the context of the facts of the casein which they were made. The objectionable poster purported to bepublished by Krishan Parshad Chopra who described himself in it as"Election Incharge Comrade Ram Kishan, Congress Candidate Parlia-ment". Shri Ram Kishan who was the returned candidate admittedthat he had left the full direction of his election campaign to KrishanParshad Chopra who had successfully worked for him in the previous3 elections. Their Lordships observed—

"This itself may be taken as an approval of what Krishan Par-shad did because if a person trusts another and leaves the matterin the latter's hands he cannot then turn round and say that someact of his was without his consent provided other circumstancespoint to the fact that his consent must have been in some wayforthcoming."

It is noteworthy that even if a person who is put in sole charge of hiselection campaign does an act a presumption would arise that he didit with implied consent of the candidate. But to infer the consent ofthe candidate who denies his consent further facts have to be provedto show that his consent was in fact given. Detailed facts of the caseare given in the judgment of the Punjab High Court in Jai Singh v.Ram Kishan and others (18).

Learned counsel for Ram Kishan made a statement during thetrial of that case that the objectionable poster was pasted all over theconstituency. It was admitted that Krishan Prasad Chopra got theposter printed and that bill for it was dated 6-2-67 which was paid onbehalf of Shri Ram Kishan and was included in his election return.The poll was on 19-2-67. That means that the poster was publishedon or before 6-2-67. Shri Ram Kishan admitted that he saw the poster5 or 7 days before the poll but took no steps to countermand it. Thebill for printing the posters was included by Shri Ram Kishan in hiselection expenses. It was on the basis of these facts and circumstancesthat their Lordships inferred the consent of the returned candidate tothe publication of the poster. Their Lordships did not hold that thereis any presumption that an act done by an agent is done with theimplied consent of the candidate. The observations quoted above weremade with regard to Krishan Parshad Chopra to whom the candidatehad left the full direction of his election campaign.

(18) Election Petition Mo. 37/67 deciced on 4-12-67.

E.L.R.] B. KUJtfAR SHASTRI V.' M. EAL SUKHADIA & ORS. 151"

In the present case Shri Sukhadia had left full direction of hiselection campaign in the hands of Sbii Girdhari Lai, but not in thehands of Shri Bhatt. The statement of Bhagwati Lai Bhatt at page653, which has been referred to above to the effect that he had fullauthority to issue whatever leaflet he thought proper to issue for elec-tion purposes has to be read in the context in which it was made. Thatcontext was that he had the full authority of the D.C.C. to issue anyleaflet which he thought proper to issue. He did not say that he had :full authority of the candidates to issue whatever leaflet he thought .proper. As I have already said above, although leaflet Ex. 8 must havebeen distributed in Udaipur City before the polling it cannot be said onwhat date or dates it was distributed. Nor is there any evidence to showthat Shri Sukhadia or Sh/i Girdhari Lai saw this leaflet before the dayof polling. The knowledge of the leaflets issued by Shri Bhatt in con-nection with the Congress election propaganda cannot be attributedeither to Shri Sukhadia or to Shri Girdhari Lai, in the absence of anyevidence. They may have had knowledge of such leaflets or they may !

not have had knowledge of them.

I accordingly hold that Shri Bhatt got leaflet Ex. 8 printed in theKrishna Printing Press and got it distributed in Udaipur City, but ithas not been proved that Shri Sukhadia or Shri Girdhari Lai had anyknowledge about its printing and distribution or consented to it in anyway. Shri Bhatt published the leaflet in his capacity as Secretary of theD.C.C. in furtherance of the prospects of Shri Sukhadia and Shri Dhu-leshwar.

Falsity of statement of fact in Ex. 8:

The following statement of fact appeared in leaflet Ex. 8:—

"The Vice-President of Jan Sangh Shri Bhanu Kumar Shastritook illegal possession of Government land in Shivaji Nagar byforce and left a road of 9 ft. width only."

The above statement of fact relates to the personal conduct and characterof the petitioner. This was not disputed by the learned counsel for therespondent at the stage of arguments.

Shri Sukhadia admitted that the allegation that the petitioner leftonly a road of 9 ft. wide is false. He said that the petitioner left aroad of 16 ft. wide. Learned counsel for the respondent however didnot dispute that Shri Bhanu Kumar left 17 ft. wide road. It is alsoclear from the evidence on record that Shri Bhanu Kumar did not him-self construct any house. His father whose name is also Shri GirdhariLai constructed a house in Shivaji Nagar Colony. It however appearsfrom the evidence on record that Shri Bhanu Kumar was residing inthe same house as his father in Surajpol before the construction of the

1 5 2 B. KUMAR SHASTRI V. *f. LAX, SUKHADIA & ORS. [VOL. XXXVIII

house in Shivaji Nagar, When the house in Shivaji Nagar Colonywas constructed Shri Bhanu Kumar also shifted to it along with hisfather. He has, however, stated that he has always been living sepa-rately from his father. Application Ex. A. 3 dated 18-2-63 which wasfiled on behalf of the petitioner's father for permission to construct wasfilled in by Shri Banu Kumar himself. His father's signatures are alsoin his hand. The address of the petitioner's father is given as "C/OShri Bhanu Kumar Shastri, Surajpol, Udaipur". This application is atPage 2 of Municipal file Ex. A/2. Another application for permissionto construct was filed by the petitioner's father on 8-5-64. The columnsin this application have been filed by Shri Bhanu Kumar although itis signed by his father. These facts cannot go to prove that Shri BhanuKumar and his father were joint. Both of them stated that they havebeen living separately and the house constructed on it is the sole pro-perty of the father. The plot was purchased in the name of his father,who was one of the executants of sale-deed Ex. 12 by which the plot-holders of Shivaji Nagar purchased land from private persons whichwas later divided into plots. Shri Bhanu Kumar's father Shri GirdhariLai was examined as P.W. 17. He stated that before they migratedfrom Sind he and his sons had separated. He had four sons from hisfirst wife. Shri Bhanu Kumar Shastri is one of those sons. After thedeath of his first wife, he married second wife who bore him 8 sons: Thesons of his first wife separated from him in Sind two years before parti-tion. The father owned six houses in Hyderabad three of which wereancestral and three were his self-acquired property. He gave away allthe three ancestral houses to his four sons from his first wife who sepa-rated from him. He stated that Shri Bhanu Kumar and his threebrothers got compensation for those three houses from the Governmentafter migrating to India after partition. The father stated that he pur-chased the plot in Shivaji Nagar and constructed a house over it outof compensation money which he got from the Government and ShriBhanu Kumar did not contribute anything towards it. Neither therespondent nor any of his witnesses stated that Shri Bhanu Kumar wasjoint with his father, or that he contributed in any way towards thepurchase of the plot or the construction of the house in Shivaji Nagar.There can thus be no doubt that Shri Bhanu Kumar had no share orpecuniary interest in the house in Shivaji Nagar.

[After considering the evidence about the falsity of the publicationof the statements made in the pamphlet (Ex. 8) as to whether the peti-tioner too\ illegal possession of Govt. land in Shivaji Nagar by forceand reduced the width of the road to 9 ft. only against the provisions ofRajasthan Municipalities Act, 1959, the judgment proceeded ] :

In the result I hold that the statement of fact, contained in leafletEx. 8 that Shri Bhanu Kumar had encroached on Government land inconstructing his house and had reduced the Width of the road to 9 ft.

I.L.R,.} B. KUMAR SHASTRf V. M. LAL SWKHADIA & ORS. 153

was false. Shri Sukhadia admitted that he knew that the part of thestatement in which it was alleged that the width of the road was re-duced to 9 ft. was false. There was no ground on the basis of whichhe might have believed the allegation that Shri Bhanu Kumar or hisfather had encroached on any Government land in constructing theirhouse. I accordingly further hold that Shri Sukhadia either believedthis allegation to be false or did not believe it to be true.

Whether the statement was reasonably calculated to prejudice theprospects of the petitioner's election.

It is now well settled that the Court has to decide what would, inthe circumstances of the case, be the effect of the impact of the publi-cation on the minds of the voters at the time they vote. In some casesit has been laid down that the Court should first consider the reactionof the candidate and his witnesses and whether he has published anycontradiction.

The petitioner stated that the false statement contained in Ex. 8was published with the object of prejudicing his prospects in the electionand that voters were misled by it with the result that he lost theelection.

Narainlal (P.W. 5) stated that on 10-2-67, at 3 P.M., Shri Sukhadiasaid in a meeting that Shri Bhanu Kumar had constructed his houseon Government land in Shivaji Nagar and the effect of this statementon him was that he decided to vote for Shri Sukhadia for fear that ifShri Bhanu Kumar was successful he might do some other ghotala.

Labhchand (P.W. 29) stated that Hanuman Prasad gave him leafletEx. 8 in the Congress procession on 12-2-67 and on reading it the effecton him was that Shri Bhanu Kumar had misappropriated Governmentland after winning the municipal election and if he is elected to theassembly he would do some other 'gadbad'. This was the effect on himdespite the fact that he had read an earlier parcha issued by the JanSangh in which it was stated that the allegation that Shri Bhanu Kumarhad misappropriated Government land was false. He explained incross-examination that he relied more on the Congress parcha becauseit was, printed and the Jan Sangh parcha was cyclo-styled. This witnesswas the polling agent of Shri Bhanu Kumar. He was asked as to whyhe became the polling agent of Shri Bhanu Kumar when his ideasabout him changed on seeing the Congress parcha. He stated that ShriBhanu Kumar and other Jan Sangh people convinced him that theallegation made against Shri Bhanu Kumar in the Congress parcha wasfalse;

154 B. KUMAR SHASTRI v. M. LAL 5UKHADIA & ORS. [VOI~ XXXVIII

I am of the opinion that it is primarily for the Court to determinewhat would be the effect of the publication on the vote and muchassistance cannot be had in this respect from the statements of thepetitioner and his witnesses.

The petitioner stated that the Jan Sangh published a parcha contra-dicting the fake allegations made in Ex. 8. I am unable to understandwhat inference can be drawn even if in a given case the petitioner doesnot publish a contradiction when it is proved to the satisfaction of theCourt that the statement of fact which is said to have been publishedby he returned candidate was false. By publishing a contradiction thecandidate would at; the same time be given currency to the libel againsthimself and an elector has no means of knowing before the poll whe-ther the libel is true or its contradiction. In this view of the matted, Iam of the opinion that it is not necessary for the aggrieved candidate topublish any contradiction of a false statement.

In some cases the view has been taken that if a false statement offact has been published on an earlier occasion also, then it is not likelyto prejudice the prospects of the candidate. I am unable to accept thisview. The sting of a false allegation is not taken away because it hasbeen published again and again. The false statement of fact containedin Ex. 8 was earlier published in "Aravali" dated 24-7-64 (Ex. A. 119)and in Udaipur Times dated 27-7-64 (Ex. A. 136) and 1-8-64 (Ex. A. 137.1 have held above that the insinuation made in Ex. A. 136 that the orderdated 1-5-64 was ante-dated was false. Similar insinuation was made inEx. A. 137. It is not practicable to sue all journalists who choose topublish defamatory statements.

I am accordingly of the opinion that if a statement of fact is provedto be false and it is further proved that the respondent did not believe itto be true and the statement is reasonably calculated to prejudice the pros-pects of the election of a candidate, it does not matter how many timesft is published on an earlier occasion.

But in order to find out the effect of the false publication the Courthas to consider the nature of the statement and the proximity of itspublication to the date of polling. So far as the question of proximity isconcerned, it has not been proved in this case on what date leaflet Ex. 8was printed and distributed. As for the nature of statement, I am ofthe opinion that a false allegation that a candidate has encroached onGovernment land in constructing his house, is not reasonably calculatedto prejudice the prospects of his election. Such encroachments are fairlycommon in these parts. Although the respondent has characterised thealleged act of the petitioner as wrongful appropriation of land in hiswritten statement, making encroachment on Government land is not of

E.L.R.] B. KUMAR SHASTRI V. M. LAL SUKHADIA & ORS. 155

the same nature as wrongful appropriation of some one else's money anddoes not carry the same stigma. Every false statement regarding thepersonal conduct or character of a candidate cannot prejudice the pros-pects of his election.

To sum up, my findings on the allegations made in Paras. 12 & 13of the petition are, as follows:—

(1) The statement of fact contained in leaflet Ex. 8 that Shri BhanuKumar encroached on Government land in constructing hishouse in Shivaji Nagar Colony is false. Shri Sukhadia believedthe statement to be false, or did not believe it to be true.

(2) The above statement of fact relates to the personal character orconduct of Shri Bhanu Kumar but it was not reasonably calcu-lated to prejudise the prospects of his election.

(3) It is not true that leaflet Ex. 8 was printed or distributed by orwith the consent of Shri Sukhadia or his election agent.

Para 14:

This relates to the publication of booklet Ex. 23. This booklet con-tains 16 pages with a green cover. It is named "Jan Sangh aur Bhrash-tachar". It purports to have been printed in the Everest Press, Delhi andpublished by the Sampradayikta Virodh'i Committee, New Delhi. ThePreface is by Smt. Subhadra Joshi, who was then a Congress M.P. Itcontains a letter purporting to have been written by Shri Kuber KantPaneri, leader of the Congress group in the Municipal Council dated30-11-66 addressed to Shri Sukhadia. On pages 5 and 6 it is writtenthat Shri Girdhari Lai son of Shri Bhanu Kumar encroached on Govern-ment land. Some other allegations against Shri Bhanu Kumar in respectof the amendment of the lay out plan have also been made. Most ofthis booklet is devoted to a criticism of the Jan sangh members of theMunicipal Council, Udaipur.

In the original petition it was alleged that this booklet was distri-buted two days before the poll. This allegation was subsequently gotamended and it was alleged that the booklet was distributed between5th and 14th February 1967 through the distributing agency mentionedin para 12. I have already referred to above to the allegation made inpara 12 in further particulars about this distributing agency and heldthat it was stated therein that the distribution was from door to doorthrough boys engaged by Hanuman Prasad, Bhagwati Lai Bhatt andIshtiaq Ahmad. Evidence was lee to prove that booklet Ex. 23 wasdistributed in a meeting addressed by Shri Sukhadia on 5-2-67 in frontof Kotharijirki-Haveli near Ghantaghar between 5 and 5-30 p.m. Thedistribution of the booklet in a meeting is clearly an afterthought andon this ground alone the evidence of distribution is liable to be discarded.

1 5 6 B. KUMAR SHASTR1 V. M. LAL SUKHADIA & OR5. [VOL. XXXVH1

Two witnesses Fatehlal (P.W. 8) and Shankar Singh (P.W. 14)were examined to prove the distribution of this booklet. Fatehlal saidthat when Shri Sukhadia said in the meeting that Shri Bhanu Kumarhad taken possession over Government land and constructed his houseon it in Shivaji Nagar Colony he got up and said that he was bringing afalse charge. At this Shri Sukhadia made a sign to Hanuman Prasadwho distributed booklet Ex. 23 amongst the audience and gave a copyto Fatehlal. Shankar Singh corroborated him. The evidence of Fateh-lal has been discussed by me in connection with the alleged bargain inJagdish Chowk about the installation of water taps and has been dis-carded. Both Fatehlal and Shankar Singh are members of the Jan Sanghand no reliance can be placed on their evidence in this case.

Both Shri Sukhadia and Hanuman Prasad denied the allegationsmade by these two witnesses.

Para 15:

In para. 15 of the original petition it was alleged that the respondent,his election agent and other persons with his consent held several meet-ings in the constituency in which they orally published the false tactthat Shri Bhanu Kumar had illegally encroached on Government landin constructing his house in Shivajinagar and it reduced the width of theroad. The dates and places where the alleged meetings were held werenot specified.

In the amended petition it was alleged that Shri Girdhari Lai ad-dressed three meetings at Bhopalpura, Sunderbas and Maldas street on24-1-67 in which the above statement was orally published by him. Evi-dence was produced to prove the meetings held in Sunderbas andBhopalpura only.

Sunderbas:

Only one witness Kishenlal was examined to prove this meeting. Hestated that it was held near his house in front of Hanumanji's templebetween 5-30 and 6-00 P.M., on 24-1-67. This witness is a member ofJan Sangh and was elected as a municipal councillor on the Jan Sanghticket. He is thus a partisan witness and no reliance can be placed onhis evidence in this case. Shri Girdhari Lai R.W. 2 denied that headdressed any meeting in Sunderbas.

Bhopalpura:

Two witnesses Maganlal P.W. 16 and Jeewan Lai P.W. 23 wereexamined to prove this meeting which they said was held between7 and 8 P.M. These two witnesses gave evidence to prove that ShriSukihadia made a promise in Baluchistan Colony on 31-1-67 in the

E.L.R.] B. KUMAR SHASTRI V. M. LAL SUKHADIA &ORS. 157

morning at a meeting held there in the panchayati temple. I haveheld above that Shri Sukhadia was not in Udaipur at that time andthe evidence of these two witnesses with regard to the allegedbargain in Baluchistan Colony is completely false. No reliancecan be placed on their evidence even with regard to the allegedmeeting in Bhopalpura on 24-1-67.

Shri Girdhari Lai denied that he addressed any meeting inBhopalpura.

In the amended petition, it was further alleged that Shri Sukhadiarepeated the false statement in public meetings held on 5-2-67 atPratapnagar, Ganeshghati and Ghantaghar and on 10-2-67 at Dholi-bawri and Moti Chohatta. Evidence was, however, produced only inrespect of the meetings at Dholibawari and Moti Chohatta on 10-2-67.

Dholibawri:

Two witnesses Narain Lai P.W. 5 and Shanker Singh P.W. 14were examined to prove that Shri Sukhadia made the above falsestatements relating to the petitioner at a meeting addressed by himnear the mosque at 3-00 P.M. Narainlal was named in the amendedpetition as being present at these meetings. He h a resident of Dholi-bawri and has a pan shop there. In his examination-in-chief he didnot give any date of the meeting but; in cross-examination he statedafter counting on fingers that it was held on the 10th day of themonth. He stated in examination-in-chief that Shri Sukhadia said,"You made me win previously also and I have been serving you.You know what Shri Bhanu Kumar Shastri has done. So please keepme in your mind." Witness went on to say that Shri Sukhadia alsosaid that Shri Bhanu Kumar Shastri had constructed his house onGovernment land in Shivaji Nagar and that he said nothing else.In cross-examination, he stated that Shri Sukhadia spoke for 15 or20 minutes. Now what this witness stated in examination-in-chiefwould not take more than 2 or 3 minutes to say. So he was askedwhat else Shri Sukhadia said in the meeting besides what he hadstated. He replied that he did not remember what else Shri Sukhadiasaid in the meeting. Narain Lai was examined on 5-1-67. The otherwitness about this meeting namely, Shanker Singh P.W. 14 wasexamined on 9-1-67. This must have been done deliberately so thatthe later witness may know what the earlier witness had stated beforehe was put in the witness box. He improved upon the statement ofNarain Lai and said that Shri Sukhadia spoke only for two or fourminutes in the meeting. According to this witness also Shri Sukhadiasaid that Shri Bhanu Kumar had builti a house on Government landin Shivaji Nagar. This witness is a member of Jan Sangh and hecontested the municipal election on the Jan Sangh ticket from Ward

158 B. KUMAR SHASTRI V. M. LAL SUKJHADIA & ORS. [VOL. XXXVHI

No. 14 but lost. He is thus a partisan witness. Photos—Ex. A.I 13,A.114 & A.115—go to show that he attended the meeting of theMunicipal Council in which the motion brought by Shri Kubar Kantagainst Shri Bhanu Kumar regarding the amendment of the lay-outplan was discussed.

I am unable to rely on the evidence of the above two witnesses.

Moti Chohatta:

Only one witness Onkar Lai P.W. 21 was examined by thepetitioner to prove this meeting. He stated that Shri Sukhadia heldthis meeting on 10-2-67, at 4 P.M., outside Maharaj Sahib's Haveliand stated in it that Shri Bhanu Kumar had constructed his house onGovernment land in Shivaji Nagar. Onkar Lai stated that ShriSukhadia was invited to visit Mahawafiwadi by Shyam Lai Jakatiyaand 4 or 5 Muslims, and in response to this invitation he went therefrom Moti Chohatta and made a bargain that if the people promisedto vote for him, he would get water-tap installed. Onkar Lai stated thatin Mahawatwadi he garlanded Shri Sukhadia because he had donegood work and he liked him. I have not relied on his evidence inconnection with the alleged bargain in Mahawatwadi and for the samereasons, I do not rely on his evidence with regard to the alleged meet-ing in Moti Chohatta.

Shri Sukhadia denied having addressed meetings in Moti Chohattaand Dholi Bawri on 10-2-67, although he admitted that he passedthrough these localities. In Police File No. 18, containing reportsabout meetings addressed by Shri Sukhadia it is stated in the dailyreport dated 14-2-67, at Page 27 under the heading 'Congress' thatShri Sukhadia held mohalla meetings in Khanji Pir, Dholi Bawri andMoti Chohatta etc. on 10-2-67 for die purpose of mass contact withthe voters, and in these meetings, he appealed to the voters to makethe Congress strong and not to be misled by the propaganda ofopposition parties. Shri Sukhadia stated at p. 375 that he went toMahawatwadi on the evening of 10th February and also visited Jatwadiand Silawatwadi. At p. 376 he stated that he did not remember if inMahawatwadi Shyamlal Jakatiya garlanded him. At p. 377 he statedat first that he did not go to Moti Chohatta or Dholi Bawri on 10-2-67.When he was1 confronted by the Police report at p. 29 of File No. 18,he stated—p. 376,—

"The meeting which I held in Kishenpol on 10-2-67 appearsto have been referred to as the meeting in Khanji Pir. I passedthrough Dholi Bawri and Moti Chohatta but did not addressany meeting there either on the 10th or 12tih February 1967."

B.L.R.] B. KUMAR SHASTRI V. M. LAL SUKHADIA & ORS. 159

I think greater reliance should be placed on the police report atp. 29. That means that he did address meetings in Dholi Bawri andMoti Chohatta on 10-2-67. But I am not satisfied that he said in thosemeetings that Shri Bhanu Kumar had constructed his house onGovernment land.

I am accordingly satisfied that the allegations made in Para. 15of the election petition have not been proved.

Finding on Issue No. 4 :

In view of my findings recorded above I decide issue No. 4against the petitioner.

ORDER

In view of my findings on issues No. 3, 4, 5 and 7 I dismiss thiselection petition in which the election of Shri Mohan Lai Sukhadiato the Rajasthan Legislative Assembly from the Udaipur AssemblyConstituency was challenged.

I have held above that the work on the Nala in BaluchistanColony was started under the influence of the respondent on theeve of the election. I have held that he got order Ex. 44 issued in res-pect of the grant of Pattas to the people of Raigarh Colony five daysbefore the polling. The redressing of public grievances on the eve ofelection has been deprecated by their Lordships of the Supreme Courtin Ghasi Ram's case (12). Having regard to this circumstances I con-sider it proper to leave the respondent to bear his own costs.

The substance of the above order shall be communicated forth-•with to the Election Commission and the Speaker of the RajasthanLegislative Assembly. An authenticated copy of this judgment shallIw sent to the Election Commission as soon as it is prepared.

Petition dismissed.

160 MOHAN SINGH OBERO! V. ALHAI-I-AHMAB [VOL. XXXVIMs

IN THE HIGH COURT OF PATNA

SHRI MOHAN SINGH OBEROI

V.

SHRI ALHAJ-I-AHMAD

(A. B. N. SINHA, J.)

May 15, 1968.

Representation of the People Act, 1951, Section 123, (3) (3A) and 4—Corrupt practice—Appeal to Muslim voters not to vote for Communist candidateson the ground of the ideology of that Party, being opposed to the tenets of Islam—Whether appeal violates Section 123 of the Act—The significance of word"his" in Section 123(3)—The Communist Party whether a "class" of citizenswithin the meaning of Section 123(3A).

The petitioner, a defeated candidate, challenged the election of the respon-dent to the Lok Sabha on the ground that the respondent committed the corruptpractices under Section 123, sub-section (3), (3A) and 4 of the Act. It wasalleged in the petition that the respondent in order to secure the votes of theMuslim voters and create enmity and hatred between Muslims and non-Muslims,had got three leaflets printed and published in the name of a religious leader ofthe Mohammadans asking the Muslim voters not to vote for the CommunistParty, because communism was "Against God and religion" and the economicsystem enjoined by communism was "entirely antithetical to the tenets of Islam"and the Communist Party had been guilty of fraud and deceit.

The respondent denied the allegations and stated that as soon as he cameto know about the publication of these leaflets, he issued a pamphlet denyingany connection with the offending leaflets.

HELD : Dismissing the petition :

On the facts, the petitioner had failed to prove that the respondent causedthe publication of the impunged leaflets or that there was distribution of theleaflets or holding of meetings where the contents of the leaflets were explainedand the respondent or his election agent had committed any corrupt practice asalleged in the petition. '{ i

The impunged leaflet had brought out only the difference in the ideologiesof the Communist Party and the followers of Islam and there was nothing inthe leaflet which could be said to offend a communist. The leaflet in questiondid not contain any where and appeal to Muslims to refrain from voting forthe Communist candidates on the grounds of their religion and, therefore, it didnot come within the mischief of Section 123(3) of the Act. The provisions ofSection 123(3) of the Act after their amendment by Act 40 of 1961, arcconfined to an appeal to vote and refrain from voting for any person on thegrounds of his religion, etc. The word "his" in the first part of Section 123(3)before the words "religion, race; caste etc." is very significant. A mere generalappeal to vote or refrain from voting made to the electorate without referenceto the candidate or candidates concerned and not based on the candidate's religion*

E.L.R.] MOHAN SINGH OBEROI V. ALHAJ-1-AHMAD 161

race, community etc. cannot be held to be a corrupt practice under Section123(3). The word "his", it is manifest, does not attach to the voter or the personwho makes the appeal.

Kultar Singh v. Mu\htiar Singh, A.I.R. 1965 S.C. 141; Jagdev SinghSidhanti v. Pratap Singh Daulta and others, A.I.R. 1965, S.C. 193; Nazmul Haquev. Amjad Ali and others, 18 E.L.R. 253; Rustom Satin v. Dr. Sampoornanandand others, 20 E.L.R. 221; Shub Nath Deogam v. Ram Narain Prasad, A.I.R.1960, S.C. 143; referred to:

The contents of the impunged pamphlet did not come within the mischiefof Section 123(3A) of the Act. The members of the Communist Party do notconstitute a "class" within the meaning of Section 123(3A) of the Act. The con-tents of the leaflet do not amount to promotion of feelings of enmity and hatredbetween any two "classes" on the ground of religion. The leaflet only speaks ofwhat is personal to those who are communists and it does not speak of any anti-Islamic religious practices. Further, the Communist Party consists of members ofdifferent faiths and so the Party cannot be classified as a particular "class" ofcitizens. It only points out the difference in the respective approaches of theCommunist Party and of followers of Islam to the various problems in the countryand, therefore, the leaflet in question did not come within the mischief of Section123(3A) of the Act.

Election Petition No. 24 of 1967.

Kanhaiya Prasad Verma, Akhoury Bonod Sekhar Sinha, Devendra PrasadSinha and Kamla Mant Prasad for the petitioner.

Braj Kishore Prasad II and Kamal Nayan Choubey for the opposite party.

JUDGMENT

A. B. N. SINHA, J.—The petitioner, Sri Mohan Singh Oberoi, hasfiled this application under sections 80A and 81 of the Representationof the People Act, 1951 (hereinafter referred to as 'the Act') challeng-ing the election of the respondent, Sri Alhaj-I-Ahmad, who has beenelected to the Lok Sabha from the single member Giridih Parliamen-tary constituency at the last general election.

2. At the last Parliamentary election held in February, 1967, there-were four candidates including the petitioner and the sole respondentfor election to the Parliament from the Giridih Parliamentary Consti-tuency. The petitioner was the Jan Kranti Dal candidate, while therespondent was the Congress candidate. The candidates for the Comm-unist Party and the Jan Sangh Party were Shri Shakti Kant Sahaya andShri Ram Krishna Prasad respectively. While the respondent the Con-gress candidate secured at the said election 70,219 votes, the petitioner—the Jan Kranti Dal candidate secured only 66,388 votes; and, the othertwo candidates, namely, Shri Ram Krishna Prasad—the Jan Sangh can-didate secured 37,915 votes and Shri Shakti Kant Sahay—the Com-munist candidate secured 25,561 votes. The counting was done on the26th February, 1967, and the respondent was declared elected to theLok Sabha from the Giridih Parliamentary constituency.12—3 Elec, Com.71

162 MOHAN SINGH OBEROI V. ALHAJ-I-AHMAD [VOL. XXXVIII

3. In the election petition, the election of the respondent has beensought to be challenged on more than one ground, but the only ground,which has been pressed at the hearing and in support of which evide-nce has been adduced, is the ground relating to the alleged commissionof corrupt practices as defined in sub-sections (3), (3A) and (4) ofsection 123 of the Act by the respondent himself or by his election agentor by other agents and workers with the consent of the respondent orhis election agent. The challenge that the election petition was barredby limitation or that there was any defect in the verification of theelection petition and that the respondent was not qualified to be a candi-date for election from the Giridih Parliamentary constituency, and, thatthe acceptance of his nomination paper was illegal and invalid, was notpressed, and no evidence was led on these points. Thus, of the fiveissues, which were framed in this case, the only issue which falls fordetermination is issue no. 4, which reads as under :

"Did the respondent or his election agent or other agents andworkers, with the consent of the respondent or his election agents,commit corrupt practices as alleged by the petitioner in paragraph9 to 26, and has the result of the election been materially affectedthereby."

4. The relevent allegations as made in the election petition andtheir denial as made in the respondent's written statement on whichthe above issue was raised may now be briefly set out. Paragraph 9states that the respondent, his election agent, his agents and workerswith their consent committed corrupt practices under section 123(3)and section 123(3A) of the Act. In paragraph 10 of the petition, it hasbeen alleged that the respondent was a Muslim and that he and hisagents including the election agent and supporters with his consent hadsought votes from the Muslim voters in the constituency on the groundof Muslim religion and community, and, further that they were makingappeals to those to refrain from voting in favour of the Communist andother candidates in the name of the religion and community. In para-graph 11, it has been alleged that the respondent along with his sup-porters and agents including his election agent had promoted feelingsof enmity and hatred between Muslims and non-Muslim as well as bet-ween Muslim and Communist and others on the one hand and JanSangh on the other for the furtherance of the prospect of the respon-dent's election and for practising the election of the other candidate. Inparagraphs 12 and 13, it has been stated that the respondent in orderto secure the votes of the Muslim voters, who consituted a large percen-tage of the total population of the Giridih Parliamentary consti-tuency and further in order to create enmity and hatred betweenthe Muslim and non-Muslim, had got th*ee leaflets (Annexure A, B,and C to the petition) printed and published in the name of one Mauvi

E.L.R.] MOHAN SINGH OBEROI V, ALHAJ-1-AHMAD 163

Md. Majaour Alam, who was a religous leader of the Mohamadans andwho was a supporter of the respondent, against the provisions of sub-sections (3) and 3A of section 123 of the Act. Two of the leaflets wereprinted at Madhukar Press, while the third at Tilak Press, both situatedat Giridih. It was alleged that these leaflets were distributed by andon behalf of the respondent. Of the aforesaid three offending leafletsone having the caption "Interwadi Fatwa" (election command) andthe other having "Insan Numa Darinde" (human cannibal) wereprinted at Madhukar Press; and, Che third which was printed at TilakPress, Giridih, had the caption "aaj ka election" (To-day's election).The leaflet, marked Annexure 'A' according to paragraph 14, wasissued in the name of God and religion by a religion head to the Muslimvoters in the constituency to vote for the respondent as also to createhatred against the non-Muslim voters. In paragraph 15, it has beenalleged that the three offending leaflets were read out at the electionmeetings on different dates, and the contents were amplified by the res-pondent and his supporters and they were also distributed among thevoters. While the statement made in paragraphs 16 and 17 are moreor less repetitions of what has been stated in paragraphs 10 and 11, inparagraph 18 the petitioner has made out a case that the respondentand his agents and supporters in presence of the respondent not onlyread out and distributed the offending leaflets at different places ondifferent dates but also made oral appeals in the name of Muslim reli-gion and community with a view to secure Muslim votes in favour ofthe respondent and to promote feelings of hatred between Muslimsand non-Muslim voters. Paragraph 19 seeks to give the particularsabout the meetings held by the respondent along with his agents andsupporters at which, it was alleged, the aforesaid three leaflets were ex-plained and distributed and oral speeches were made. By means of anamplification petition, the words "at other places on different dates byhis Election Agent, Sri Mohiuddin Ahmad, along with other workersof Respondent" as occurring in paragraph 19 were sought to be amplifi-ed and as many as four dates were further given on which it has allegedthe Election Agent of the Respondent along with other workers of theRespondent held meetings at four different places wherein the contentsof the offending leaflets were read out and explained and those leafletswere distributed. In paragraph 20, the source from which the leafletsmarked Annexure 'A', 'B' and ' C were received by the Petition hasbeen stated and it has been further stated that some other voters whohad received the aforesaid leaflets have preserved them on the adviceof the workers and well-wishers of the petitioner and of the other twodefeated candidates. In paragraphs 21, 22, 23, and 25, it has been allegedthat either through reading out the contents of the offending leaflets orby making oral appeals on the same lines as the contents of those leaflets,the Respondent or his suporters who were all communal-minded personscommitted corrupt practices within the meaning of section 123(3) and

164 MOHAN SINGH OBEROI V. ALHAJ-I-AHWAD [VOL. xxxvin

section 123(3A) of the Act. In paragraph 24 and 26, it has been alleg-ed that the respondent, his agents and workers with his consent alsocommitted, whether by distributing the leaflets like Annexure A and Bor otherwise, corrupt practices within the meaning of sub-section (4)of section 123 of the Act by making statements against the personalcharacter and conduct of other candidates which were false and whichthe persons responsible for the distribution of the leaflets or for makingoral speeches did not believe to be true. From the particulars men-tioned in paragraph 19 of the petition and from those mentioned in theamplification petition, it appears that meetings were alleged to havebeen held at as many as eleven places within the constituency on differ-ent dates from the 4th February, 1967 to the 18th February, 1967 ; and,at least at seven of those meetings, namely, at Satgawan on the 12thFebruary, 1967, at Bermo and Durai on the 18th February, 1967, atDhanwar on the 14th February, 1967, at Damua on the 16th February,1967 and at Giridih and Pachamba on the 18th February, 1967, therespondent is alleged to have personally attended. The meeting allegedto have been held at Bengabad on the 4th February, 1967, at Chaphuarion the 5th February, 1967, at Dhalskdiha on the 6th February, 1967 andat Maheshmudda on the 12th February, 1967 are alleged to have beenattended by the respondent's Election Agent, Sri Mohiuddin Ahmad,along with other workers of the respondent.

5. The respondent in his written statement filed on the 3rd July,1967, has categorically denied the truth of each and every allegationmade in paragraph 9 to 26 of the election petition. He has assertedthat no corrupt practice, as alleged, was committed by the respondentor by his election agent or by the respondent's other agents or workerswith the respondent's or his Election Agent's knowledge or consent.Neither he nor his election agent or any one on his behalf to his know-ledge or with his consent sought vote from any member of the Muslimcommunity in the name of the Muslim religion or community, norwas ever any appeal made by Muslim voters to refrain from votingthe Communist or other candidates on the ground of religion. It hasbeen further asserted that it is absolutely baseless to say that the res-pondent or his Election Agent or any of his agents or supporters evercreated any feeling of enmity and hatred between the Muslims andnon-Muslims. The respondent has categorically denied the Publicationor distribution of any leaflets in contravention of the provisions of sec-tions 123(3) and 123(3A) of the Act. In fact, according to the respon-dent, he did not get any of the leaflets mentioned in paragraph 13 ofthe election petition printed, nor did he get them published in the nameof Moulvi Mohammad Manzoor Alam, who, according to the respon-dent, was not a supporter of his. Indeed, the respondent did not evenknow that Moulvi Mohammad Manzoor Alam was a religious leaderof the Muslims in the Giridih Parliamentary constituency and the res-

E.L.R.] MOHAN SINGH OBEROI V. ALHAM-AHMAD 165

pondent had no knowledge about the distribution of any of the leafletsin question any where at any time, as alleged. It has been asserted thatthe respondent had no knowledge about the existence of the leaflets men-tioned in paragraph 13 of the election petition and annexed as Annex-ures A, B and C to the said petition until his attention was drawn inthe office of the Congress Mandal Committee, Giridih, on the 15thFebruary, 1967 to the issue of 'Ranchi Express' a Hindi weekly publish-ed from Ranchi dated the 12th February, 1967, wherein extracts of cer-tain pamphlets under the heading "AJKA ELECTION", "ENTE-KHAB FATWA", and "INSAN NOMA DARINDEY", supposed tohave been printed at the Tilak Press, Giridih, had been published, andthat on perusal of the same the respondent along with Shri Raghunan-dan Ram, M.L.A. (R.W. 5) and Shri Ram Narain Prasad, Advocate,President, Mandal Congress Committee, Giridih (R.W. 4) issued a con-tradiction to the same in a pamphlet published under their signaturefrom the Quality Printers' Press, Giridih, on the 16th February, 1967and got the said pamphlet distributed widely throughout the constitu-ency. Therein, they denied any connection with the leaflets purportedto have been published by Md. Manzoor Alam stating clearly that thoseleaflets had been published or printed without the consent of the Con-gress Committee or the Congress candidates and that whoever had pub-lished them had so published in conspiracy and collaboration with theopponents of the Congress candidate in order to damage their cause.In paragraph 23 of the written statement, it was asserted that the lea-flets, as they are, did not contravene the provisions of section 123 ofthe Act. The particulars, as mentioned in paragraph 13 or paragraph19 of the election petition, were characterised as vague, lacking in speci-fications and of a too general nature which made it impossible to speci-fically deny the allegations made therein. The allegation made in para-graph 26 of the election petition about the oral statements and speechesagainst the personal character and conduct of other candidates by therespondent or by his election agent or workers has also been emphati-cally denied.

6. On the pleadings summarised above, the questions which ariseare : (1) whether the offending leaflets fell within the mischief ofclauses (3) and (3A) of section 123 of the Representation of the PeopleAct, 1951 ; (2) whether the respondent got those leaflets printedand published ; (3) whether the case that the respondent or his electionagent had read out, explained and distributed those leaflets and hadmade oral speeches on the lines of those leaflets at places and on datesas mentioned in paragraph 18 of the election petition or in the amplifi-cation petition in respect thereof was true ; and, (4) whether the casethat the respondent, his agent and his workers with his consent com-mitted corrupt practices within the meaning of clause (4) of section123 of the Act by making statements against the personal character and

166 MOHAN SINGH OBEROI V. ALHAJ-I-AHMAD [VOL. XXXVIH

conduct of other candidates which were false and which the personswho made those statements did not believe to be true was established.

7. On the question whether the contents of the offending leafletsfell within the mischief of clauses (3) and (3A) of the Act, it will notbe necessary to discuss the contents of Ext. 3(a), which is the manus-cript copy of Annexure C to the petition, because learned counsel forthe petitioner hardly addressed any argument in respect of the same.Nothing was in respect of Annexure B to the petition as well. It was,however, urged that the contents of Ext. 3 which was the manuscriptcopy of Annexure A to the Petition, offended against clauses (3) and(3A) of section 123 of the Act.

8. Annexure A( l ) to the Election Petition, which is the Englishrendering of Ext. 3 reads as under ;

"Election Command :

We have unfurled the flag of Islam everywhere and lowered theheads of pagans in the passes of Khyber Aamir Shreeat ofBihar & Orissa, Janab Mintullah Sahib's one election com-mand question.

Is it proper to vote the Communist Party into power (or) not ? Areligious command may be issued so that Muslims of Bihar& Orissa can act on it.

In answer to this, Janab Mintullah Sahib has given the followingTatwa'.

A synonym for the movement against God and religion is Com-munist. Moreover, the economic system enjoined by Commu-nism is entirely antithetical to the tenets of Islam.

Islam believes in private property. Islam has recognised 'Zahrat','Isher', 'Sadka' and 'Fitra'. Based on this Islam has set up alaw of succession for property after a man's death. Accordingto this law of inheritance enjoined by Islam, the property de-volves on the successor of the deceased. Communism deniesand denounces private property. In terms of Communismeverything belongs to the state. If a.Muslim dies, Islam willensure property to his rightful successor. Communism saysthat the entire property should be vested in the State Bank.In view of the above it is not proper for a Muslim to vote asanti-God atheistic party, which is absolutely opposed to thefundamental and basic tenets of Islam.

Mintullah Aamir Shreeat, Bihar & Orissa (7 Ramzan 81 Hijree).

E.L.R.] MOHAN SINGH OBEROI V. ALHAJ-I-AHMAD 167

Note.—Beware of the fraud and deceit of the Communist Party.In 1962 elections, the Communist Party framed up cases against somesocalled Muslims and made them tender false evidence in courts but inspite of that Ramzan Mian and Badri Bhuian etc. were released by theauthority and a case is still pending in Hazaribagh.

Communist parade themselves as peace-mongers. They outwardlypamper labour but really eat into their vitals. Therefore, itis incumbent on religious grounds, to oppose communist.

We have to live here and we have to die here. If we are des-tined for death why should we be afraid of death".

9. The contents of the leaflets in question as quoted above show thatthe Muslim voters of the constituency were asked through it not to votefor the Communist Party because communism was "against God andreligion", and the economic system enjoined by communism was "en-tirely antithetical to the tenets of Islam". The leaflet further says thatthe Communist Party has been guilty of fraud and deceit and has gotfalse cases started against some "so called Muslims" and that its mem-bers paraded themselves as "peace mongers" and though they out-wardly pampered labour they "really eat into their vitals". It ends bysaying that it was incumbent on religious grounds to oppose the Com-munists on these contents ; it has been argued on behalf of the peti-tioner, that it must be held that an appeal was made to the Muslimvoters to refrain from voting for the Communist candidates on religiousgrounds, and, as such the leaflets offended against the first part ofsec. 123(3) of the Act. Apparently what appears to be contained inthe leaflet (Ext. 3) in a tirade against communism which was theideology of the Communist Party and the writer is quite clearly anxiousto bring home to the Muslim voters that as communist as such wasopposed to the tenets of Islam the following of that religion shouldnot vote for the Communist Party. Thus, an appeal to the Muslimvoters to refrain from voting for the Communist candidates at the elec-tion in question on religious grounds may be said to be implied in thecontents to the offending leaflets, though the economic system pro-pounded by communism has also come in for attack and thus the appealcan also be said to be partly founded on economic grounds. An attemptwas, however, made on behalf of the respondent to show that on thefacts of this case the leaflet could hardly be interpreted as implying anappeal to refrain from voting for a Communist candidate, in as muchas, the leaflets was given for printing on 18-1-67 which was two daysearlier to the last date fixed for filing nomination papers and as such,it was urged that the writer could hardly have known that there wouldbe Communist candidate at the ensuing election. In my opinion, thereis no substance in this plea. 20th January, 1967 w'ai the last date forfiling nominations and there is no reason to suppose that Sri ShaktiKant Sahay, the communist candidate for the Parliamentary election

/168 MOHAN SINGH OBEROI V. ALHAJ-I-AHMAD [VOL. XXXVHl

and Shri Safique Khan, the Communist candidate for the" Assemblyelection from Bermo constituency had not filed their nominations earlier,or it had not become known that they were going to contest the elec-tions as candidates for the communist party. Generally there is a wide-spread knowledge amongst people who take any interest in politics,either local or otherwise even before nominations are filed about thecandidates likely to contest the election as also about their respectiveparty afflictions. The contents of Ext. 3 themselves show that thewriter of the leaflet was not an ignorant. Accordingly, there appearsto be no difficulty in coming to the conclusion that the contents ofExt. 3 by implication amounted to an appeal to the Muslim voters torefrain from voting for the Communist candidates on religious grounds.But even if that was so, I am of the opinion, that the leaflet did notcome within the mischief of the first part of section 123(3) of the Act.The question of the leaflet coming within the purview of the secondpart of that section does not obviously arise. There is considerableforce and substance in the contention of the learned Counsel for therespondent that corrupt practices within the meaning of first part ofsection 123(3) of the Act can be said to have been committed onlywhen an appeal was made to the electorate on a ground which waspersonal to the candidate for whom or against whom the appeal hadbeen made, and related to the religion, race, caste, community or lan-guage of the candidate concerned. In the instant case, it was urgedon behalf of the respondent, that there being no appeal to vote or refrainfrom voting on the ground of the religion of the candidate concerned,the provisions of section 123(3) of the Act were not attracted. It wassubmitted that the publication of the leaflet (Ext. 3) really amountedon the part of its writer to an exercise of the fundamental right guara-nteed under article 25 of the Constitution, and thus its publicationcould not be regarded as a corrupt practice within the meaning of sec-tion 123(3) of the Act. It was urged that Article 25 of the Constitutionguaranteed to all persons the right to profess, practice and propagatehis religion, subject only to restrictions imposed by the State on thegrounds mentioned in Article 25(2) of the Constitution. The right toprofess and propagate particular religion carried with it the right totake all steps to conserve the tenets of that religion. Viewed from thisangle, the publication of the leaflet (Ex. 3) according to the learnedCounsel amounted hereby a step taken by a Muslim Divine to protectthe tenets of Islam from the supposed effect on them by the spread ofcommunism. There may be some substance in this plea, but on theview which I have taken in regard to the plea that the leaflet did notcome within the mischief of section 123(3) of the Act, I do not thinkthat it is necessary to pursue this point.

10. Before dealing with the points raised as aforesaid, the provisionsof section 123(3) of the Act as it stood before its amendment by Act 40

E.LR.] MOHAN SINGH OBEROI V. ALHAJ-I-AHMAD 169

of 1961 and as it stands after the amendments may be set out. Thesection as it stood before the amendment was as follows :

"Sec. 123. The following shall be deemed to be corrupt practicesfor the purposes of this Act :

(3) The systematic appeal by a candidate or his agent or by anyother person to vote or refrain from voting on grounds of caste, race,community or religion or the use of, or appeal to, religious symbols orthe use of, or appeal to national symbols, such as the national flag orthe national emblem, for the furtherance of the prospects of that can-didate's election."

The section as it stands after the amendment reads as under :

" (3) The appeal by a candidate or his agent or by anyother person with the consent of a candidate or his election agent tovote or refrain from voting for any person on the ground of his religion,race, caste, community or language or the use of, or appeal to, religioussymbols or the use of, or appeal to national symbol such as the NationalFlag or the National Emblem, for the furtherance of the prospects of theelection of that candidate or for prejudicially affecting the election ofany candidate".

It is apparent that before the amendment of section 123(3), the languageemployed therein banned any systematic appeal to vote or refrain fromvoting on grounds of religion etc., but by the amendment while theword "systematic" has been dropped the purpose of the appeal has beennarrowed down as confined to appeal to vote or refrain from votingfor any person on the ground of his religion etc. The word "his" inthe first part of section 123(3) before the words "religion, race, casteetc." is very significant, and it must be held that the appeal contem-plated by the section is an appeal to vote or refrain from voting for anyperson on the ground of his religion etc., in other words, the word"his" clearly refers to something personal to the candidate for whom oragainst whom the appeal was being made. Under section 123(3) as itstood before the amendment the only limitation on the appeal to voteor refrain from voting was that it had to be shown that the appeal wasin the nature of a systematic appeal, but so long as a systematic appealto vote or refrain from voting on grounds of religion etc., was made itdid not matter whether the candidate concerned professed that parti-cular religion or belonged to that particular race, caste or community,in other words, all systematic appeal made to the electorate on groundsof religion etc., were banned. The position, however, is different afterthe amendment. In order that the appeal by a candidate or his agentor by any other person with the consent of candidate or his election

. agent to vote or refrain from voting may come within the mischief ofthis section, it must be an appeal to vote or refrain from voting for or

170 MOHAN SINGH OBEROI V. ALHAM-AHMAD [VOL. XXXVIII

against the particular person on the ground of that particular person'sreligion, race, caste, community or language. It is, therefore, plain thatthis part of the section requires the appeal to vote or refrain from votingfor a candidate at the election on some ground which was personalto the candidate concerned like his religion, race, caste etc. A meregeneral appeal to vote or refrain from voting made to the electoratewithout reference to the candidate or candidates concerned and notbanned on the candidate's religion, race, community etc., cannot be heldto be a corrupt practice under section 123(3) as it stands at present. Theword "his", it is manifest, does not attach to the voter or to the personwho makes the appeal. This view, in my opinion, finds support fromatleast two decisions of the Supreme Court. The first one is the deci-sion in Kultar Singh v. Mu\htiar Singh{\). It appears from thedecision that their lordship proceeded on the footing that the word"his" in the first part of section 123(3) attached to the candidate forwhom or the candidate against whom the appeal had been made. Itwas on that footing that it was held that a corrupt practice under sec-tion 123(3) can be said to have been committed by a candidate by ap-pealing to voters to vote for him on the ground of his religion, eventhough the rival candidate may belong to the same religion. Thesecond case of the Supreme Court which throws light on the point inthe case of ]agdev Singh Sidhanti versus Pratap Singh Daulta andothers(2). That was case of appeal to voters to vote or refrain fromvoting on the ground of candidate's language. It was held that it wasonly when the electorate was asked to vote or to refrain from votingbecause of the particular language of the candidate that a corrupt prac-tice may be deemed to have been committed. In paragraph 26 of thejudgment the true meaning of the expression "on the ground of hislanguage" came up for consideration. In that connection their Lordshipobserved as follows :

"The corrupt practice defined by cl. (3) of S. 123 is committedwhen an appeal is made either to vote or refrain from voting onthe ground of the candidate's language. It is the appeal to the elec-torate on a ground personal to the candidate relating to his languagewhich attracts the ban of s. 100 read with S. 123(3). Therefore itis only when the electors are asked to vote or not to vote becauseof the particular language of the candidate that corrupt practicemay be deemed to be committed".

In the passage extracted above, if the word "language" is substituted bythe word "religion" the true meaning of the expression "on the groundof his religion" as occurring in the first part of section 123(3) becomeclear. It follows that general appeal of the type to the Muslim voters

(1) A.I.R..1965S. C. 141.(2) A.I.R. 1965 S.C. 193.

E.L.R ] MOHAN SINGH OBEROI V. ALHAJ-I-AHMAD 171

to refrain from voting for the Communist candidates on the groundof religion as can be said to be impliedly contained in the contents ofExt. 3 is not sufficient to bring the said leaflet within the mischief ofthe first part of section 123(3) of the Act. It has not been suggestedthat the contents of Ext. 3 amounted to an appeal to refrain from votingfor the Communist candidates on the ground of their religion. Indeed,on the contents no such suggestion could be made. It also could not besuggested that there was anything anywhere in the leaflet which couldbe construed as an appeal to vote for the respondent on the ground ofhis religion. It has already been mentioned above that the Communistcandidate for election to the Parliament was a Hindu and the onlyCommunist candidate for election from one of the Assembly Constitu-encies was a Muslim. There is nothing in the leaflet which can go tosuggest that any appeal had been made therein to refrain from votingfor Shri Shakti Kant Sahay, the Communist candidate on the groundof his religion. For all these reasons, I am clearly of the opinion, thatthe leaflet (Ext. 3) does not come within the mischief of section 123(3)of the Act. All the three cases, namely, Nazmul Haque v. Amjad AHand others(3), Rustom Satin v. Dr. Sampoornanand and others (A),and Shubnath Deogam v. Ram Narain Prasad(5), on which reliancewas placed on behalf of the petitioner are cases decided on the termsof section 123(3) as it stood before its amendment in the year 1961. Ihave already discussed above, the significant difference in the terms ofsection 123(3) befpre and after the amendment. I am, therefore, of theview that none of the aforesaid three decisions are of any assistance tothe petitioner in the present case.

11. There is also no substance in the plea that the contents ofExt. 3 come within the mischief of section 123(3A) of the Act. The pro-motion of, or attempt to promote, feelings of enmity or hatred betweendifferent classes of the citizens of India on ground of religion etc. by acandidate or his agent or any other person with the consent of a can-didate or his election agent for the furtherance of the prospects of theelection of that candidate or for prejudicially affecting the election ofany candidate is deemed to be a corrupt practice under section 123(3A)of the Act. It has already been pointed out above that the contents ofthe leaflets amounted to a severe condemnation of the principles of com-munism on the ground that its principles and the economic systemwhich it enjoined were against the tenets of Islam. In short, the leafletmay be said to amount to a criticism of communism as practiced by theCommunist Party from the point of view of a following of Islam.According to the learned counsel for the petitioner, Ext. 3 offended

(3) 18 E. L. R. 253.(4) 20 E. L. R. 221.(5) A. I. R. i960 S. C. 143.

172 MOHAN SINGH OBEROI V. ALHAJ-I-AHMAD [VOL. XXXVIII

against section 123 (3A) because it promoted feelings of enmity andhatred between those citizens of India who follow the tenets of Islamand those who by reason of being members of the Communist Partywere against these Islamic tenets ; the latter according to his constituteda "class" within the meaning of section 123 (3A) of the Act, Iam unable to upheld this contention. It is different to equate a politicalparty like the Communist Party with the non-Muslim citizens of India.It is well known that its members are adherents of different faiths andit includes both Muslims and Non-Muslims. Merely because a personis a member of the Communist Party, it does not follow that he is neces-sarily against Islam. It is difficult, therefore, to accept the contentionthat the members of the Communist Party constituted a "class" withinthe meaning of section 123(3A) of the Act. Moreover, there is hardlyany room for suggesting that the contents of the leaflet amount topromoting feelings of enmity and hatred between any two classes oothe ground of religion. It is significant to note that the leaflet speaksof what is personal to those who are communists ; it does not speak ofany anti-Islamic activity on their part or of any interference on theirpart with Islamic religious practices. In substances, the leaflet as pointedout earlier brings out the difference in the respective approaches of theCommunist Party and of a follower of Islam to the various problems inthe country. It may be said that there is nothing in the leaflet whichcan be said to offend a Communist because after all it more or lesscorrectly represents the view point of a Communist, or of the Commu-nist Party. For all these reasons, I am satisfied that the leaflet in ques-tion does not come within the mischief of section 123 (3A) of the Act.

12. On the question whether the respondent, as alleged, in para-graph 12 and 13 of the election petition, got the offending leaflets in-cluding Ext. 3 printed and published, there is, in my opinion, no satis-factory evidence. In support of his case the petitioner has examinedP.W. 2, a Compositor of Madhukar Press. He has also relied on somecircumstances which according to the learned counsel for the petitionersupports the case that the respondent had got the offending leafletsprinted and published. So far as P.W. 2 is concerned, it is, no doubt,true that he has stated in his evidence that the respondent himself hadcome to the press on 20th January, 1967, at about 5-30 P.M., along withone Maulvi Mahammad Manzoor Alam, the admitted author and writerof the manuscripts (Ext. 3 and 3/a) and had paid into the hands ofthe aforesaid Maulvi Mahammad Manzoor Alam some money for pay-ment towards the printing charges. The truth of the aforesaid state-ment has been categorically denied by the respondent who has figuredas P.W. 8. The respondent has denied to have ever gone to MadhukarPress either alone or in the company of the aforesaid Maulvi MahammadManzoor Alam, as alleged, or otherwise. He has also denied to haveever paid anything towards printing charges of any leaflet printed at

E.L.R.] MOHAN SINGH OBEROI V. ALHAJ-I-AHMAO 173

1 Madhukar Press. I am, however, of the opinion, that the statement asmade by P.W. 2 is not quite consistent with the circumstances and theprobabilities of the case, and, accordingly, I am 'inclined to accept thedenial of the respondent to the effect that he had nothing to do with theprinting or publication of the leaflets in question. In the first place,

' it may be mentioned that it is clear from the evidence of P.W. 2 him-self that Maulvi Mahammad Manzoor Alam was an old customer ofthe press and was thus known to the press for long. It also appearsfrom his evidence that on 18th January, 1967 when Ext. 3 was given forprinting, Maulvi Mahammad Manzoor Alam had come alone or atleast was not accompanied by the respondent. It further appears fromhis evidence that it was Maulvi Mahammad Manzoor Alam, who hadplaced the orders for printing and paid the printing charges. It washe who had given delivery of the leaflets which were in his hand andhad been signed by him. In the circumstances, there appears to be no.good reason why Maulvi Mahammad Manzoor Alam will be accom-panied by the respondent on the former's second visit to the press, at5.30 P.M., on the 20th January, 1967 when according to the evidenceof P.W. 2 delivery was to be taken of the printed copies of Ext. 3 andorders for printing Ext. 3(a) had to be placed. It also appears highlyimprobable that if respondent was himself present, as is alleged, on be-half of the petitioner, the signature of Maulvi Mahammad ManzoorAlam would have been attested by Barho Ram and not by the respon-dent himself. Further on the evidence of R.Ws. 3, 4, 5 and 8 takenalong with Exts. B, C and C/l, there can be no doubt that as soon asthe respondent and other prominent members of his party came toknow about the existence of the offending leaflets, they got a pamphletprinted and issued repudiating all connection with the leaflets or withits author and warning every one concerned that neither the respondentnor the Congress Party had connection with the leaflets or had any-thing to do with Maulvi Mahammad Manzoor Alam. It was statedin the said pamphlet of which the manuscript has been proved andmarked as Ext. B and the printed copies as Exts. C and C/l that someof the parties which were opposing the Congress in the election hadgot the leaflets printed and published With a view to spread confusionamongst the supporters of the Congress and that neither the Congresscandidate nor the Congress Committee had any connection whatsoeverwith Maulvi Mahammad Manzoor Alam who was an irresponsibleperson. The fact that a regular repudiation was made of the leaflets inquestion by and on behalf of the respondent, in my opinion, clearlyshows that the leaflets in question had not been got printed by the res-pondent or with his consent or knowledge. It appears that the repudia-tion or the contradiction spoken of about was issued forthwith, that is,immediately after the respondent had come to know about the existenceof the offending leaflets. On behalf of the petitioner the Manager andPublisher of "Ranchi Express", a Weekly paper published from Ranchi

174 MOHAN SINGH OBEROI V. ALHAJ-I -AHMAD [VOL. XXXVIII

has been examined as P.W. 1. On his evidence the issue dated 12thFebruary, 1967 of that paper has been marked as Ext. 1 for the petitioner.On the every first page of that issue portions from Exts. 3 and 3(a)as also from another leaflet displaying the Congress symbol of twoyoked bullocks was published. The case of the respondent is that whenhe and his party men came to learn about the existence of the offend-ing leaflets from the issue of Ranchi Express dated 12th February, 1967,which showed the Congress symbol on the face of it, it was decided toimmediately issue a repudiation that the Congress Party or the Congresscandidates had no concern with the leaflets of which the extracts hadbeen published by "Ranchi Express' as aforesaid.

[After considering and discussing the evidence on the allegationof the petitioner that the respondent was responsible for getting theprinting of the offending leaflets by his polling agent Md. ManzoorAlam, the '-judgment proceeded} :

In view of the aforesaid discussion, I have no hesitation in comingto the conclusion that there is no merit in the direct or in the circum-stantial evidence on which reliance was placed on behalf of the peti-tioner for holding that the respondent or his agents and workers hadgot the offending leaflets printed and published. On the other hand,the circumstances and evidence, referred to on behalf of the respondentand discussed above, show beyond doubts that the respondent had noth-ing to do with the printing or publishing of the offending leaflets.

15. The third point, as stated in paragraph 6 above, may now betaken up for consideration. The factual existence of the leaflet in ques-tion (Ext. 3) has not been disputed. Indeed, in view of Ext. 1, theissue of "Ranchi Express" dated 12-2-1967, Ext. 2, a letter from a corres-pondent of "Ranchi Express", Ext. 2(a), news report of the corres-pondent and the several printed copies of the leaflet including Exts. 4and 4(a) which were either produced by one witness or another, exa-mined on behalf of the petitioner or were sent to "Ranchi Express" byits correspondent taken in conjunction with the evidence of P.W. 1and the evidence of the issue of the repudiation by and on behalf ofthe respondent, the existence of the leaflet could not be disputed. Butin view of what has been found above that the respondent had nothingto do with the printing or publishing of the offending leaflets includingExt. 3, the distribution of the leaflet by or on behalf of the respondentor the reading out of its contents by him or by his agents or workerswas highly improbable. , If the respondent had not done anything inbringing the leaflet into existence, it was extremely unlikely that hewould have taken any part in distributing the same. Apart from thiscircumstances, there are various other circumstances which make the case

E.L.R.] MOHAN SINGH OBEROI V. ALHAJ-I-AHMAD 175

of distribution of the leafleti in question by and on behalf of the respon-dent highly improbable. The first circumstance to which reference maybe made is the total absence of any contemporaneous report of complaintagainst the alleged distribution of the offending leaflets or against read-ing out or explaining their contents at several places and on variousdates as alleged in the election petition. There is evidence on the recordthat if not the petitioner at least his important workers like ThakurSaheb and others had been informed about the distribution of theleaflets (vide the evidence of P.Ws. 3, 17, 21 and 25). It is impossibleto believe that if, in fact, the distribution as alleged had been done, noinformation would have been received by the petitioner himself. Itis not without significance that neither the petitioner nor his electionagent Prahlad Das Bhasin nor Thakur Saheb, who on the evidence onrecord, has figured as one of the principal workers for the petitionerhave been examined in support of the case of distribution etc. It cannotbe supposed that the pertitioner had not gone round the constituencyin the capacity of a candidate for election and thus he was indeed avery competent witness to speak about the alleged distribution and insupport of his case in regard to the same. In any case, the petitioner'selection agent and his important worker, namely, Thakur Saheb musthave gone round the constituency several times and it is rather curiousthat they have been kept away from the witness box. In the circum-stances, it is legitimate to infer that they have been deliberately keptaway because they were not prepared to support a false case as set upin the election petition. In regard to the distribution etc., of the offend-ing leaflet. Their omission to complain to the proper authorities aboutthe alleged distribution of the offending leaflets or about the oral appealsetc., alleged to have been made on the lines of the contents of the leafletsand their failure to examine themselves are very cogent circumstancesagainst the case of distribution. Yet, another circumstance is that onlyone thousand copies of the offending leaflet were got printed. Thetotal population of the constituency was nearly 8 lacs, out of which theMuslims were nearly 14% (vide Census Report of 1961). Evidence onthe record suggests that there was rather indiscriminate distribution inthe sense that it was not confined to Muslim voters only. Indeed notone Muslim voter has been examined for the petitioner and no printedcopies of leaflets have been produced from the custody of any Muslimvoter. The election petition itself shows that nearly 2 lacs had polledat the election. It is obvious that more one thousand copies wouldnever have sufficed for even a limited distribution amongst the electorate,and thus the very number of the printed copies of the leaflet militatesagainst the case of distribution as alleged. It rather suggests a moremischief value as the motive for the printing of the leaflet. It is notwithout significance that as many as five thousand copies of Ext. B—the notice repudiating all connection of the Congress candidate or theCongress Party with Maulvi Mahammad Manzoor Alam or with the

176 MOHAN SINGH OBEROI V. ALHAJ-I-AHMAD [VOL. XXXVIII

leaflets issued in his name, had been got printed by the respondent andhis1 party men. It is manifest that if the purpose for getting the offend-ing leaflet printed was to use it in the election campaign of the respon-dent and for the furtherance of his election, it is inconceivable that hewould have got only one thousand copies thereof printed. Anothercircumstances to which reference may be made arises from the fact thatthough the respondent was a Muslim, all his running mates were non-Muslim. It is well known that Parliamentary candidates, by and large,campaign along with the candidates of their party for election to theAssembly ; their symbols are the same and polling is held simultane-ously. In the circumstances placed as the respondent was, it was extre-mely unlikely that he would be a party to a campaign in which a leafletwith a communal bias and approach would be distributed. Any suchactivity on his part was bound to antagonise his running mates and thusdamage his own interest. To the above circumstances, the following maybe added. The respondent, it is evident on the evidence, is by professiona doctor, having his patients in all communities, Muslims and non-Muslims. He was fighting the election on the Congress ticket. TheCongress is a party professes a non-communal approach. Keeping thesefacts in mind, it appears to me that the distribution of the offendingleaflet by and on behalf of the respondent was not only bound to tarnishthe image of the Congress whom he represented it was further boundto hurt the feelings of at least his non-Muslim patients. Thus the distri-bution of the leaflet was a conduct on his part against his own interestwhich cannot be readily supposed. I am clearly of the opinion thatthe circumstances enumerated above make the case of distribution etc.,as set up in the election petition by and on behalf of the respondenthighly improbable. The evidence adduced by the petitioner in supportof this part of the case must be considered in the light of the circum-stances discussed above.

16. On the particulars mentioned in paragraph 19 of the electionpetition and on those mentioned in the amplification petition, it appearsthat the case of the petitioner is that out of the meetings held at elevenplaces within the constituency on different dates, the respondent waspresent and took part in distributing the leaflets and in explaining theircontents and in making oral appeals on their lines at seven of thosemeetings, namely at Satgawan on the 12th February, 1967, at Barhoand Dumri on the 13th February, 1967, at Dhanwar on the 14th Feb-ruary, 1967, at Jamna on the 16th February, 1967 and at Giridih andPachamba on the 18th February, 1967. No evidence has been adducedin regard to the alleged meetings at Barho and Panchmba. No evidenceabout the distribution of the offending leaflet (Ext. 3) at Satgawan hasbeen adduced. Neither P.W. 11 nor P.W. 23 had seen Exts. 4 and 4(a),two of the printed copies of Ext. 3.

E.L.R.] DASU SINHA V. R. L. SINGH YADAV & ORS. 177

\ After considering the allegations in the petition that the respon-dent spo\e in election meetings at seven places between the 12th Feb.1967 and VH>th February 1967, ioo\ part in distributing the offendingleaflets and made oral appeals explaining the contents of the leaflets*the judgment proceeded] :

18. It follows from what has been discussed above that issue No. 14must be decided against the petitioner and it must be held that it hasnot been established that the respondent or his election agent andworkers with the consent of the respondent or his election agent hadcommitted any corrupt practice as alleged in paragraphs 9 to 26 of theelection petition. On the findings, the question of the result of theelection having been materially affected, therefore, does not arise.

19. In the result, the petition is dismissed with costs. Hearing feeis addressed at Rs. 1000/-.

Petition dismissed.

IN THE HIGH COURT AT PATNA

DASU SINHA

V.

RAM LAKHAN SINGH YADAV AND ORS.

(G. N. PRASAD, J)

May 16, 1968

Representation of the People Act, 1951, Sections 58, 81(1). 83(1) 86(1)100(l)(b), (d)(ii), (d)(iv), 123(5)-Election Petition-verification and Affidavitfiled on subsequent date but within limitation—Requirements of Section 83(1)Corrupt practice—Burden of proof—Allegations against the respondent underSection 123(5)—Burden of proof—Failure to maintain correct account of electionexpenses, whether renders election void—Non-inclusion of a person in electoralroll, whether can be raised in election petition.

The petitioner, a defeated candidate challenged the election of the first res-pondent to the State Assembly alleging inter alia that a series of corrupt practiceshad been indulged in by the first respondent who was a Minister or by hisagents at different stages of the election process. Allegations were also madeabout non-compliance with several provisions of the Act and that, with the

13—3 Elec. Com.71

178 DASU SINHA V. R. L. SINGH YADAV & ORS. [VOL. XXXVIII

collusion of officials, the first respondent committed several illegalities and irregu-larities in the matter of counting votes. The petitioner prayed for a declarationthat the election of the first respondent was void and that he instead may bedeclared elected.

HELD : Dismissing the petition :

(i) Even though the verification and affidavit were not filed along with theelection petition, they were filed on a subsequent date within the limitationperiod of 45 days, mentioned in Section 81(1) of the Act; there was thereforesubstantial compliance with the provisions of Section 83 of the Act.

(ii) The burden of proving charges of corrupt practices against the returnedcandidate lies heavily on the petitioner. Further, the election petition must fail if itdoes not contain a statement of material facts with full particulars as requiredunder the provisions of Sub-Section (1) of Section 83 of the Act.

]ana\ Singh v. Mahanath Ram Kishore Das, E.P. No. 4 of 1967 (Patna),dated 12th April, 1968; Jagdev Singh Sidhanti v. Pratap Singh Daulta and others,A.I.R. 1965, S.C. 181; Ghasi Ram v. Dal Singh and others, Civil Appeal No.1632 of 1967, S.C. dated 7th Feb. 1968; Chandeshwar Narain v. Basu Prasad,M.J.C. No. 36 of 1954; Chandra She\har Singh v. Sarjoo Prasad Singh andanother, A.I.R. 1961, Patna 189; referred to.

(iii) If any officer of the classes mentioned in Sub-Section (7) of Section 123,voluntarily works for a candidate with a view to gain his favour, it cannot be saidthat his services obtained or procured by the candidate or his agent or by anyother person with the consent of the candidate or his election agent, unless thepetitioner proves the commission of corrupt practice within the meaning ofsection 123(7) of the Act.

(iv) Unless the petitioner is able to prove the requisite elements to justify afinding that the election of the first respondent is void either under Clause (b) orunder Clause (d)(ii) of Section 100(1) of the Act, the plea of the petitionershould fail. Where the first respondent is charged with a corrupt practice withinthe meaning of Section 123(5) or at his instance, which could fall within thescope of Clause (b) or Clause (d) (ii) of Section 100(1) of the Act, thepetitioner has to prove by evidence to the effect that such vehicles were hiredor procured by the first respondent personally or by any of his agents with hisconsent. Further, it has to be proved what was the total number of voters whowere so transported so as to give an indication of the fact that by reason of thecommission of such corrupt practice, the result of the election was materiallyaffected so far as the first respondent was concerned.

Chandeshwar Narain v. Basu Prasad, M.J.C. No. 36 of 1954, dated 12thApril, 1955, referred to.

(v) The return filed by the first respondent was not in contravention ofSection 77 of the Act; even if the return is not correct in one or two respectsthat cannot justify a declaration that the election of the first respondent is voidunder Clauses (b) and (d)(iv) of Section 100(1) of the Act.

(vi) The question whether a person has or has not been properly included inthe Electoral Roll cannot be agitated in an election petition.

Election Petition No. 2 of 1967.

JE.L.R.] DASUSJNHA V. R. L.SINGH YADAV & ORS. 179

Gorakh Nath Singh, B. N. Mandal, J. P. Singh, Kedarnath Verma, Bindesh-wari Prasad Sinha, Prabha Shankar Mishra and Sudama Singh for the petitioner.

Kanhaiya Prasad Verma, Ram Nandan Singh, Mani Lall, Rama Raman,C. B. Belwariar, Kamla Kant Prasad, Indu Shekhar Pd. Sinha, Jageshwar Pd.Sinha, P. K. Joshi and Braj Kishore for the Respondents.

JUDGMENT

G. N. PRASAD3 J.—The parties to this election petition presentedunder sections 80 and 81 of the Representation of the People Act, 1951,hereinafter referred to as the 'Act', were candidates for election to theBihar Vidhan Sabha from No. 204 Patna South Assembly constituencyat the last general election. Three of them, namely, Sarbshri KedarnathSingh (respondent No. 2), Deokaran Rai (respondent No. 3) and RamKirpal Singh (respondent No. 6) contested the election as independentcandidates. The remaining five candidates were sej up by differentpolitical parties as follows :

(i) Shri Dasu Sinha (the petitioner) Jan Kranti Dal (J.K.D.)

(ii) Shri Ram Lakhan Singh Yadav (respondent No. 1 ) . . . .IndianNational Congress.

(iii) Shri Dwarka Prasad (respondent No. 4) Swatantra.

(iv) Shri Nageshwar Prasad Singh (respondent No. 5) JanSangh.

(v) Shri Ram Narain Singh (respondent No. 7) CommunistParty of India (C.P.I.).

2. The different dates in the election process were the following :

20-1-1967 Last date for making nominations.

21-1-1967 Date for the scrutiny of the nominations.

23-1-1967 Last date for the withdrawal of candidatures.

15-2-1967 Date of poll.

20-2-1967 Date of re-poll at booths Nos. 49, 50, 51 and 52.

23-2-1967 "Ir Dates of counting of votes.

24-2-1967 J

24-2-1967 Date of declaration of results.

180 DASU SINHA V. R. L. SINGH YADAV & ORS. [VOL. XXXVIH

3. The nominations of all the aforesaid candidates were made intime and found to be valid, and when the counting of votes was com-pleted, they were declared to have secured the following number ofvotes :

(i) Petitioner 26,081.

(ii) Respondent No. 1 26,998

(iii) Respondent No. 2 2,264

(iv) Respondent No. 3 425

(v) Respondent No. 4 679

(vi) Respondent No. 5 1,499

(vii) Respondent No. 6 193

(viii) Respondent No. 7 4,588

Thus, the total number of validly polled votes was 62,727. 2,808 ballotpapers were rejected as invalid. And since respondent No. I was foundto have secured the majority of the valid votes, he was declared to bethe returned candidate. Within forty-five days of the declaration ofthe results, the petitioner filed this election petition calling in questionthe election of respondent No. 1 on a variety of grounds and seekingtwo declarations; (i) that the election of the returned candidate isvoid, and, (ii) that the petitioner has been duly elected to the BiharLegislative Assembly from the Patna South Assembly constituency.

4. The election petition extends over 47 paragraphs and a numberof schedules and annexures have been appended to it. The case of thepetitioner is founded upon a series of corrupt practices alleged to havebeen indulged in by respondent No. 1 or his agenjj or agents atdifferent stages of the election process. Allegations have also been madetherein of non-compliance with several provisions of the Act and ofvarious Rules or Orders made thereunder. According to the petitioner,the whole election was collusive, inasmuch as at the relevant timerespondent No. 1 was a Minister of the State Government and veryinfluential in the official circles "by reason of his being the right handman of the then chief Minister, Shri K. B. Sahay" (paragraph 6). Longbefore the election "he had been moving for having the officials of thedistrict of his choice and had succeeded in his attempt due to the kind-ness of his Chief. He was responsible for getting Shri J. N. Sahu postedas the District Magistrate of Patna although Shri Sahu had no adminis-trative experience of any kind as he had all along been in the Co-operative Department. It is an open secret that Shri Sahu owed hispromotion in service due to the influence of the respondent No. 1. Hehad got the Subdivisional Magistrate of Sadar Subdivision of his choiceposted at Patna through his Chief. The other officials were also of his

E.L.R.] DASU SINHA V. R. L. SINGH YADAV & ORS. 1^1

choice" (paragraph 7). When the Election Commission called uponthis constituency to elect its member to the Bihar Legislative Assembly,"the Respondent No. 1 got the Subdivisional Officer of Patna SadarSubdivision appointed as the Returning Officer and the District Magis-trate as the District Election Officer for holding and conducting theelection (paragraph 8) on account of such collusion between respondentNo. 1 and the officers entrusted with the task of conducting the election,respondent No. 1 had succeeded in getting a large number of bogusvotes polled in his favour. He had employed a large army of lathialsand goondas who had moved about in the entire constituency and heldout various kinds of threats and intimidation to the genuine voters,thereby preventing a large number of electors from exercising theirfranchise. Steps were taken to influence the electors in diverse ways sothat they might be forced to vote for respondent No. 1 in spite of thefact that as a Minister he "had acquired bad name throughout theState of Bihar for his misrule, omission and commission and variousmisdeeds (Paragraph 2). Despite all the intrigues and machinations ofthe powerful Minister that respondent No. 1 was, the petitioner, apractising advocate of the Patna High Court, and a sitting member ofthe Vidhan Sabha, who "was and is well known in the said Consti-tuency and had good reputation and had gained immense popularity inall parts of the said Constituency" (Paragraph 2), had secured themajority of valid votes, but on account of collusion between respondentNo. 1 and the concerned officials, there were various kinds of illegali-ties and irregularities in the matter of counting of votes which washeld under the supreme command of the District Magistrate, Sri J. N.Sahu. There was a large-scale improper reception of votes in favourof respondent No. 1 and rejection of votes polled in favour of thepetitioner, and thereby the result of the election was materially affected.The petitioner has, accordingly, prayed that the election of respondentNo. 1 should be declared to be void, and after such declaration, thepetitioner may be declared to have been duly elected.

5. In answer to the petitioner's case, three written statements havebeen filed; one by respondent No. 1, the second by respondent No. 4and the third by respondent No. 7. AH the relevant averments containedin the election petition have been stoutly denied in the written state-ment of respondent No. 1, who has also filed a recriminatory petitionunder the provision of section 97 of the Act. It is unnecessary at thisstage to set out all the denials of the petitioner's case put forward bythe various contesting respondents, because a fair idea of the nature ofthe controversies which have arisen between the parties will appearsufficiently from the issues which have been framed for determinationin this case at the instance of the parties. The issues are the following :

1. Is the election petition non-maintainable on the grounds allegedin paragraphs 1 to 9 of the written statement of respondent No. 1 ?

182 DASU SINHA V. R. L. SINGH YADAV & ORS. [VOL. XXXVIII

2. Has the election of respondent No. 1 been materially effected bynon-compliance of the provisions of the Representation of the PeopleAct and the rules framed thereunder as specified in paragraphs 15, 36and 37 of the election petition ?

3. Were the polling booths fixed according to the choice of the Re-spondent No. 1 and were the Presiding and Polling Officers appointed .in accordance with his choice?

4. Are the allegations regarding the corrupt practices including theexercise of undue influence by respondent No. 1 or by his agents orworkers with his consent or connivance as made in the election petitioncorrect and has the election been materially affected thereby ?

5. Has respondent No. 1 himself or his election agents or otheragents with his consent or connivance got the sample of false symbolsprinted and distributed in the constituency for confusing the electors ofthe constituency and were the electors misled thereby in casting theirvotes ?

6. Did the respondent No. 1 or the petitioner or their respectiveelection agents or other agents with their consent and connivance get thevotes of dead and absent electors cast in the election ? If so, has the ele-ction been materially affected thereby?

6A. Were" genuine voters prevented from or denied opportunity ofcasting their votes and were votes in their names cast by persons per-sonating for them at the instance of respondent No. 1 and/or hisworkers? If so, was the result of the election materially affectedthereby ?

7. Has there been any illegality or irregularity in the counting ofthe votes as, alleged by the petitioner or respondent No. 1 and hasthe election been materially affected thereby ?

8. Were the ballot boxes specially designed to facilitate tamperingand were these unduly detained and tampered with at the instance ofthe respondent No. 1 and were spurious ballot papers got up and usedat the instance of the respondent No. 1, his election agents and otheragents with his connivance and consent?

9. Was the prayer of the petitioner for recounting of the votesillegally rejected?

10. Is the allegation as made by the petitioner as against respondents4 and 7 liable to be struck off for failure to give full particulars asrequired under section 83(b) of the Representation of the Peoples Act?

11. Is the election of respondent No. 1 liable to be set aside andis the petitioner entitled to be declared elected ?

E.L.R.] DASl) SINHAV. R. L. SINGH YADAV &ORS. 183

6. Before taking up the various issues for consideration, I shouldmention certain undisputed facts. At the time when the knpunged elec-tion was held, the petitioner was a sitting member of the State Assem-bly from Naubatpur Assembly Constituency and respondent No. 1was a sitting member of the State Assembly from Paliganj AssemblyConstituency. In other words, both of them contested this election fromPatna South Assembly Constituency for the first time. The petitionerhad contested the general election of 1962 on a Congress ticket; butin 1967 he contested the election as a candidate of a newly constitutedpolitical party known as Jan Kranti Dal (J.K.D.) under the leadershipof Sri Mahamaya Prasad Sinha. Respondent No. 1 contested the generalelections, both of 1962 and 1967, as a Congress candidate.

7. The petitioner, who is aged about 81 years, joined the Congressparty in 1921 (when respondent No. 1 was not even born). But heresigned from that party in 1950. He rejoined that party after thegeneral election of 1952, but he again resigned from that party in 1956.He again rejoined that party in 1960. He resigned from that party forthe third time in December 1966 and joined the J.K.D.

8. Respondent No. 1, who is aged about 45 years, was known tothe petitioner since his childhood. He joined the Congress either in1942 (P.W. 10) or in 1937 (R.W. 14). He contested all the fourgeneral elections since 1952 on Congress ticket. He lost the election in1957, but won it in 1962.

9. From 1963 to 1967, Respondent No. 1 was a Minister in theGovernment of Bihar. At that time the Chief Minister was Sri K. B.Sahay. Respondent No. 1 held the portfolio of the Public Works De-partment (P.W.D.), the Public Health Engineering Department(P.H.E.D.) and the Home Guards.

10. The petitioner is an Awadhia Kurmi and Respondent No. 1 isa Gwala (Yadav) by casGe. Among the other respondents, one (respon-dent No. 2) is Kurmi, three (respondent Nos. 3, 4 and 7) are Gwalasand two (respondents Nos. 5 and 6) were Rajpujls.

11. The petitioner is practising as an Advocate in this Court andrespondent No. 4 is practising as an Advocate in the Civil Court atPatna. The election agents of both the petitioner and respondent No. 1were Advocates.

12. There were 104 polling stations (booths) spread over the entireconstituency, which was 12-14 miles long east to west and 12-14 miles inbreadth north to south. Approximately 9 or 10 per cent of the populationof this constituency was Yadavs; 9 or 10 per cent Rajputs; 10 or 12 percent Kurmis; and the predominant population was of Harijans of diffe-rent communities (P.W. 10).

184 DASU SINHA V. R. L. SINGH YADAV & ORS. [VOL. XXXVIII

13. The District Election Officer was the District Magistrate ofPatna, who was then Sri J. N. Sahu, a member of the Indian Adminis-trative Service; and the Returning Officer was the Subdivisional Officerof Patna Sadar, Sri B. Ghose.

14. I should first decide whether the election petition is unmaintain-able. In the written statement of respondent No. 1, the maintainability ofthis election petition has been challenged on the ground of non-com-pliance with certain provisions of Part VI of the Act, in particular,sections 81, 82 and 83. At the stage of arguments, learned counsel forthe contesting respondents pointed out that the election petition, whichwas first presented to this Court on 29-3-1967, was not accompanied byattested copies thereof as required by section 81(3) of the Act, and areport to this effect was made by the Stamp Reporter. Thereafter, on30-3-1967, the election petition was filed together with attested copiesthereof. But even at that stage, it was not accompanied by verificationand affidavit in support of the allegations of corrupt practices, as requir-ed by section 83 of the Act. The omission to this effect was rectifiedon 10-4-1967. On the basis of these facts, the argument put forward onbehalf of the respondents is that the election petition is fit to be dis-missed in litnine under section 86(1) of the Act. Stress is laid uponthe words "shall be accompanied" which occur both in section 81(3)and in the proviso to section 83(1) of the Act. In my judgment, thereis no force in this contention. At the first stage, namely, on 29-3-1967,the election petition was presented for the limited purpose of obtainingthe report of the Stamp Reporter as required by the rules of this Court.The real presentation of the petition within the meaning of section81(1) of the Act was made before this Court on 30-3-1967, and at thatstage it was accompanied by the requisite number of attested copies ofthe petition as required by section 81(3). Therefore, there was reallyno non-compliance with the provision of section 81 so as to justify asummary dismissal of the election petition under section 86(1) of theAct. No doubt, the verification and affidavit were filed on a subsequentdate and, therefore, it, is true that the verification and affidavit did notaccompany the election petition at the stage when it was presented tothis Court. But section 83 is not one of the sections mentioned insection 86(1) of the Act and, therefore, it will not be right to dismissthe election petition summarily under fihe latter provision. It shouldbe borne in mind that the limitation period of fortyfive days mentionedin section 81(1) of the Act expired on 10-4-1967 and, therefore, theverification and affidavit, which were filed on 10-4-1967, were in subs-tiantial compliance with the provisions of section 83 of the Act. I,therefore, hold that the election petition is not liable to be summarilydismissed under section 86(1) of the Act. The maintainability of theelection petition has not been challenged during the arguments on anyother ground. I, therefore, hold that the election petition is not un-maintainable.

E.L.R.] DASXJ SIKHA V. R. U SINGH YAPAV & OKS. 1**5

15. Respondent No. 1 has been charged with the commission ofa series of corrupt practices falling within the ambit of several sub-sections of section 123 of the Act. One of such alleged corrupt practicesis of bribing respondents 2 to 7 to stand as candidates "with a viewto get the anti-congress votes divided". The particulars of this corruptpractice have been set out in paragraph 10 and schedule XIII of theelection petition. In the schedule, as it originally stood, the place ofcommission of such corrupt practice was not stated. So a point wasraised at the instance of the contesting, respondents that the allegationof this corrupt practice should be struck off in view of non-compliancewith section 83(1) (b) of the Act. On the 25th July, 1967, however, apetition for amendment was filed by the petitioner seeking to insert"Boring Road, Patna" as the place of commission of this corrupt prac-tice in schedule XIII of the election petition. After hearing tshe partiesI allowed the prayer of amendment by my order dated the 11th January,1968. So the defect in the election petition no longer exists, and issueNo. 10 has become redundant.

16. I now proceed to deal with the election petition on merits. Ibegin by considering the grievance which the petitioner has madeagainst the personnel of officers who were entrusted with the work ofconducting the election. Under Part IV of the Act, the entire adminis-trative machinery for the conduct of the election has to function underthe direction and control of the Election Commission (section 20).The chief electoral officer of the State has to supervise the conduct ofthe election under the superintendence, direction and control of theCommission. The district election officer has to coordinate and superviseall work in the district or in the area within his Jurisdiction in con-nection with the conduct of the election under the superintendence,direction and control of the Chief electoral officer of the State (section20A). The returning officer or the assistant returning officer is nominatedor appointed by the Commission in consultation with the Governmentof the State (sections 21 and 22). The provision of requisite or adequatepolling stations has to be made by the district election officer with theprevious approval of the Commission and a list of such polling stationshas to be published in accordance with the direction of the Commission(section 25). The appointment of presiding and polling officers foreach polling station has to be made by the district election officer. Itwill thus appear that the entire election machinery function under thecontrol of the Election Commission which is a constitutional bodywholly independent of the Union or the State Governments. But thecase of the petitioner is that the district election officer, the returning•officer and all other concerned officers in this constituency were menof the choice of respondent No. 1, and as such, partial towards him.Paragraph 7 of the election petition reads:

"That, long before the election he had been moving for havingthe officials of the district of his choice and had succeeded in his

185 • DASU SINHAV. R. L. SINGH YADAV & ORS. [VOL. XXXVIII

attempt due to the kindness of his Chief. He was responsible forgetting Shri J. N. Sahu posted as the District Magistrate of Patnaalthough Sri Sahu had no administrative experience of any kind ashe had all along been in the Cooperative Department. It is an opensecret that Shri Sahu owed his promotion in service due to theinfluence of the respondent No. 1. He had got the SubdivisionalMagistrate of Patna Sadar Subdivision of his choice posted atPatna through his Chief. The other officials were also of his choice."

In paragraph 14, it has been alleged that respondent No. 1 and hisChief (Shri K. B. Sahay) "brought about the District Administrationof the district under their control and collusion and set ic in motionfor supporting their all actions, whether fair or foul, by all means".In paragraph 16, it has been alleged that it was respondent No. 1 whohad got the polling booths fixed by the district election officer accordingto his choice and convenience. "The villages, the electors of which werenot expected to vote for him, were tagged to the Polling booths whichwere favourable to him and where Gawalas were strong and predomi-nent. Far off villages, the electors of which were hostile to his interest,were tagged to the distant polling booths so that the female votersshould not go and exercise their franchise and in their place, he shouldhave opportunity to gee the bogus votes passed. Fixation of booths werekept secret for long time and list of booths were supplied late to thecandidates. Some of the instances with particulars are cited in theSchedule 1 which is part of this petition....". Schedule I contains alist of 16 booths (Nos. 32, 37, 38, 42, 43, 49, 50, 51, 52, 53, 54, 55, 68, 88,,91 and 92). Further attacks against the integrity and fairness of thedistrict election officer are to be found in paragraphs 36, 39 and 40of the election petition. All these allegations have been denied by res-pondent No. 1 in his written statement. But tjhese allegations are un-doubtedly very grave, and constitute a serious reflection upon thefairness of the conduct of the election, which is the responsibility of theElection Commission to ensure. It seems to me, however, that the entiregrievance made by the petitioner against the administrative set up forthe conduct of the election is the product either of his imagination orafter-thought. This is apparent from the evidence of the petitioner(P.W. 10) himself. In his chief-examination he said that Sri J. N. Sahuwas formerly in the Cooperative Department, but respondent No. 1 gothim appointed as District Magistrate. But in cross-examination he said :

" Sri J. N. Sahu is an officer of the Indian AdministrativeService. It is true that posting and promotions of I.A.S. officers aremade under decision of the State Cabinet. Excepc the Civil list Ihave not seen any record of the appointment, transfers, postings, orpromotions of Sri J. N. Sahu. Sri J. N. Sahu was posted as DistrictMagistrate at Patna about two years before the election in question."'

E.L.R.] ••': «DASU SINHA V. R. L. SINGH YADAV & ORS. 187

Besides, in .his chief-examination itself, he said that in the capacity of aDistrict Magistrate, Sri }. N. Sahu was first posted at Bhagalpur. Thus,from the evidence of P.W. 10 himself, it is clear (i) that the decision topromote Sri J. N. Sahu as a District Magistrate was taken by the wholeCabinet of which respondent No.l was only one member, and (ii) thatSri J. N. Sahu became a District Magistrate and was also transferred assuch to Patna at least two years before this election, that is to say, longbefore respondent No.l was set up by the Congress party to stand forthe election from this constituency, and long before he could imaginethat the petitioner would leave the Congress and join a new party to beformed two years later and decide to contest! the election against him.Therefore, it is impossible to lend any credence to the petitioner's casethat Shri J. N. Sahu had "no administrative experience of any kind as hehad all along been in the Cooperative Department", or that he "owedhis promotion in service due to the influence of the respondent No.l".And the fact that Sri J. N. Sahu was transferred to Patna as DistrictMagistrate nearly two years before the impunged election is in itself suffi-cient to demolish the petitioner's case that respondent No.l had succee-ded in "having the officials of the district of his choice". The petitionerwho has never seen the service records of an officer can have no justifica-tion to allege that that officer was not suitable for a particular post or aparticular station. If there is any "open secret" about these things, asalleged in paragraph 7 of the election petition, then I frankly confessmy collosal ignorance about it. Nowhere in his long letter (Ex. 3), thepetitioner made any grievance that respondent No. 1 had brought "thedistrict administration of the district" under his control and collusion.

17. In his evidence, P.W. 10 has complained :

"A list of polling booths was not supplied to me until one weekbefore the day of poll. When that list was supplied to me, then Inoticed that mostly the booths had been located in villages inhabi-tated by Gowalas, and that the booths of villages where non-gowalasresided, had been fixed at long distances from those villages."In cross-examination he said :—

"I did not file any written objection to the location of boothsin 1967 Election because I learnt about the fixation of the booths ata very late stage."

But no material has been placed before me to show that the booths werenot properly located. Learned counsel for the petitioner made no attemptto show to me which booths should have been fixed where. The peti-tioner was aware that "booths are fixed under the orders of the ElectionCommission". Admittedly, he knew about the location of the boothsone week before the day of poll. During that period ofone week he claims to have made several representations to the ChiefSecretary or to the District Magistrate. Therefore, he had ample oppor-tunity to bring to the notice of these authorities that the location of the

1 8 8 DASU SINHA v. R. L. SINGH YADAV & ORS. [VOL. XXXVIII

booths was improper or inconvenient. He could have easily contactedthe Chief Secretary locally within that one week. The very fact thathe kept quiet about this matter until he filed this election petition indi-cates that all his grievance of the petitioner is imaginary.

18. Then, the petitioner (P.W. 10) has said :"I also learnt that the Presiding and Polling Officers, who were

selected for acting in my constituency, were mostly persons whoworked in the Departments of Respondent No. 1 or belonged tohis caste or were closely connected with his friends."

But he has not disclosed from where he learnt all this. The list ofPresiding and Polling Officers (Ext. 16), to which reference has beenmade in paragraph 17 of the election petition, does not support thisgrievance of P.W. 10. On the contrary, Ext. 16 shows that at least90 per cent of the Presiding Officers were drawn from departments otherthan those of respondent No. 1, and were non-Yadavs. There is nomaterial to show which officer was closely connected with which friendof respondent No. 1. No evidence has been led to prove that theseofficers were men of the choice of respondent No. 1. The vague evidenceof P.W. 10 is wholly insufficient to prove his grievances against theselection of the Presiding and Polling Officers of the constituency. Hehas also admitted that he does not know the name of any member ofthe Home Guard who was deployed in the constituency. I, therefore,hold that there is no substance in the grievances which the petitionerhas made against the administrative machinery that was set up for theconduct of the election.

19. I now turn to the petitioner's case relating to the commissionof corrupt practices which have been variously attributed to respondentNo. 1 and/or his agents. Here I should refer to clauses (b) and (d) (ii)of section 100(1) of the Act, which provide that the election of areturned candidate has to be declared to be void on the ground ofcommission of corrupt practice in the following cases :—

(i) Where any corrupt practice has been committed by the return-ed candidate or his election agent personally,

(ii) Where any corrupt practice has been committed by any agentof the returned candidate with his consent; or,

(iii) Where any corrupt practice has been committed by any personor agent of the returned candidate acting in the latter's interestand by reason thereof the results of the election so far as thereturned candidate is concerned has been materially affected.

20. As pointed out by me recently in the case of ]ana\ Singh v.Mahanth Ramhtshore Das(l), the law views the commission of corruptpractices, as specified in the Act of 1951, with great seriousness, and it

(1) E. P. No. 4 of 1967 dt. 12-4-1968 (Patna)

EX.R.] - • DASU SINHA V. R. L. SINGH YADAV & ORS.

is for this reason that charges of corrupt practice are treated as quasi-criminal in nature and so the allegations relating thereto must be clearand precise and the evidence to prove them must be clear, cogent andconvincing. I should also refer to Jagdev Singh Sidhanti v. Pratap SinghDaulta and othersiT), where it was laid down that the burden of pro-ving that the election of a returned candidate is fit to be set aside, onthe ground that he was responsible personally or through his agentsfor corrupt practice at the election, lies heavily upon the election peti-tioner; and that in order to succeed, the election petitioner must provehis allegations of corrupt practices in both its branches, namely, (i) thecommission of acts which the law regards as corrupt, and, (ii) theresponsibility therefor of the successful candidate, either directly orthrough his agents or with his consent. Both these requirements mustbe proved not by mere preponderance of probability, but, by cogent andreliable evidence beyond any reasonable doubt, otherwise the electionpetition must fail.

21. According to the case set up by the petitioner, respondent No. 1was responsible for corrupt practices at every stage of the election pro-cess from the beginning to the end. The ball was set rolling by respon-dent No. 1 himself, as stated in paragraph 10 read with schedule XIIIof the election petition, on 14-1-1967 when he is alleged to have inducedrespondent Nos. 2 to 7 to stand as candidates in the election by payingto each of them a sum of Rs. 5,000/- at his own residence on the BoringRoad on the 14th January, 1967. This allegation has been traversed inparagraph 19 of the written statement of respondent No. 1, in para-graphs 6 and 8 of the written statement of respondent No. 4 and inparagraph 4 of the written statement of respondent No. 7. RespondentNos. 1 and 4 also denied it personally in Court. Respondents 2, 3* 5 and6 have not entered appearance and so there is no such denial on theirbehalf.

22. In support of his case on this point, the petitioner has reliedupon the evidence of Deonandan Singh (P. W. 5), who was one of hisworkers in the election. In his examination-in-chief P.W. 5 stated :

"Besides Dasu Sahu and Yadav there were six other candidatesfor the election, but those other six candidates had taken Rs. 5000/-each from Yadav and they had left the contest."

In his cross-examination he claimed that the bribe of Rs. 5,000/- waspaid to each of the other candidates in his presence, but when calledupon to name those candidates, he could name only Kedarnath Singhand Dwarka Prasad (respondents 2. and 4) and expressed his inabilityto give the names of any other such candidates. On being cross-examinedon behalf of respondent No. 4 he said that he had gone to the house

(2) A. I. R. 1965 S. C. 181.

190 DASU SINHA V. R. L, SINGB[ YADAV & ORS. [VOL. XXXVIII

of respondent No. 1- between 930 and 10 a.m. on 14-1-1967 in the com-pany of respondent No. 2 and one Sarju Singh, and that "only myself,Kedar Singh and Sarju Singh were present in the house of Yadav onthat day". Upon the evidence of P.W. 5, therefore, it cannot be heldthat any of the respondents other than respondent No. 2 had been paidthe alleged bribe of Rs. 5,000. Besides, the evidence of P.W. 5 to theeffect that on receipt of the bribe of Rs. 5,000/- from respondent No. 1,each of the other six candidates in the election had left the contest isnot in conformity with the case put forward in paragraph 10 of theelection petition. The true fact is that respondents 2 to 7 had not "leftthe contest", but each of them had contested the election P.W. 5 hasnowhere said that the alleged payment of Rs. 5,000/- to each of themhad been made with a view to induce them to stand as candidates sothat the anti-congress votes might get divided. Apart from these infirmi-ties in the evidence of P.W. 5, it seems to me that he is not a reliable wit-ness at all. He is a resident of a village lying within Poonpun police sta-tion in the district of Patna, which is outside the Patna South Assemblyconstituency. He has himself admitted that he is not a voter of theconstituency. There is nothing in his evidence which might indicatethat he could have been present in the house at Boring Road, Patna,where the bribe payment is supposed to have been made. It is; not hisclaim that he had been invited to the alleged residence of respondentNo. 1 on the Boring Road on the relevant occasion or that he wason visiting terms with the latter. It does not stand to reason that res-pondent No. 2 could have taken P.W. 5 in his company on an occasionof this nature. Besides, there is no evidence on the record that respondentNo. 1- had any house on the Boring Road where the alleged paymentof bribe could have been made. In his evidence respondent No. 1(R.W. 14) has denied the petitioner's case on this point saying :

"I have no house in Boring Road area and I have never livedanywhere in the Boring Road."

According to R.W. 14, his house is situated in Kidwaipuri and in hiscross-examination he said :

"My house of Kidwaipuri was constructed sometime in 1959.I have been living there even now. I never lived in any house on theBoring Road. I am not aware about any house in the name of mybrother in Boring Road. I never let out my Kidwaipuri house bet-ween 1963 and 1967."

This evidence of R. W. 14 has not been shown to be false by anyevidence on the side of the petitioner, such as records of the PatnaMunicipal Corporation. I am, therefore, unable to accept the evidenceof P.W. 5 and to hold that respondent No. 1 had paid a bribe ofRs. 5,000/-? to respondent No. 2 or to any of the other respondents, asalleged on behalf of the petitioner. ,

EX.R.] DASU SINHA V. R. L. SINGH YADAV & ORS. 191

23. The only other evidence on this point is that of the petitioner(P.W. 10) himself. He has deposed :

"My information is that all these six candidates were dummycandidates set up by Ramlakhan Singh Yadav. Each of them hadgot Rs. 5,000/- from Ramlakhan Singh Yadav for not seriously con-testing the election and for dissipating the non-congress votes."

But neither in his election petition nor in his evidence P.W. 10 hasdisclosed the source of his alleged information. In his evidence he hasalso not disclosed the date on which he got such an information, nor•what his information was with regard to the place or places of commis-sion of such a corrupt practice. Neither P.W. 5 has said that he hadinformed P.W. 10 about this matter, nor P W . 10 has said that he hadlearnt it from P.W. 5 or from any of his other workers. Therefore, theevidence of P.W. 10 is fit to be rejected as hearsay. That apart, I con-sider the evidence of P.W. 10 on this point to be false. P.W. 10 was nota novice in the election. He had contested the elections to the legislatureheld in 1923, 1926, 1953, 1957 and 1962. Besides being a seasoned politi-cian, he is also a practising advocate of this Court. Therefore, he knewfully well that an action of a candidate in the election to pay such abribe to other -candidates with the object of inducing such other candi-dates to stand for the election, is a serious offence under the election law,and if such an offence is proved, then the delinquent is not only liableto have his election set aside, but he is also exposed to the disqualificationfor a period of six years indicated in section 8A of the Act; and yetP.W. 10 had this to say in his cross-examination :

"Regarding the information which I had received about thebribing of candidates by Sri Yadav, I had not made any report toany of the election authorities in writing."

The petitioner has brought on the record a large number of petitionsand telegrams (Exts. 3 series) which he had addressed to the variousauthorities, including the President, the Prime Minister and the ChiefElection Commissioner of India complaining about various matters con-cerning the manner in which this election was held. Therefore, thefact that in regard to the corrupt practice of bribing six of the candi-dates, the petitioner made no report to any election authority is, in myopinion, sufficient to justify the conclusion that there is no truth what-soever in the petitioner's case set out in paragraph 10 read with scheduleXIII of the election petition.

24. Another allegation of corrupt practice attributed to the res-pondent personally is set out in paragraph 24 of the election petitionwhich reads :

"That for securing votes of certain villages a pucca roadknown as Sadigpur Pabhera road measuring 15 miles was construc-ted on war-footing by the department of Public Works at the huge

192 DASU SrNHA V. R. L. SINGH YADAV & ORS. [VOL. XXXVITF

cost of the Government between 15-1-67 and 15-2-67 leaving allother urgent works in abeyance under his order. This undueinfluence produced great effect upon the voters of that area andunder that influence the electors were not left with choice to ex-ercise freely their right of franchise. Their votes were practicallypurchased through that work.

The particulars given in Schedule VI are as follows :

"Construction of Sadiqpur Pabhera Road via Bairia, SampalChak, Azimachak and Fatehpur at huge cost of the Govt. underthe order of Respondent No. 1 for securing votes of the electorsof that locality on war footing."

Date of commencementof construction

of the road

15-1-67

at cost

Date ofcompletion

15-2-67

of several lac of rupees."

Length in mile

15 miles

This allegation of the petitioner has been denied by respondent No. 1'in paragraph 33 of the written statement, of which the following is anextract:

"So many roads are always constructed by P.W.D. from beforethe date of election but it was not constructed for securing votes.It is wrong to say that the alleged road was constructed on warfooting and leaving other urgent works in abeyance. The said roadwas constructed by the P.W.D. in due course from much beforesince it was long due. No undue influence was done by the Res-pondent No. 1 or his men and the question of producing greateffect upon the voters as alleged does not arise. It is wrong to saythat under the alleged influence the voters were not left with theirchoice to exercise freely their rights of franchise. It is false to saythat the votes of any voters was purchased through the allegedworkmen mentioned in paragraph 24. The allegation repeated inschedule VI of the Election petition is vague and false."

After considering the evidence of the petitioner on his allegationof corrupt; practice of undue influence committed by the first respon-dent who, in his capacity as a Minister, constructed the Sadikpur PabheraRoad to induce the voters of that area to vote for him, the judgmentproceeded :

E.L.R.] DASU SrNHA V. R. L. SfNGH YADAV & ORS. 193

Therefore, it is not possible to accept the evidence of P.W. 10 tothe effect chat Sadikpur Pabhera road was designed to provide accessto the villages where the Gowalas were in the majority. This case setup by the petitioner in paragraph 24 of his election petition is not atall fit to be accepted. In Ghasi Ram v. Dal Singh and others(3>), whichwas decided by the Supreme Court on the 7th February, 1968, one ofthe items of corrupt practice attributed to the answering respondent,who was a Minister for Irrigation and Power in Haryana, was that hehad used certain discretionary funds to bribe the voters and that hehad used his official position to favour some of the villages with a viewto securing support for his candidature. In course of their judgment,their Lordships observed :

"The position of a Minister is difficult. It is obvious that hecannot cease to function when his election is due. He must ofnecessity attend to the grievances, otherwise he must fall. Hemust improve the image of his administration before the public.If everyone of his official acts done bona fide is to be construedagainst him and an ulterior motive is spelled out of them the Ad-ministration must necessarily come to a stand-still."

'" 25. No doubt, their Lordships have further observed : i ••[

"Election is something which must be conducted fairly. Toarrange to spend money on the eve of election in different consti-tuencies, although for general public good, is when all is said anddone an evil practice, even if it may not be corrupt practice. Thedividing line between an evil practice and a corrupt practice is avery thin one. It should be understood that energy to do publicgood should be used not on the eve of elections but much earlierand that even a light evidence might change this, evil practice intocorrupt practice. Payments from discretionary grants on the eve ofelections should be avoided."

But in the instance case, it has not at all been proved tjhat the cons-truction of Sadikpur pabhera road was taken in hand just on the eve ofthe election so that it could be characterised as a corrupt practice, assuggested on behalf of the petitioner. The case set up by him in para-graph 24 of the election petition, accordingly,"Tails.

26. Another corrupt practice attributed to the respondent No.1 is set out in paragraph 25 of the election petition. There it has beenalleged that it was falsely given out to the people of Sabalpur and itsvicinity that a bridge for connecting North Bihar and South Biharwould be constructed over the river Ganga at Sabalpur and that "therespondent No. 1 induced the then Cabinet to pass the order about

(3) Civil Appeal No. 1632 of 1967 S. C. d/7-2-1968.

14—3Elec.Com./71

194 DAStT SINHA V. R. L. SINGH YADAV & ORS. [VOL. XXXVIII

construction of the said bridge and got it passed. He fixed a date forlaying of foundation of the same proposed bridge by the PrimeMinister. However, technical difficulty stood in not getting the founda-tion laid but false hopes were given to the electors for securing theirvotes". It) has been further alleged that "When the foundation was notlaid, it was freely misrepresented by the workers of the RespondentNo. 1 to the electors of that area that the petitioner stood in the wayof its construction". These allegations have been denied in paragraph34 of the written statement of respondent No. 1. There it has beenalleged that the proposal for construction of a bridge over the Gangawasi taken up about ten years back. The selection of a suitable site forthe bridge was in the hands of expert. Sabalpur was only one of thesites selected by the expert for this purpose. On his part respondentNo. 1 had always been sincere to have the Ganga bridge constructedat the earliest. But nothing was falsely given out to the people ofSabalpur and its vicinity as regards the location of the site of thebridge. Respondent No. 1 never induced the Bihar Cabinet to pass anyorder about the construction of the bridge. There was a proposal forlaying the foundation of the proposed bridge by the Prime Minister.But on account of many difficulties the proposal for laying the founda-tion of the bridge was postponed for the time being. No false hopewas given to the electors for securing their voties as regards the pro-posed Ganga bridge. It is denied that it was misrepresented or told bytjie workers of respondent No. 1 to the electors of that area that itwas the petitioner who stood in the way of the construction of theGanga bridge.

27. In support of the case on this point, the petitioner has reliedupon his evidence only.

[After considering the evidence of the petitioner regarding hitallegation that it was freely misrepresented by the workers of the firstrespondent to the electors, that the petitioner stood in the way of theconstruction of the Ganga Bridge at Sabalpur which would give im-mense betnefit to the villages of that area, the judgment proceeded} :

It is manifest that the whole case of the petitioner in paragraph 25of the election petition is based upon rumours and newspapers reports,which is wholly insufficient to make out a case of corrupt or illegal prac-tice on the part of respondent No. 1. If a false hope was held out amongstthe electors that the foundation of the bridge would be laid before theelection, then that would have gone against respondent No. 1 insteadof influencing the electors in his favour. I, therefore, reject the case setup by the petitioner in paragraph 25 of the election petition.

E.L.R.] DASU SINHA V. R. L. SINGH YADAV & ORS. 195

28. In paragraph 27 of the election petition it has been alleged that"taking undue advantage of his being a Minister and the right handman of Shri K. B. Sahay" respondent No.l got money, grains, blankets,etc. meant for reaching relief to the drought affected people of thedistrict distributed to the electors of his constituency, although theareas where they were distributed freely were not drought affectedareas, but this was done by respondent No. 1 for securing votes of theelectors in his favour. According to the petitioner's case the above fact"will be borne out by the records maintained in this connection by theGovernment". But the alleged records have not been exhibited in thiscase. So there is no evidence at all that any money, grains, blankets, etc.meant for giving relief to people of drought affected areas were divertedto the electors: of this constituency or that this was done by or at theinstance of respondent No.1 with a view to secure votes for him in theelection. The examination-in-chief of the petitioner which extends over18 pages of the record is toally silent on the point that money andarticles meant for relief to drought affected areas were utilised for thepurpose of securing votes for respondent No. 1. No doubt, at one stagein his examination-in-chief P.W. 10 said that money, blankets, etc. usedto be made available in sufficient quantity so that the workers of res-pondent No. 1 might contact the voter and distribute them amongst themwith a view to induce them to cast their votes in his favour He has fur-ther stated that later on he learnt that respondent No. 1 had providedhis workers with money for such purposes. But he does not say from

. where he learnt it. Besides, that is far from saying that money, grains,blankets, etc. meant for reaching relief to the drought affected areas wasdiverted or misused as described in paragraph 27 of the election petition.The case thus set up by the petitioner, accordingly fails.

29. In paragraph 26 of the election petition it has been allegedthat as a Minister respondent No. 2 had amassed a huge fortune andin the impunged election expenditure of money on his behalf wasrecklessly made by his men for securing votes for him. Such men ofrespondent No.l had purchased votes for him and "in the villages themoney was distributed by the workers of the respondent No. 1 likewater. The respondent No. 1 spent not less than about four lacs ofrupees in securing the votes of the electors for him by himself andthrough Sri Bipat Gope, Sri Ram Babu, Sri Bengali Pahalwan, SriBrajlala Prasad, Sri Sheonandan Singh, Sri Ram Govind Singhand several others". Particulars of this corrupt practice have been set outat great length in schedule VII of the election petition. There it hasbeen stated that Shri Bipat Gope alone had distributed 1,00,000/- amongthe electors in Patina city on 18-1-1967 : Shri Ram Babu Gope haddistributed Rs. 10,000/- in the same area on 19-1-1967. Seven otherpersons; had distributed Rs. 10,000/- each on different dates between20-1-1967, and 24-1-1967. Six other persons had distributed Rs. 5,000/-each on different dates between 24-1-1967 and 26-1-1967, and among

196 DASU SINHA V. R. L. SINGH YADAV & ORS. [VOL. XXXVHI

them there were certain Government officers as well. Fifteen other per-sons have been named in Schedule VII, but no mention has been madetherein as to the amount distributed by any of them or the date orplace of the alleged distribution of money amongst the voters. Theentire allegation made in paragraph 26 and schedule VII of the electionpetition has been denied in paragraph 35 of the written statement ofrespondent No. 1.

30. In support of his allegation that as a Minister respondent No. 1had amassed a huge fortune, the petitioner has relied upon Ex. 18 whichis a copy of the Bihar Gazette dated 16-1-1968 containing certain chargeswhich have been made against respondent No. 1 and certain other Minis-ters of the then Congress Government of Bihar for investigation by aCommission of Inquiry, the sole member of which is Sri VenkataramanAyyar, a retired Judge of the Supreme Court. It is, however, manifestthac the charges to be enquired into by the Ayyar Commission by them-selves prove nothing, and merely upon the basis of Ext. 18, I cannotaccept the allegation which the petitioner has made in paragraph 26 ofthe election petition. In the course of the cross-examination of respon-dent No. 1 (R.W. 14) it was put to him that "On the 30th December,1966, you got 12 rigs from Voltas and 7 rigs from Larson and TormenLtd. for a sum of rupees twenty-two lacs, without Cabinet sanction orsanction of the Finance Department", but I disallowed this question asirrelevant since no such allegation has been made in the election peti-tion. The further cross-examination of R.W. was as follows :

After considering the evidence of the first respondent on the alle-gation against him that he was corrupt and that he had securedvotes by bribery, the judgment proceeded :

He has also not disclosed from whom he learnt about the workersof Sri Yadav having been paid so much money by Sri Yadav for suchpurposes. I, therefore, hold that the entire case set up by the petitionerin paragraph 26 read with schedule VII of the election petition hasfailed.

31. In this very context I should deal with the case set up by thepetitioner in paragraph 28 read with schedule VIII of the election peti-tion. There it has been alleged that respondent No. 1 had "picked upthe electors of the Harijan class of the villages named in Schedule andtook advantage of their poverty and purchased their votes at the rate ofRs. 5/- per vote on 14-2-1967 and 15-2-1967". In schedule VIII, a totalamount of one lac rupees has been mentioned to have been used for pur-chase of votes of the Harijan class on the aforesaid two dates, including15-2-1967 (which was the day of poll) in 38 villages specified therein.But neither in the body nor in the schedule of the election petition men-tion has been made the name of a single elector whom respondent No. 1

E.L.R.] DASU SINHA V. R. L. SINGH YADAV & ORS. 197

is supposed to have picked up and taking advantage of their poverty,purchased their votes at the rate of Rs. 5 per vote on the aforesaid twodates. No. indication has also been given therein on total or approximatenumber of electors of the Harijan classes in this regard. Therefore, theelection petition must fail on the mere ground that is does not complywith the provision contained in sub-section (1) of section 83 of the Act,which lays down that an election petition must contain a concise state-ment of the material facts on which the petitioner relies and "shall setforth full particulars of any corrupt practice that the petitioner alleges,including as full a statement as possible of the names of the parties alleg-ed to have committed such corrupt practice and the date and place of thecommission of each such practice". In the case of Sri ]ana\ Sinha v.Mahanth Ramkishore Das and others(\), already referred to, I hadpointed out that where the allegations contained in the election petitionare in the nature of allegations of bribery, fraud or undue influence andthe like, the expression "material facts" with regard to such allegations,must include not merely the date and the place of commission of eachsuch corrupt practice, but also the names of the persons who were thesubject of such acts. There I referred to the case of ChandeshwarNarain v. Basu Prasad($), decided by a Bench of this Court on the 12thApril, 1955, where it was observed that to ensure a fair and effectualtrial of the election petition it is necessary "that the names of thepersons who carried the voters in the motor trucks as also the namesof the persons who were so carried, should be mentioned; so also thenames of the persons, who gave the bribes as also the namesof the persons who accepted the bribes". In Chandrashekjiar Singh v.Sarjoo Prasad Singh and another(5), another Bench of this Court hasobserved :

"The use of the word 'including' in cl. (b) indicates that thenames of the parties alleged to have committed the corrupt prac-tice should be deemed to be one of the particulars required to begiven but that does not mean that it exhausts the list of the namesof the parties to be given; it only explains and specifies some ofthem.

Under S. 123(2) it is provided that, if any candidate or hisagent threatens any elector with injury of any kind, he shall bedeemed to have interfered with free exercise of the electoral right.The particulars of corrupt practices necessarily include the namesof the electors alleged to have been subjected to such corrupt prac-tices."

In the latter case, the names of the voters alleged to have beenassaulted, obstructed or scared away were not disclosed in the election

(1) E. P. No. 4 of 1967, d/. 12-4-1968 (Patna).(4) M. J. C. No. 36 of 1954, d/ 12-4-1955 (Patna).(5) A.I.R. 1961 Patna 189.

198 DASU SINHA V. R. L. SINGH YADAV & ORS. [VOL. XXXVIII

petition, and it was held that the election petition suffered from in-curable infirmity in this regard and the charge was bad on thafi groundalone. I, therefore, hold that the entire case set up by the petitionerin paragraph 28 read with schedule VIII of the election petition is fitto be thrown out. I will, however, deal with the evidence which thepetitioner has adduced on this pare of his case. After considering theallegation in the petition that the first respondent had bribed theHarijan voters, established free kitchensi for voters, hired vehicles totransport voters, employed 20000 Gowalas to create terror throughoutthe constituency, and made appeals on the basis of caste, created con-fusion in the minds of voters regarding the symbol of the petitioner,and that he obtained the services of Government servants to canvassvotes for him in furtherance of his election prospects, holding that allthese allegations had not been proved, the judgment proceeded :

# # * # # # # # #

No value can, therefore, be attached to this evidence of P. W. 10.It has also not been shown to me that Indradeo Prasad and Ajab Mahtowere either gazetted officers within the meaning of clause (a) or officersof some other class prescribed under clause (g) of section 123(7). Be-sides, there is total lack of evidence that the services of any of these offi-cers had been procured or obtained by respondent No. 1 himself or byany other person with his consent or with the consent of his electionagent so as to attract section 123(7). If any officer of the classes men-tioned in sub-section (7) voluntarily works for a candidate with a viewto gain his favour, it cannot be said that his services were obtained orprocured by the candidate or his agent or by any other person with theconsent of the candidate or his election agent. I, therefore, hold that thepetitioner has faild to prove his case relating to the commission ofcorrupt practice within the meaning of section 123(7) of the Act.

41. A very serious charge which has been levelled against respon-dent No. 1 is that he had exercised undue influence upon the votersby letting loose a huge army of armed Gowalas who paraded throughthe entire constituency and held out threats and intimidation to the ele-ctors by shouting threatening slogans and in other ways before the dayof poll and also obstructed or threatened the agents and workers of thepetitioner who went out to canvass for votes on his behalf. The hire-lings of respondent No. 1 are also alleged to have created violence anddisturbances at a large number of polling booths, as a result of whichmany of the electors were prevented from exercising their right of vote.The allegations to this effect are spread over paragraphs 19, 21, 29, 32,33 and 36 read with schedules II, IX, X and XV of the election petitionand as many as 45 witnesses have been examined in order to prove thesevarious allegations. The evidence thus adduced by the petitioner may

E.L.R.] DASU SINHA V. R. L. SINGH YADAV & ORS. 199

be classified under three categories of activities; (i) of parading andshouting threatening slogans in the constituency, (ii) of creating ob-structions in the way of the workers of the petitioner in their work ofcanvassing for votes, and, (iii) of creating violence and disturbances atpolling booths.

42. I will first deal with the evidence relating to the activities ofthe first of these categories.

After considering the evidence on the allegations of the petitioner,that the first respondent let loose a huge army of armed Gowalas andheld out threats and intimidation to the electors, the judgment pro-ceeded :

According to P.W. 10, he had disliked the slogans which he hadheard being raised by the workers of respondent No. 1 while goingabout for canvassing work, but regarding these slogans also he did notmake any written report to any public authority. In answer to a Courtquestion, the petitioner said that he did not attach importance to suchslogans. Even in Ext. 3/2 dated 11-2-1967, addressed by the petitioner'selection agent to the Chief Secretary, no mention of threat to voters byany worker of respondent No. 1 was made. It is strange that even thenthe petitioner has thought fit to adduce a large mass of evidence on amatter to which he himself attached no importance. Therefore, theentire case of the petitioner about exercising undue influence uponvoters by holding out threats or intimidation and causing obstructionto them with a view to interfere with their free right to vote is renderedunacceptable. Besides, the case of the petitioner on this point standsconcluded by the decision of this Court in Chandra Se\har Singh v.Sarjug Prasad Singh and others, to which I have already referredI, therefore, reject this part of the petitioner's case.

43. To prove the activities of the workers or agents of respondentNo. 1 in causing obstructions to the workers of the petitioner in doinghis canvassing work, the petitioner has examined a large number ofwitnesses. Counsel for the petitioner has relied upon the evidence ofP.Ws. 3 to 5, 7,11, 12, 14, 16 to 24, 27 to 39, 42, 43, 45 and 47 to 51. Eachof these workers of the petitioner has his own story to tell about hisexperience while going out for canvassing work for the petitioner.Each has deposed about obstruction caused to him in his individualarea of canvassing work. I have already referred to the evidence ofP.Ws. 3, 4, 7, 16, 17 and 20 on this point. A very serious allegation hasbeen made by P.W. 5 who has said that:

(5) A.I.R. 1961 Patna 189.

2 0 0 DASU SINJHA V. R L. SINGH YADAV & ORS. [VOL. XXXVIII

"During the work of canvassing we used to meet with obstruc-tion and intimidation at the hands of the workers of Shri Yadav.Among such workers of Yadav I can mention the names of Ban-gali Khalifa, Bipat Gope and Ramchandra Pahalwan. These workersof Yadav used to threaten us with murder if we did not go away."After considering the evidence on the allegations in the petition,

that the workers or agents of the first respondent caused obstructions tothe workers of the petitioner, committed violence and held out threatsand intimidated the voters and caused disturbances at the polling sta-tions, the judgment proceeded :

No doubt he sent the telegram (Ext. 3/1) at 8.30 p.m. on 15-2-1967and the letter (Ext. 3) on the following day making various allegationsof unfair or illegal activities by unknown persons said to be workersof the Congress candidate, but mere allegations cannot prove theirtruth and they have to be proved by clear and reliable evidence, whichunfortunately is wanting in the present case. From the evidence whichthe petitioner has adduced, it is not possible to record any finding asto which worker or agent of respondent No. 1 had created disturbancesat which polling booth or which or how many voters, if at all, wereobstructed or prevented from exercising their franchise or that anyagent of respondent No. 1 had committed such corrupt practice with hisknowledge or consent. Thus, the entire case on the point of exerciseof undue influence upon voters set up by the petitioner has failed.

58. The next corrupt practice attributed to respondent No. 1 is thathe procured and hired trucks, buses and other vehicles of Sri BipatGope and others at his cost and carried his electors on them for exer-cising their franchise in his favour on 15-2-1967 (paragraph 34 ofthe election petition). The particulars of this corrupt practice have beengiven in schedule XI as follows :

"All vehicles of Gope Transport of Bipat Gope were hired byRespondent No. 1 and they were used for carrying the voters.

Besides Gope Transport vehicles, a very large number oftrucks, jeeps, cars and other kinds of vehicles were hired and usedby respondent No. 1 and his agents for carrying voters."

These allegations have been denied in paragraph 45 of the writtenstatement. But the petitioner's case on this point is fit to be struck offon the mere ground that neither the place nor places of commissionof such corrupt practice, nor the name of a single voter alleged to havebeen transported, nor the name of a single worker of respondent No.lalleged to have transported them have been indicated in the electionpetition. Therefore, the petitioner's case suffers from the same infirmity

E.L.R.] DASU SINHA V. R. L. SINGH YADAV & ORS. 201

which was noticed by a Bench of this Court in Chandeshwar Narain v.Basu Prasad,(4). To ensure a fair and effectual trial of the electionpetition it was incumbent upon the petitioner to mention therein thejiames of the persons who carried the voters in the alleged vehicles asalso the names of the persons who were so carried. It will be presently:seen that the evidence which the petitioner has adduced to prove hiscase on this point suffers from the same infirmity, besides being vague.P.W.3, a worker of the petitioner, has deposed :

"There were rickshaws etc., kept ready for bringing voters tothe polling booth."

Another worker of the petitioner, P.W. 4, has deposed :

"On behalf of Ramlakhan Yadav arrangement of trucks, jeepsand pheatons had been made for bringing the voters to the pollingbooth."

According to P.W. 5, another worker of the petitioner :

"On the day of poll arrangements had been made on behalfof Yadav to feed voters and to bring them to the booth on jeeps,trucks, Tamtam and rickshaws."

P.W. 6, a voter has said :

"I had seen 10 or 15 motor vehicles near the booth upon whichpeople were being brought."

P.W. 15, who worked for the petitioner in the election, has said :

"On the day of poll arrangement had been made on behalf ofSri Yadav for rickshaw to transport voters from Bela to the pollingbooth."

Yet another worker of the petitioner, P.W. 19, spoke about Govern-ment jeeps and trucks which "used to remain standing". The last wit-ness on this point is the petitioner (P.W. 10) himself and he hasdeposed :

"There is an organisation known as Gope Transport, whichowns a fleet of trucks, buses, jeeps, etc. All such vehicles were inservice of the workers of Shri Yadav for the purpose of carryingon his election work. It was upon such vehicles that the can-vassers of Shri Yadav used to move about in the constituency forapproaching voters of those villages."

Although the case set up by the petitioner in paragraph 34 is supposedto be based upon his personal knowledge, the petitioner has made no

(4) M. J. C. No. 36 of 1954, dt. 12-4- 1955 (Patna)

202 DASU SINHA V. R. L. SINGH YADAV & ORS. [VOL. XXXVIII

mention of the fact that the alleged all vehicles of Gope Transport wereused for transporting the voters to the polling booths. In cross exa-mination P. W. 10 admitted that "I am not in a position to say whichparticular voter was brought on Gope Transport to the polling booth".Besides, there is total lack of evidence to the effect that such vehicleswere hired or procured by respondent No. 1 personally or by any of hisagents with his consent. There is also no evidence as to the total numberof voters thus transported so as to give any indication of the fact thatby reason of the commission of such corrupt practice, the result of theelection was materially affected so far as respondent No. 1 was con-cerned. The witnesses of the petitioner have merely spoken about vehi-cles being kept ready or arrangements for vehicles being made. Theyhave not said that any individual voter or voters were actually broughton such vehicles to the polling booths. I, therefore, hold that the peti-tioner has failed to prove that any corrupt practice within the meaningof section 123(5) was committed by respondent No. 1 or at his instancewhich could fall within the scope of clause (b) or clause (d)(ii) ofsection 100(1) of the Act.

59. The last corrupt practice which has been attributed to respon-dent No. 1 is that of incurring or authorising of expenditure in contra-vention of section 77 of the Act. The permissible limit of expenditureas laid down in rule 90 of the Conduct of Election Rules was Rs. 8,000/-.But respondent No. 1 is alleged to have indulged in corrupt practicewithin the meaning of section 123(6) of the Act by spending aboutfour lacs of rupees in the election recklessly. It has further been allegedthat with a view to cover up his reckless expenditure in the election,respondent No. 1 or his election agent did not keep a sjeparate andcorrect account of all his expenditure as required by section 77 of theAct. The relevant denial of respondent No. 1 is contained in para-graph 53 of his written statement. He has also personally denied thisallegation in his evidence in Court. His election return (Ext. 11) whichhas been exhibited on behalf of the petitioner shows a total expendi-ture of Rs. 5,781.41 between 6-1-1967 and 24-2-1967 (both days inclusive).

60. The allegation of reckless expenditure of a fabulous sum ofrupees four lacs has been made by the petitioner on the footing that asa Minister, Respondent No. 1 had amassed a huge fortune, that he hadspent large sums in bribing the other candidates in the election, in brib-ing and feeding the electors on a mass scale, in maintaining a hugearmy of ruffians and criminals, in hiring, procuring and running a fleetof trucks, cars, jeeps, etc., and in similar kinds of items. According toa suggestion made to R.W. 14 in course of his cross-examination, he hadspent a lac of rupees through Bipat Gope alone in the eastern part ofthe constituency, and had allowed money to flow like water amongstthe voters and workers. But I have already held that none of theseallegations have been substantiated, and thus the main, plank of the-

E.L.R.] DASU SINHA V. R. L. SINGH YADAV & ORS. 203

petitioner's case on this point has broken down. However, I must con-sider certain comments upon the election return (Ext. 11) made bylearned counsel for the petitioner. It was pointed out that it does notinclude any expenditure on petrol between 6-1-1967 and 8-2-1967 andthat the total expenditure on this item from 9-2-1967 to 24-2-1967, in-cluding an expenditure of Rs. 2.50 on mobil oil on 12-2-1967, has beenshown to be Rs. 145.52, which, he contended, cannot be correct, con-sidering the size of the constituency which is 12-14 miles in length. Ithas also been pointed out that while a total expenditure of Rs. 300/-has been shown over telephone connection, no expenditure has beenshown in Ext. 11 for telephone calls which must have been bookedat both the election offices of respondent No. 1. On the basis of thesetwo factors it has been contended that respondent No. 1 has suppressedsome of his expenditures in the election and that his return (Ext. 11)is not correct. But there is no reliable evidence on the record whichmight show that respondent No. 1 had incurred any expenditure overpetrol in connection with the election between 6-1-1967 and 8-2-1967.Even assuming that he might have incurred some expenditure on petrolduring this period, there is no material on the record to determine whatwas his expenditure over petrol between 6-1-1967 and 8-2-1967. It can-not be assumed without any material on the record that during thisperiod he had spent such a large amount of money on petrol that histotal expenditure in the election must have exceeded the permissiblelimit of Rs. 8,000/-. Like wise, there is nothing on the record on thebasis of which it could be held that charges of telephone calls were suchthat his total election expense must have exceeded the limit. It is notenough for the petitioner merely to show that a few items of expendi-ture do not appear to have been shown in the return (Ext. 11). Hehas to prove affirmatively by reliable evidence that the election expensesdid exceed Rs. 8,000/-, and not that it might have exceeded that limit.Upon the materials on the record I am, therefore, unable to hold thatrespondent No. 1 had incurred or authorised the incurring of expendi-ture in his election in contravention of section 77 of the Act so as toamount to corrupt practice within the meaning of section 123(6) ofthe Act. Even assuming that the return (Ext. 11) is not correct in ones

or two respects, as urged on behalf of the petitioner, that cannot justifya declaration that the election of respondent No. 1 is void, because toattract clause (d)(iv) of section 100(1), it is not enough to show thatthere has been some non-compliance of certain provisions of the Act,but it must further be proved that by reason of such non-compliance,the result of the election, in so far as it concerns respondent No. 1, hasbeen materially affected. It cannot be imagined that the result wasmaterially affected merely by reason of failure to maintain a correctaccount of all expenditures in connection with the election incurred orauthorised to be incurred by respondent No. 1. I, therefore, hold thatclause (b) of section 100(1) cannot be availed of by the petitioner.

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61. Thus, upon a careful consideration of the relevant materials onthe record I hold that the petitioner has failed to prove his entire caseon the issue of corrupt practice attributed to respondent No. 1 or hisagents and workers in the election, and that his election cannot be de-clared to be void either under clause (b) or under clause (d)(ii) ofsection 100(1) of the Act.

62. The next question for consideration is whether the election ofrespondent No. 1 is fit to be set aside under clause (d)(iv) of section100(1) of the Act. In other words, was the result of the election, so faras respondent No. 1 is concerned, materially affected by any non-com-pliance with the provisions of the Act or the Conduct of Election Rules.The first allegation on this point is to be found in paragraph 15 of theelection petition read with Annexures 'A' and 'A/1'. The allegationis that respondent No. 1 had got more than 1500 bogus voters, mostlyof his caste, who were not even ordinary residents of the constituency,enrolled contrary to the relevant provision of the law without due noticeto the electors and contesting candidates and after expiry of the periodfor such enrolment. In Annexure 'A' addressed by the petitioner'selection agent to the Returning Officer on 11-2-1967, it was stated :

"As required by you through your letter No. 109 dated 8-2-67,I am hereunder furnishing the list of bogus voters as could be ascer-tained by verification at the spot.

Kindly see that these bogus voters are not allowed to cast theirvotes as it may lead to serious breach of peace."

The list of bogus voters referred to above relates to booth Nos. 49, 51,67, 27, 62, 29, 94, 53, 58, 60, 52, 42, 38, 57, 7, 1, 2 and 6. To prove hiscase on this point, the petitioner has relied upon Exts. 6 series whichshow that a large number of applications for inclusion of names ofelectors in the electoral roll were filed on 14.1.1967, and those applica-tions were allowed by the Registration Officer on 20.1.1967, Dealingwith this matter in my order dated the 1st March, 1968, I held that thequestion whether a person has or has not been properly included in theelectoral roll is not a matter which can be agitated in this Court dealingwith an election petition. But the petitioner has sought to prove thatseveral of the persons whose names were included in the voters' list on20.1.1967 were fictitious persons, and not actual residents of some of thevillages in the constituency. P. W. 6, the Mukhiya of sona GopalpurGram Panchayat, has named 52 persons of Azimchak, 27 persons of TolaBadohpur and 11 persons of Sohagi saying that the persons bearingthose names do not live in the villages concerned. He has given suchevidence on the basis of the Paribarik register (Ext. 1) of his GramPanchayat, but he has admitted that Ext. 1 was compiled in 1960, and,therefore, it cannot prove that the persons named by him were not resid-ing in the different villages in 1967. Therefore, the evidence of P.W. 8

E.L.R.] DASU SINHA V. R. L. SINGH YADAV & ORS. 205

cannot prove that the persons whose names were entered in the electrolroll on 20-1-1967 were bogus or non-existing. Another witness on thepoint is P.W. 17. He has deposed that he had gone to Changer Bastiand to Nandlalpur Tola of Naberatanpur with a view to find out whichpersons of those villages whose names were entered in the amendedvoters' list, were in the village and which of them were not in the village,and as a result of his inquiry he learnt that none of the voters, whowere included in the amended voters' list, were residing in those twovillages. He has further deposed that regarding this matter, he hadmade a report to the petitioner who had deputed him to make theinquiry. His alleged report to the petitioner is not forthcoming. Howhe had made the alleged inquiry has been described by him in his cross-examination as follows :

"Changer is four miles from my village and Nandlalpur isclose to it. No worker or resident of those villages had gone in mycompany when I had gone there in connection with the enquiryentrusted to me by Dasu Babu. I do not know the men of Changeror Nandlalpur by name. It was in the company of Sadhu Babuof Sipra that I had gone to those two villages for enquiry in con-nection with the amended voters' list. In connection with the en-quiry I had met one Paswan whose name I do not remember. InChanger it was from the very same Pasban that I had made en-quiries about the voters mentioned in the amended list of Nand-lalpur and Nabaratanpur. I had not made any enquiry of the nameof that Pasban. I have not seen the house of that Pasban. I hadmet that Pasban in Changer Basti itself. Sadhu Babu who hadaccompanied me had also talks with that Pasban, it was SadhuBabu who used to talk to that Pasban about the amended list inmy presence."

It is manifest that no reliance can be placed on the alleged inquiry ofP.W. 17 conducted in such slipshod manner. Sadhu Babu of Sipara,who is P.W. 15, has nowhere claimed that he had accompanied P.W. 17to the villages mentioned by him or made any inquiry in connectionwith the persons mentioned in the amended voters' list. In my opinion,P.W. 17 had really made no such inquiry. The petitioner has, there-fore, failed to prove that the persons mentioned in the amended voters'list were bogus or non-existing persons. Thus, the case set up by thepetitioner in paragraph 15 of the election petition has not been sub-stantiated at all.

63. Another grievance of the petitioner, as set out in paragraph 33of the election petition, is that the polling was closed at booth Nos. 31,37, 63, 64 and 68 and it was announced by the Presiding and PollingOfficers of those booths that no further polling would proceed. There-upon all the polling agents, workers and electors went away. Later on,

206 DASU SINHA V. R. L. SINGH YADAV & ORS. [VOL. XXXVIII

respondent No. 1 visited those booths with the District Magistrate andcontacted the Presiding and Polling Officers who then allowed bogusvotes to be cast at the aforesaid five booths by the hirelings of respon-dent No. 1 under their direction. A telegram to this effect is allegedto have been addressed to the President, the Prime Minister and theElection Commissioner as per Ext. 3/1. In Ext. 3/1, however, no men-tion was made of any of the aforesaid five booths. No mention wasalso made of the alleged visit of respondent No. 1 to those booths inthe company of the District Magistrate. There 'it was alleged that theChief Secretary as also the Election Commissioner who happened to bepresent at Patna were informed about these matters on telephone butno remedying action was taken or could be taken by them to ensureproper polling. But in his evidence the petitioner (P.W. 10) has nowheresaid that he had contacted either the Chief Secretary or the ElectionCommissioner on telephone in chis connection. He has also made nomention at all of the alleged visit of respondent No. 1 in the companyof the District Magistrate to those booths. All that he has deposed aboutthis matter is :

"In Ranipur-kechak booth, Kankarbagh, Kumhrar, Isopur andAnisabad booth No. 37 authorities announced that polling had beenstopped at 4 p.m. and that every body should go away. After mypolling agents and workers left the respective booths, there wasfresh polling at those booths, as I learnt, between the hours of 5 p.m.and 8 p.m. and votes on that occasion were cast by non-voters perso-nating for real voters."

He has nowhere indicated who had given such information to him.He has not examined any of his polling agents of those booths to deposeto such facts. His evidence is, therefore, wholly insufficient to substa-ntiate his case about the closing of poll at booths Nos. 31, 37, 63, 64 and68. The only other witness on the point is P.W. 32, who was recordedas a voter of Kankarbagh booth No. 63. He has deposed that he hadgone to the booth and recorded his vote near about 9. a.m. After thathe had stayed on at the booth till about 12 noon. In the meantime alarge number of non-residents outsiders created disturbance due towhich some voters fled away but others recorded their votes. While allthis was going on, he came away. But in the afternoon at about 3 p.m.he learnt from one person that voting had again been resumed at thebooth. Thereupon he returned to the booth. It was then 4 p.m. and helearnt that polling had stopped. At about 5 p.m. he went there for thethird time and then he saw that polling was going on there. Some ofthe persons then going into the booth were voters and some others wereoutsiders. It is manifest that his evidence cannot prove the case ofclosing of poll at Kankarbagh booth No. 63 under the circumstancesmentioned in paragraph 33 of the election petition. Upon his own

E.L.R.] DASU SINHA V. R. L. SINGH YADAV & ORS. 207

evidence, he could not know why the polling had been stopped, if atall, and even when the polling is supposed to have been resumed at5 p.m., some of the persons going into the booth were voters. It is nothis evidence that at the alleged resumption of poll there was no pollingagent of any candidate present there. In his cross-examination hehas named Sidhari Prasad as the polling agent of the petitioner at thatbooth. But Sidhari Prasad has not been examined to support theevidence of P.W. 32, nor any reason for his non-examination has beengiven by the petitioner. In spite of the fact that he had worked forthe petitioner in the election, P.W. 32 did not make any kind of reportto the Presiding Officer or to the police present there. Not a singlevoter has been examined to say that due to closing of the polls he wasunable to exercise his franchise. I am, therefore, unable to place anyreliance upon the evidence of P.W. 32. The Presiding Officers' diariesof none of these five booths have been brought on the record, althoughthey were all called for by the petitioner in this Court. The inferencemust be that if the relevant Presiding Officers' diaries would have beenbrought on the record, then they would not have lent any support tothe petitioner's case on this point. I am, therefore, unable to hold thatthe poll at any of these booths was closed, as suggested on behalf of thepetitioner, in contravention of the provisions of the Act and the Rules.

64. It was also contended on behalf of the petitioner that underthe very circumstances under which re-poll was ordered at booths Nos.49 to 52, there should have been re-poll at several other booths wheresimilar conditions had prevailed. In this connection particular refer-ence has been made to Bhogipur booth No. 57, where the ballot boxwas taken away by some miscreants and polling had been suspendedfor a while. I have been referred to an application dated 16-2-1967which is to be found at page 68 of the list of Presiding and PollingOfficers (Ext. 16) in order to show that Shri Chandeshwar Prasad Singh,one of the polling agents at booth No. 57, had submitted a report tothe Returning Officer that while he was working at the polling booth,some Goondas had indulged in marait due to which he had sustainedsome injuries in his eye, and as such he was unable to continue to workas a polling agent there. Chandeshwar Prasad Singh was a lower divi-sion assistant in the Directorate of the Land Acquisition Office at Patna.He was not an employee of any of the departments of respondent No. 1,and yet the petitioner never thought fit to examine him either to provehis said report to the Returning Officer or to depose to the circum-stances under which he was injured at the polling booth. Even in hisreport no mention has been made that there was any interruption inthe conduct of the polling at booth No. 57. The best evidence to provesuch interruption would have been the diary of the Presiding Officer,but that has been withheld from the Court, evidently because it wouldnot have lent any support to the petitioner's case about interruption in

208 DASU SINHA V. R. L. SINGH YADAV & ORS. [VOL. XXXVIII

polling at booth No. 57. I do not interpret section 58 of the Act tomean that a fresh poll must be ordered at the slightest disturbance dur-ing polling at a booth. To justify a re-poll, it must be shown that byreason of the removal of the ballot-box from the custody of the Presid-ing Officer, the result of the poll at that booth cannot be ascertained,.In my opinion, re-poll cannot be justified if the Presiding Officer findsthat the polling can be continued without interruption after a tem-porary disturbance at the booth. I am, therefore, unable to hold thatthere was non-compliance of section 58 of the Act in respect of Bhogipurbooth No. 57.

65. The petitioner's case that there should have been a re-poll hasbeen pressed with respect to only one more booth, namely, SimliMurarpur booth No. 88 on the footing that there was non-complianceof the provisions of section 64A of the Act, inasmuch as, in the ballot-boxes of this booth, ballot papers were found far in excess of the totalnumber of ballot papers issued to the voters ; but I have already dealtwith this matter and have shown that it has not been satisfactorilyproved that more ballot papers were found at the stage of the countingthan were used at the poll. Nobody on behalf of the petitioner hassaid that the Presiding Officer's seal on the slit of the relevant ballot-box (envisaged in Rule 44 of the Conduct of Election Rules) was notintact or that the serial number of that seal did not tally with the serialnumber in the paper seal account sent by the Presiding Officer beforethe ballot-box was opened at the counting stage (vide, InstructionNo. 14/C contained in the Hand-Book for Returning Officers, 1966issued by the Election Commission). It will presently be seen that allthat has been shown is that some of the unused ballot papers were notaccounted for. It may be that some of them were misplaced, but thatis not material for our present purposes, because it can have no bearingon the question which I am now considering. It is wholly insufficientto justify a conclusion that there should have been a re-poll at SimliMurarpur booth No. 88.

66. The petitioner's case on the point that there should have beenre-poll at several other booths is based upon the assumption that therewere widespread distrubances at those booths. But I do not find ade-quate material to justify a conclusion that there were such disturbancesas to justify a re-poll either under section 58 or section 64A of the Act.No doubt, in paragraph 37 of the election petition it has been allegedthat the ballot boxes were kept in the custody of the Home Guards andthe Police Officers for a long time on 15-2-1967 and handed over to theReturning Officer in the morning of 16-2-1967, but no evidence hasbeen led to justify the petitioner's grievance to this effect. Had therebeen any truth in this complaint, then the petitioner or his countingagent would have made a complaint in this regard as soon as the count-ing of ballot papers was taken up. Even in Ext. 3/10, no grievance

E.L.R.] DASU SINHA V. R. L. SINGH YADAV & ORS. 209

to this effect was made. I, therefore, hold that the petitioner has failedto prove that there was any non-compliance of the provisions of theAct or the Rules within the meaning of clause (d) (iv) of section 100(1)of the Act.

67. Finally, I have to decide, whether the result of the election, sofar as respondent No. 1 is concerned, was materially affected withinthe meaning of clause (d)(iii) of section 100(1) of the Act. The rele-vant issues on this matter are Issues Nos. 7, 8 and 9. But the first partof Issue No. 8 does not arise for consideration since the question relat-ing to the design and tampering of the ballot-boxes was not pressed bythe learned counsel for the petitioner at the time of arguments.

68. According to the case put forward in the election petition, alarge number of votes polled and counted in favour of respondent No. 1were void on the ground that they were not cast by genuine electorsbut by unauthorised persons personating for them. In paragraph 47of the election petition it has been stated that bogus votes had beenpolled in favour of respondent No. 1 in the names of even dead oreven absent voters. A list of such dead and absent voters is to be foundin schedules XIV and XIV-A of the election petition. Schedule XIVcontains a list of 34 persons who are alleged to have died, but in whosenames votes are supposed to have been cast in Bairia booths Nos. 50, 51and 52, Simli Murarpur booth No. 88 and Sonawa booth No. 94. Ofthese very five booths a list of 33 allegedly absent voters had been givenin schedule XIV-A. The case of the petitioner on the point of dead andabsent voters rests upon the evidence of two witnesses (P.Ws. 8 and 17).P.W. 8, the Mukhiya of Sona Gopalpur Gram Panchayat, has deposedabout dead and absent voters of Abdulla Chak, Sona Gopalpur andSbhagi and he has proved death registers (Exts. 2, 2/1, 2/2 and 2/3)maintained in his Gram Panchayat. But all this evidence can be of noavail to the petitioner because they do not relate to any of the five boothsreferred to in schedules XIV and XIV-A. I should mention here thatthe petitioner has also brought on the record death registers (Exts. 17to 17/3) of Gulbighat Burning Ghat of the Patna Municipal Corpora-tion, but it has not been shown to relate to electors of any of the fivebooths referred to above. Therefore, both the evidence of P.W. 8 andthe death registers are irrelevant. The other witness (P.W. 17) hasdeposed about certain voters of Chatna where booth No. 44 was situated.Therefore, his evidence also cannot prove the case set up in paragraph47 of the election petition. According to P.W. 17, the Nusahars ofChatna were not in the village on the day of poll since they had leftthe village about two months before. He did not know where thoseMusahars had gone away, but he said that they had left the village asan arson case was going on in connection with some occurrence in thevillage. He further deposed that some voters of Chatna had died be-fore the poll and among them he could name three persons—Murat

15—3 Elec.Com./71

210 DASU SINHA V. R. L. SINGH YADAY & ORS. [VOL. XXXVIII

Singh, Dilchand Sao and a Paswan whose name he did not know. Healso named one Japat Ram of Pipra, a Tola of Chatna, as a person whowas absent on the day of poll, being on railway service. But it is im-possible to accept his evidence with regard to any of these matters asthey do not relate to any of the five booths mentioned in the electionpetition. 1, therefore, hold that the petitioner has failed to prove thecase set up by him in paragraph 47 of the election petition.

69. The petitioner has also examined six witnesses to prove thatbogus votes were polled in the names of genuine voters at certain boothsby imposters personating for them*.

[After considering the evidence on the allegations {issues Nos. 7,8 & 9) that there were irregularities in the counting of votes, tamperingof ballot boxes, inclusion of spurious ballot papers and the rejectionof the request for recount of votes, the judgment proceeded] :

83. The petitioner's case on the point of spurious ballot papershaving failed, we are left with 480 ballot papers—marked as Exts. 4 to4/479—which should, according to him, should not have been countedin favour of respondent No. 1 under other clauses of rule 56(2) of theConduct of Election Rules, and 91 ballot papers—marked as Exts. 9 to9/90—which should not have been rejected but counted as valid in hisfavour. But the case put forward by the petitioner in paragraph 40of the election petition to the effect that at the stage of counting a largenumber of ballot papers cast in his favour were soiled with "thumbssoiled with water on the pretext of shifting it on the mark put on thesymbol of the petitioner" and then declared to be invalid, has not beensubstantiated at all. Not a single ballot paper of the petitioner whichhas been brought on the record from the packet of the rejected ballotpapers and marked Exts. 9 to 9/90 bears any such tampering mark.The evidence to this effect given by P.Ws, 1, 23 10, 49 and 50 has thusbeen completely, falsified. It is manifest that the allegation which thepetitioner has made against the bona fides of the counting officers isbaseless. I will, however, assume that all these 91 ballot papers shouldhave been counted in his favour. I will also assume that all the 480ballot papers which have been marked as Exts. 8 series, should not havebeen counted in favour of respondent No. 1. Even then the petitionercannot succeed, because if 91 votes are added to 26,081 votes which werecounted in favour of the petitioner, he will be found to have secured26,172 valid votes ; and if 480 votes are deducted from 26,998 votescounted in favour of respondent No. 1, he will be found to have secured26,518 valid votes. Even then the petitioner will be found to have lostthe election by a margin of 346 votes. Therefore, even upon a most

E.L.R.] DASU SINHA V. R. L. SINGH YADAV & ORS. 211

liberal view of the matter, it must be held that the petitioner has failedto prove that the result of the election, so far as respondent No. 1. isconcerned, has been materially affected by reason of improper reception,refusal or rejection of any vote or the reception of any void vote withinthe meaning of clause (d)(iii) of section 100(1) of the Act. Underthe circumstances, it is unnecessary to consider whether there is anysubstance in the recriminatory petition or not.

84. In the light of the various findings which I have recordedabove, I answer each of the 12 issues framed in this case in the negative.I hold the petitioner is not entitled to either of the two declarationswhich he has sought in the election petition.

85. The result, therefore, is that this election petition fails and isaccordingly dismissed. The hearing of this case extended over 56 work-ing days beginning from 8-1-1968 and ending on 8-4-1968. A largemass of evidence adduced by the petitioner has been found to be false.In- the circumstances, the petitioner must pay the costs of this proceed-ing to respondents Nos. 1 and 4 together with a hearing fee whichI assess at Rs. 5,000/- for respondent No. 1 and Rs. 500/- for respondentNo. 4. No cost is allowed to respondent No. 7 as he did not appearafter filing his written statement.

86. The recriminatory petition is also dismissed, but without costs,since I have not considered it on merits.

87. Let a substance of this decision be forthwith intimated to theElection Commission and to the Speaker of Bihar Vidhan Sabha, andlet an authenticated copy of this judgment be forwarded to the ElectionCommission as soon as possible.

Petition Dismissed.

2 1 2 DINA V. NARAYAN SINGH [VOL. XXXVIII

IN THE SUPREME COURT OF INDIA

DINA

V.

NARAYAN SINGH

(}. C. SHAH AND V. BHARGAVA JJ)

May 21, 1968

Constitution {Scheduled Tribes) Order, 1950—Scheduled Castes and Sche-duled Tribes Amendment Act (63 of 1956)—Entry 12—"Gond including Mana"—Means Mana Community which is a substitute of Gonds.

Entry 12 in the Constitution (Scheduled Tribes) Order, 1950 promulgatedby the President read "Gond (including Madia (Mana) and Mudia (Mana)".By the Scheduled Castes and Scheduled Tribes (Amendment) Act 63 of 1956,Entry 12 was substituted by "Gond including "Mana".

The respondent in his election petition contended that the appellant was aMana and not a Gond (Mana) and that the Kshatriya Badwai\ Mana communityto which the appellant belonged was a sub-caste of the Marathas or Kumbis whoare not Gonds and on that account the appellant was not qualified to stand forelection from the reserved constituency. The High Court set aside the electionof the appellant. On 'the question whether by the Amendment made by Act 63of 1956 it was intended to declare under entry 12 who are not Gonds as membersof the Scheduled Tribes.

HELD : The appellant, merely because he belonged to the Mana communityamongst the Marathas, was not eligible to stand as a candidate for the reservedseat.

The Parliament has placed "Mana" under entry 12 of which the relevantpart reads "Gond including Mana". If a tribe of tribal community having noaffinity with the tribe or tribal community of Gonds was intended to be recognisedas a Scheduled Tribe, the name of that tribe or tribal community would appro-priately be set out under a distinct head. When the Parliament has included theMana community under entry 12, it would be reasonable to infer that Manacommunity which is a substitute of the Gonds or has some affinity with it, isintended to be referred to.

In the present case it was clearly established on the evidence that there isa community called "Mana" in the Chanda and adjoining districts who areMarathas and not Gonds.

JUDGMENT

SHAH, J.—At the elections held in February 1967, Dina VithobaNaravare, resident of Tahsil Gadchiroli, District Chanda, was declaredelected to the Maharashtra Legislative Assembly from the Armori Sche-duled Tribes Constituency. The High Court set aside the election in

E.L.R.] DINA V. NARAYAN SINGH 213

an application filed by the first respondent on the ground that theappellant Dina was not eligible to stand as a candidate from a reservedconstituency.

By this election petition the first respondent contended that theappellant is a Mana and not a Gond (Mana) and that the KshatriyaBadwai\ Mana community to which the appellant belonged is a sub-caste of Marathas or Kunbts who are not Gonds and on that accountthe appellant was not qualified to stand for election from the reservedconstituency. The appellant denied that he was a Kshatriya Badivai\Mana and claimed that he belonged to the Mana community which wasone of the aboriginal races in the Chanda District and was includedin the list of Scheduled Tribes in the Scheduled Tribes Order. Heasserted that there was only one caste or community called "Mana"in Chanda District and there were not two communities "Gond Mana"and "Kshatriya Mana" as alleged by the first respondent.

The appellant declared by his nomination paper that he is a mem-ber of the Gond (Mana) caste, and that the same is a Scheduled Tribein Taluka Gadchiroli of District Chanda and in the Maharashtra State,but in his examination by the Court he deposed :

"I belong to the Maria community. I claim that I belong tothe Scheduled Tribe. I do not claim that I belong to the GondTribe. I do not claim that I belong to a sub-caste called Mana ofwhich the head caste is Gond,

I do not claim that I am a Gond (Mana). I claim that Ibelong to a community called Mana amongst the Scheduled Tribe."

It is clear that the appellant claimed in filing his nomination paperthat he was a Gond (Mana): at the trial he denied that he was a Gond(Mana) or that he belonged to the community or sub tribe called Manaof the Gond tribe, and asserted that he belonged to the Mana commu-nity and that the Mana community was included in the list of Sche-duled Tribes under the Scheduled Tribes Order.

The President issued the Constitution (Scheduled Tribes) Order,1950, in exercise of the powers conferred by cl. (1) of Art. 342 of theConstitution. By cl. 2 of that Order it was provided that the tribes ortribal communities, or parts of, or groups within, tribes or tribal com-munities, specified in Parts I to XII of the Schedule to the Order shall,in relation to the States to which those parts respectively relate, bedeemed to be Scheduled Tribes so far as regards members thereof resi-dent in the localities specified in relation to them respectively in thoseParts of that Schedule. The Order is followed by a Schedule consti-tuting of twelve Parts. Part VII-A of the Schedule as amended byAct 11 of 1960 relating to Maharashtra by item 5 specifies that'in (1)

214 DINA V. NARAYAN SINGH [VOL. XXXVIII

Melghat tehsil of Amravati district (2) Gadchiroli and Sironcha tah-sils of the Chanda District, (3) Kalapur, Wani and Yeotmal tahsils ofthe Yeotmal district, 32 tribes or tribal communities shall be deemedScheduled Tribes. Entry 12 as originally set out in the order promul-gated by the President read : "Gond [including Madia ("Maria" andMudia (Muria)]. By the Scheduled Castes and Scheduled Tribes(Amendment) Act 63 of 1956, Entry 12 was substituted by:

"12. Gond, including—Arakh or ArrakhAgariaAsur

Badi Maria or Bada MariaBhatolaBhimma

Bhuta, Koilabhuta or KoilabhutiBharBisonborn MariaChota MariaDandani MariaDhuru or DhurwaDhobaDhuliaDorlaGaiki

Gatta or GattiGaitaGond GowariHill MariaKandraKalangaKhatolaKoitarKoyaKirwar or KhirwaraKucha MariaKuchaki MariaMadia (Maria)Mana

E.L.R.] DINA V. NARAYAN SINGH 215

Mannower

Moghya or Mogia or Monghya

Mudia (Muria)

Nagarchi

Nagwanshi

Ojha

Raj

Sonjhari Jhareka

Thantia or Thotya

Wade Maria or Vade Maria."

Item No. 30 of that list is 'Mand and Item No. 31 is 'Manuswar'. Inthe schedule to the Presidential Order as originally issued by "Mand'was not included as a Scheduled Tribe. In the Order as amended, inEntry 12 "Mand' is recognised as a Scheduled tribe. The appellantcontends that thereby all members of the "Mana" community in thespecified localities were intended to be recognised as members of aScheduled Tribe: the first respondent contends that only those personswho belong to the Mana sub-tribe of Gonds are intended to be recog-nised as members of a Scheduled Tribe. The question which we haveto decide in this appeal is whether by the amendment made by Act63 of 1956 it was intended to declare under Entry 12 Manas who arenot Gonds, as members of a Scheduled Tribe. The status of a Sche-duled Tribe is purely statutory, and the authority of the Parliament todeclare a tribe or tribal community a Scheduled Tribe or a Scheduledcommunity is not denied. The Parliament has placed "Mana" underEntry 12 of which the relevant part reads "Gond including Mana". Ifa tribe or tribal community having no affinity with the tribe or tribaLcommunity of Gonds was intended to be recognised as a ScheduledTribe, the name of that tribe or tribal community would appropriatelybe set out under a distinct head. When the Parliament has includedthe "Mana" community under Entry 12, it would be reasonable to inferthat "Mana" community which is a sub-tribe of the "Gonds", or hassome affinity with it, is intended to be referred. There is a considerablebody of evidence on the record that Rajgonda, Maria Gonds, Mudia, GaiGowari and Arakji are sub-tribes of Gonds and they are included inEntry 12 as amended. The appellant however asserts that Manas arenot Gonds, and have no affinity with Gonds. He claims that Manasare a community distinct from Gonds, and that amongst the Gondsub-tribes there is no sub-tribe known as Mana. The claim of the appel-lant is therefore rested solely upon the inclusion of Mana in Entry 12of Item 5 of Part VIIA of the Schedule.

216 DINA V. NARAYAN SINGH [VOL. XXXV I! I

It is clearly established on the evidence that there is a communitycalled "Mana" in the Chanda and adjoining districts, who are Mara-thas, and are not Gonds. The community is known as "Kshtriya Manaor Kunbi Mana". There is, however, evidence on the record which theHigh Court has accepted that among the Gond Tribes there is a sub-tribe called "Mana". The appellant as already observed denies the exis-tence of a sub-tribe among the Gonds called "Mana": he asserts thatManas are not Gonds at all. If, however, it be established that thereis, apart from the Mana which is a community of the Maharathas, asub-tribe of Gonds known as Mana, it would be difficult to hold thatthe Parliament by amendment of Entry 12 intended to declare Manaswho are not Gonds, as a Scheduled Tribe under the description "Gondincluding Mana". It is true that the expression 'including' may by astatutory fiction confer certain rights, privileges or status for the purpose•of the statute upon a class which does not normally fall within theprincipal head. But when the Parliament included amongst the 32items in Entry 12 several tribes or tribal communities which are recog-nised as sub-tribes of Gond, an inference that it was intended to includeMana, which is a sub-tribe of Gonds alone and not Mana as a commu-nity which is a section of the Marathas may readily be made.

Counsel for the appellant invited our attention to the anthropolo-gical and other studies in support of his contention that there is nosub-tribe of Gonds known as "Mana". Counsel relied upon the infor-mation contained in the Gazetteer of the District of Chanda publishedin 1909 at p. 108 paragraph—96 that—

"The Mana caste numbers about 27,000 or 4 per cent, of thepopulation and owns 14 villages. There is a legend that previousto the rise of the Gond kingdom they were the dominant race inthe district and ruled from the fortresses of Manikgarh and Suraj-garh. Thakur Deo on the summit of Surajgarh is still their tutelarydeity. They seem however to have lost this tradition among them-selves and only remember that they once were soldiers, and thesword is one of their objects of worship. The true origin of thecaste has not been discovered but they are supposed to be an off-shoot of the Gonds who have greatly raised their status by becomingcultivators and adopting the whole of the Hindu pantheon ",

and also upon Russell's "Castes and Tribes of Central Provinces", Vol.IV at pp. 172—176 wherein a detailed description of the Mana com-munity is given. Under the heading "Mana" it is stated:

"A Dravidian caste of cultivators and labourers belonging to theChanda District, from which they have numbered nearly 50,000persons, of whom 34,000 belonged to Chanda. The origin of thecaste is obscure. In the Chanda Settlement Report of 1869 MajorLucie Smith wrote of them: "Tradition asserts that prior to the

•E.L.R.] DINA V. NARAYAN SINGH 217

Gond conquest the Manas reigned over the country, having theirstrongholds at Surajgarh in Ahiri and at Manikgarh in the Manik-garh hills now of Hyderabad, and that after a troubled rule oftwo hundred years they fell before the Gonds. In appearance theyare of the Gond type, and are strongly and stoutly made; while incharacter they are hardy, industrious and truthful. Many warliketraditions still linger among them, and doubtless in days gonebythey did their duty as good soldiers, but they have long since hungup sword and shield and now rank among the best cultivators ofrice in Chanda." Another local tradition states that a line ofMana princess rules at Kairagarh. * * * Some of the Manas saythat they, as well as the Gowaris, are offshoots of the Gond tribe;and a local saying to the effect that 'The Gond, the Gowari andthe Mana cast boiled juarj or beans on leaf-plates' shows that they

are associated together in the popular mind The Gondshave a sub-division called Mannewar, and as war is only a Telugusuffix for the plural, the proper name Manne closely resemblesMana. * * * And the most plausible hypothesis "as to the pasthistory of the Manas is that they were also the rulers of some tractsof Chanda, and were displaced like the Prajas by a Gond invasionfrom the south.

Owing to their general adoption of Maratha customs, the Manasare now commonly regarded as a caste and not a forest tribe, andthis view may be accepted. They have two sub-castes, the Badwaik,Manas or soldiers, and the Khad Manas, who live in the plainsand are considered to be of impure descent.

* * * A third group cf Manas are now amalgamated with theKunbis as a regular sub-division of that caste, though they are re-garded as somewhat lower than the others. They have also a num-ber of exogamous sects of the usual titular and totemistic types, anda few recognizable names being Marathi. * * * The social cus-toms of the Manas are the same as those of the other lower Marathacastes, as described in the articles on Kunbi, Kohli and MaharThe Manas have Bhats or genecologists of their own caste, a sepa-rate one being appointed for each sect."

Reliance was also placed upon the classification made in the SettlementReport of the Chanda District for the year 1869, Ch. Ill dealing withaboriginal Gonds. This includes Gonds as Class I, Manas as Class II,Pradhana as Class III, Gowaris as Class IV and so on. These passagesno doubt establish the existence of Mana as a section of the Marathacommunity: its origin is said to be a forest tribe, but it has for a longtime been recognised as a Maratha Caste. But Russell also recogniseda sub-division of Gonds known as Mana or Mannawar, residing in parts

218 DINA V. NARAYAN SINGH [VOL. XXXVIII

of the Chanda District. Counsel for the appellant however urges thatthe anthropological and other studies disclosed that the Manas wereinitially an aboriginal community and those Manas now for a distinctcommunity who have adopted the Maratha customs, manners and socialbehaviour and are recognised as a sub-community of the Marathas andit is only in view of their origin they had been recognised as a Sche-duled Tribe, by the Constitution (Scheduled Tribes) Order.

If on the evidence it is established that there is no sub-tribe ofManas amongst the Gonds, the argument would have force. But onthe record there is evidence which supports the case of the first respon-dent that there is a sub-tribe of Manas amongst the Gonds, and theHigh Court has accepted that evidence.

The first respondent who is a Raigond said that there is a sub-casteof Manas amongst the Gonds and that the appellant does not belongto that sub-caste. It also appears from the evidence that the customs,manners, form of worship and dress of Gonds are entirely differentfrom the customs, manners, behaviour, form of worship and dress ofthe Marathas. The first respondent said that there are Manas who be-long to the Gond tribe, in Nawargaon and Palasgaon villages who areof wandering tribes and that one Dayaram of Nawergaon village wasa Gond (M'ana). He also stated that there were Gond {Manas) atTnnakpur, Bhuj and Brahmapuri taluk and also in Chanda district invillages Chirchadi and in many villages in Balaghat district. OneVisliwanath Tukaram Akre who was examined as a witness for the firstrespondent also deposed that the appellant belongs to the KshatriyaBadwai\ Mana community, and is not a member of the Gond tribe;that there are sub-castes of Gond community one of which is Mana andthat the customs, manners, the form of worship and dress of men andwomen of Gonds were entirely different from those of the Hindu com-munity. He also deposed that there are 800 Manas at Nawargaon andPalasgaon and other villages. Dayaram who was referred to as a Gond(Mana) by the first respondent in his evidence, though cited as a wit-ness, was not examined. Nor was any other Gond (Mana) examinedas a witness. But the learned Trial Judge was considerably impressedby the testimony of Vishwanath Akre.

The appellant denied that there was any community called Gond(Mana). According to the appellant there is a Mana communitywhich has no sub-caste or sub-division and that he is not a member ofany sub-caste of any other community. He admitted that he had madea declaration with his nomination paper that he belonged to Gond(Mana) community: he attempted to explain that declaration by sayingthat he did so because the Constitution (Schedule Tribes) Order SO'

E.L.R.] DINA V. NARAYAN SINGH 219

provided. He admitted that the customs and manners of persons be-longing to his {Mana) community are quite different from those be-longing to Gond. community, and that amongst the Gonds there weresub-divisions called Ara\, Gowari, Rajgond, Bada Gall, Moria, Ojha,Wanjari, Malhi and some others. Another witness Shrawan Shrirameexamined for the appellant stated that there was no sub-division in hiscaste and by the use of the appellation "Kshatriya" with the name ofhis community it was intended to refer to the martial tradition of Manaswho ruled the territory. He also stated that there were no Manasamongst the Gonds and he knew that as a fact because he had notcome across any sub-caste of Mana amongst Gonds in the area in whichhe worked as Senior Accountant in the Divisional Forest Office atChandrapur. The witness first asserted that there were no sub-castesamongst Gonds, but later admitted that there were some sub-castessuch as Madia, Rajgond etc. but that Mana was not a sub-caste amongGonds. He admitted that he had made no enquiries whether in factthere existed a sub-caste of Mana amongst the Gonds, and that his state-ment that there was no such sub-caste of Mana within the Gond com-munity was founded on the fact that he did not know of such a sub-caste though he did not make any enquiry. Witness VishwanathGhodmare—a Revenue Inspector—also gave similar testimony, but hestated that he had not come across any caste known as Gond (Mana).He asserted that there were no sub-castes or sub-tribes amongst Gondsbut later stated that there were sub-castes among Gonds such as Raj-gonds, Gavate Gonds, Pardhan Gonds, Mana Gonds. He3 however,asserted that there were no Mana Gonds. Witness Vishwanath Kojojistated that he was a Gond and belonged to the sub-caste of GavateGond. He stated that he was a Head Master of the Basic School atKadholi and that there were no students in his school belonging to theGond (Mana) community and that he did not know whether there wasany sub-caste of Manas among Gonds. He admitted that he had madeno enquiry whether in fact there was a sub-caste of Mana amongstGonds. Trimbak Dhok asserted that Mana was an independent com-munity which had no relation with Kunbis and that there was amongstthe Gonds no sub-caste or sub-tribe called Mana. But this assertion wasbased on no personal knowledge or information or any study of themembers of the Gond community. Tulshiram Dodke deposed thatthere was an agitation by the members of the Mana community fortheir inclusion in the Schedule to the Scheduled Tribes Order. Hestated that he had made representations to the Ministers of the MadhyaPradesh Government and was responsible for starting agitation for re-cognition of Manas as a Scheduled Tribe and that ultimately the Gov-ernment accepted their claim. The evidence of this witness is notsupported by any documentary evidence. If representations had beenmade and the Government had accepted to their claim, some documen-tary evidence in that behalf would have been forthcoming. The evidence

220 DIKA V. NARAYAN SINGH [VOL. XXXVIII

of witness Krishna Kate who claimed that Manas were treated by theGovernment of Maharashtra as part of the Gond community and weregranted certain benefits on that footing, does not assist the claim of theappellant, and no reliance was placed thereon.

That there are sub-tribes amongst the Gonds is not denied. Namesof some of those sub-tribes are included in Entry 12 of Item 5 of PartVII-A of the Schedule is also a matter which is beyond dispute. Thecustoms, manners, form of worship, and 'dress of the members of theMaratha Mana community are all different from the customs, manners,form of worship and dress of the Gonds. No rational explanation hasbeen suggested why the Parliament should have, while including underEntry 12 several sub-tribes of Gonds, specified Mana under that entry,if Manas had no affinity at all with Gonds. The appellant was un-certain about the claim that he was making. In the nomination paperfiled by him he claimed to be a Gond (Mana). His subsequent expla-nation that he did so because the rules so required cannot be acceptedas true. He relied upon the status of a Mana in the belief that allManas were intended to be given the benefit of the privileges conferredby the Scheduled Tribes Order. He described himself as a Gond(Mana). Realizing thereafter that his community had no affinity withthe Gonds he stated that he was not a Gond\ that he had nothing to dowith the Gonds, and that his community had also nothing to do withthe Gonds. He rested his claim solely upon the description in Entry12 in Item 5 of Part VI-A of the Schedule. But the form in whichthe entry is made pnma facie indicates that in the view of the Legis-lature, Mana was a sub-tribe of Gonds and a Mana who was a memberof the sub-tribe of Gonds alone was entitled to the privileges conferredby the Schedule to the Scheduled Tribes Order.

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 constituencyin Gadchiroli tahsil of Chanda District.

The appeal therefore fails and is dismissed with costs.

Appeal Dismissed.

E.L.R.] MOHAMMAD AKBAR V. K. H. LASSA WANI 221

IN THE HIGH COURT OF JAMMU & KASHMIR AT JAMMU

MOHAMMAD AKBAR

V.

K. H. LASSA WANI

(ANANT SINGH, J.)

May 22, 1968.

Representation of the People Act (Jammu & Kashmir) (4 of 1957), Sections24(d), 47(7)—Constitution of Jammu & Kashmir, 1956, Sections 51(4), 69, 70,142(b)—Constitution of India, Articles 190(3), 192(1)—Election Petition-Powers of the Speaker of Assembly under sections 69 and 70 under State Consti-tution—Reference of the Petition on 1962 election by Speaker to the ElectionTribunal and High Court—Validity of—Decision of the High Court whetheroperates as res judicata if the same issue is raised again in the election petitionon 1967 election—Rejection of nomination on ground of under-age—Evidence ojage—Entry of age in Electoral Roll—Whether conclusive proof—Evidence Act.,1872, Section 35, scope of.

The petitioner, a defeated candidate, challenged the election of the respon-dent on the grounds inter alia that the respondent had subsisting contracts withthe Government on the material date; and that the Returning Officer improperlyrejected the nomination of "A" on the ground of his being under-age whichrejection had materially affected the results of the election.

The respondent pleaded that the petition was liable for dismissal on theground of res judicata since the petitioner had raised the question of the samesubsisting contract which was the subject matter of an election petition on the1962 elections, against the present respondent and the High Court had then heldthat the Respondent had no subsisting contract on the relevant date.

In reply, the petitioner contended that the Speaker of the Jammu & KashmirAssembly, was not competent to refer the election petition in regard to the 1962election under sections 69 and 70 of the Constitution of Jammu and Kashmir,which are similar to the provisions of Articles 190(3) and 192(1) of the Consti-tution of India, since the disqualification of the respondent had occurred beforehe filed his nomination in 1962. The remedy to set aside his election was only byan application to the Election Tribunal and not by a reference to the HighCourt. Therefore, the decision of the High Court in 1962 election, on thequestion of the subsisting contract cannot operate as res judicata in the present1967 election petition.

HELD : Dismissing the petition : The provisions of Section 70 of theConstitution of Jammu & Kashmir are materially different from Article 192 oithe Constitution of India. It would appear that under sub-clause (b) of Section70 of the Constitution of Jammu and Kashmir, the Speaker has authority tomake a reference to the High Court of an election petition, even after theresult in the Election Tribunal, if a petition is filed, when he is satisfied thatthe circumstances disqualifying a member were not raised and could not beraised before the Tribunal. The Speaker has wider powers under section 70of the State Constitution and these powers are obviously intended to cover the

222 MOHAMMAD AKBAR V. K. H. LASSA WANI [VOL. XXXVIII

grounds not covered by section 142 of the Act. The reference to the HighCourt by the Speaker of the petition on the 1962 election, on the question ofthe alleged subsisting contract against the present respondent was quite validand competent and the decision of the High Court was final. This decisionwould operate as res iudicata in relation to the present election petition.

Misir Raghobardial v. Skeo Ba\sh Singh, I.L.R. 9, Cal. 439; Run BahadurSingh v. Lacho Koer, I.L.R. II, Cal. 301 at 308; Mst. Gulab Bai and others v.Manphool Bai, A.I.R. 1962, S.C. 215; Election Commission of India v. Sa\aVen\ata Rao, A.I.R. 1953, S.C. 210; Gulab Chand Chhotelal Parish v. State ofGujarat, A.I.R. 1965, S.C. 1153; Daryo and others v. State of U.P. and others,A.I.R. 1961, S.C. 1457; referred to.

The petitioner had failed to prove that the Respondent had incurred anydisqualification within the meaning of section 24(d) of the Act and his nomina-tion was rightly accepted.

Chattrubhuj Vithaldas jasani v. Moreshwar Parashram and others, 9. E.L.R.,S.C. 301, referred to.

The age £:,v;n in an electoral roll only proves that the individual referredto in that entry is registered as an "elector", but that is no presumption that itmust be accepted as conclusive proof of the age. Further, a medical test as tothe age by a mere look at a person is only guess-work. An entry in the SchoolRegister is a public record and is admissible under s. 35 of the Evidence Act.In the face of the statement of "A" that he was not of the requisite age of 25years and that his date cf birth was 19-2-1944 as is in the School AdmissionRegister and Matriculation Certificate the Returning Officer had rightly rejectedthe nomination of "A" under section 51(4) of the State Constitution.

Brij Mohan Singh v. Priya Brat Narain Singh Sinha and others, A.I.R. 1965,S.C. 282; Bansi Bam Kara Ram v. Jit Ram Gebru Ram, A.I.R. 1964, Pb. 231;Skive Ram v. Skim Charm Singh, A.I.R. 1964, Raj 126; referred to.

Election Petition No. 35 of 1967.

T. R. Bhasin for the Petitioner.

I. K. Kotvval for the Respondent.

JUDGMENT

ANANT SINGH, J.—At the last General Election of 1967, 13 candi-dates had filed nomination papers from Doda, Assembly Constituencyto the Legislative Assembly, of the Jammu and Kashmir State.

On the date of scrutiny which was held on 23-1-67, the nominationpapers of only one candidate, Ghulam Hussan, out of the 13 candidateswere rejected, and those of others were declared valid after the objec-tions filed by the respondent against the petitioner, and by the petitioner

E.L.R.] MOHAMMAD AKBAR V. K. H- LASSA WANI 223

against the respondent had been withdrawn the next day. The peti-tioner, the respondent, and Abdul Rehman only went to poll on21-2-1967, the other having dropped. The counting of votes was done on27-2-67. The respondent was declared elected. He had secured 5497votes, the petitioner secured 3235 votes, and Abdul Rahman forfeited hissecurity.

The petitioner filed this Election Petition before the Election Com-mission, New Delhi, on 31st May, 1967 challenging the validity of theelection of the respondent on various grounds.

A Tribunal consisting of Shri Hari Singh Hardesh, District andSessions Judge, Bhaderwah was constituted to whom the ElectionPetition was forwarded on 31-5-67 for trial.

The respondent appeared before him and filed his written state-ment. After hearing the counsel for both tiie parties, the learned Tri-bunal drew up, on 6-7-1967, the following three issues:—

1. Whether the allegations contained in Para 5 (Clause II relatingto contract part) Sub-paras 1 to 6 were subject matter of peti-tion against the election of the respondent from the DodaConstituency in the general, election of 1962. If these allega-tions have been decided by the Hon'ble High Court against thepetitioner in Constitutional reference No. 31 of 1964 underSection 70 of the Constitution of Jammu and Kashmir. If sowhether it will amount to resjudicata in particular reference tothe said allegation.

2. Whether the nomination paper of Ghulam Hassan candidatewas improperly rejected.

3. Whether the nomination paper of the respondent was impro-perly accepted and if it materially affected the result of theelection in so far as respondent is concerned.

The petitioner had tried to amend the Election Petition by addingsome material particulars giving specific facts as to some alleged corruptpractices. The learned District Judge in his quite well considered andconcised, order, dated 29-8-67, did not permit any amendment, anddirected for striking out the charges relating to corrupt practices in theoriginal petition on account of indefiniteness, regard being had to theprovisions of Section 91 of the State Representation of the People Act.

In the meantime, the Election Tribunal having been abolished byan Act of the State Legislature, the Election Petition was forwarded tothis court on 16-9-67, and it came to my Court on 19-12-67 for disposal.

224 MOHAMMAD AKBAR V. K. H- LASSA WANI [VOL. XXXVIII

The three issues framed by the Election Tribunal have been re-tained, and no further issue was sought to be raised before me.

The actual hearing by adducing evidence was commenced from17-4-67, and upto 8-5-67 on certain dates, the petitioner examined someseven witnesses including himself and the respondent eight, includinghimself. Arguments of the parties were heard on three dates i.e. 11-5-68,13-5-68 and 14-5-68.

FINDINGS

Issue No. 1: This issue has a bearing on the validity of the nomi-nation papers of the respondent, accepted as such by the ReturningOfficer on the date of scrutiny. The objection raised by the petitionerbefore the Returning Officer, to the validity of nomination papers ofthe respondent was that he was holding some existing contracts in thePublic Works Department under the Government. This objection ac-cording to the Returning Officer had been withdrawn by the petitioner,and similarly the objection by the respondent against the petitioner wasalso withdrawn. This fact was, however, controverted on behalf ofthe petitioner before me.

The question of withdrawal of the objection by the petitioneragainst the respondent before the Returning Officer, has no importancesince there will be no waiver or estoppel against the petitioner to raisethe objection over again as he has been allowed to do. It is a settledprinciple of law that the parties to an Election Petition can raise at thetrial even new grounds with regard to the validity or otherwise ofnomination paper of any candidate.

This issue, on Resjp-Iicata, has lost much of its impact and savesno time of the court, for I have allowed evidence to be given by theparties on facts said to be constituted Resjudicata, and have come tosome conclusion as I shall presently show as in the previous proceedingsbefore the High Court. The issue now remains to be only of an academicinterest. Nevertheless, I may discuss, and decide the issue. The fol-lowing facts are admitted:—

This respondent Lassa Wani was returned at the General Electionof 1962 as a member of the Jammu and Kashmir Legislative Assemblyfrom this very Doda Constituency on a contest with his other tworivals, Shri Jagat Ram Aryan and Shri Abdul Rehman. The presentpetitioner, Moh'd Akbar Kichloo who had not fought that election had,however, filed an application exhibit P.W. 6/6, dated 9th July, 1964,under section 70 of the Constitution of Jammu and Kashmir, before

E.L.R.] MOHAMMAD AKBAR V. K. H. LASSA WANI 225

the Speaker of the Assembly. In that application he sought for adeclaration that Lassa Wani be disqualified under Section 69 (e) of theConstitution. The grounds urged were that Lassa Wani held a "Sub-sisting Contract" which was a disqualification to be chosen as a memberof the Legislature under Section 24 (d) of the Jammu and Kashmir,Representation of People Act, to be referred to hereafter, as the Act,as it then stood before the amendment of this section later, in 1967. Thepetitioner mentioned five items of contracts, describing them, as sub-sisting, not having been finalised till then. These five items were asfollows:—

(a) "Widening of right approach for assembling the Girder Bridgeat Kuligarh" Thathri Kishtwar Road.

(b) Regi Nalla Stage works Batote Bhaderwah Road—2005-2006.

(c) Gang Huts mile 5 and mile 8 D.T. Road—2007-2008.

(d) Mile 4 part B Doda Thateri Road—2008.

(e) Kaligarh Approach T. K. Road—1958-1959.

The application did not mention who was the other party to thecontracts, but presumably, those contracts were alleged to have beenexisting under the Public Works Department of the State Government.

The Speaker referred the application under Section 70 of the StateConstitution to the High Court, and it was registered in the HighCourt as Reference No. 31 of 1964. The present petitioner, and thepresent respondent joined issue before a Division Bench of this HighCourt, and led their respective evidences in proof and dis-proof of theallegations regarding the existence of the contracts. It was quite hotlycontested, and protracted trial, and all possible and conceivable evidenceappeared to have been produced before the High Court. The DivisionBench, by its judgment, dated 19-12-66, held that there was no subsistingcontract between Lassa Wani and the State Government at the relevantsdates and answered the Reference accordingly. The decision of theHigh Court, as provided in Section 70 of the Constitution was final.

In the present Election petition some of the items of contracts withan addition of another item about mile 11 T.-K. Road, have been men-tioned as subsisting contract at the relevant time of 1967 between LassaWani and the Public Works Department of the Government, though ithas not been specifically mentioned that the contracts were subsistingbetween Lassa Wani and the State Government. At the time of argu-ments, the contention was confined only to two items out of the itemswhich were the subject matter of the Reference amongst others, and atiew item regarding mile No. 11, but this contract also is said to haveexisted before 1962. If there will be Resjudicata with regard to the

16—3 EVc. Com. \ 71

226 MOHAMMAD AKBAR V. K. H- LASSA WANI [VOL. XXXVIII

two common items, it will be a constructive Resjudicata with regard tothe third item as well; because this contract was also existing accordingto the petitioner, from before the time of the Reference.

It has now to be examined, whether the plea of the petitioner inthe present action regarding Lassa Wani's having held subsisting con-tracts at the last general election, is barred by Resjudicata in view ofthe decision of the High Court in the Reference.

The counsel for the parties, Mr. Bhasin for the petitioner and Mr.Iqbal Krishen for the respondent, were diametrically at cross roads onthis point.

Mr. Bhasin has contended that in order to constitute Resjudicata,the previous court as also the subsequent court must have been compe-tent to try the subject matter of the suit. In support of his contentionhe has relied upon the provision of Section 11 of the Civil ProcedureCode and three decisions 'in—

(1) Misir Raghobardial v. Sheo Baksh Singh (1),

(2) Run Bahadur Singh v. Lacho Koer (2), and

(3) Mst Gulab Bai and others v. Manphool Bai(3),

Mr. Bhasin would contend that the High Court was not competentto try an Election Petition but only Election Tribunal Constituted bythe Election Commission, could try such petitions, though, the HighCourt could hear appeals from the Judgements of the Election Tribunal.He has further contended that the Reference by the Speaker to theHigh Court was itself incompetent, because the disqualification of LassaWani did not occur after he was chosen as a member finally, but it wasexisting at the time, Lassa Wani had filed his nomination paper in1962. In other words the disqualification existed from before he waschosen, and the Speaker, according to Mr. Bhasin, had no jurisdictionto make any Reference to the High Court but the remedy to set asidehis election lay by an application before the Election Tribunal. Insupport of his contention he has relied upon a decision of the SupremeCourt Election Commission of India v. Sa\a Ven\ata Rao (4). Thisdecision rested on the interpretation of the provisions of Articles 190(3)

(1) l.L.R. 9 Cal. 439(2) l.L.R. 11 Cal. 301(3) A.I.R. 1962 S. C-215(4) A.I.R. 1953 SC 210 Para 16

•E.L.R.] MOHAMMAD AKBAR V. K. H. LASSA WANI 227

and 192(1) of the Constitution of India which deal with the disquali-fication of members of the Legislature. Article 190 prescribes disquali-fication of members, and one of such disqualification is as in (a) (3)to article 190 is as follows:—

"If a member of a House of the Legislature of a State—

(a) becomes subject to any of the disqualification mentioned inclause (1) of Article 191 ".

Article 191 has provided various disqualification "for being chosenas, and for being, a member of the Legislative Assembly or LegislativeCouncil of a State".

Article 192(1) is to the following effect:—

"If any question arises as to whether a member of a house of theLegislature of a State has become subject to any of the disqualifica-tions mentioned in clause (1) of article 191, the question shall bereferred for the decision of the Governor and his decision shall befinal."

The Supreme Court in the aforesaid case held that Articles 190(3)and 192(1) are applicable only to disqualification incurred by a mem-ber, only, after he is elected as such, and neither the Governor nor theCommission had jurisdiction to enquire into a member's disqualificationwhkh arose long before his election.

Mr. Bhasin, on the basis of this decision, has contended that theprovisions of the State Constitution being more or less similar, theSpeaker had no jurisdiction to refer the application of this petitionerto the High Court, since the disqualification of Lassa Wani had occur-red not after his election but before his election. Mr. Bhasin, has alsopleaded the bar of Section 142 of the State Constitution in this regard.

The relevant provisions of the State Constitution are provided inSection 69 and 70. The provisions of Section 69 are similar to theprovisions of article 191, but provision of Section 70 is materially diffe-rent from article 192, being as follows:—

"If it is represented to the Speaker or the Chairman that a memberof the Legislative Assembly or, as the case may be, of the Legis-lative Council is disqualified for being such a member under theprovisions of section 69 or was so disqualified at any time sincebeing chosen as a member, and the member does not admit that heis or was so disqualified, the question shall be referred to the HighCourt for decision and its decision shall be final :

228 MOHAMMAD AKBAR V. K. H- LASSA WANI [VOL. XXXVIII

Provided that where the disqualification in question arises fromcircumstances which subsisted at the time of his being chosen assuch member, no such representation as aforesaid shall be enter-tained—

(a) unless it is made after the expiration of the period pres-cribed by law for presenting an election petition calling inquestion the election of the member, and

(b) if such an election petition is pending or has been tried,unless the Speaker or Chairman as the case may be, issatisfied that the question of the member's disqualificationby reason of those circumstances has not been raised, or,as the case may be, was not raised in the proceeding onthe election petition.

(2) Where on a representation made under sub-section (1)the member admits that he is or was disqualified under the provi-sions of section 69, or where on a reference made under that sub-section the High Court decides that the member is or was so dis-qualified, his seat shall thereupon become vacant."

It will appear that the plain meaning of this provision is that theSpeaker has been authorised to make a Reference to the High Court,not only with regard to disqualification occurring after a member isfinally chosen, but also with regard to any disqualification of a memberchosen, existing prior to his chosing. The only limitation that has beenimposed with regard to a disqualification having existed prior to thechosing of a member is that the person seeking to make a representationto the Speaker has to wait for the expiry of the period of limitationfor filing an Election Petition or where an election petition has beenfiled, for its result. It would appear that under sub-clause (b) theSpeaker has authority to make a Reference even after the result of theElection Tribunal, if filed, when he is satisfied that the circumstances'disqualifying a member were not raised or could not be raised in theElection Petition. It is abundantly clear that the Speaker can referto the High Court about also the disqualification of a member chosenexisting from before his election.

Mr. Bhasin, has referred to Sedion 142(b) of the State Constitutionto say that "no election to either House of the Legislature shall be calledin question except by an election petition presented to such authorityand in such manner as may be provided for by or under any law madeby the Legislature."

Relying on this provision of Section 142 his contention is that theelection of a member of the Legislature can be challenged only by anelection petition and, therefore, the Speaker could have no authority

E.L.R.] MOHAMMAD AKBAR V. K. H. LASSA WANI 229^

to make a reference to the High Court questioning any election of amember on the ground of any previous disqualification and df the pro-vision of section 70 is so construed, there would be a clear conflictbetween Section 70 and 142 which cannot be reconciled. It can onlybe reconciled, according to Mr. Bhasin on the assumption that theSpeaker under Section 70 can Refer to the High Court only about thedisqualification of a member occurring after his choosing.

In my opinion, there is absolutely no conflict between the provisionsof the two sections. Under Section 142 it is only a voter or a candidatewho can file an Election Petition on the ground of the disqualificationsof a returned candidate as also on other grounds like the improperrejection of nomination papers of other candidates on the date of thescrutiny. He has to conform to the rules of limitation and other rulesfor filing of such petition like compulsory deposit of cost and so forth.

But under Section 70 any person, even other than a voter, canrepresent to the Speaker, even after the period of limitation and withoutconforming to rules of an Election Petition, that a particular candidatereturned to the Assembly was disqualified to be chosen as a member.

The Speaker on being satisfied on such a representation, has widerpowers under Section 70 but he can make a Reference only on theground of disqualification of the returned candidate, but not on theground of the rejection of nomination paper of any other candidate andthe like. He can make Reference about the disqualification of the re-turned candidate even when the disqualification had existed before hiselection; and can do so even after the period of limitation. He is notbound by any rules or procedure meant for filing an election petitionby a voter or a candidate, and in suitable cases even after the result of anelection petition decided by a Tribunal, he can make a reference. Thispower of the Speaker 'is obviously intended to cover the grounds, notcovered by section 142, for example, there may be a case when a voteror a candidate has not thought it fit to challenge the election of anymember even though he is elected while suffering from certain disquali-fications. It would appear, that in certain respects the scope of Section142 is wider, and in certain respects the scope of section 70 is wider,but mutually they are not conflicting, though in certain respects, theymay be overlapping.

Thus the Reference by the Speaker was quite valid and competent,and the decision of the High Court was final.

The principle of Resjudicata as mentioned in Section 10 of theCivil Procedure Code, and in the three decisions relied on by Mr. Bhasin,referred to earlier, relate only to suits. The question whether the gene-ral principle of Resjudicata can be applied to proceedings other thansuits did not arise in these cases.

230 MOHAMMAD AKBAR V. K. H. LASSA WANI [VOL. XXXVIII

In the case of Gulab Chand Chhotalal Parish v. State of Gujarat (5)the Supreme Court has held that the provision of Section 11 of theCivil Procedure Code are not exhaustive, and that on the general prin-ciple of Resjudicata, any previous decision on a matter in controversydecided after full contest or after affording fair opportunities to theparties to prove their case by a court competent to decide it, will ope-rate as Resjudicata in a subsequent regular suit. The principle ofResjudicata was laid down earlier by the Supreme Court in certain writpetitions filed by Daryao and others (6) in para 15 of this judgement,after referring to the requirements of Resjudicata, it was observed :

"It is doubtful if the technical requirement prescribed by S. 11 asto the competence of the first court to try the subsequent suit is anessential part of the general rule of resjudicata."

The principle of Resjudicata is not limited only to suits as in S. 11of the Civil Procedure Code. The principle of General Resjudicataapplies even to proceedings decided by a competent court. It is truethat the High Court, then, was not competent to try an election petition,but it was competent to try the Reference which was quite valid andlegal. The decision was, therefore, of a competent court in a compe-tent proceedings, and therefore, this decision will operate as Resjudi-cata in the present action regarding non-existence of the respondent'scontracts at the relevant time, now that the High Court is competentto try an Election Petition.

Issue No. 3 :

This issue has arisen on the allegations made in para 5(ii) and(iii). Among these allegations except Nos. 1, 3 relating to mile 5 only,and No. 5 relating to mile 11, the other allegations were not pressedat the trial. The allegations regarding non-compliance with the provi-sions of Section 45 of the Act were also not pressed. The allegationsunder para 6 relating to corrupt practices were struck out by theElection Tribunal and were not pressed at this trial either.

Items 1, 3 and 5 relate to the existence of certain contracts betweenthe respondent and the Public Works Department. The dates and de-tails of these contracts are not mentioned, in the Election Petition. ItemNo. 1, however, relates to Kuligarh bridge approach road, item No. 3to mile 5 on Doda Thathri road, mile 8 of it being not pressed. ItemNo. 5, relates to mile 11, R.DB.T.K. Road.

(5) A.I.R. 1965 S.C. 1153(6) A.?.R. 1961 S.C. 1457

E.L.R.] MOHAMMAD AKBAR V. K. H. LASSA WANI 231

The two agreements, one exhibit RW 6/4 dated March 1959 relatingto Kuligarh, and the other, exhibit, RW 6/5 dated 1-1-1961 relating tomile No. 3 were admitted to have been executed by the respondentR.W. No. 6 in favour of the Divisional Officer of the Division. Noagreement was, however, brought on the record relating to mile No. 11.

The contention of the respondent has been that he had held somecontracts under the Public Works Department within Khalani SpecialSub-Division, and other Division, but whatever contracts he had heldin his own name or in partnership with others, he had executed anddischarged them all, and his accounts had been finalised prior to theElection of 1962. He had obtained a certificate R.W. 4/1 dated 20-1-1962 from the then incharge Assistant Engineer, Special DivisionKhalani, A. L. Gupta, R.W. No. 4, who has owned his certificate sayingthat on a verification with the office records, he found his accountshaving been finalised and closed completely. He has further said thathe had powers to finalise the accounts of contractors, and his claim inthis regard was not challenged on the petitioner's behalf. It may benoted here that the certificate did not relate to Kuligarh bridge, forthat was not within his jurisdiction.

The petitioner's claim, however, is that the accounts for at leastthree items pressed on his behalf had not been finalised. It is saidthat the respondent had to receive from the department Rs. 68.69 nP.for Kuligarh and Rs. 84.43 for mile No. 5 totalling Rs. 150.12 nP. Itis further said that the respondent had to pay to the department Rs.137.79 for mile No. 11. Thus the respondent had yet to receive fromthe department Rs. 15.35 nP. and the amount is still due to him.

No evidence whatsoever, has, however, been brought on the re-cord on petitioner's behalf how the amount of the respondent has beenworked out.

The petitioner who has examined himself as P.W. No. 6 has hadno personal knowledge of the account of the respondent relating to hhcontracts except through the records of the department, but no recordof the department has been proved in connection with the amount o^the respondent.

One Ghulam Rasool P.W. 5, a record keeper in the office of thePublic Works Department, Kishtwar Division, was examined by thepetitioner. He proved an agreement exhibit PW 5/1 of one AbdulKarim, and it is completely irrelevant. From certain records, includingcontractors ledger, which he had brought, he said that they did notshow that Rs. 84.43 was due to the respondent. He however, said thatin August, 1964 the account book shows that Rs. 137.79 were due from

232 MOHAMMAD AKBAR V. K. H. LASSA WANI [VOL. XXXVIII

the contractor to the department. He, however, was not able to proveany entry even by identifying the hand writing of the person or personswho had written them.

Witness was cross-examined on behalf of the petitioner. On look-ing into a copy from the file of the High Court in the Reference case,exhibit FW 5/1 he said that Rs. 84.43 nP was due to the contractor,but he could not say who had written that copy. The witness, in hiscross examination on respondent's behalf, and on looking into the re-cords that Thathri-Kalotran road work was finalised including pay-ment, and that the ledger containing an entry as Rs. 84.43 as due tothe respondent, did not disclose to which work this money pertained.He also admitted that Thathri-Kalotran road was under the KhalaniSub Division prior to 1962, and thereafter it was a part of KishtwarDivision. He could not vouchsafe for the correctness of the last cashvoucher with regard to Kuligarh bridge, which was a part of KishtwarSpecial Sub-Division in 1962.

The evidence of P.W. 5 is of no avail since he has not proved anyentry in any of the records of the Public Works Department's office.The last witness in this regard is P.W. No. 7, an Accountant in theoffice of the Divisional Engineer, Kishtwar. He had brought all therecords called for on petitioner's behalf. On the first date of his exa-mination which was recorded on 3-5-68 he had brought the ledger bookof the respondent up to the year 1960-61, and said to a court question,that there was no ledger book for him for the year 1962-63. From theledger book of the respondent the witness said that nothing was dueto the contractor from the department nor was anything due from thecontractor to the department. At the request of the petitioner, thewitness was required to produce the ledger book of the contractors forthe years 1962, 1963 and 1964, and he produced them on 8-5-68, andnothing to support the petitioner's claim could be found in them. Thewitness volunteered that the entry mentioning the amount of Rs. 84.43marked PW 7/Z for ^identification was first written in ink which wasscored through and then written in pencil. He has further said that fromthe records he had brought he could say that there should have beenno balance as noted at page 205 of the register which relates to entryP.W. 7/Z marked for indentification. The witness in his cross exami-nation on behalf of the respondent categorically stated that nothing wasdue from the contractor. As for the amount of Rs. 84.43 nP. shown asdue to the contractor, he has explained how the sum had been adjustedas per cash voucher PW 7/a, PW 7/b, PW 7/c for identification. Mr.Bhasin would, marked however, argue that inspite of what has beenshown in cash voucher a, b and c marked for identification, the amountof Rs. 84.43 would still remaining due to him. I cannot accept thisargument in the face of the direct evidence of his own witness P.W.No. 7.

E.L.R.] MOHAMMAD AKBAR V. K. H- LASSA WANI 233

It would appear that no entry in the records of the Public WorksDepartment was proved on petitioner's behalf, and the entries whichhave been marked for identification only cannot be read as evidence.

Mr. Bhasin relying on Section 35 of the Evidence Act has con-tended that the entries in the official records of the Public Works De-partment are relevant, and should be under Section 114 of the sameAct presumed to have been made in official discharge of duties. Butthe basic thing is that the entries in official record must, in the firstinstance be proved by calling the person who had made those entriesor even some one who could say about the person having made thoseentries. I have indicated above that the entries in the record to thePublic Works Department office have not been proved at all.

The burden of the arguments on petitioner's behalf was the criti-cism of the certificate exhibit RW 4/1 of discharge which Mr. Guptahad granted to the respondent in 1962, for he did not produce the reportsof his office on which he had based the certificate, nor did he look intothe record of his office before coming to the witness box. Mr. Gupta,however, said that he has since been transferred from Khalani Sub-Division and had no occasion to look into the record of that officebefore coming to this court. There is no reason to doubt the correct-ness of the certificate granted by Mr. Gupta to the respondent, onlybecause the office report was not produced. The petitioner for his ownhas brought absolutely no evidence to support his contention that anything remained due to the contractor from the department, and forwhich the contracts must be deemed to be still existing in the light ofthe decision of the Supreme Court in Chatturbhuj Vithaldas Jasani v.Moreshwar Parashram and others(7). I hardly need to refer to thisdecision when on facts the petitioner has failed to establish his claim.If any amount had remained due to the respondent from the departmentprior to 1962, as is the petitioner's case, it would also be barred by therule of three years limitation.

The counsel for the respondent has also called my attention tothe fact that the two agreements exhibit RW 6/3 and RW 6/4, thethird with regard to mile No. 11 having not been brought, were notmade in the name of Sadar-e-Riayasat as it should have been as requiredunder Section 122 of the State Constitution, if they were to operate ascontracts between respondent, and the State and, therefore, he would•contend that these agreements were void ab initio. The very base of thepetitioner's claim in this regard would disappear. The argument isnot without force, but, I need not dilate upon it in view of finding thatno contract subsisted between the respondent and the Public Works

(7) A.I.R. 1954 S.C. 236 p. 242 (Para 33).

234 MOHAMMAD AKBAR V. K. If. LASSA WANI [VOL. XXXVIII

Department of the Government at the relevant time. He did not,therefore, suffer from any disqualification within the meaning of Sec-tion 24(d) of the Act. His nomination paper was rightly accepted.This issue is decided against the petitioner.

Issue No. 2 :

The question for consideration under this issue is as to the age ofGhulam Hussan who has been examined by the respondent as R.W.No. 5. As already indicated he was the only one of the 13 candidateswhose nomination papers, the Returning Officer R.W. No. 3 had reject-ed on the date of scrutiny on the ground that he was not of the requi-site age of 25 years as required under Section 51 (A) of the StateConstitution. '

According to the petitioner the date of birth of Ghulam Hussanwas 5-10-1998 Samvat, equivalent to 17-1-1942, whereas, according to-respondent and Ghulam Hussan, R.W. No. 5, himself, his date of birthwas 19-2-1944 equivalent to 24-8-2000 Samvat.

The petitioner in support of his version has relied on the followingdocumentary evidence:—

1. Electoral Roll of 1962 to not exibited but have been brought on the2. Electoral Roil of 1967 record.3. An entry No. 119 exibit PW 1/2 dated 8-10-1998 Samvat equivalent

to 20-1-1942 in the Chowkidar's register called birth register.

4. An entry exibit PW 2/lb of date 5th Magh 1998 Samvat corresponding:to 17-1-1942; on the account book said to have been maintained by oneGhulam Qudir, since dead, father of Ghulam Hussan R.W. 5.

5. A medical certificate exhibit PW 6/t dated 7-1-67 purported to have beengranted by the Medical Officer, A.M. Shmali, giving the age of GhulamHussan as above -'25 years'^ on the date of examination i.e. 7-1-67.

No oral evidence was adduced on petitioner's behalf regarding theage of Ghulam Hussan.

On the respondent's behalf reliance has been placed on the entryNo. 976 exhibit PW 2/1 in the admission register of the Doda HighSecondary School, to which Ghulam Hussan had been a student. HisMatriculation Certificate RW 5/1 has also been produced. A certificateof the Principal exhibit RW 3/5 was brought on the record in thecross examination of the Returning Officer, R.W. No. 3 before whom:it had been produced at the time of scrutiny.

Ghulam Hussan R.W. No. 5 had admitted his date of birth to be19-2-44 as in the admission register, and his Matriculation Certificate.

E.L.R.] MOHAMMAD AKBAR v. K. H. LASSA WANI 235

I may first consider the evidence led on petitioner's behalf. I mayconsider the above evidence in the reverse order in which I have men-tioned it above.

The Medical Certificate is of no value because the Medical Officer,has not been examined, and after all, the medical test as to the age bya mere look at a person is only a guess work.

As to item No. 4, exhibit PW 2/lb, the entry has been proved byGhulam Hussan P.W. No. 2. He is the son of Ghulam Qadir of Doda,and that his father had maintained a register regarding lending ofmoney, and other accounts, and that he knows his hand writing. Onpage 105 of this register he referred to a signature exhibit PW 2/1, andon page 96 to another signature as being in the hand writing of therespondent, Lassa Wani. He then proved the relevant entries exhibitPW 2/lb as being in the hand writing of his father on page 102. Theseentries appear at the bottom of the page squeezed in between certainwriting on both the sides, and they are in Urdu, and their English ren-dering is as follows:—

"5th Magh, 1998/17-1-1942, birth of child to Ghulam Ahamad Pata-garoo. This day in cash one rupee, dry fruit 2\ seers, shirts two".

Ghulam Moh'd Patagaroo is admittedly the father of Ghulam Hus-san R.W. No. 5, and he has had only one son who is R.W. No. 5.

From these entries it is sought to be proved that father of P.W.No. 2 had sent the above presents to the father of R.W. No. 5 on thedate of the birth of his this son, he having had admittedly no other son.

Mr. T. R. Bhasin would treat these entries as admissible underSection 32(2) of the Evidence Act, as having been maintained in theordinary course of business since the author of these entries is dead.P.W. 2 has proved these entries by identifying the hand writing of hisfather, has not said a word that the book containing these entries wasbeing maintained even as a memorandum in the course of ordinarybusiness. On looking into the entries in this book, it would appearthat it cannot be treated as a book of account or memorandum, kept inthe ordinary course of business. The entries have been written atrandom. No total of even day's account is given. The entries do noteven bear any serial number, nor are the pages numbered. P.W. No.2 has admitted that these entries were not written in his presence. Hehas also admitted the entries in this book were not being written as,and when any transaction took place. It is significant as P.W. 2 hasalso admitted that no balance of account was struck at page, 102 onwhich these entries appear, but the balance was struck in all the pagesof this book. The entries in question are clearly not admissible in

236 MOHAMMAD AKBAR V. K. H. LASSA WANI [VOL. XXXVIII

evidence. As I have said these entries appear at the bottom of the pagesqueezed in some blank space in between the writing on the threesides. P.W. 2 is admittedly a close relation of the petitioner, and Ishall not be surprised that the entries in question were manufactured.Be as it may, for the reason I have stated they are not admissible inevidence.

As to Item No. 5. It is an entry as I have said bearing serial num-ber 119 exhibit PW 1/1 it is in urdu and spread over eleven columns.It is to the following effect:—

BIRTH REGISTER VILLAGE BERSHALA DHANA DODA

Date ofNo. Birth

1 2

9 8-10-98

Occupation

7

GenderName if any Male or

female

3 4

Milk taking child Malesd/-Udham Singh :

Signature andaddress of the

informant

8

Tailor- Santo LambardarMaster

Date onwhich

Registered

9

9-10-98

Name offather ormother

5

Ahmadoo

Signature ofthe Muhorar

10

Sd/-

Nationalityand caste

6

Patigaroo

Remarks

11

368

The above entry exhibit P.W. 1/1 was attempted to be approved byMohd. Abdullaha P.W. No. 1, a Jamadar of the Notified Area Committee,Doda, where he has been serving as such for over 16 years. He hassaid that the birth register is maintained by the Notified Area Com-mittee, but that he got the register in question, containing the entryNo. 119, from Mangta Chowkidar who is alive, and with whom it wasand that he got it from him by the order of the Chairman, Shii K. H.Naziruddin, directing the Chowkidar to hand it over to the witness,

E.L.R.] MOHAMMAD AKBAR V. K. H. LASSA WANI 237

having given the chowkidar a receipt under his signature in token ofit. He has also filed another register containing an entry regarding thedeath of Ahmed Joo's wife, but this is not relevant for our purpose.Referring to the entry, exhibit P.W. 1/1 he has said, it is in the pen ofone Moh'd Ramzan Mohrar Thana, whose handwriting he knew.There is a seal of the Lambardar whose name was Santoo against theaforesaid entry exhibit P.W. 1/1. Station House Officer, had also signedthe said entry. I do not know his handwriting". He has said thatSantoo Lambardar, and Ramzan Mohrar are both dead. He has ad-mitted in his cross examination that the entry exhibit P.W. 1/1 wasnot made in his presence. He has only identified the handwriting ofMoh'd Ramzan. Admittedly, he has read upto the middle class andhas had no training in the matter of handwriting. He knew the hand-writing of Santoo Lambardar, because he used to grant him receipts,but we are not concerned with the hand writing of Santoo Lambardar,since he is not said to have written any thing in the entry in question.As to his reason for knowing the handwriting of Moh'd Ramzan, hehas said that he used to live in his house, when he had an occasionof going through his writings, but he did not say what these writingswere. He added that Moh'd Ramzan used to read to the witness,letters addresses to him by others, and explained to him, but that wouldnot give him any occasion to know the handwriting of Moh'd Ramzan,since those letters were written by others.

The entry mentions nowhere who was the author of it. Undercolumn No. 3, signature of one Udham Singh appears, but nothing issaid who he was. No one conversant with the handwriting of theThana Mohrar, Moh'd Ramzan, has been brought to prove it. Thisreport is said to have been made at the Thana, and there should havebeen corresponding entry in the Thana register, but no attempt hasbeen made to bring any register from the thana. No reason has beenassigned, why Mangta Chowkidar who is said to have made the report,and is still alive, has not been brought to prove the entry. This entryhas not been proved to have been made at the instance of the MangtaChowkidar, and, therefore, it is in-admissible in evidence.

Admittedly Mangta Chowkidar did not himself write the entry.It has been held by the Supreme Court in Brij Mohan Singh v. Priya

. Brat Berain Singh Sinha and others(S), which has been cited on thepetitioner's behalf in another connection, has laid down that an entryof birth made in any official record maintained by an illiterate chowki-dar, as Santoo admittedly is, by some one else, at the request of such achowkidar, does not come under section 35 of the Evidence Act, andis, therefore, not admissible in evidence. The entry also does notnecessarily connect that "Ahamdoo" was the name of the father of

(8) A.l.R. 1695 S.C. 282

238 MOHAMMAD AKBAR V. K. H- LASSA WANI [VOL. XXXVIII

Ghulam Hussan, R.W. No. 5 who has given his father's name asGhulam Ahmad Patagaroo. I shall presently refer to the ElectoralRolls of 1961 and 1966, where more than one Ghulam Hussan with samefather's name as "Ghulam Ahmad" are given ; and therefore,"Ahmadoo" in exhibit P.W. 1/1 cannot necessary be treated as thefather of R.W. No. 5.

The entry in question is of no avail whatsoever of the petitionerto prove the age of Ghulam Hussan R.W. 5 as 8-10-1998 Samvat. Itmay be mentioned here that the date of birth, as in this entry, is alsonot inconsistant with the date of birth of R.W. No. 5, as in the entry,exhibit P.W. 2/lb, referred to earlier, where the date of birth ofR. W. No. 5 is given as 5-10-1998 Samvat.

Mr. Bhasin has lastly relied on the age of R.W. No. 5 as given inthe two Electoral Rolls of 1961 and 1966. In the Electoral Roll of 1961,there are two 'Ghulam Hussans', both described as sons of GhulamAhmad as against voter Nos. 141 and 243, and the age of both GhulamHussan is mentioned therein as. 21 years.

In the Electoral Roll of 1966 as against voter Nos. 178 and 263Ghulam Hussan as son of Ghulam Ahmad is mentioned against each,and the age of each is given as 25 years. As against voter No. 88 again,Ghulam Hussan, son of Ghulam Ahmad is mentioned as being 23 yearsof age.

According to Section 109 (b) of the Act, before amendment, thequalifying date in relation to the preparation of revision of an ElectoralRoll was the first day of March of the year in which it was prepared orrevised, and after the amendment in 1966, it was the first of January,and thus the qualifying date for the Electoral Roll of 1961 would bethe first of March, 1962, and for that of 1966, the first of January, 1967.

Mr. Bhasin has referred to the provisions of S. 47(7) of the Act,and contended that an entry in the Electoral Roll shall be conclusiveevidence of the fact that the person referred to in that entry "is anelector" unless, it is proved that he is subject to a disqualification men-tioned in section 12. The corresponding sections in the Central Act are36(7) and 16 respectively. Relying on a decision of the Division Benchof the Punjab High Court in Band Ram Naru v. Jit Ram GebruRam(9), Mr. Bhasin has contended that the age of Ghulam Hussan onthe first of March, 62 must be presumed to have been at least not lessthan 21 years ; as otherwise he should have been recorded as an elector.He would not, however draw any presumption as to the age as re-corded in the subsequent Electoral Roll of 1967, for the presumptionattaches to the earliest Electoral Roll alone. In this decision there isan observation that "the evidentiary value of entries in record of theeducational institutions has seldom been considered to be great".

(9) A.I.R. 1964 Punjab 231.

!E.L.R.] MOHAMMAD AKBAR V. K. H. LASSA WANI 239

In a case of Rajasthan High Court, in Shive Ram v. Shive CharanSingh (10) also, it was held that a certified copy of an entry in anElectoral Roll shall be conclusive evidence of the fact that the individualreferred to in that entry is registered as "elector" for the constituency.But in this very case, it has been explained that Section 36(7) can bemeant, at the highest, that his status as an elector cannot be challengedbefore the Returning Officer, but that no presumption, that it must beaccepted as conclusive proof of the age, as atleast, 21 years on thequalifying date, can be made. The age can be assailed before the Elec-tion Tribunal even by new material. In both these cases it may be men-tioned, that the age of the person concerned was accepted as given inthe birth register which had been found to be genuine in preference tothe one given in his educational records.

Mr. Bhasin has also mentioned to an observation of the SupremeCourt in the case of Brij Mohan Singh{%), already referred to, whereit has been observed that in actual life not in frequently, persons givefalse age of the boy at the time his admission to a School, so that,later on in life, he would have an advantage when seeking publicservice with a maximum age for elegibility as is often prescribed.

The above observations in three cases, regarding the value of theage to be attached as given in educational records of a person concernedwere not meant to be general rule of law, that in every case, the agein a School register must give place to the age recorded in the ElectoralRoll. There were other considerations in those cases, and in the firsttwo cases, the age recorded in the School register was found to be ofinferior quality in comparison to the one recorded in the birth registerwhich, in each case, was found to be genuine. In the Supreme Courtcase, the person concerned himself had repudiated his age as given inhis School register, and his explanation as to the mistake, had beenaccepted by the Election Tribunal which the Patna High Court hadset aside. There cannot be any rule of thumb. Each case must dependon the facts of its own, and the totality of the evidence adduced forthe purpose at the trial; as was pointed out also in the Rajasthan cases.

Mr. Bhasin, would, however, contend that the age of GhulamHussan R.W. No. 5 as given in the Electoral Roll of 1962 as being notless then 21 years, should prevail over the age as recorded in the Schoolregister of R.W. No. 5. But the argument of Mr. Bhasin on the factsof this case is only an academic is not based on any material. Thereis no presumption attaching to the age as mentioned in the ElectoralRoll of 1967. No evidence was brought to connect R.W. No. 5 withany of the Ghulam Hussans as recorded in the Electoral Roll of 1961.

(10) A.I.R. 1964 Raj. 125.

2 4 0 MOHAMMAD AKBAR V. K. H. LASSA WANI [VOL. XXXVIH

Ghulam Hussan himself, R.W. No. 5, does not know, if he was recordedas a voter in the Electoral Roll, 1962, and he admitted that he had notvoted at that election. The Electoral Roll of 1962 was not producedbefore the Returning Officer, R.W. No. 3, either. He was, however,shown at the time of his cross examination that as against S. No. 243in the Electoral Roll, 1962, the name of Ghulam Hussan, son of GhulamAhmad is mentioned as being 21 years of age then; but this does notmean that it referred to this very Ghulam Hussan, R.W. No. 5, theremay have been another Ghulam Hussan as mentioned under S. No. 88of the Electoral Roll, 1967, where his age is given as 23 years.

On behalf of the respondent the entry exhibit R.W. 2/1 in theadmission register of the Doda Higher Secondary School, has beenproved by a teacher of the School R.W. No. 2, and his date of birththere is noted as 19-2-1944, Bikrami 7.11.2000, and counting from thisdate, R.W. No. 5 would fall short of the requisite age of 25 years, onthe date of scrutiny, which was held on 23-1-67. The same date ofbirth was carried forward to the Matriculation certificate, exhibit P.W.5/1. Of course, the teacher who had made the entry in the Schoolregister is still in the School, and was not examined, and R.W. No. 2brought the admission register as being incharge of the records of theSchool. He also said that an application, according to the usual practiceshould have been filed either by the father or the uncle of GhulamHussan, when he was admitted into the school, but such an applicationwas not traceable in his office. An entry in the School register is apublic record, and is admissible under Section 35 of the Evidence Act.The criticism of Mr. Bhasin, as to the non-examination of the teacherwho had made the entry in the School register or of the father or uncleof Ghulam Hussan, who had taken admission on his behalf giving hisage all pale into nothingness when Ghulam Hussan himself has ownedas correct his age as given in the School register, and in his Matriculationcertificate.

A grievance has been made that R.W. No. 5, having signed adeclaration in his nomination paper as to his age, having been notless than 25 years and attended the court on several dates as thepetitioner's witness, had since been won over by the respondent. But liecould only see the sense is not sticking to the wrong step, he had takenonce under the influence of the petitioner. The result could not bedifferent even if R.W. 5 had not swerved, and kept to the side of thepetitioner for, even he could not falsify his date of birth, as given inhis school register in absence of any better material. I may say thateven if the entire evidence led on behalf of the respondent, were to beignored, there is no material worth the name on behalf of the petitionerto combat the orders of the Returning Officer, rejecting the nominationpaper of the R.W. No. 5 on the basis of the principal's certificate and

E.L.R.] MOHAMMAD AKBAR V. K. H. LASSA WAN I 241

accepting the nomination paper of the respondent as suffering from noinfirmity. It is necessary to say a word about the conduct of the ReturningOfficer, R.W. No. 3 a member of the Indian Forest Service, becausehis integrity was very such challenged by Mr. Bhasin, in accepting thenomination paper of the respondent on the adjourned date of thescrutiny on the bidding, conveyed to him on the phone of the DeputyCommissioner, by Mr. Dhar, the then Forest Minister. It was alsosuggested to him, that it was only to help the respondent that he hadfalsely made an endorsement on his nomination paper that the objec-tion raised by the petitioner had been withdrawn. Both of these sugges-tions have been denied by the Returning Officer, and there is no materialwhatsoever in their support, but the circumstances speak for themselvesagainst the insurtion.

The Returning Officer could have no motive in falsely making anendorsement about the withdrawal of the objections by the petitioneragainst the respondent, when the only objection was as to his contracts,and the same had been ansv/ered in the reference against the petitioner.He could not, but had to accept the nomination paper of the respon-dent. If he had any axe to grind, he would not have accepted as valid,12 nomination papers, including thereof the petitioner, who has perhapsthe most formidable rival of the respondent. He has also been foundto have perfectly been justified in rejecting the nomination paper ofGhulam Hussan on the basis of his principal's certificate which had beenproduced before him. I must find that the conduct of the ReturningOfficer, has been all fair and above board in dealing with the nomina-tion papers.

Mr. Bhasin could have done well to have spared him the agonyof "hese unfounded, and baseless imputations, and he should not havealso brought in the name of Mr. Dhar, when he was not before thecourt to defend himself. A counsel is, no doubt, privileged to test theveracity, and a witness but such a privilege, I must say, is not unfettered.A counsel should not act to the dictates or wishes of his client in puttingdefamatory questions to a witness, who has a misfortune to be in thewitness box, and at least the client should instruct his counsel to putdefamatory questions to a witness, only when he has materials tosubstantiate such an imputation, otherwise, he takes the risk of beingrun down for defamation. I must say that the petitioner has prima facietaken such a risk.

Before parting with the case I must also observe that the recordhas most unnecessarily been encumbered by producing mass of irrele-vant, and flimay evidence.

The case would have hardly occupied more than three to four days,but three days were devoted to arguments alone. I could have prunnedthe dis-admissible and unnecessary evidence, but I did not want it to be17--3E1ecCo;-p../7!

242 MOHAMMAD AKBAR V. K. H. LASSA WANI [VOL. XXXVIII

said by the petitioner that he was not allowed to have his full say.I cannot help observing that he has misused this concession by runningafter shadow, and trying to catch and develop every bit of a straw thatcame in his way. Having lost the game, in a fair contest, it appearsfrom all accounts, he should have taken the result sportingly. He is alawyer, with plenty of intelligence and energy, and perhaps, takingadvantage of the same, he has pursued the respondent from the timeof the Reference, as if, with a personal vendetta. It is a fit case deservingof examplary cost, for its extreme frivolities, to discourage fruitlesslitigation.

I must, however, express my thanks to the counsel for the partiesfor their able assistance in sorting out the essential evidence, and givingme all the laws bearing on the points, though, the trial has been un-necessarily tiring. Mr. Bhasin did his level best to give to the petitioner'scase, a presentable garb but it has been only a vain attempt to give itany base.

The Election Petition is dismissed with a cost to the extent of thefull deposit of Rs. 2000/-. This shall be paid to the respondent.

Let the result be communicated to the Election Commission, NewDelhi, and the Speaker of the Legislative Assembly of the Jammu andKashmir State forthwith to be followed by a copy of the Judgment toeach of them.

Petition dismissed

IN THE HIGH COURT OF ALLAHABAD

'v SHEODAN SINGH

V ':

MOHAN LAL GAUTAM

(T. RAMABHADRAN, J.)

May 23, 1968

Representation of the People Act, 1951, Sections 77, 123—Corrupt practice—Undue influence—Use of National Flag—Appeal to voters on grounds of religionand that of divine displeasure—Burden of proof—Dissolution of Assembly by

Presidential proclamation during trial of election petition—Effect.of—Allegations•of offence under Section 123(4)—Failure of Respondent to disprove the issue of

E.L R.] SHEODAN SINGH V. MOHAN LAL GAUTAM 243

impunged pamphlets, whether adverse injerence could be drawn against respondent—Allegations on grounds of suspicion of expenditure in excess of the prescribedlimit—whether attracts section 77.

The petitioner, a defeated candidate, challenged the election of the respon-dent alleging, inter alia, that the respondent, his agents, workers and supporterscommitted corrupt practices of appealing through pamphlets to Jatav electorswho belonged to the Budhist Religion, to swear by Lord Buddha to vote forthe respondent and that if they failed to vote for him they would become objectof divine displeasure; that they published statements attacking the character andconduct of the petitioner; that the respondent hired or procured motor vehiclesfor free conveyance of voters, and that the respondent incurred expenditure inexcess of the permitted maximum.

During the course of the trial, by means of a Presidential Proclamationunder Article 356(l)(a) of the Constitution, the U.P. State Assembly wasdissolved. It was contended by the Respondent that the election petition hadbecome infructuous and no effective relief could be granted by the court on thepetition and that the election petition be dropped.

HELD : Dismissing the petition :

In view of the various allegations of corrupt practice having been madeagainst the respondent, if these allegations were established this would lead tocertain results (irrespective of the dissolution of the Assembly) like disqualifica-tion and, therefore, the election petition could not be dropped following aPresidential Proclamation dissolving the Assembly.

W. L. Rose v. Regional Transport Authority, Luc\now, A.I.R. 1962, Allaha-bad 574; K. N. Guruswamy v. The State of Mysore and others, A.I.R. 1954,S.C. 592; Nand Kishore Saraf v. The State of Rajasthan and another, A.I.R. 1965,S.C. 1992; Mohammad Rasa and others v. Mst. Abbas Bandi Bibi, A.I.R. 1932,P.C. 158; Waghela Rajasaji v. Sheikh Masluddin, 14 Indian Cases 89 (P.C.);Charter v. Mills (1874), L.R. 9, C.R. 117; Marshal v. James (1874), L.R. 9,C.P. 702; Raj Krushna Bose v. Binod Kanungo and others, A.I.R. 1954, S.C. 202;Inamati Mallappa Bassappa v. Dessi Basavaraj Ayyappa and others, A.I.R. 1958,S.C. 698; referred to.

The petitioner had failed to discharge the onus of proof with regard to theallegations that the respondent's appeal to Jatav voters to vote for him in thename of religion, exercised undue influence on the threat of divine displeasureunder section 123(2) and (3).

Smt. Robba Suramma v. Smt. Peddireddi Chandramma, A.I.R. 1959, AndhraPradesh 568; ]agdev Singh Sidhanti v. Pratap Singh Daulta and others,A.I.R. 1965, S.C. 183; referred to.

The failure by the respondent to disprove that he had not printed the defa-matory pamphlets would not warrant the inference that the petitioner had madeout his case when there are several discrepancies and shortcomings in the evidenceadduced by the petitioner which failed to prove the allegations of corrupt practiceby the respondent under section 123(4).

Jagan Prasad Rawat v. Krishna Dutt Paliwal, 20 E.I.R. 443.

244 SHEODAN SINGH .V- MOHAN LAL GAUTAM [VOL. XXXVIII

The respondent cannot be held guilty of having committed the corruptpractice under section 77 of the Act, on the mere suspicion that the respondentmight have spent more than what he had shown in his return, unless theallegations were affirmatively proved by the petitioner.

Rananjaya Singh v. BaijnatR Singh and others, 10 E.L.R. 129; M. A. MuthiahChettiar v. Saw Ganesan, 21 E.L.R. 215.

On the evidence, the petitioner had failed to prove that the respondent hadhired vehicles for free conveyance of voters.

Election Petit ion No. 40 of 1967.

S. J. Haider for the petitioner.

K. L. Misra for the Respondent.

J U D G M E N T

RAMABHADRAN, J.—This election petition arises out of the electionto the U.P. Legislative Assembly during the General Elections of1967, from Iglas General Constituency No. 378. In the district ofAligarh, there were six candidates in the field—including the petitionerShri Sheodan Singh and respondent Sri M. L. Gautam. Polling tookplace on 21-2-67. Counting of votes was done on 23-2-67 at the con-clusion of which the respondent Sri M. L. Gautam was declared electedby a majority of 10,705 votes.

In this election petition which was presented to this Court on10-4-1967 the allegations made by Sri Sheodan Singh election petitionerwere as follows :—

(a) The Jatavs formed a considerable segment of the electorateof the Constituency. Under the inspiration of the late Dr. B. R.Ambedkar, the Jatavs of Aligarh district in general and of theIglas constituency in particular embraced Buddhism at amassive ceremony held at Aligarh about 11 or 12 years ago.Most of the members of the Jatav community were illiterateand had blind faith in lord Gautam Buddha and in the lateDr. Bhim Rao Ambedkar who was popularly known as "BabaSaheb Bhim". The respondent and with his consent, his agentsworkers, and supporters, with a view to further his (respon-dent's) election prospects exploited the religious beliefs of theBuddhists by appealing to the Jatavs of the Iglas constituencyin the name of the Buddhist religion to vote for the respondent.It was represented to the Jatay electors that the respondent wasGautam Buddha, for whom they had been in search sincelong, and they would attain salvation in case they voted for

6.L.R.] SHEODAN SINGH V. MOHAN LAL GAUTAM 245

him. A pamphlet was got printed and distributed by the res-pondent, and with his consent, by his agents, workers andsupporters throughout the constituency. That pamphlet con-tained an appeal in the above terms addressed to the Jatavs ofthe constituency. Annexure I to the election petition Ex. IX isa copy of that pamphlet.

(b) The respondent and with his consent his agents, workers andsupporters appealed to the Jatav electors in the constituencyrefering to them as "children of the late Baba Bhim RaoAmbedkar" to stand united under the national flag and toswear by Lord Budha to vote for the respondent Meetings ofJatav, were held in various villages in the constituency whereinthe Jatav voters were prevailed upon to swear by Lord Budhathat they would vote for the respondent. At those meetings theelectors were told that if they failed to vote for the respondentthe soul of the late Baba Bhim Rao Ambedkar would sufferagony and those responsible for his suffering would becomean object of divine displeasure. In other words, the respondentand with his consent, his agents workers and supporters inter-fered with the free exercise of the voters right or vote.

{c) The respondent himself, and with his consent, express orimplied his agents, workers and supporters solicited votes forhim by appealing to the national'flag. On annexure I to theelection petition (Ex. IX), the national flag was reproduced attwo places at the top. Iri the body of that pamphlet also anexhortation was made to the vot&s to swear by Lord Budha,standing under the Panchsheel Flag, to vote for the respondent.Particulars-of the above corrupt practice were set forth inschedule A and B to the election- petition.

(d) The respondent himself, and with his consent, his; agents,workers and supporters published statements of facts in relationto the personal character and conduct of the election petitioner,which were false and which they either believed to be falseor did not believe to be true. These statements were reasonablycalculated to prejudice the prospects of the petitioner's election.Annexure II and III to the election petition (Exs. VII andVIII) are copies of the two pamphlets which were so distribu-ted. Full particulars of the commission of this corrupt practicehave been given in Schedule JC to the election petition.

(e) The respondent and with his consent, his workers hired orprocured the services of various motor vehicles, for the freeconveyance of voters from their village to their respectivepolling stations. The respondent further hired ekkas for theabove corrupt practice have been set forth in Schedule D tothe Election Petition.

246 SHEODAN SINGH V. MOHAN LAL GAUTAM [VOL. XXXVIII

(f) The respondent, in contravention of the provisions of Section77 of the Representation of the People Act, 1951, incurredexpenditure in excess of the permitted maximum, and he furtherfailed to keep correct amount of such expenditure. In his returnof election expenses the respondent did not show correctly thetotal expenditure incurred by him. Schedule E to the ElectionPetition contains details of expenditure incurred by therespondent but not shown in his return.

The contention of the election petitioner, accordingly, was that dueto commission of a number of corrupt practices by the respondent whichmaterially affected the result of the election in so far as it concernedthe returned candidate (i.e. respondent) the election was void. Conse-quently, Sri Sheodan Singh sought a declaration that the election ofthe respondent Sri M. L. Gautam to the U.P. State Assembly from IglasNo. 378 Assembly constituency in the district of Aligarh was void.

Upon issue of notice of the election petition, the respondent appearedand filed a written statement wherein he has denied the various alle-gations made against him in the election petition. The respondentcategorically denied that he himself or with his consent, his agents,workers and supporters committed any corrupt practice. He furtherdenied that the Jatavs formed a considerable portion of the electorateor that the Jatavs in a body had embraced Buddhism. According to therespondent, there were very few Buddhists among the voters. Therespondent denied that he or with his consent his agents, workers andsupporters had exploited the religious beliefs of the Buddhist votersor had appealed to the Jatavs in the name of religion to vote for him(respondent). The respondent denied that he or his agents, workersand supporters, had represented to the Jatavs or to anybody else, thatthe (respondent) was Gautam Buddha himself, and they would attainsalvation in case they voted for him. The respondent denied that anypamphlet as alleged in the election petition, was got printed by himand distributed in the constituency. The respondent denied that he hadanything to do with the pamphlet Annexure I to the petition (Ex. IX).The respondent further denied that he, his agents, workers and suppor-ters had appealed to the Jatav electors, after refering to them as "child-ren of the late Baba Bhim Rao Ambedkar", to stand united under thenational flag and to swear by Lord Buddha to vote for him (respondent).According to the respondent, he was a Hindu and not a Buddhist, andvery few of the Jatavs were Buddhists. No meetings of the Jatavs wereheld in any village of the constituency by the agents, workers or suppor-ters of the respondent, with his consent or otherwise. Similarly, it wasdenied that the Jatav electors were told that unless they voted for him(respondent) the soul of the late Baba Ambedkar would suffer agony,and those responsible for his suffering would become an object of divine

E.L.R.] SHEODAN SINGH V. MOHAN LAL GAUTAM 247

displeasure. The contents of Schedules A and B to the election petitionwere also denied. The respondent similarly denied having used thesymbol of the national flag for the furtherance of his election prospects.Again, the respondent denied that he, and with his consent, his agents,workers and supporters, published statements of facts, regarding thepersonal character and conduct of the petitioner which they knew to befalse, or did not believe to be true; with a view to prejudice thepetitioner's election prospects. The distribution of the pamphlet (An-nexure Z) (Ex. VII) was also denied. The contents of Schedule C weredenied to this extent that the respondent did not admit that all thepersons mentioned therein were his workers, agents or supporters. Therespondent similarly denied that he himself and with his consent, hisagents, workers and suporters hired or procured the services of vehiclesfor the free conveyance of voters from their village to their respectivepolling stations. As regards Schedule D, it was stated that its contentswere imaginary and had been concocted for the purpose of the electionpetition. As regards the election expenditure, the respondents' case wasthat he did not exceed the permissible maximum, that he had main-tained correct accounts, and had submitted a correct return for a totalexpenditure of Rs. 8.206.90P. In effect, the respondent categoricallydenied having committed any corrupt practice. Accordingly the respon-dent denied that the petitioner was entitled to any relief. Another pleataken in the written statement was that the election petition had notbeen properly presented and was, therefore, liable to be dismissed.

The following issues were framed in the election petition :—

1. Whether the election petition was properly presented ? (Onpetitioner) If not, what is the result?

2. Whether the election petition was accompanied by one copythereof, attested by the petitioner, under his own signature,to be a true copy of that petition ? (on petitioner) If not whatis the result?

3. Whether the petition is bad for want of necessary particularsin Schedules A. B, C and D of the petition, as stated in paras12, 14, 19 and 22 of the original written statement and paras1 and 2 of the additional written statement? (on respondent)If so, what is the result?

4. Whether the respondent, and with his consent, his agents,workers and supporters, appealed to the members of the Jaravcommunity in the constituency to vote for the respondent inthe name of Lord Gautam Budha and in that connection, gotprinted and distributed handbills (copy at Annexure I of thepetition) ? (on petitioner) If so, what is the result ?

248 SHEODAN SINGH V. MOHAN •- L GAUTAM [VOL. X^XVIII

5. Whether the respondent, and witii his consent, his agents,workers and supporters, exercised undue,influence on the Jatavvoters of the constituency by referring to them as "children ofthe late Baba B. R. Ambedkar" and urging them to stand unit-ed under the National flag and to swear by Lord Buddha tovote for the respondent, as otherwise -the soul of the late BabaAmbedkar would suffer agony, and they (the voters) wouldbecome the object of divine displeasure, and in that connectiongot printed and circulated the handbills (copy at annexure Ito the petition) ? (on petitioner) If so, what is the result ?

5. Whether the respondent himself, and with his consent, hisagents, workers and supporters solicited votes for the respon-dent by the use of an appeal to the National flag, as evidenceby the copy of the handbill at annexure I to the petition,wherein the National flag has been reproduced at two places atthe top of the handbill and in the body also. The voters werefurther enjoined to vote for the respondent after swearing byLord Buddha, standing under the 'Panchsheel flag' to vote forthe respondent (on petitioner) ? If so. what is the result ?

7. Whether the respondent and with his consent, his agents,workers and supporters, published .statements which werefalse, in relation to the personal character and conduct of thepetitioner, reasonably calculated to prejudice the prospects ofhis election, as evidenced by the printing and publication ofleaflets, copies thereof appearing at Annexures 2 and 3 of thethe respondent (on petitioner) ? If so, what is the result ?

8. Whether the petitioner and with his consent, his agents andworkers, hired vehicles for the free conveyance of the votersto and from the polling stations;? (on petitioner) If so, what isthe result?

9. Whether the result of the election, in so far as it concerns thereturned candidate, has been materially affected by the com-mission of the corrupt practices referred to in Issues 4, 5, 6, 7and 8 (sUpra) ? (on petitioner) If so, what is the result ?

10. Whether the respondent incurred or authorised expenditure incontravention of the provisions of section 77 of the Representa-tion of the People Act ? (on petitioner) If so, what is theresult ?

11. To what reliefs, if any, is the petitioner entitled?

Issues 1, 2 and 3 were treated as preliminary issues, and the evidenceof the parties was recorded thereupon. For reasons stated in this Court'sfindings dated 8-12-67, the first part of Issues Nos. 1 and 2 was decided

E.L.R.] sHr-ODAN SINGH v. MOHAN LAL GAUTAM 249

in favour of the petitioner. Consequently, the second part of thoseissues did not arise. On issue No. 3, I held that it was not necessaryto give any findings on that issue, at that stage in view of certainamendments to the election petition, which were allowed by this Courton 3-10-67 on application A-23, submitted by the petitioner.

Thereafter the evidence of the parties was recorded on the remain-ing issues. Parties also examined themselves. Arguments of the learnedcounsel for the election petitioner were heard in part on the 12th and15th of April, 1968. On the evening of 15-4-68, by means of a Presi-dential Proclamation, issued under Article 356(1) (a) of the Constitu-tion the U.P. State Assembly was dissolved. On 16-4-68 when thispetition came up for hearing, the learned counsel for the parties prayedfor and were granted a week's time to study the effect, on this peti-tion of dissolution of the Assembly. Arguments of the learned counselfor the parties on this point were heard on the 24th and 25th of April,1968. On 26-4-68 I announced that for reasons to be stated in duecourse I deemed it necessary to proceed with the case i.e. to hear thearguments of the learned counsel for the parties on the remainingissues in the election petition i.e. issues 4 to 11. Thereafter argumentsof the learned counsel for the parties on the reamining issues wereheard at length. Arguments concluded on 9-5-68 when judgment wasreserved.

At this stage, I may state my reasons for holding on 26-4-68 thatit was necessary to hear arguments of the learned counsel for theparties on the remaining issue i.e. to proceed with the case.

Mr. K. L. Misra, the learned advocate for the respondent, hadurged that after the dissolution of the U.P. State Assembly this elec-tion petition had become infructuous and accordingly no useful pur-pose would be served by proceeding with it further. In this connec-tion, he submitted, firstly, that there was no provision in the Repre-sentation of the People Act, 1951 (hereinafter to be referred to as"the Act") for dealing with a situation like the present one, i.e.created by the dissolution of the U.P. Assembly by means of a Presi-dential Proclamation under Article 356(1) (a) of the Constitution.Secondly, submitted that although an election petition is not an actionunder the Common law, nevertheless the court does enjoy inherentpowers. He further pointed out that an order dismissing an electionpetition under section 98(a) of the Act must be a dismissal on merits.Since in the present case the Assembly has been dissolved, it was con-tended there were no "rights of the parties" to be conferred or takenaway. Another argument advanced in this connection was that anorder of dismissal under the above section could be passed only at theconclusion of the trial. It was pleaded that no effective relief could

250 SHEODAN SINGH V. MOHAN LAL GAUTAM [VOL. XXXVIII;

now be granted by this Court. Mr. Misra pointed out that the prayermade in the election petition was that the election of the respondentto the U.P. Asssembly be declared void. Since the Assembly has beendissolved, he submitted no such declaration could be given by thisCourt.

In support of his arguments Mr. Misra cited, inter alia, thefollowing authorities :—

(a) W. L. Rose v. Regional Transport Authority huc\now (1),.wherein a learned Judge of this Court observed as follows :—

"The situation today is that the Regional Transport Authorityhas already considered the application of the petitioner on merits,and, after fully considering it, it has finally rejected the same onthe 4th of November, 1961. The purpose of the present writ peti-tion has become futile. Further, the petitioner has not availedhimself of the remedy of appeal which was open to him. In thissituation I am of the opinion that this Court should not interferewith the matter in its writ jurisdiction. Relief by way of writ isdiscretionary, and where the purpose sought for is alreadyachieved, the Court should not move in the matter."

(b) K. N. Guruswamy v. The State of Mysore and others (2)wherein their Lordships observed : -

"We would, therefore, in the ordinary course have given theappellant the writ he seeks. But owing to the time which thismatter has taken to reach us (a consequence for which the appel-lant is in no way to blame, for he has done all he could, to havean early hearing), there is barely a fortnight of the contract leftto go. We were told that the excise year for this contract (1953-54)expires early in June. A writ would therefore be ineffective and asit is not our practice to issue meaningless writs we must dismissthis appeal and leave the appellant content with an enunciation ofthe law."

(c) Nand Kishore Saraf v. State of Rajasthan and another (3),,.wherein their Lordships indicated :—

"Another consideration which is decisively against the appellantis that the contract for the collection of royalty for the year 1964-65 is shortly to come to an end and it would not be desirable even-if the appellant's contentions were acceptable, to interfere with:that contract."

(1) A.I.R. 1962 Allahabad.

(2) A.I.R. 1954 S.C. 592.(3) A.I.R. 1965 S.C. 1992

E.L.R.] SHEODAN SINGH V. MOHAN LAL GAUTAM 251

(d) The Representation of the People Act, 1951, and its predes-sor, were based upon corresponding British legislation. British prece-dents can be usefully applied to India, as was indicated in MohammadRaza and other v. Mt. Abbas Bandi Bibi (4), wherein their Lord-ships referred to Waghela Rajasaji v. Sheikh Masluddin (5) whereinLord Nobhouse had remarked :—

"The expression 'equity and good conscience' was generallyinterpreted as meaning English Law, if found applicable to IndianSociety and circumstances".

(e) In Carter v. Mills (6), as well as Marshal v. James (7), itwas held by the High Court in England that a parliamentary petitiondrops by the fact that parliament is dissolved while the petition ispending.

On these premises, I was requested to "drop" the election petitionas having become infructuous.

Mr. S. }. Haider, learned counsel for the petitioner, on the otherhand, submitted that inasmuch as the present election petition isbased upon allegations of corrupt practice said to have been commit-ted by the respondent, it does not become infructuous, merely becausethe assembly has been dissolved by a Presidential Proclamation. Hesubmitted that in case the allegations of corrupt practice are esta-blished against the respondent, certain consequences, i.e. his disquali-fication, would ensue. He, accordingly prayed that the trial shouldproceed in the interest of purity of elections.

Reliance was placed by Mr. Haider on the following authorities :—

(1) Raj Krushna Bose v. Binod Kanungo and others (8) whereintheir lordships indicated:—

"It is essential that election Tribunals should do their work infull. They are 'Ad-hoc' bodies to which remands cannot easilybe made as in ordinary course of law. Their duty does not endby declaring an election to be void or not. Where a number ofallegations are made in the petition about corruption and illegalpractices, undue influence and bribery, it is the duty of the Tribu-nal not only to enquire into these allegations, but also to completethe enquiry by recording findings about those allegations andeither condemn or clear the candidate of the charges made."

(4) A.I.R. 1932 S.C. 153(5) 14 Ind. cases 89 (P.C.)(6) (1874) L.R. 9C.R. 117.(7) 1874 L.R 9C.R. 702.(8) fl954) S.C. 202

2 5 2 SHEODAN SINGH V. MOHAN LAL GAUTAM [VOL. XXXVIII

(2) Inamati Mallappa Basappa v. Desai Beasavarai Ayyappa andothers (9), wherein their Lordships pointed out :—

"These provisions go to show that an 'Election contest' is notan action at law or a suit in equity but is a purely statutoryproceeding unknown to the common law and that the Courtpossesses no common law power."

Mr. Haider further urged that unlike India, in England tillrecently, the hearing of election disputes was the exclusive prerogativeof the House and, therefore, the rulings of 1874 quoted by the learnedcounsel for the respondent {Carter v. Mills; (6) Marshall V. James(Supra) (7) would have no application here.

I have considered the matter. In view of the fact that variousallegations of corrupt practice have been made against the respondent,and if these allegations were established, it would lead to certainresults (irrespective of the dissolution of the Assembly), Iconsider that the election petition cannot be dropped following aPresidential proclamation dissolving the Assembly. It was for thesereasons that on 26-4-68 1 announced that the remaining arguments ofthe learned counsel for the parties on issues 4 to 11 in the electionwould also be heard i.e. the case would proceed.

Issue Nos. 4, 5 and 6 :

These three issues can be conveniently dealt with together.Reliance was placed by the election petitioner on the distribution, onbehalf of the respondent, of the pamphlet Ex. IX (Annexure 1 to theelection petition) bearing the heading : "Baudh k} 250 varsh ki khojmen Gautam Baudh". On either side of the heading there is arepresentation, on a very small scale, of a flag with a chakra in themiddle. The body of the pamphlet contains the following passages :—

"Aap sabke vidhit hona chaiye ki, aj hamare Iglas Kshetra, seShri Mohanlal Gautam Vidhan Sabha ke liye chunao larh rahehain, jo ki mahan tyagi va rajnitgya purush hain garib va shoshitjanata ke sachche hiteshi hain. Yahan tak ki garib va shoshitenke sath aapne jo upkar kiya hain ve kisi se chhupe nahi hain.Atah : aapse sanurodh prarthana hai ki shri Gautam ji ke saphalbanaye."

(6) (1874) L.R. 9C.R. 117(7) (1874) L.R. 9 C.R. 702.(8) A.I.R.1954 S.C. 202.(9) AJ.R.1958 S.C. 691.

E.L.R.] SHEODAN SINGH V. MOHAN LAL GAUTAM 253

"Dusre mujhe apne shoshit va garib bhaiyon se kahna hai kijinko Gautam Buddh ki talash thi aaj vahi Gautam Buddh hamenmil gaye hain aur yahi hamara uddhar karenge. Isliye rao babaDr. Ambedkar ke sachche saputo va desh ke sachche sipahiyo ispanchsheel jande ke niche, khare hokar, bhagwan budh ko sakshibanakar, yeh pratigya karen ki ham kisi bazigar ki jhuti dubdubiki awaz men no phans kar Shri Gautam ji ko saphal banayengon.'

The petitioner's case was that Jatavs formed a considerable portionof the electorate of the Iglas constituency and under the inspiration ofthe late Dr. Ambedkar, the jatvas had embraced Buddhism in a massceremony held at Aligarh 1956. The Jatavs, allegedly had blind faithin Lord Buddha and in the late Dr. Ambedkar popularly known as"Baba saheb Bhim". According to the election petitioner, the res-pondent, and with his consent his agents workers and supportersexploited the religious beliefs of the Jatavs who had embraced Bud-dhism and for that purpose made it appear in the pamphlet Ex. IX thatthe respondent Sri M. L. Gautam was Gautam Buddha for whomthey had been in search for the last 250 years, and only he (respondent)could help them to attain salvation. The Jatav voters, who were re-ferred to as "children of the late Dr. Ambedkar," were urged to standunited under the Panchsheel flag and promise to vote for the respondentin the name of lord Buddha. Meeting of the Jatavs were allegedlyheld in various villages of the constituency by the respondent's agents,workers and supporters, acting with his consent, in which the audience,considering of Jatavs was called upon to swear by Lord Buddha thatthey would vote for him (respondent). The voters were further toldthat in case they did not carry out their promise, i.e. to vote for therespondent, the soul of the late Dr. Ambedkar would suffer agony andthose responsible for it would become an object of divine displeasure.In this way the respondent, his agents, workers and supporters inter-ferred with the voters free exercise of the right of vote. The symbolof the national flag was also used by the respondent to further hiselection prospects. Not only was the symbol reproduced at two placeson either side of the heading at the top of the pamphlet Ex. IX butfurther, in the body of that pamphlet, there was a reference to the"Panchsheel flag", and the voters were enjoined to stand under thatflag and to swear by lord Buddha to vote for the respondent. Accordingto the petitioner, the Panchsheel flag is the same as the national flagof India.

The learned counsel for the election petitioner, Mr. S. J. Haiderpointed out although the respondent in his written statement (paras.10, 11, 15 and 16 thereof) denied the above allegations, there was nospecific denial therein to the effect that the pamphlet Ex. IX was notgot printed or distributed by him, through his agents, workers and"supporters.

2 5 4 SHEODAN SINGH V. MOHAN LAL GAUTAM [VOL. XXXVIII

The election petitioner has not adduced any evidence regardingthe actual printing of the pamphlet Ex. IX. Court witnesses, however,were produced by him regarding this pamphlet. [After considering theevidence led by the petitioner on the allegations in the petition regard-ing the issue of impugned pamphlet Ex. IX, exhorting the voters tostand under the Panchsheel flag which is the same as the National Flagand swear by Lord Buddha to vote for the respondent, the judgmentproceeded :]

Mr. Mukherji, learned counsel for the respondent, pointed outthat Ishwari Prasad, to whom the draft of Ex. IX was allegedly handedover for getting it printed (vide the testimony of P. W. 17 KeshNiranjan Singh) was not produced at the trial by the election petitioner.It was accordingly argued that he was deliberately withheld for fearthat, if produced, he would not support the petitioner's case. Reliancewas placed in this connection on the provisions of Section 114 of theEvidence Act, (illustration (g) ) another point urged by Mr. Mukherjiin this connection was that the original draft (manuscript) of thepamphlet Ex. IX having been withheld. Ex. IX which only aprinted copy, was according to him inadmissible in evidence, havingregard to the provisions of Sections 63 and 64 of the Evidence Act. Inthis connection reliance was placed on Smt. Bobha Suramma v. Smt.Peddireddi Chandramma(lQ). Wherein a Division Bench of that•Court observed :—

"Secondary evidence can be let in under Section 65 only incertain circumstances, one of which is that when the original hasbeen destroyed or lost, in order to claim the benefits of Section 65there should be credible evidence of the loss of the original. Theremust be sufficient proof of the search for the original to rendersecondary evidence admissible. It must be established that the partyhas exhausted all the sources and means in the search of the docu-ments which were available to him."

Learned counsel for the election petitioner on the other handrelied upon Explanation 2 to section 62 of the Evidence Act, and urgedthat since Ex. IX is a printed copy and similar copies were distributed,each is primary evidence of the contents of the rest. He submitted thatit was not necessary for the election petitioner to prdduce the commonoriginal. In my opinion however it is not necessary to dwell on thispoint, because, as I shall show presently, the evidence regarding thepreparation of the original draft, and the subsequent distribution ofthe copies thereof, is not convincing.

(10) A.I.R.1959 Andh. Pradesh 568.

.E.L.R.] SHEODAN SINGH V. MOHAN LAL GAUTAM 255

As regards the alleged appeal to a national symbol, e.g. the nationalflag, in the pamphlet Ex. IX the argument of the learned counsel forthe election petitioner was that the respondent turned to his advantagethe fact that the congress party flag bears a close resemblance to theNational flag, and by using the expression (Panchasheel) flag' cleverlyavoided a pointed reference to the National flag.

My attention was invited to the testimony of P.W. 49 Ram Ratanof Sudama ka bas, and P.W. 50 Sher Singh of Shahpur. According tothe former, he was supporting the candidature of Sri Gautam and theKalyan Singh, a candidate for the Republican Party. According to theelection petitioner a section of the Republican Party was working forSri Gautam respondent during the election. Ram Ratan deposed thatmeetings of Jatavs were held at Sudma and Shahpur 14 or 15 daysbefore the polling. One Phool Singh made a speech and told theaudience : "Gautamji is the Autar of Lord Buddha and he will securesalvation for us (uddhar \aretige). Please vote for him. If you do notvote for him, it will cause agony to the soul of the late Baba BhimAmbedkar and you will be damned." Accordingly, all the personspresent in the meeting raised their hands and promised to vote forSri Gautam, Sher Singh (P.W. 50) similarly stated that a meetingwas held in his village (Shapur) where Phul Singh made a similarspeech. He took a promise from the audience that they would votefor Sri Gautam.

As against this, Phool Singh, who appeared as D.W. 10 and is aresident of Kumarpur, not only denied having distributed copies of thepamphlet (Ex. IX) (as already indicated), but also denied havingheld meetings at Sudama and Shahpur on 6-2-67 on behalf of SriGautam.

D. W. 13 Bhoop Singh, Sarpanch of Chhainchau Nyaya Pancha-yat and a resident of Mahevla : denied that on 6-2-67 he alongwithChidda Singh, Phool Singh, Ram Ratan, Gauna Singh and others,organised meetings at Sudama and Shahpur, where the audience wasexhorted, in the name of Lord Buddha to cast their votes in favourof Sri Gautam respondent.

D.W. 28 Harcharan Lai of Sudama, who is a Panch of ShyamGarhi Nyaya Panchayat, and also the presiding officer of Bench No. 3,denied that any meeting was held in Sudma on 6-2-67, or any otherdate, wherein Bhoop Singh, Ram Ratan, Phool Singh and othersexhorted the Jatav audience to cast their votes in favour of Sri Gautamrespondent on the ground that if they did not do so, the souls of BabaAmbedkar and Lord Buddha would suffer agony.

256 SHEODAN SINGH V. MOHAN LAL GAUTAM [VOL. XXXV III

D.W. 29 Misri Lai, Pradhan of Shahpur, and a resident of Shah-pur Thatoi, made a similar statment, i.e. to the effect that no meetingwas held in his village on 6-2-67 or any other date in which the Jatavaudience was exhorted by Phool Singh and others exhorted the Jatavaudience to cast their votes in favour of Sri Gautam respondent on theground that otherwise, the souls of Baba Ambedkar and Lord Buddhawould suffer.

It was vehemently argued by Mr. Mukherji, learned counsel forthe respondent, that the evidence adduced by the petitioner on issues4. 5 and 6 was highly interested and partisan and far from reliable.He further submitted that not only did the petitioner faib on toadduce evidence as to the printing of the pamphlet Ex. IX but healso failed to adduce reliable evidence regarding its distribution. Inany case, he urged that the flag, reproduced at two places at the topof this pamphlet, could hardly be mistaken for the national flag, asfirstly, they are not in colour and secondly, very dose examinationwould be necessary before even a faint resemblance to the nationalflag could be detected. As regards the 'Panchasheel' flag referredto in the body of the pamphlet Ex. IX Mr. Mukherji's contention wasthat the 'Panchasheel' flag was not the same as the national flag. Hisargument was that the 'Panchsheel' flag stood for the five principlesof peaceful coexistence (Panchsheel) propounded by leading statementof the world, some years ago, and it did not particularly stand for theIndian National flag. In any case it was contended that the electionpetitioner failed to prove that the pamphlet Ex. IX was ever gotprinted or distributed by the respondent, either personally or throughhis agents and workers. Mr. Mukherji pointed out that apart fromthe above circumstances, i.e. reproduction of the image of a flag attwo places on Ex. IX, there was no other evidence adduced by the elec-tion petitioner to establish that the respondent had made an appealto the National flag in furtherance of his election prospects. Asalready indicated the respondent has categorically denied the allega-tions made by the election petitioner on the basis of which issues 4,5 and 6 were framed.

On a careful consideration of the evidence on the record, I havecome to the conclusion that the election petitioner failed to dischargethe onus of proof with respect to issues 4, 5 and 6, which lay heavilyupon him. In Jagdev Singh Sidhanti v. Pratap Singh Daulta andothers (11) their Lordships indicated :—

"In the trial of an election petition, the burden of provingthat the election of successful candidate is liable to be set aside,on the plea that he was responsible directly or through his agentsfor corrupt practices at the election lies heavily upon the applicant

(11) A.I.R 1965 S.C. 183.

E.L.R.] SHEODAN SINGH V. MOHAN LAL GAUTAM 257

and unless it is established in both its branches i.e. the commis-sion of acts, which the law regards as corrupt and the responsi-bility of the successful candidate directly or through his agentsor with his consent for its practice not by mere preponderanceof probability, but by cogent and reliable evidence beyond anyreasonable doubt, the petition must fail."

Accordingly the first part of issues 4, 5 and 6 is decided in thenegative i.e. against the election petitioner. Consequently, the secondpart of these issues does not arise.

Issue No. 7

The case of the election petitioner was that the respondent andwith his consent, his agents, workers, and supporters, widely distri-buted in the constituency on the eve of election two pamphletsExs. VII and VIII (Annexures 2 and 3 of the election petition) con-taining statements of facts which were false, and which they believedto be false or did not believe to be true, in relation to the personaldiaracter and conduct of the election petitioner, and reasonably calcu-lated to prejudice the prospects of his election.

Ex. VII which is a pamphlet in Hindi is printed on both sides ofthe page and bears the headings :—

"Tahsil Iglas \e matdata Nirdaliye Ummidwar Shri ShivdanSingh $e in prashanon \e uttar Chhahte hain :—

Then, in the form of 20 questions serious allegations have been madeagainst Sri Sheodan Singh, accusing him of embezzlement, cheating,assault etc. On the reverse of this "pamphlet beneath the caption,

"Savdhan Savdhan Savdhan

Thenwa ya rangin siyar"

there is a passage which runs as follows :—"Sheodan Singh ji aap to thenwaon ke hamesha sharabi chor

dakait aadi batate the. Aaj aap hamare pass voton ke liya thewabankar ah rahe hain. Khair koi bat nahin lakin yeh to bataiye :—"

Then in the form of question various allegations of a serious natureare made against Sheodan Singh. At the conclusion there is thefollowing passage :—

"Atah Un avgunon ke dekhte Tahsil Iglas ki janta Babuji aapkechaklqar men nahin ayegi. Ab aap ki lutiya doob gayi hai. Kyaaapko ham log vote denge kadapi nahin."

18—3 Elec. Gom./71

258 SHEODAN SINGH V. MOHAN LAL GAUTAM [VOL. XXXVIIt

The pamphlet concludes in the name of—

"Iglas Tahsil ke matdata ganh."

Coming to Ex. VIII, it bears the following heading:—

"Shri B. P. Morya M.P.

ki iglaw kshctra ki janta se appeal."In the body of that pamphlet, it was mentioned that one BabaKhilauna Das had been turned out of the Republican party. Theelectorate was warned to be on its guard against Baba Khilauna Dasand his associates. The pamphlet went on to state that the Repub-lican party had no pact with Sri Sheodan Singh who allegedly letdown the party. It was further stated therein that the RepublicanParty had no pact with the Jan Sangh party or with the independentcandidate Sheodan Singh. The pamphlet concluded with an appealto the electors not to vote for either of the above named two persons,,namely Baba Khilauna Das and Sheodan Singh.

The learned counsel for the election petitioner admitted that thepamphlet Ex. VIII, in itself, was not offensive in nature, although theother pamphlet Ex. VII was gravely offensive in character as it con-tained false allegations of a serious nature against Sri Sheodan Singh.

According to the contents of Schedule C to the election petition,,copies of the above mentioned pamphlet were distributed on the 19thand 20th February, 1967 by the respondent Sri M. L. Gautam andhis workers and supporters in various villages of the constituency.As already indicated in his written statement the respondent deniedthat he and with his consent, his agents, workers and supporters,printed or published statements of facts which were false and whichwere not believed to be true in relation to the personal character orconduct of the election petitioner. It was particularly denied that therespondent and with his consent his agents, workers and supportershad distributed copies of the pamphlet Ex. VII in any part of theconstituency. It was asserted that they had nothing to do with it.It was, on the other hand, suggested that the contents of Ex. VIIwere such that it was hardly likely that the respondent would haveprinted and circulated the same, as it would not further his (respon-dent's) election prospects. Similarly, with reference to Ex. VIII thecase of the respondent was that it did not contain any statement offact which was false or was not believed to be true. Further, it didnot relate to the personal character or conduct of the petitioner.

In support of his case on this issue the election petitioner not onlyexamined himself but produced a large number of witnesses. [After

E.L.R.] SHEODAN SINGH V. MOHAN LAL GAUTAM 259

considering the evidence on the allegations in issue No. 7, that therespondent and his supporters widely distributed two pamphlets(Exs. VI and VIII), containing statements attacking the personalcharacter and conduct of the petitioner and the arguments of theAdvocates on the evidence, the judgment proceeded :]

* # # # # # # # #

On a careful consideration of all the facts and circumstancesdealt with under this issue, I have come to the conclusion that theelection petitioner has not succeeded in discharging the onus of proofof this issue which lay heavily upon him. In Jagan Prasad Rawatv. Krishna Dutta Paliwal (12), a Division Bench of this.High Courtindicated :—

"If an election is sought to be set aside on the ground ofcorrupt practice, it is the duty of the petitioner to prove thatground affirmatively and for that purpose he has to rely first andlast, on the strength of his own evidence, and not on the weak-ness in the evidence of the respondent."

Consequently, the failure on the part of the respondent to esta-blish affirmatively, that the pamphlets he got printed through theJeewan Press, Hathras, as evidenced by the bill Ex. D XXIIIj werecopies of the pamphlets A-154 and A-155, would not warrant theinference that the election petitioner had made out his case. Asindicated earlier, there are several discrepancies and short comingsin the evidence adduced by the petitioner on this issue.

In this state of affairs, the first part of Issue No. 7 is decided inthe negative i.e. against the petitioner. The second part of this issue,consequently, does not arise.

Issue No. 8 :In Paras 20, 21, and 22 of the election petition it has been alleged

that the respondent, and with his consent, his workers, hired orprocured the services of motor vehicles for the free conveyance ofvoters from their villages to the polling stations concerned and back,on the date of poll. A further allegation made was that 6*n 18-2-67,when the respondent visited village Hastpur, he hired akkas for thesame purpose, i.e. for the free conveyance of voters to their respectivepolling stations and back. Details of the alleged corrupt practicehave been set forth in Schedule D to the election petition.

Although in Para 20 of the election petition, there was an allega-tion that the respondent, and his workers with his consent, had hiredfive motor vehicles on 19-2-67 for the free conveyance of voters, evi-dence was led by the election petitioner only in respect of two vehicles

(12) 20 E.L.R. 443.

2 6 0 SHEODAN SINGH V. MOHAN LAL GAUTAM [VOL. XXXVIII

mmcly3 USK 503 (truck) and RJL 9729 (bus). The truck USK 503allegedly was used for transporting the voters of Kishanpur, Beohara,Nagla Falhar and other villages to Tehra polling station. On thispoint 5 witnesses were examined by the election petitioner. Theyare P.Ws. 37, 40, 41, 45 and 48. The respondent produced two wit-nesses, D.W. 5 and D.W. 11 in rebuttal. According to P.W. 37Malkhan Singh of Rampur Bakatra, he was the polling agent ofelection petitioner Sri Sheodan Singh at Polling station Tehra duringthe last General Election. He claimed to have noticed that voterswere being brought there in a truck; by Krishnavir of Beonhara onbehalf of the respondent. That truck carried a tri-colour flag.Malkhan Singh then submitted an application (Ex. XVIII) to thepresiding offi'cer. In that application, which bears the date 21-2-67and is addressed to the presiding officer, polling station Tahra, ithas been stated that truck No. USK 503 was being used by the res-pondent to bring voters to the polling station from Beonhara andadjacent villages, free of charge, and the same was contrary to lawand procedure. The presiding officer made a note at the bottom ofthe application to the following effect:

"Received application and forwarded to the Returning Officer

under sealed cover along with other papers."

It was admitted by Malkhan Singh that the application Ex. XVIIIwas not in his hand, although it bore his signature. Allegedly, it waswritten out by one Damodar Singh of Gursena who was not produced.A peculiar feature of Ex. XVIII is that the letters 'USK' admittedlyare in the hand of Malkhan Singh, but the figures '503' are not inhis hand, nor was Malkhan Singh in a position to say in whosehand those figures were, although, allegedly, the truck was standingthere while Ex. XVIII was being written out and the witness hadenquired from the passengers who had got down from the truck, andthey confirmed his suspicions. There is force in the contention of thelearned counsel for the respondent that Malkhan Singh wrote theletters 'USK' could very well have written the figures '503' also afterthose letters. In the circumstances, there is force in the suggestion madeby the learned counsel for the respondent that stereotyped applicationswere kept ready by Malkhan Singh containing allegations to the aboveeffect, and only the number of the vehicle remained to be inserted.

{After considering the evidence on the allegations (issue No. 8)that the respondent and his workers hired or procured the services ofEkkas, motor vehicles mid tractors for free transport of voters, thejudgment proceeded:) , , ;

# * # # # * # # *

E.L.R.] SHEODAN SINGH V. MOHAN LAL GAUTAM 261

The learned counsel for the respondent submitted that the evidence,adduced by the election petitioner on this, issue, was highly discrepant.Another argumenti advanced by him was that no evidence was adducedby the election petitioner to prove hiring of the tractor or of thevehicle RJL 9729. It was contended that it was a case of oath versusoath and the defendant's witnesses were in no way inferior to thoseof the election petitioner. It was strenuously urged that the burden ofproving the corrupt practice lay heavily upon the election petitioner,which he has not been able to discharge. I have considered the mattercarefully. The oral evidence produced by the election petitioner to mymind is not such as can be implicitly relied upon. Krishnavir Singh,who according to the election petitioner and his witnesses had playeda major role in collecting and bringing voters by free transport to thepolling stations appeared as D.W. 5 and denied that he had done so.The evidence of the hiring of the truck USK 503 is, in my opinionnot reliable. No evidence was adduced bv the election petitioner regard-ing the actual hiring of bus No. RJL 9729 or of the tractor UPB 3010.

As regards the written complaint (Ex. XVIII) made by.P.W. 37Malkhan Singh, to the presiding officer, as already indicated, thenumber of the vehicle '503' was not filled in by him, although heclaimed to have written the letters 'USK'. No. explanation has beengiven by Malkhan Singh for not writing the figures '503' after theletters 'USK'. In fact he could not even say in whose hand the figures'503' are. On the other hand Exs. D-V and D-VI certified copies ofthe reports of the presiding officers of polling station Nos. 76 and 77Tahra would show that no cases of free transport of voters were broughtto their notice. After hearing learned counsel for the parties, in thisstate of affairs I have come to the conclusion that the electionpetitioner has not discharged the onus of proving the first part of thisissue.

The first part of issue No. 8 is accordingly decided in the negativei.e. against the election petitioner. The second part of this issue, conse-quently, does not arise.

Issue No. 9.—In view of my findings on Issues 4, 5, 6, 7 and 8(supra) the first part of this issue must be decided in the negativei.e. against the election petitioner. The Second part of this issue,accordingly, does not arise.

Issue No. 10.—In para 23 of the election petition, it has been allegedthat the respondent has incurred expenditure in contravention of theprovisions of Section 77 of the Act, and further failed to keep correctaccounts thereof. It was also alleged that the total expenditure incurredby the respondent exceeded the maximum amount permitted by lawand.he has deliberately omitted from his return of expenses several itemsas stated in Schedule E (Parts I & II) to the election petition.

262 SHEODAN SINGH V. MOHAN LAL GAUTAM [VOL. XXXVIII

According to the return of expenses filed by the respondent thetotal amount spent by him over his, election came to Rs. 8,206.90P.while under Rule 90(2) of the Conduct of Election Rules, 1961, themaximum amount of expenditure which the respondent could legallyincur was Rs. 9,000/-. It was strenously urged by the learned counselfor the election petitioner that the respondent actually spent more thanRs. 9,000/-. He elaborated his arguments by pointing out that if theelection petitioner could demonstrate that the respondent had spenteven a pie in excess of the difference of Rs. 793-10P. then he would beguilty of having committed a corrupt practice, referred to in section123(6) of the Act. Mr. Haider pointed out that according to P.W. 45Sukhbir Singh of Samanpur, three trucks were brought by him andPandit Ram Swarup on hire from Hathras and the hire charges ofeach truck was Rs. 200/-. This makes an aggregate of Rs. 600/- whichhas not been shown in the return. Mr. Haider further pointed out thatPandit Ram Swarup, brother-in-law of the respondent (who accordingto the respondent himself was in charge of his election expenditure),was not produced at the trial as a defence witness.

According to P.W. 45 three vehicles were brought on hire fromHathras. Two of them bore Nos. USK 503 and UPA 5282. The regis-tered number of the third vehicle was not known no the witness.According to P.W. 20 Jagdish Prasad of village Kubra, during the lastGeneral Election his father's tractor had been hired out to Sri Gautamfor a total sum of Rs. 350/-. P.W. 29 Hari Singh of Tirsara stated thathe was the polling Agent of the respondent at Mohkampur pollingstation and it was Sri Hardayal Gupta who gave him the polling agent'sform and seal. He added that Sri Gautam's camp in, Iglas, in additionto 3 or 4 jeeps, 7 or 8 tractors were kept. One of the tractors wasarranged by this witness from Bahadurpur at the rate of Rs. 50/- perday, and it remained in the respondent's use for 20 or 23 days. P.W. 43Mithan Lai of Mumrez stated that Sri Gautam had hired the tractor ofKanhaiya Lai of village Kubra at the rate of Rs. 50/- per day plus•diesel oil. The learned counsel for the petitioner pointed out that whileaccording to D.W. 16 Radha Krishna Visharad the respondent SriGautam had no election camp at Gonda, the respondent himself ad-mitted that he had a camp at Gonda. D.W. 23 Sheobaran Singh alsodeposed that the respondent had an office at Gonda.

The learned counsel for the election petitioner laid emphasis onvouchers 51, 94 and 152, dated 3-2-67, 11-2-67 and 19-2-67, for 210 litres,210 litres and 188 litres of diesel oil, respectively, costing Rs. 176.40P.and Rs. 157.92P. respectively. These vouchers formed part of the res-pondent return of expenses. Mr. Haider's argument was that there hadbeen very heavy consumption of diesel oil amounting to 608 litres,costing Rs. 510-72P. This lends support to the case of the electionpetitioner that a number of tractors were used by the respondent inconnection with his election.

I.L.R.] SHEODAN SINGH V. MOHAN LAL GAUTAM 263

Mr. Haider also placed reliance on voucher No. 80, dated 9-2-6?which purports to be a cash memo for Rs. 35/- on account; of repairs totractor USQ 6301. It was contended that unless this tractor had beenused by the respondent there was no need for him to pay its repaiicharges. Learned counsel further pointed outj that the charges of theabove tractor have not been included in the return and only notionalcharges could be estimated. According to the respondent however, henever used tractor USQ 6301 and it was possible that it might have comefrom outside for the use of the candidate for the Parliamentary cons-tituency. Then the question arises as to why voucher No. 80 was in-cluded in his return. According to the respondent his brother-in-lawPandit Ram Swarup was in charge of his election expenses and was inpossession of the "bulk of information regarding it". Mr. Haider alsopointed out that according to P.W. 34 Todar Singh of Uttampur, hehad arranged for the hiring out of a tractor belonging to Ram Chandand Hira Lai for the use of the respondent, at the rate of Rs. 70/- perday while according to P.W. 29 Hari Singh of Tirsara as already indi-cated a tractor belonging to one Laxmi Narain of Bahadurpur, wasarranged by him for the use of the respondent at] the rate of Rs. 50/-per day. Mr. Haider's argument was that the heavy consumption ofdiesel oil as, evidenced by vouchers 51, 94 and 152 (supra) was incon-sistent with the respondent's case that he used no diesel vehicle at all.

In this connection my attention was also invited to a passage inthe Statement of the respondent in cross examination to the effect thatone tractor was in the use of Sri Natrapal Singh, candidate for theParliamentary seat. According to the respondent, that tractor used tocome sometimes to Iglas constituency and go back. Because the respon-dent's workers sometimes travelled in that tractor along with theworkers of Sri Natrapal Singh, he (the respondent) used to supplyfuel for the tractor. The respondent went on to state that he musthave made use of that tractor for 10 or 15 days and id had come tohim two days before the polling date for the last time. Mr. Haider'sargument was that this was bun a feeble attempti to justify the heavyconsumption of diesel oil referred to above.

Similarly, when confronted with voucher No. 48 which is a billdated 3-2-67 for a sum of Rs. 6.50 spent over repairs to the petrol tank•of vehicle UPB 2119, the respondent's explanation was that his brother-in-law Pandit Ram Swarup had brought a drum of petrol from Aligarhin that vehicle as petrol was not available in Iglas and some repairs•were got done to that vehicle. The respondent] denied that 20 litres ofpetrol and one litre of mobil oil were also put into that vehicle at hiscost, and the same has been noted on the back of that voucher.

As regards voucher No. 87 dated 10-2-67 which is for a sum ofRs. 60/- paid towards the driver's (Vijaipal Singh) salary, according tothe respondent, since the driver, who came along with the U.P. Road-

264 SHEODAN SINGH V. MOHAN LAL GAUTAM [VOL. XXXVHI

ways jeep was not required to work for more than 8 or 9 hours aday, he had kept an additional driver, so that he could use the jeepat all times. Mr. Haider contended that the explanation given by therespondent was incorrect as a Government vehicle could be driven onlyby a Government driver.

Voucher No. 188 is a chalan for Rs. 500/- paid as reservationcharges of Roadways bus 1231. Mr. Haider's contention was jeepUPB 2119 belonging to Ramji Lai of Karikata, was also in the use ofthe respondent, for which he paid Rs. 100/- per day as deposed to byTodar Singh (P.W. 34). It was contended that voucher No. 48 (alreadyreferred to) relates to the same vehicle. Mr. Haider further pointedout that while according to the respondent lie kept only one stationwagon throughout the election period and in the latter stages, aRoadways jeep also, D.W. 16 Radha Krishan Visharad who accordingto the petitioner was one of the respondent's leading workers andsupporters stated that Sri Gautam had two jeeps, both belonging tothe U.P. Roadways. According to D.W. 23 Sheo Baran Singh of NaglaBardhan, two vehicles (both jeeps) used to remain standing at thecamp of Sri Gautam at Gonda whereas according to D.W. 6 PitambarSingh, Sri Gautam had no camp at all at Gonda. On these premisesit was urged by the learned counsel for the election petitioner that theamount spent by the respondent, on transport was very much morethan the sum shown by him in his return (Rs. 1,856).

Learned counsel for the respondent on the other hand pointed outthat out of the various vehicles referred to by the election petitionerin Schedule E (Part I) to his petition, evidence has been led by himonly in respect of three vehicles, namely truck USK 503, tractorUPB 3010 and bus RJL 9729. He further submitted that under section123(6) of the Act only such expenditure, as was incurred or authorisedby the respondent, should be taken into consideration. His argumentwas that the respondent was a well-known public figure and hadfriends, who had vehicles which they spared for the purpose of help-ing him in his election and accordingly the respondent was not boundto include such expenditure in his return of election expenses.

In this connection reliance was placed upon :—

(1) Rananjaya Singh v. Baijnath Singh and others(l3), whereintheir Lordships of the Supreme Court observed :•—•

"The gist of the corrupt practice defined in section 123(7) ofthe Representation or the People Act, '1951' is that the employmentof extra persons and the incurring or authorising of excess ex-penditure must be by the candidate or his agent. The provisions

(13) 10 E. L. R. 120.

E.L.R.] SHEODAN SINGH V. MOHAN LAL GAUTAM 265

of rules 117 and 118 must be read in the light of the definition ofthe corrupt practice in section 123(7) and a candidate cannot beheld to be guilty of the corrupt practice under section 123(7) or124(4) merely because a number of persons employed in theestate of his father worked for him in elections and if thesepersons and the remuneration they received from his father wereincluded the maximum number of persons that a candidate mightemploy on payment and the maximum expenditure he might incurunder the provisions of rules 117 and 118 would be exceeded. Sofar as the candidate is concerned such persons must be regardedas mere volunteers."

(2) M. A. Muthiah Chettiar v. Saw Ganesan, (14) wherein, fol-lowing Rananjaya v. Baijnath Singh and others(Y5), it was held bya Division Bench of the Madras High Court :—

"Under the Indian Law, a candidate is not bound to includein his election expenses the value of free services (e.g. use ofmotor-cars or vans, or premises for holding election offices) ren-dered to him by others. Under the provisions ot the Indian Act asinterpreted by the Supreme Court it is only the expenses incurredor authorised by the candidate or by his election agent, that shouldbe included in the return of election expenses, and there is noprovision which makes it incumbent on the candidate to includetherein expenses incurred by other persons."

It was, accordingly, urged that "the reasonable hire charges" of1 vehicles, as mentioned in Schedule E (Part II) to the election petitionshould be left out of consideration. There is force in this contention.

It was vehemently urged on behalf of the respondent that theelection petitioner, on whom the burden of proving the corrupt practicesheavily lay failed to establish, affirmatively, that the respondent had•spent more than the amount, mentioned by him, in his return, overtransport. I have considered the matter. The burden of proving thecommission of this corrupt practice, obviously, lay upon the electionpetitioner. This, in my opinion, he has failed to discharge. As indi-cated in earlier portion of this judgment, an allegation of corruptpractice is tantamount to the levelling of a quasi-criminal charge.Unless the allegation is affirmatively proved by the election petitioner,the respondent cannot be held guilty of having committed that corruptpractice although there may be room for suspicion that he might havespent more than what he his shown in his return. Thus as far astransport expenses are concerned, the election petitioner, in my opinionhas failed to establish his case.

(13) 10 E. L. R. 129 (14) 21 E. L. R. 2)5.

266 SHEODAN SINGH V. MOHAN LAL GAUTAM [VOL.XXXVHI

The other part of the election petitioner's case on this issue relatesto the expenses allegedly incurred by the respondent over running amess at his camps at Iglas, Gonda and Gorai, inclusive of the price offoodstuffs (including wheat milk ghee) and pay of servants, electricitycharges etc.; and stated in items 15 to 17 and 18 to 23 of schedule E(part I to the Election Petition).

[After considering the evidence on the allegations of the peti-tioner that the respondent had incurred expenses more than the pre-scribed limit, and that he had omitted to include in his return theexpenses incurred on running free messes at several places, the judg-ment proceeded] :

*## * * # # # *

I have referred to the testimony of the above witnesses in somedetails, as it was vehemently argued that the respondent had spentconsiderable sums of money over "entertaining" the electorate, butrefrained from showing the expenditure so incurred in his return. Inmy opinion, however, on a careful consideration of the entire evidenceon this issue, it is not affirmatively established that the respondent spentlavishly on the entertainment of his constituents. It is true that therespondent has not produced his brother-in-law Ram Swarup, who ac-cording to him was in charge of his election expenditure, and had the"bulk; of information" regarding it in his possession, or Hardayal Gupta,or Govind Ram, etc. It is also true that in the return of expenses there isno mention of money spent over ghee. According to the respondent,his brother-in-law had brought 1 or \\ seers of ghee from his housefor their use. The respondent added that 3 or 4 persons, including hisson-in-law, used to look after purchase of fuel etc. and cooking arrange-ments, and they used to inform him about it from time to time.

The learned ..counsel for the election petitioner urged that the res-pondent had rented two buildings at Iglas, one belonging to DeviPrasad and another to Shanti Swarup and Kamal Singh. The respon-dent has admitted the renting of only the latter. I have given my carefulconsideration to the evidence on record. My conclusion is that althoughthere may be grounds for suspecting that the respondent Sri Gautammight have spent more than the amount shown by him in his returnof expenses (Rs. 8,206.90p.), nevertheless the election petitioner, onwhom the burden of proof heavily lay, failed to prove this affirmatively.It was for the election petitioner to prove his case beyond all doubt.His case will not succeed merely because the evidence led by the res-pondent is found weak or deficient.

Accordingly, on the first part of Issue No. 10, my finding is inthe negative i.e. against the petitioner. The second part of the issue,consequently does not arise.

•E.L.R.] G. VASANTHA PAI V. R. M. SESHADRI & ORS. 267

Issue No. 11 : In view of my findings on issues 4 to 10 the petitioneris not entitled to any relief.

The election petition, accordingly fails, and is dismissed with costs,assessed at Rs. 1,500/- payable by the election petitioner to the respon-dent. In addition, the election petitioner will bear his own costs.

Dt. 23-5-1968.

Petition dismissed.

IN THE HIGH COURT AT MADRAS

G. VASANTHA PAI

V.

R. M. SESHADRI AND OTHERS

(VENKATADRI J.)

May 28, 1968.

Representation of People Act, 1950, Section 27(3)—Constitution of India,Article 171 (3) (b)— Electoral Roll of Graduates—State Government's powers underSection 27(3)—Declaration Diploma holders qualification deemed to be equivalentto that of Graduates—Whether ultra vires of the Constitution—Representation ofthe People Act, 1951, Sections 123(3)(3A), 123(5), 130—Corrupt practice-Appeal on grounds of proficiency in languages and ability of a candidate, whether,sittracts Section 123(3) and (3A)—Political party advocating the cause of a non-party candidate—Liability of candidate for acts of others—Agency, inference of—Scope of Section 123(5)—Badged volunteers of first respondent soliciting votes—Whether attracts Section 123(5)—Section 87 read with Order XLVII of the•Civil Procedure Codes, Scope of—Powers of High Court to review its own ordersduring pendency of appeal in Supreme Court.

The petitioner challenged the election of the first respondent to the MadrasLegislative Council, alleging inter alia that the Returning Officer had improperlyrejected a large number of votes marked in favour of the petitioner, and thatpersons who were Diploma holders were included in the Electoral Roll of regis-tered graduates by executive instructions of the State Government under Section27(3) of the Act of 1950, which was ultra vires Article 171(3) (b) of the Consti-tution. It was further alleged that the first respondent and his agents wereguilty of various electoral offences and corrupt practices of appealing to votersby promoting hatred between different Sections of the citizens on the groundof language and by providing free conveyance to voters.

After the disposal of the election petition by the High Court and before therespondent filed an appeal in the Supreme Court, the petitioner filed a reviewapplication in the High Court for modification of its judgement. The firstrespondent contended that during the pendency of the appeal in the Supreme

Court, the High Court had no power of review.

268 G. VASANTHA PAI V. R. M. SESHADRI & ORS. [VOL. XXXVItt

HELD : Allowing the petition : (i) On the evidence, .the Swatantra Partyand the persons mentioned in the election petition by the petitioner acted asthe agents of the first respondent, a non-party candidate, and committed thecorrupt practice mentioned in Section 123(5) of the Act with the consent ofthe first respondent. Further, the petitioner had proved that there was extensiveuse of hired and procured cars by the badged volunteers of the first respondentfor conveying voters and soliciting votes which had materially affected theresult of the election. The election of the first respondent was therefore voidunder Section 100(1)(b) and (d)(ii) read with Section 123(5) of the Act andthe petitioner was entitled to a declaration that he was duly elected underSection 101 (b) of the Act.

(ii) Where the State Government has "exercised its discretionary powersunder Section 27(3) of the Act of 1950, and has formulated a policy in consul-tation with the educational institutes and with the consultation of the ElectionCommission, prepared a statement showing qualifications deemed to be equivalentto that of a graduate, the exercise of such power cannot be said to be void orultra vires of Article 171 (3) (b) of the Constitution, since Parliament can confera power on the State Government to prescribe qualifications "under any law"made by it.

State of Uttar Pradesh v. Singhar Singh, kill. 1964, S.C. 358; Virendra v.The State of Punjab, A.I.R. 1957, S.C. 896; referred to.

(iii) The irapunged pamphlet exhorting the electorate that present daylegislative work required a person to be conversant with law and administrationwith a good knowledge of Tamil and that in view of this the first respondentwould be the best choice and not the petitioner, cannot be said to constitute anappeal on the ground of language to attract the provisions of Sections '123(3)and (3A) of the Act; nor could it be held that the contents of the impungedpamphlet would lead to any hatred or illwill between different sections of thecitizens in that part of the Country.

Kultar Singh v. Muhjitiar Singh, A.I.R. 1965, S.C. 141; Shubnath v. RamNarain, A.I.R. 1960, S.C. 148; Lachiram v. Janmna Prasad Mu\haraiya, 9 E.L.R.149; Sant Prasad Singh v. Dasu Singh, A.I.R. 1964, Patna 26; Jagdev Singh v.Pratap Singh, A.I.R. 1965, S.C. 183; referred to.

(iv) the liability of a candidate for corrupt practice committed by others isto be gathered lrom the relevant provisions of Section 123(5) of the Act. If acorrupt practice is committed by any person other than the election agent, theremust be consent of the returned candidate. Consent has double significance inElection law : (1) Consent for the person to act as the agent and, (2) Consentto commit the corrupt practice. Consent need not be express consent. It may beby implication. It can be inferred from the conduct of the parties. It depends uponthe facts and circumstances of each case so that no hard and fast rule can be laiddown which will conclusively prove agency.

The Boston Case, 2 O'M & H, 61 at 167; The Tamworth Case, I O'M &-H,75 at 81; The Hudiburn Case, I O'M & H, 193 at 202; The Taunton Case,I O'M & H. IB I at 133; The North Norfolk Case, I O"M & H 236; The BarnstopleCase, 2 O'M ii H, 105; The Borough of Great Yarmouth Case, 5 O'M & H 176;T/is Bewdlev Case, 3 O'M & H 145; The Borough of Worcester Case, 4 O'M &• H154; The Harwhick Case, 3 O'M & H 61; Bassappa v. Nagappa, 3 E.L.R. 197;Sitdhir Laxman Hendra v. S. A. Dange, 17 E.L.R, 373; Saw Ganesan v. M. AMuthiah Chettiar, 19 E.L.R. 16; Trilo\i Singh v. Shivrajwanti Nehru, 16 E.L.R.

E.L.R.] G. VASANTHA PAI V. R. M. SESHADRI & ORS. 269

234; Dharandhar Mohapatra v. Pradipata Kishore Das, 17 E.L.R. 427; BhtgwanPatta • . Ram Retangi, A.I.R. 1960, S.C. 200; Sarat Chandra v. Khagcndranath,A.I.R, 1961, S.C 334; Kataria Ta\andas T. Pinto Frederick Michael, 18 E.L.R.463; Naunilal Singh v. Kishorilal, A.I.R. 1961, M.P. 84; Madhu Singh v. RamSaras, AJ.R. 1966, Punjab 66; referred to.

(v) Under Section 87 read with Order XLVII of Civil Procedure Code,the High Court can review its own judgement in an election matter. This powercan also be exercised during the pendency and before the final disposal of anappeal in the Supreme Court.

Brijmohan Lai v. Election Tribunal, A.I.R. 1965, Ay. 450; referred to.

Election Petition No. 11 of 1967.

Govind Swaminadhan for the petitioner.

JUDGMENT

1. This is a petition filed under Sections 84, 99, 100 and 101 of theRepresentation of the People Act, 1951, by G. Vasantha Pai, who wasdefeated by the first respondent, R. M. Seshadri, in the bye-election heldon 21st August, 1967, to the Madras Legislative Council from the Mad-ras District Graduates' Constituency. The first respondent secured 5,643votes, as against 5,388 votes secured by the petitioner, and thus, by anarrow margin of 255 votes, the petitioner lost the election. In this elec-tion petition, the petitioner has alleged that the various infirmities thathappened during the conduct of the election, the various corruptpractices committed by the first respondent and other irregularitiesmentioned in the petition are the main cause of his losing the election.

2. The allegations of the election petitioner are the following : TheReturning Officer has rejected a large number of votes marked in favourof the petitoner. Under Art. 171(3) (b) of the Constitution, the electo-rate for the Graduates' Constituency should be Graduates of any Uni-versity in the territory of India or have been in possession of qualifica-tion prescribed by or under any law made by the Parliament asequivalent to that of a Graduate of any University. The Parlia-ment could not delegate this power in the manner doneunder Section 27(3) of the 1950 Act. The State Governmentin the Madras Election Manual have considered several quali-fications to be equivalent to the degree of any University inIndia. Accordingly, L.M.P's, L.E.E's and other licentiates and alsoPulavars and Pandits have been included as Graduates. The inclusionof over 1,700 names by the Electoral Registration Officer, as per theMadras Election Manual or based on the executive instructions of theState Government as persons duly qualified to vote in this Constituency,is ultra vires Art. 171 (3) (b) of the Constitution, for the reasons men-tioned in the election petition. The first respondent, the Swatantra

2 7 0 G. VASANTHA PAX V. R. M. SESHADRI & ORS. [VOL. XXXVIII

Party and his sponsores have been guilty of election offences and corr-upt practices, and the result of the election, in so far as the returnedcandidate is concerned, has been materially affected by such corruptpractices. The first respondent, the Swatantra Party, and his agentconveyed voters to and from the polling booths in hired and procuredcars from the Messrs Kumaraswamy Automobiles and T. S. Narayanan,Authorised Tourist Taxi Operators, in different parts of the City. Thefirst respondent and his agents are clearly guilty of the provisions insection 123(5) of the Act. The first respondent and his agents resortedto appealing to voters on the ground of his language and the importanceof having a man with a facile command of Tamil in the Legislature,imputing and insinuating thereby that the petitioner, being not a Tami-lian or a person who could not read and write Tamil, will not be ableto serve the Graduates' Constituency. They are, therefore, guilty undersection 123(3) and (3-A) of the Act. The first respondent and hisagents violated the provisions of section 130 of the Act by exhibitinga sign in the form of a badge containing the name of R. M. Seshadriin bold'letters attached to a blue ribbon and pinned to the shirts andinfluencing the voters, directly and indirectly, by standing at or nearthe polling stations. Many persons enrolled by the petitioner were notincluded in the Electoral Roll by the Electoral Registration Officer. Itis alleged that, but for the corrupt practices and the election offencescommitted by the first respondent, the petitioner would have obtaineda majority of the votes. He has, therefore, prayed that this Court maybe pleased to make an order declaring the election of the first respon-dent (returned candidate) to be void, and declaring the petitioner tohave been duly elected to the seat in the Madras Legislative Council inlieu of the first respondent.

3. The first respondent, R. M. Seshadri, who is the returned can-didate in the election, has filed a written statement. He has statedtherein that the correctness or otherwise of the Electoral Roll cannot bequestioned in an election petition. The petitioner has misconstruedthe provisions of Art. 171 (3) (b) and Section 27 of the Representationof the People Act, 1950. Though he is a member of the SwatantraParty, the said Party did not set him up as a party candidate. Neitherthe Swatantra Party nor members of the said Party were either sponsorsor agents, in law, of the first respondent. No corrupt practices werecommitted by anyone to the knowledge of the first respondent or withhis consent; nor was there any non-compliance with the provisions ofthe Constitution or the Representation of the People Act, 1951, or ofany rules or orders made thereunder. The first respondent has deniedthe hiring or procuring of any vehicle or vehicles for conveying votersto and from the polling booths on the date o£ polling. There was noquestion of the first respondent appealing to the Graduate voters on theground of his language, and the first respondent had merely referred

B.L.R.] G. VASANTHA PAI V. R. M. SESHADRI & ORS. 2 7 1

to his personal knowledge of Tamil as a qualification without attribut-ing any disqualification to the petitioner. There was no canvassing ofany kind by any person with or without badges within 100 metres ofany polling station and that badges were worn only by polling agentswhich is not prohibited. For these reasons, the first respondent submitsthat there are no merits in the election petition, which is liable to bedismissed with costs.

4. On these pleadings, the parties got ready for the trial of theelection petition, when the following issues were framed :

1. Are the facts mentioned in paragraph 3 (of the petition)correct ? If so, is the petitioner entitled to a recount ?

2. Has the election of the first respondent been materially affectedby any alleged non-compliance of the provisions of the Consti-tution, of the Representation of the People Act and the Rulesand Orders made thereunder, and in particular—

(i) by preparation of electoral rolls against the Articles of theConstitution of India and the Representation of the PeopleAct, 1950;

(ii) by disenfranchisement of any voters enrolled by the peti-tioner ;

(iii) by discrimination practised to favour party candidateagainst non-party candidate like the petitioner ;

(iv) by allocation of polling booths alphabetically and not door-wise facilitating conveyance of voters ;

(v) by not permitting more than one counting agent for thepetitioner but permitting without appointment more thanone counting agent for the first respondent; and

(vi) by action not being taken for offences alleged to have beencommitted, against the provisions of Sections 123(3),123(3-A), 123(5), 127(A), 130 and 133 of the Represen-tation of the People Act, 1951 by the first respondent andhis agents ;

3. Are the votes of 1,600 to 1,700 diploma holders wrongly in-cluded in the Electoral Roll ? If they are wrongly included,are they liable to be excluded as 'thrown away' votes and is thepetitioner entitled to a recount or is the election wholly void

, or liable to be set aside ?

4. (a) Was the first respondent put up by the Swatantra Partyas its candidate for the election ?

2 7 2 G. VASANTHA PAI V. R. M. SESHADRI & ORS. [VOL. XXXVIII

(b) Did the Swatantra Party and the persons, Mr. H. V. Hande,Mr. 'Violin' Mahadevan, Mr. T. K. Vinayakam and Mr. Ven-kataraman mentioned by the petitioner act as agents of R. M.Seshadri, the first respondent, and commit any corrupt practicewith the consent of the first respondent, enumerated in para-/graph 16 and Schedule I to the petition contrary to Section123(5) of the Representation of the People Act, 1951 ?

5« Did the first respondent or any of his agents with his consentappeal to the electorate on grounds contrary to Sections 123(3)and 123 (3-A) of the Act as stated in paragraph 17 of thepetition ? Do the pamphlets dated 7-8-1967 issued by the firstrespondent (item 7-A) and Mr. S. Parthasarathy Iyengar andDr. M. Santhesham (item 7-B) constitute a violation of theprovisions of Sections 123(3) and 123(3-A) of the Represen-tation of the People Act ?Did Mr. M. Santhesham and Mr. S. Parthasarathy Iyengar issuethe pamphlets (item 7-B)with the consent of the first respon-dent ? Did Mr. H. V. Hande, Dr. M. Santhesham and Mr. S.Parthasarathy Iyengar sponsor the name of the first respondentand act as his agents ?

6* Do the acts of the first respondent and his agents such as print-ing the pamphlets without the name of the publisher or printer,soliciting of votes by exhibiting signs as alleged by the petitionercarrying voters to the polling stations and promoting hatredon the ground of language constitute electoral offences underSections 125, 127A, 130 and 133 of the Act and have they ma-terially affected the election under Section 100(1) (d)(iv) ?

7. Is the first respondent's election void on the grounds stated inSection 100(1) (b), (d)(ii) and (d)(iv) of the Representationof the People Act, 1951 ?

8. Is the petitioner entitled for a declaration that he is dulyelected ?

9. To what reliefs is the petitioner entitled ?

5. The election petitioner is an advocate practising in this Courtfor nearly a quarter of a century. He has built an image in the mindsof many, is one who has attracted the younger generation, and is a con-troversial figure among the elder members of the profession. He is aman of strong convictions, and that has led him to take up most contro-versial issues to establish that Truth, shall prevail. He is energetic, en-thusiastic and also highly emotional. He is man of indomitable courage,

E.L.R.] G. VASANTHA PAI V. R. M. SESHADRI & ORS. 273

who would fight to the bitterest and for a given cause. He is veryresourceful in collecting and collating facts to prove his case. Equally,the first respondent belonged to the distinguished Indian Civil Serviceknown as the British Steel Frame. As a Civilian, he had held highposts, both Executive and Judicial. After our country attained Inde-pendence, he chose the independent legal profession, where he has madea name. He is a man of influence, affluence and importance. He is apopular figure in a known political party. With these characteristicfeatures, the petitioner and the first respondent entered the election con-test for a seat in the Madras Legislative Council from the Madras Dis-trict Graduates' Constituency.

6. Before I deal with the main issues relating to election offencesand corrupt, practices, it will be convenient to dispose of an interestingquestion of constitutional law raised by the election petitioner andframed as Issue 3 in this election petition. That relates to the inclusionof 1,700 diploma holders in the Electoral Roll of list. According to thepetitioner, they have been wrongly included, since they are not Gradu-ates of any recognised University, and therefore the election is whollyvoid and liable to be set aside.

7. Art. 171 of the Constitution of India provides for the compositionof the Legislative Councils. Art. 171 (3) (b) provides that, of the totalnumber of members of the Legislative Council of a State, as nearly asmay be one-twelfth shall be elected by electorate consisting of personsresiding in the State who have been for at least three years graduatesof any University in the territory of India or have been for at least threeyears in possession of qualifications prescribed by or under any lawmade by Parliament as equivalent to that of a graduate of any such Uni-versity. Therefore under Art. 171(3), the electorate for the GraduatesConstituency should be Graduates of any University in the territory ofIndia or have been in possession of qualification prescribed by or underany law made by Parliament as equivalent to that of a graduate of anysuch University. Section 27(3) of the Representation of the PeopleAct, 1950, so far as is relevant for our purpose provides that, for thepurposes of elections to the Legislative Council of a State in the Gra-duates' Constituency, the State Government concerned may, with theconcurrence of the Election Commission, by notification in the OfficialGazette, specify the qualifications which shall be deemed to be equiva-lent-to that of a graduate of a University in the territory of India. Inpursuance of this power conferred on the State Government under thisprovision, the Government of Madras have prepared and publishedwhat is known as the Council Rolls. Annexure II in the Madras Elec-tion Manual, Vol. I gives a statement showing the qualifications deemedto be equivalent to that of a graduate. The list contains oriental titles,

19—3 Elec. Com/71.

274 G. VASANTHA PAI V. R.M. SESHADRI & ORS. [VOL. XXXVIII

diplomas and certificates and also licentiates and associateships. Thecontention of the petitioner is that the institutions mentioned in theannexure cannot be called Universities as defined in the UniversityGrants Commission Act, 1956, and, consequently, the holders of suchdiplomas and certificates and titles can not be deemed to be graduatesof any University as mentioned in Art. 171(3) of the Constitution. He,therefore, contends that Section 27(3) of the Representation of thePeople Act, 1950, is ultra vires the powers of the Constitution. Whenthe Constitution of India under Art. 171(3) has prescribed the qualifi-cation of a graduate or any qualification equivalent to that of a Graduatethe Representation of the People Act, 1950 by section 27(3) cannot con-fer a power on the State Government to specify the qualifications whichshall be deemed to be equivalent to that of a graduate of a universityin the territory of India. According to him, there are no guidelines,principles and policies mentioned or suggested in the relevant provi-sion, that such a delegation of power is not valid, and that State cannotequate any diploma-holder or licentiate to a Graduate, in the deemingprovision. The Union Government have, on the advice of the Univer-sity Grants Commission, declared by notification in the Official Gazettesuch institutions. The petitioner has also filed Ex. P-138, a list contain-ing the Universities and Institutions recognised by the University GrantsCommission, and contends that the State Government has no powerto determine the institutions, and quotes the decision in State of TJttarPradesh v. Singhara Singh(Y), to show that 'if a statute has conferreda power to do an act and has laid down the method in which that powerhas to be exercised, it necessarily prohibits the doing of the act in anyother manner than that which has been prescribed'. It is also contendedthat the State Government under the guise of the power conferred onthem by the 1950 Act, cannot create a legal fiction by the deeming pro-vision, and that the provision itself is contrary to the constitution andit should therefore be declared as ultra vires as the Legislature cannotdo indirectly what it cannot do directly.

8. But the first respondent contends that the petitioner is estoppedfrom raising this question, as he himself has contested and participatedin the election, and that he ought to have attacked the Electoral Listitself when the names of the diploma-holders were included. He fur-ther contends that the petitioner cannot contend that the State Govern-ment has no power, when he has not chosen to implead the Union andthe State Government as parties to this election petition. Further, thereis no allegation that, by such inclusion of 1,700 diploma-holders, theresult of the election has been materially affected, nor is there any alle-gation of mala fides, or abuse of power or arbitrariness. According tohim, the Parliament can confer a power on the State Government toprescribe qualifications, 'under any law made' by it.

(1) A. I. R. 1964 S. C. 358 at 361.

E.L.R.] G. VASANTHA PAI V. R. M. SESHADRI & ORS. 275

9. There is much force in the arguments advanced by the first res-pondent. As the question raised was an important one involving amoot point for consideration, notice was issued to the Attorney-Generalof India. But the Office received a reply from the Union Law Ministrythat intervention of the Attorney-General was not necessary in this case.However, I had the advantage of hearing the arguments of Sri Muthannafor the election petitioner and of the first respondent himself. UnderArt. 171(3) of the Constitution, the electorate for the Graduates' Con-stituency should be graduates of any university in the territory of Indiaor have been in possession of qualifications prescribed by or under anylaw made by the Parliament as equivalent to that of a graduate of anysuch university. The Parliament has passed the enactment called theRepresentation of the People Act, 1950, under the provision 'under anylaw made by the Parliament'. Thus when the Parliament has passedthat enactment we are conscious of the fact that the enactment waspassed under the provisions of Art. 171(3) of the Constitution. Undersection 27(3) of the 1950 Act, the State Government has been empower-ed to specify the qualifications which shall be deemed to be equivalentto that of a graduate of a university 'in the territory of India. Theactual power of selecting persons who possess such qualifications equi-valent to that of a graduate is thus conferred on the State Government.It is a statutory power conferred on the State Government, and whenthe State itself exercises that power, it need not frame any rules or guide-lines. They have to formulate a policy and work out the statutorypower. In the instant case, the State Government have framed a policyin consultation with the educational institutions, and have, after takingthe approval of the Election Commission as provided in section 27(3),prepared a statement showing qualifications deemed to be equivalentto that of a graduate. In such circumstances, it cannot be said that thediscretionary power exercised by the State Government is void. Whiledealing with this aspect of the law, their Lordships of the SupremeCourt have observed in Virendra v. The State of Punjab (2) :

"In the first place, the discretion is given in the first instanceto the State Government itself and not to a very subordinate officer

It is true that the State Government may delegate the powerto any officer or person but the fact that the power of delegationis to be exercised by the State Government itself is some safeguardagainst the abuse of his power of delegation

No assumption ought to be made that the State Governmentor the authority will abuse its power. To make the exercise of thepower justiciable will defeat the very purpose for which the poweris given."

(2) A. I. R. 1957 S. C. 896 at 901.

2 7 6 G. VASANTHA PAI V. R. M. SESHADRI & ORS. [VOL. XXXVIII

Seervai in his Constitutional Law of India says at page 248 :

"The result of the authorities appears to be that the vesting ofdiscretionary power in the State or public authorities of a very highstanding is treated as a guarantee that the power will be used fairlyand with a sense of responsibility."

Further, the election petitioner has not pleaded in his petition that suchinclusion of diploma-holders and non-graduates in the Electoral List hasmaterially affected the result of his election. Unless the petitioner con-tends that the election has been materially affected, such a plea is notsustainable. He could have taken a petition at the earliest opportunity,to decide the question in appropriate proceedings, whether the Statehas got the power to prescribe qualifications which should be deemedto be equivalent to that of a graduate. It is now too late for the peti-tioner to make that contention in the present election dispute betweenhim and the first respondent. The result of the election petition doesnot also depend upon an answer to issue 3. However, I find on Issue3 that the 1,700 diploma-holders have been rightly included in theElectoral Roll.

10. The main complaint of the petitioner in his petition is that thefirst respondent has committed various electoral offences and corruptpractices, which would render the election void, and that by adoptionof such corrupt practices and commission of electoral offences his elec-tion has been materially affected. The electoral offences catalogued bythe petitioner are as follows. The first respondent and his agents com-mitted offences under Section 127A of the Act by printing and publish-ing pamphlets which did not bear on their face the name and addressof the printer and the publisher thereof. The first respondent and hisagents violated the provisions of section 130 of the Act by exhibitinga sign in the form of a badge containing the name R. M. SESHADRIin bold letters attached to a blue ribbon and pinned to their shirts andcanvassing or soliciting the voters directly and indirectly by standingat the polling stations. The badged volunteers of the first respondentreceived, at almost every polling booth, the voters conveyed in motorvehicles, secured and accompanied by such volunteers wearing thebadge aforesaid, within the distance prohibited in the Act. On accountof these electoral offences committed by the first respondent, the resultof the petitioner's election has been materially affected and thereforethe election itself should be declared void. The corrupt practices com-mitted by the first respondent and catalogued by the petitioner are these.The first respondent printed and published two pamphlets—one underhis facsimile signature and another issued jointly in the names ofDr. M. Santhosham, M.P. and S. Parthasarathi Ayyangar, I.P.S. Retd.,and circulated them to the voters. The substance of the pamphlets is

E.L.R.] G. VASANTHA PAI V. R. M. SESHADRI & ORS. 277

that the first respondent is not only fairly conversant with law and ad-ministration but also has a good knowledge of Tamil and that there-fore he should be preferred. The attention of the electorate was drawnto the word TAMIL printed in bold capital letters. The petitionersubmits that the printing publication, and circulation of the pamphletsconstitute an appeal to the electorate to vote for the first respondent onthe ground of his community and language and were intended for thefurtherance of the prospects of the election of the first respondent andfor prejudicially affecting the election of the petitioner who was ob-viously not a Tamilian. He further submits that the object of this pub-lication was to promote or attempt to promote feelings of enmity orhatred among the electorate on the ground of the first respondent'slanguage and thereby create a favourable condition for himself. Thepetitioner has further pleaded that the first respondent has committedanother grave and serious corrupt practice in that he the SwatantraParty and his agents conveyed voters to and from the polling boothsin hired or procured vehicles belonging to Kumaraswami Automobilesand other authorised tourist car operators in the different parts of thecity as per the particulars given in the I Schedule annexed to the peti-tion. Conveying voters to and from the polling booths in hired or pro-cured vehicles is a corrupt practice under section 123(5) of the Act,and if it is proved that the returned candidate gave his consent to hisagents namely the Swatantra Party and his individual agents to hireor procure vehicles for the purpose of conveying voters to and fromany polling station, and also if it is proved that the first respondentissued pamphlets appealing to voters on the ground of his language,the election of the first respondent can be declared void under section100 of the Act.

11. The first respondent contended before me that the various elec-toral offences mentioned by the petitioner in the election petition areonly offences for the commission of which, if proved, he would be liableto imprisonment or fine or both, but his election cannot be declaredvoid. But the petitioner contends before me that once these electoraloffences committed by the first respondent are proved, though they arepunishable with imprisonment or fine or both, still as it has materiallyaffected the result of the election, the election should be declared voidunder section 100(1) (d)(iv) of the Act. The relevant provision pro-vides that, where the result of the election, in so far as it concerns thereturned candidate has been materially affected by any non-compliancewith the provisions of the Act or of any rules or orders made under theAct, the High Court shall declare the election of the returned candidateto be void. The first respondent submits that the electoral offencesalleged to have been committed by him would not amount to non-compliance with the provisions of either the Act or the rules madethereunder but would amount only to breach of the provisions of the

2 7 8 G. VASANTHA PAI V. R. M. SESHADRI & ORS. [VOL. XXXVIH

Act or the Rules. He submits that there is a difference between breachof the provisions and non-compliance with the provisions. It is settledlaw that the petitioner has to prove that there is non-compliance withthe provisions of the Act or the Rules. He has also to prove that hiselection has been materially affected thereby.

12. Before I solve the question whether the commission of electoraloffences would amount to breach of the provisions or non-compliancewith the provisions of the Act or the Rules, it would be convenient todeal with the question of corrupt practices, which, if proved, woulddeclare the election of the returned candidate void. I shall presentlydeal with the issues relating to appeal on grounds of language. Whenthe petitioner conceived an idea to contest the election and when hedisclosed this to his friends and admirers, they promised to help himand also volunteered to work for him. He enrolled many graduatesworking in various Government Offices, educational institutions, banksand factories and also Commercial houses. He announced his candi-dature on 27th March, 1967, and made a door-to-door campaign. Hesays that response from the electorate was very favourable which madehim feel that he would come out successful in the election.

13. During this period, the election petitioner met Mr. Santhanam,an Advocate of this Court, who told him that the first respondent wasdoing propaganda against him that he is a non-Tamilian and was alsodistributing pamphlets to that effect to the electorate. He, therefore,rushed to a friend's house in Royapettah to get copies of the pamphlets.These pamphlets are enclosed to the election petition in the form ofannexures. The relevant portion of the pamphlet issued by R. M. Sesha-dri, Annexure A, reads thus :

"Many good friends who take the view that present-day legis-lative work calls for a person conversant with law and administra-tion and who has good knowledge of TAMIL, to read and write,,have kindly sponsored my name ".

The pamphlet issued by Dr. M. Santhosham, Member of Parliament andS. Parthasarathy Iyengar, Indian Police (Retired), Annexure B, in sofar as is relevant to our purpose, runs thus:

"We have requested him to stand as we feel that at the presentjuncture he will be the best choice not only by his attainments butalso by his facile command of both English and—even more im-portant these days—TAMIL languages to represent us in the Legis-lative Council "

It is to be noted that in both the pamphlets the word Tamil is printedin bold capital letters. It is an admitted case that the first respondentprinted about 25,000 pamphlets, and that about 4,000 covers containing

E.L.R.] G. VASANTHA PAI V. R. M. SESHADRI & ORS. 279

these pamphlets were despatched to the voters. P.W. 255 the Post-Master of the Mount Road Post Office, has spoken to the despatch ofthese covers. By that time, the election petitioner had visited the con-stituency twice. But when he came to know of the distribution ofsuch pamphlets, he got upset, he became nervous and he apprehendedthat his success in the election would be doubtful. Nevertheless, hemade a third round of visit to convince the electorate that knowledgeof Tamil was not absolutely necessary as the proceedings in the Legisla-tive bodies are conducted in both English as well as Tamil. But where-ever he went, the reception was cold, adverse, taunting and hecklingand people began to jeer and sneer at him and ask questions, whetherhe knows Tamil, why not he go to. Mangalore and whether he wasa Tamilian. This made the election petitioner feel that the first respon-dent had deliberately printed and circulated these pamphlets at a mostpsychological moment, when the first respondent was not quite con-fident of his success. According to the petitioner, these pamphlets con-stitute an appeal to the electorate to vote for the first respondent onthe ground of his language and were intended for the furtherance ofthe prospects of the first respondent and affect the election of the peti-tioner who was obviosuly not a Tamilian, and also to promote or attemptto promote enmity or hatred among the electorate on the grounds ofthe petitioner's language and create a favourable condition for the fur-therance of the prospects of the election of the first respondent andprejudicially affect the election of the petitioner. On these facts, thequestion for concideration is whether there is a contravention of theprovisions of sections 123(3), and 123(3-A) of the Representation ofthe people Act, 1951. The relevant portions of the sections may be use-fully quoted :

"123. The following shall be deemed to be corrupt practicesfor the purposes of this Act :—

(1)

(2)

(3) The appeal by a candidate or his agent or by anyother person with the consent of a candidate or his electionagent to vote or refrain from voting for any person on theground of his religion, race, caste, community or language....

(3-A) The promotion of, or attempt to promote, feelingsof enmity or hatred between different classes of the citizens ofIndia on grounds of religion, race, caste, community, or lan-guage by a candidate or his agent or any other person with theconsent of a candidate or his election agent for the furtheranceof the prospects "of the election of that candidate or for preju-dicially affecting the election of any candidate."

2 8 0 G. VASANTHA PAI V. R. M. SESHADRI & ORS. [VOL. XXXVIII

These provisions were introduced in the year 1961 by the amending ActXL of 1961. This amendment was necessitated on account of the fissi-parous tendencies prevaling in the various States, consequent on theformation of linguistic States. Evindently, they were introduced topreserve the unity and integrity of the secular State.

14. It is a fact that the South Indian State of Madras (Tamil Nadu)is passing through a period of renaissance, namely, revival and resuscita-tion of the ancient Tamil language and its widespread use in all walksof life. The policy of the present State Government also is to use theTamil language in political, social, economic, commercial, religious,literary and artistic branches of activity. In the Houses of Legislature inthis State, questions are put in Tamil, answers are given in Tamil notices,are sent in Tamil, speeches are delivered in Tamil, and thus the pro-ceedings are mostly conducted in Tamil. The people, for their part, arealso displaying their ecstasy and frenzy over the use of the Tamil langu-age. It was at such a stage, the pamphlets issued by the first respondentreached the electorate. During the election, it is usual for a candidate toissue pamphlets, appeals and brochures, with a view to create an im-pression in the minds of the electorate that, that candidate is the best-fitted person to be sent to the Legislature. The appeal may be persuasive,aggressive and impressive. Their Lordships of the Supreme Court inKultar Singh V. Uu\htiar Singh (A.I.R. 1965 S.C. 141 & 144) haveobserved :

"The document must be read as a whole and its purport andeffect determined in a fair, objective and reasonable manner. Inreading such documents, it would be unrealistic to ignore the factthat when election meetings are held and appeals are made by can-didates of opposing political parties, the atmosphere is usually sur-charged with partisan feelings and emotions and the use of hyper-boles or exaggerated language, or the adoption of metaphors, andthe extravagance of expressions in attacking one another, are all apart of the game ; and so, when the question about the effect ofspeeches delivered or pamphlets distributed at election meetings isargued in the cold atmosphere of a judicial chamber, some allow-ance must be made and the impugned speeches or pamphlets mustbe construed in that light. In doing so, however, it would be un-reasonable to ignore the question as to what the effect of the saidspeech or pamphlet would be on the mind of the ordinary voterwho attends such meetings and reads the pamphlets or hears thespeeches. It is in the light of these well-established principles thatwe "must now turn to the impunged pamphlet."

Bearing these principles in mind, I have to consider the effect of thepamphlets aforementioned issued by the first respondent. To supporthis case, learned Counsel for the election petitioner drew my attention

E.L.R.] G. VASANTHA PAI V. R. M. SESHADRI & ORS. 281

to statements made by a number of his witnesses. P.W. 4 T. P. Gopala-krishnan is a senior practitioner of this Court. He deposed that thepamphlets were naturally an appeal by a Tamilian candidate to Tamilvoters to prefer a Tamilian candidate rather than a non-Tamilian can-didate. P.W. 12 G. N. Chary, another Advocate of this Court, deposedthat, after reading the pamphlets, he felt that .it highlighted the com-petency of Seshadri (first respondent) to be elected as a candidate, be-cause he has stated therein that he has a good konwledge of Tamil andhe knew to read and write the same. P.W. 3 Sri Devi, a lady candidatehailing from Kerala, said that she found the spirit of Tamilian and non-Tamilian raised in the pamphlets. P.W. 8 N. G. R. Prasad, anotheradvocate, said that the first respondent was trying to appeal to thevoters on the basis of his language and on the fact that he knew Tamiland that Tamilians have sponsored his candidature.

15. The substance of the pamphlets is that he belonged to the IndianCivil Service, that he is quite conversant with law and administrationand that he has a good knowledge of Tamil, and that at the presentjuncture he will be the best choice not only by his attainments but alsoby his facile command of both English and Tamil. The word Tamilis printed in bold capital letters in both the pamphlets to focus its im-portance, significance momentousness and usage in every-day affairs ofthe State. The question for consideration is whether these pamphletswould amount to appeal on the ground of language. It must be remem-bered that there are nearly 17,000 voters in the Madras District Gra-duates' Constituency. All these 17,000 voters, who are graduates, arenot Tamilians, and the electorate consist of men of various communitiesand languages. To come within the mischief of section 123(3) and123(3-A) of the Act, the appeal must, for example, say that "I am aTamilian, with Tamil knowledge and culture and that if you do notvote for me, then you have no self-respect, and that otherwise Tamiliancurse will bring disaster on you." In Shubnath v. Ram Narain (3), theappellant before the Supreme Court issued a leaflet to the electoratewhich consisted of Adivasis and adopted the symbol of cock. Cockformed an integral part of the religious ceremonies of that community.The leaflet invoked the wrath of the deities on the electorate in case theyforget the cock, i.e., forgot to vote for the party of which it was thesymbol. Their Lordships of the Supreme Court held that the leafletwas an appeal on grounds of religion. Again, if it is an appeal thathe is a Tamilian and therefore all the Tamilians should vote for him,it may perhaps come within the mischief of section 123(3) and (3-A)of the Act, as held in Lachhiram v. Jamuna Prasad Mukharaiya (4)where the respondent was responsible for making a systematic appeal

(3) A. I. R. 1960 S. C. 148.(<V> 9 E. L. R. 14.

282 G. VASANTHA PAI V. R. M. SESHADRI & ORS. [VOL. XXXVIII

on the basis of caste by means of a leaflet. It all depends upon the con-struction to be put upon the document read as a whole and not a sen-tence here or there—See Sant Prasad Singh v. Dasu Singh (5). InShubath v. Ram Narain (3), Subha Rao, J. (as he then was), whiledelivering the dissenting judgment, has observed that, where a docu-ment is capable of two interpretations the one gives it an understandablecontent and the other imputes to it a confusion of ideas involving acorrupt practice—he would prefer to read the document in a way bene-ficial to the elected candidate and to uphold his election rather thanto impute corrupt practice to him on doubtful consideration and setaside his election. The first respondent submitted that, even if thepamphlets were to say that the people of Tamilnad are forgetting theirlanguage and literature, that the language is dying and that it is high-time that the electorate should revive Tamil Language and culture andvote for him for that purpose, it would not come within the mischiefof Section 123(3) or (3-A) of the Representation of the People Act, 1951.In this connection, he cited a passage from ]agdev Singh v. Pratap Singh( 6 ) :

"The Constitution has thereby conferred the right, amongothers, to conserve their language upon the citizens of India. Right"to conserve the language of the citizens includes the right to agitatefor the protection of the language. Political agitation for conserva-tion of the language of a section of the citizens cannot thereforebe regarded as a corrupt practice within the meaning of section123(3) of the Representation of the People Act. That is clear fromthe phraseology used in section 123(3) which appears to have beendeliberately and carefully chosen. Unlike Art. 19(1), Art. 29(1)is not subject to any reasonable restrictions. The right conferredupon the section of the citizens residing in the territory of Indiaor any part thereof to conserve their language, script or culture ismade by the Constitution absolute."

If, therefore, a candidate exhorts and exhilarates the electorate by say-ing that his friends, who take the view that present day legislative workcalls for a person conversant with law and administration and also hasa good knowledge of Tamil to read and write, have sponsored hisname and that his friends feel that he would be the best choice not onlyby his attainments but also by his facile command of English and Tamil,that cannot, in my opinion, be said to constitute an appeal on theground of his language. Further, there is no suggestion that the peti-tioner is not a Tamilian or that he cannot understand the proceedingstaking place in the Legislature in Tamil. There is also the fact that there

(5) A. I. R. 1964 Patna 26.(3) A. I. R. 1960 S. C. 148.(6) A. I. R. 1965 S. C. 183 at 188.

E.L.R.] G. VASANTHA PAI V. R. M. SESHADRI & ORS. 283

have been other candidates, in the field who know Tamil besides thefirst respondent. It is significant to note that one of the witnesses onthe side of the petitioner, P.W. 9 R. Venkataraghavan said that somepersons were discussing that it would be worthwhile to send a personwho is conversant with Tamil than to send a person who does not knowTamil to the Council. Another witness, P.W. 22 R. Viswanathan, saidthat the first respondent was saying that he was proficient in Tamil andthat he would be best-suited to represent them. The section in its pre-sent form was introduced in 1961 with a view to curb communal andseparatist tendencies in the country. Reading the pamphlets as a whole,I do not think the pamphlets will create any hatred or ill will betweendifferent sections of the citizens in this part of the country. To bringthe pamphlets within the mischief of section 123(3) and (3-A) of theAct, something more has to be shown. For the reasons mentionedabove, I find that the pamphlets do not constitute an appeal to the elec-torate to vote for the first respondent on the ground of his language.Nor do I think that the pamphlets promote any hatred or enmity amongthe electorate on the ground of the petitioner's language.

16. The other corrupt practice alleged by the petitioner is that theSwatantra Party, the first respondent and his agents conveyed votersto and from the polling stations in hired or procured motor vehiclesbelonging to Kumaraswami Automobiles and taxis procured by them,in different parts of the city as per particulars given by the petitionerin the I Schedule to the petition. The relevant issue, as far as this partof the case is concerned, is whether the Swatantra Party. Mr.' H. V.Hande, Mr. Violin Mahadevan, Mr. T. K. Vinayakam and Mr. Ven-kataraman acted as the agents of the first respondent and committedwith his consent the corrupt practices enumerated in paragraph 16 andSchedule I to the petition. The petitioner adduced voluminous evidenceto prove that the Swatantra Party acted as the agent of the first respon-dent in the election held in August 1967 to the Madras LegislativeCouncil from the Madras District Graduates' Constituency. After con-sidering the evidence adduced by the petitioner on the allegations thatthe Swatantra Party and its workers acted as agents of the first respon-dent in furtherance of his prospects in election, and that the badgedvolunteers solicited votes, hired cars and conveyed voters to the pollingbooths, the judgment proceeded :

(22) It is the case of the election petitioner chat the first respondentappointed the Swatantra Party and its workers as his agents, made itsworkers wear the printed badges containing the name R. M. Seshadriwith a bule ribbon attached to it—blue being the colour of the flag ofthe Swatantra Party—and also gave his consent to such agents to com-mit the corrupt practice of conveying voters to and from the polling

284 G. VASANTHA PAI V. R. M. SESHADRI & ORS. [VOL. XXXVltl

stations in hired or procured motor vehicles which were goc by R.Krishnaswami with the consent of the first respondent. Therefore, thequestion for consideration is whether the Swatantra Party as such withits prominent workers' named in the petition were appointed as theagents of the first respondent and whether he gave his consent to com-mit the corrupt practice alleged in the petition namely conveying votersin hired and procured vehicles.

(23) In the law of election, an individual can be appointed aselection agent or he may be scheduled to do a part of the election workor a man may implicate himself as agent for a candidate and involvehimself in the conduct of his election. Equally, various political parties,social organisations and Associations may interest themselves either insetting up a candidate for an election in a given place or lending theiractive support in the conduct of the election or taking control of theentire election activity in respect of that candidate during the election.In election law, these organisations, associations and parties, become theagents of the candidate. The question of agency is one of the mostimportant that can arise in election petitions. The question how fara candidate is liable for corrupt practices committed by others is ofgreat importance in election law. The conception of agency in theelection law is entirely different from the definition of agency in thegeneral law. As observed by Justice Grove in Boston case(7) :

"The law has decided that a candidate at an election is responsiblefor the acts of agents, who are not, and would not necessarily be,agents under the common law of agency."

Thus, the essential feature of the law of agency in an election isthat a person can be held to be an agent of a candidate and to haveacted as such with his consent from the facts and circumstances of acase, even though the candidate has not formally appointed him andheld him out as his agent. The principles of agency as applied toelection disputes have been differently expressed by different judges. Itis worthwhile to quote the passage in Rogers on Elections, Vol. II (20thEdition) at page 387 :

"The question of agency is one of the most important that canarise in election inquiries. It is to conceal agency, and so to relievethe candidate from the consequences of corruption practised onhis behalf, that the efforts of unscrupulous men engaged in theconduct of an election have been generally directed, and it is nottoo much to say that an election inquiry has been more frequentlybaffled from a failure in the proof of agency than from all othercauses put together."

(7) 2 O' M & H 161 at 167

E.L.R.] p . VASANTHA PAI V. R. M. SESHADRI & ORS. 285

Halsbury says in his Laws of England, Vol. 14 (Third Edition atpage 170 paragraph 310) :

"It is not necessary in order to prove agency to show that theperson was actually appointed by the candidate or thathe was paid. The crucial tests is whether there hasbeen employment or authorisation of the agent by the candidateto do some election work or the adoption of his work when done.The candidate, however, is liable not only for the acts of theagents whom he has himself appointed or authorised, but also forthe acts of agents employed by his election agent or by any otheragent having authority to employ others."

The question whether a particular individual is or is not the agentof a particular candidate has to be decided upon the facts and circums-tances of each case. It can be inferred from the conduct of the parties.The nature of evidence required to establish agency cannot be preciselydefined. In each case, the Court must bring its common sense to bearupon it and satisfy itself whether it is sufficient or not. It is worth-while to quote the expressions and opinions of tihe wellknown nobleLords which are reported in the various volumes of the Election Peti-tions by O' Malley and Hardcastle. The law of agency was describedby Jusetice Willes, in Tamworth case(8) thus :

" . . . . for the preservations of the purity and freedom of election,the member returned shall be answerable, not only for his ownacts, but for the acts of his agents whom he puts in his place torepresent him in the conduct of the election

" . . . .If a race were to take place between two vessels for a pride,and the steersman aboard one of those vessels was to thwart hisopponent by declining to give way to the vessel that had a right tokeep her wind; or if one of the crew hoisted an extra sail not allowedby the rules of the race, and the vessel aboard which that, foul playtook place was to come in first, the owner could not claim the prize,even by showing that he was away, that he had nothing to do withthe misconduct of his servants, or even that he forbade them to beguilty of such misconduct; nor could he mend his position byshowing that if no such misconduct had taken place his vessel wouldnevertheless have been sure to come in first."

The same idea was expressed in a different way by the same nobleLord in The Blac\burn case(9) thus :

" no person can win and wear a prize upon whose behalf thecontest has noc been legitimately and fairly carried on, or, as it was

(8) 1 O'M&H75 at 81.(9) 1 O' M & H 198 at 202.

286 G. VASANTHA PAI V. R. M. SESHADRI & ORS. [VOL. XXXVII

expressed upon the occasion to which I refer, NON CORNABITURQUI NON-LEGITIME CERTAVERIT, which is only so much inLatin showing the antiquity of the principle which I have alreadyexpressed in English; and whether it be that the person whocontends in respect of any unfair play of his own, whether it be theowner of a horse in respect of the unfair play of his jockey, whetherit be the owner of a ship in respect of the fault of his steersman, orthe hoisting of an additional sail against the rules of the race byone of the seamen; or whether it be a candidate in a parliamentarycontest in respect of his agent, in every one of those cases, whetherit has been the principal who has been guilty of illegality, or whetherthe illegality has been committed by his agent only, even withouthis authority or against his will, provided it be done in his agencyand for the supposed benefit of his principal, such principal mustbear the brunt, and cannot hold the benefit in respect of that inwhich the agent has compromised him, and would in a matter ofthis description have also betrayed the public, who has a right thata just election shall be had."

In the Taunton case(\ff) Mr. Justice Blackburn said as follows asto the definition of agency;

"What is the definition of agency for which the candidate would beresponsible? What relation between the candidate and the personwho is shown to be guilty of a corrupt practice would be sufficientto make the candidate responsible for that person's corrupt practice ?I am not able at present (and I rather doubt if in the nature of thingsit is possible) to say. I think all one can do is this, to say thatwherever a person is in any way allowed by a candidate or lias thecandidate's sanction to try to carry on his election and to act forhim, that is some evidence to show that he is his agent If thereis evidence to show that the party is acting for the member who isreturned, then I think one should consider him to be an agent, if,taking the spirit and object of the rule, you think bringing yourcommon sense to bear upon it that he was substantially an agent."

The same Judge in THE NORTH NOREOLK CASE(U) said :"I do not think it is necessary that he should be an agent for themanagement of the whole election; it is enough if he is agent forpart of the election ; he must be not simply an agent who might beemployed to such an extent as might make the candidate answerablefor corrupt practices committed by him, but he must be employed

in the way of managing a portion of the election."

(10) 1 O' M&H181 at 185.(11) 1 O' M&H236at239.

E.L.R.] G. VASANTHA PAI V. R. U. SESHADRI & ORS. 287

In THE BARNSTAPLE CASE (12), Mr. Justice Mellor observed:" . . the election law is a cruel and somewhat hard law, yet it is toowell settled for an election judge to act contrary to it. I say thatif an agent, although he may be no agent to Che candidate, beemployed by the agent of a candidate, he is a sort of subordinateagent, he cannot take the benefit of the services of the individualand repudiate them at the same time. But the judge must be satis-fied that the man, when he was acting, was acting as the agent forfurthering the election of a particular candidate."

Justice Channel said in THE BOROUGH OF GREAT YAR-MOUTH Case (13).

"But there are principles, and the substance of the principle of agencyis that if a man is employed at an election to get you votes, or if,without being employed, he is authorised to get you votes, or ifalthough neither employed nor authorised, he does to your know-Ledge get you votes, and you accept what he has done and adopt it,then he becomes a person for whose acts you are responsible in thesense that, if his acts have been of an illegal character, you cannotretain the benefit which those illegal acts have helped to procurefor you."

Thus the law of election agency is, not capable of precise definition, butit is a shifting elastic law capable of being moulded from time to.timeto meet the inventions of those who in election matters seek to get ridof the consequences of their acts. The agency in election matters is theresult of law to be drawn from the factsi of the case and the acts of theindividuals. To prove agency, the evidence should be clear and conclu-sive and such as to lead to no doubtful inference. To constitute agencyin election cases as in other cases, there must be an authority in somemode or other from the supposed principal. It may be by expressappointment or direction or employment or request; or, it may be byrecognition and adoption of the services of one assuming to act withoutprior authority or request. It may be directly shown or it may be inferredfrom the circumstances. It may proceed directly from the allegedprincipal or it may be created indirectly through one or more authorisedagents.

(24) It was considered and decided by election judges in the pastthat political and non-political associations can act as the agent of acandidate in the conduct of the election or for the furtherance of hiselection or during the election. Their legal existence has been recog-nised and the part they could or could not take in the election law ismore or less defined and settled. It is the duty of the election court

(12) 2 O' M & H 105.(13) 5 O' M&H176at 178.

288 G. VASANTHA PAI V. R. M. SESHADRI & ORS. [VOL. XXXVIII

While respecting their rights to safeguard the constituents againstunlawful acts, on their part. In THE BEWDLEY CASE (14).Mr. Justice Lopes said:

"There appear to be persons who think that a candidate may escapethe responsibility attaching to the acts of an agent by the employ-ment of the active members of a political association, instead of anindividual or individual agents; if this could be done, the CorruptPractices Act would become a dead letter."

There may be no objection for a political association advocating thecause of a particular candidate and largely contributing for his successand yet in no privity with the candidate or his agents. On the otherhand, there may be cases where a political association is advocating theviews of a candidate, of which that candidate is not a member, to thefunds of which he does not subscribe and with which he personally isnot ostensibly connected, but at the same time in intimate relationshipwith his agents and exchanging notes in respect of canvassing of votersand where the success is due to the work done by the association. Thenthe returned candidate would be liable and responsible for any corruptpractices done by an active member of such an association. In thewords of Justice Lopes in the case mentioned above 'to say that thecandidate is not responsible for any corrupt acts done by an activemember of such an association would be repealing the Corrupt PracticesAct, and sanctioning a most effective system of corruption.'

In one of the earliest cases on the subject, THE BLACKBURNCASE (1 O'M & H 198) a circular was issued by an association calledthe Conservative Association, addressed to every manager, overlookerand tradesman and any other person having influence requesting themto secure in the parliamentary elections the success of its candidate.This circular was adopted by the candidate in the management of theelection. It was held that the effect of the circular must be taken asbeing the act of the candidate in writing a letter to every manager,overlooker and tradesman and any other person having influence. Apolitical association may be interested in a coming election and in thesuccess of a particular candidate and may help in the preparation ofthe electoral register. The activities of such an association should notbe hezily assumed that it is for the furtherance of the election or thatits members are the agents of the candidate. But the moment it appearsthat the candidate or his agents adopt either individually or collectivelythe work that is done by that association, in such a manner as to benefitby its agency QUOAD the election, then one should look upon this sort:

(14) 3 O' M & H 145.(9) 1 O' M & H 198.

E.L.R.] G. VASANTH PAI V. R. M. SESHADRI & ORS. 289

of organisation with very grave suspicion—(See THE BOROUGHOF WORCESTER CASEQ5). At what time and in whatparticular circumstances an association, be it political or non-political, divested itself of his mere general interest in the election andarrayed itself with the candidate to do its best in the election andbecame active in the assistance of his election is a question which dependsupon the facts of each case and must be in all cases a question of con-siderable nicety. Therefore it is dangerous and unsafe to view everyact of the association or political party to be the act of the candidatehimself or as if it were done by the agent either appointed by himbefore hand or whose acts were by him afterwards ratified. There maybe some cases in which the very nature of the act itself shows that theremust be agency. There may be cases where the associations may pro-pagate tiheir views which may be in the nature of canvassing; but arthe same time they do not pledge themselves to be the agents of thecandidate; nor does the candidate become liable as if they were hisagents. The election judges draw a distinction between an associationthe object of which is to procure the election of a party candidate pro-fessing the views of the party and an association the object of whichis merely to advocate the views and interest of a particular person ofa communitv. There is undoubtedly no harm so long as the politicalassociations confine themselves to legitimate ends, for instance wherethey can persuade their fellow countrymen to adopt their political views,or in giving lectures on political subjects and distributing literature inthe shape of leaflets and pamphlets or to have social gatherings confinedto their members. But when the candidate recognises the activities ofthe political associations either in the conduct of the election or in thefurtherance of the election and when he chooses to acquiesce in theirendeavours to support him and to procure his election and 'if he adoptsand utilises their services and if he is benefited by their services, thenthe political body, its workers and volunteers become his agents. InTHE HARWICH CASE(16), the local members formedthemselves into an association for the purpose of assisting thereturned candidate. But the returned candidate had determined andhad made his determination known to the association that his canvasin the borough should be a personal one and this determination wasstrictly carried out. It was contended that all the members of theAssociation stood in the relation of agent to the returned candidate andhe was therefore liable for any corrupt practice committed by any oneof the members of the Association. Justice Lush said:

"It is clear to me in this case that the Respondent Employed oneagent only, Mr. Hales, and that neither he nor Mr. Hales employedany one to canvass or to take such general management of the

(15) 4 O' M & H 154,(16) 3 O' M & H 61.

20—3 Elec. Com./71

290 G. VASA^TH PAI V. R. M. SESHADRI & ORS. [VOL. XXXVIII

election as included canvassing. It is also clear to my mind thatneither the Respondent nor Mr. Hales knew that these persons, whoare alleged to have bribed and treated, had taken upon themselvesto canvass. Neither the Respondent nor Mr. Hales authorised them,either expressly or by implication, to procure voters for him, andthe respondent is not responsible for their acts."

There are.the principles followed by English Judges in respect of asso-ciations and their connection with the candidate for the election.

(25) So far as the Indian law is concerned the liability of a candi-date for corrupt practices committed by others has to be gathered fromthe relevant provisions of the Representation of the People Act, 1951.The section relevant for our purpose is section 123(5) of the Act andit is as follows:

"123. 'Corrupt Practices.—-The following shall be deemed to be cor-rupt practices, for the purposes of this Act:—•

(2 ) . . . . . . . . . . . . . . .

( 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 pf a candidate or his electionagent, or the use of such vehicle or vessel for the free convey-ance of any elector other than the candidate himself, the mem-bers of his family or his agent to or from any polling stationprovided under section 25 or a place fixed under sub-section(1) of section 29 for the poll."

There is an explanation to this section which runs thus:

"In this section the expression 'agent' includes an election agent,a polling agent and any person who is held to have acted as anagent in connection with the election with the consent of thecandidate."

If the High Court is of opinion that any corrupt practice has beencommitted by a returned candidate or his election agent or by any otherperson with the consent, of a returned candidate or his election agentsection 100(1) (b); or that the result of the election, in so far as itconcerns a returned candidate, has been materially affected by any cor-rupt practice committed in the interests of the returned candidate byan agent other than his election agent section 100(1) (d)(ii), the HighCourt shall declare the election of the returned candidate to be void.Therefore the election of a returned candidate could be declared void

13.L.R.] G. VASANTH PAI V. R. M. SESHADRI & ORS. 291

if it is found that he or his election agent or any other person with theconsent of the returned candidate or his election agent committed anycorrupt: practice. If the corrupt practice is committed by the electionagent, the law is absolute and does not depend upon the consent of thecandidate for the commission of the corrupt practice. But if it iscommitted by any person other than the election agent, there must beconsent of the returned candidate. Consent has double significance inelection law; (1) consent for the person to act as the agent and (2)consent to commit corrupt practice. Consent need not be express con-sent. It may be by implication. It can be inferred from the conductof the parties. It may be gathered from the circumstances of the case.It depends upon the facts and circumstances of each case, so that nohard and fast rule can be laid down which will conclusively proveagency. Mere non-interference of the candidate will not amount toconsent. There should be something more to prove agency. However,where express appointment is not proved, the agency can be inferredfrom the facts and circumstances. Often, it is difficult to secure anyevidence of actual employment, as it may be done quite privately, itbeing the concern of the employer and the employee only. The prin-cipal factors of each case have to be considered separately and fromthose facts an inference must be drawn whether or not agency as allegedexisted. In BASAPPA v. NAGAPPA (17) (arising before amendment)the Election Tribunal has observed that the term 'agent' in electionlaw has a wide significance, that no authorisation or declaration inwriting is necessary and the fact of agency may be established by cir-cumstances arising out of the general features of the case, the conductand connection of the parties, and the subsequent recognition of theacts of the supposed agent or at least an absence of disavowal of suchacts and that the doctrine of agency is carried by election law muchfarther than in civil and criminal cases. In Sudhir Laxman Hendre v.S. A. Dange (18)—a case arising after the amendment in 1956—theBombay High Court held that though under the circumstances of thatcase a person was an agent of a candidate and he committed corruptpractice, still the election could not be declared void under section100(1)(b) of the Act, as there was no evidence to prove that the corruptpractice was committed with the implied or express consent of thecandidate or his election agent. In SAW GANESAN v. TV. A. MU-THIAH CHETTIAR (19), the Election Tribunal observed that eventhough there was no consent of the returned candidate to commit acorrupt practice, still the election could be set aside if it had materiallyaffected the result of the election. In regard to political associationsalso, the principles laid down by the English Election Judges have been

(17) 3 E. L. R. 197.

(18) 17E.L. R. 373.

(19) 19 E. L. R. 16.

292 G. VASANTH PAI V. R. M. SESHADRI & ORS. [VOL- XXXVIII

followed by the courts in India. In TR1L0KI SINGH v. SH1VRAJ-WAT1 NEHRU (20), the Election Tribunal observed that, if a ministerwho was a prominent member of the Congress Party worked activelyfor the success of the candidate set out by the Party, with the knowledgeand approval of the candidate, he could be treated as an agent of thecandidate. In DHARAN1DHAR MOHAPATRA v. PRADIPTA KI-SHORE DAS (21), the Orissa High Court observed that a politicalassociation existing for the purpose of a political party, advocating thecause of a particular candidate and largely contributing to his success,yet in no privity with the candidate or his agents and an independentagency acting on its own behalf would not be one for whose acts thecandidate would be responsible ; but a political association advocatingthe view of a candidate would be an agent of that candidate eventhough that candidate is not a member, does not subscribe to its fundsand personally is not ostensibly connected with it, if the association isin intimate relationship with the candidate's agents respecting the can-vassing of voters and the conduct of the election and largely contribut-ing to the result. In BHAGWAN PATTA v. RAM RETANJI (22)the appellant before the Supreme Court who was a member of theSocialist Party was a successful candidate in an election to the Houseof the People (Lok Sabha). There was evidence to show that voterswere carried from some of the villages in the constituency to the pollingstation in motor trucks and that those trucks belonged to a SocialistParty candidate who stood for the local Assembly seat in the sameconstituency, for which the poll took place simultaneously. The Sup-reme Court held that the carrying of the voters to the polling stationin the trucks was with the connivance of the appellant who was a partycandidate and that would bring the case within section 123(6) of theAct as it stood then. In SARAT CHANDRA v. KHAGENDRA-NATH (23), one of the grounds of the election petition was that acorrupt practice was committed by the successful candidates in a doublemember constituency, inasmuch as voters were carried on mechanicallypropelled vehicles to the polling booths. The Election Tribunal as wellas the Assam High Court held that the corrupt practice alleged hadnot been proved. Before the Supreme Court, it was contended thatboth the High Court and the tribunal were wrong in holding that acorrupt practice within the meaning of section 100(1) (b) read withS. 123(5) had not been proved in this case; for, according to the appel-lant before the Supreme Court voters were carried by mechanicallypropelled vehicles to the polling booths by certain named persons whowere in charge of the electioneering campaign on behalf of the Congress

(20) 16 E. L. R. 234.(21) 17 E, L. R. 427.

(22) A. I. R. 1960 S.C. 200.(23) A. I. R. 1961 S. C. 334.

E.L.R.] G. VASANTH PAI V. R. M. SESHADRI & ORS0 293

Party and the successful candidates were contesting the election as nomi-nees of the Congress Party and therefore the named persons were theagents of the successful candidates and committed the corrupt practicewith their consent. The High Court had held that though the namedpersons might be deemed to be the agents of the successful candidatesand the hiring of the vehicles had been proved, still there was no proofthat that was done with the consent, express or implied, of the successfulcandidates. In view of the concurrent finding, their Lordships of theSupreme Court observed that the appellant could not contend that therewas consent, express or implied, as required by S. 100(1) (b), as theinference whether there was consent or not from the facts and circum-stances proved was still an inference of fact from other facts and cir-cumstances and could not be a question of law as urged by learnedcounsel for the appellant.

(26) Having noted the English and Indian decisions on this sub-ject, I shall now consider the applicability of those principles to thefacts of the instant case the election petitioner has come with a definitecase that the Swatantra Party acted as the agent of the first respondentand that with his consent the Party and its workers committed thecorrupt practice of conveying voters in hired and procured vehicles.The first respondent contends that the Swatantra Party did not set himup as a candidate for the election in question, that there was no privityor understanding between him and its workers or volunteers and thattherefore the Swatantra Party and its workers cannot be called hisagents. He also contends that he never gave his consent to any ofthose workers to commit the corrupt practice mentioned in S. 123(5)of the Act and therefore submits that, unless all these things are provedby the petitioner, this Court cannot come to the conclusion that theSwatantra Party and its workers acted as his agents or that he consentedto their committing any corrupt practice.

(27) The first respondent also submits that I cannot act on theevidence of R. Krishnaswami, because he is not a person named in theelection petition as an agent by the election petitioner, and that whenthe election petitioner calls R. Krishnaswami as the agent of the firstrespondent, it is not only necessary for him to name him in his electionpetition but it is also necessary for him to prove that he gave his consentto the agent to commit the practice. He further submits that by theintroduction of R. Krishnaswami in the midst of the trial, the electionpetitioner has set up a case different from what is pleaded in the petition.The first respondent cited a number of cases on this point but it isenough to mention the decision in M. A. Muthiah Chettair v. Sa. Gane-san (24) where a Division Bench of this Court has held that the Tri-bunal acted in excess of its jurisdiction in allowing an amendment

(24) 13 E. L. R. 201.

294 »G. VASANTH PAI V. R. M. SESHADRI & ORS. [VOL. XXXVIII

seeking to add new grounds of disqualification. I am unable to agreewith this contention. In the cases cited by the first respondent, therewas an application by the petitioner either for amendment of the peti-tion or permission to add particulars in form of an annexure to thepetition. But in the instant case, in the election petition, there is ageneral allegation that the first respondent, the Swatantra Party and itsworkers and his agents committed the corrupt practice of conveyingvoters in hired or procured vehicles to and from the polling stations.Whatever information was available to the election petitioner then wasincluded in the petition. He had known fully well that tourist cars ofKumaraswami Automobiles and taxis were used by the workers of thefirst respondent to convey voters to and from the polling booths. Itwas only when he summoned the documents concerning these cars usedfor the election and examined them that he stumbled upon the name ofR. Krishnaswami in the order form for hiring these tourist cars. Fur-ther, it was I who summoned this R. Krishnaswami as a Court witnessr

in order to investigate and find out the truth in this case. I do not,therefore, agree with the first respondent that, since Krishnaswami wasnot named in the petition by the election petitioner, I cannot rely onhis evidence. I have called him as a witness and I can certainly makeuse of his evidence to find out the truth.

(28) I shall now proceed to find out whether the Swatantra Partyand the said R. Krishnaswami acted as the agents of the first respon-dent and also whether its workers committed the corrupt practicementioned in section 123(5) with the consent of the first respondent..It is common knowledge that the first respondent is a prominent mem-ber of the Swatantra Party. He had addressed many meetings onbehalf of the Swatantra Party in the last General Election. He sup-ported the Swatantra Party candidates against known political partiesin the General Election. When the election for the Madras DistrictGraduates' Constituency was announced, the first respondent offeredhimself as a candidate. It is quite well-known that the election to theMadras Legislative Council from the Madras District Graduates' Consti-tuency is a non-party election. No party symbols are assigned to thecandidates. The political parties cannot also nominate any candidatefor this election. Therefore there is no substance in the contention ofthe first respondent that the Swatantra Party did not set him up as acandidate. When the first respondent offered himself as a candidate,his name was proposed among others by H. V. Hande and Dr. M.Santhosham. Hande is a prominent member of the Swatantra Partyand Dr. M. Santhosham is the President of the Madras District Swa-tantra Party. It is significant that in his letter dated 29th March 1967(Ex. P-134) addressed to the petitioner Dr. M. Santhosiham has ex-pressed his inability to help the petitioner, since he had undertaken thesuccess of the first respondent 'as the President of the Swatantra Party."

E.L.R.] G. VASANTH PAI V. R. M. SESHADRI & ORS. 295

Hande has also taken a prominent part in issuing leaflets, printingpamphlets and going round along with the first respondent to variousoffices to canvass support for the first respondent. In Ex. P-145, Hande,M.L.A. had written to a friend requesting him to give his support tothe candidature of R. M. Seshadri (first respondent) and also to putin a word to his friends and colleagues. It is in evidence that the firstrespondent took along with him prominent members of the SwatantraParty such as N. S. Varadachari, Venkataraman, Hande and Dr. San-thosham during his election campaign, on the eve of the election. Theelectoral roll copies were procured to the first respondent by the Secre-tary of the Swatantra Party for the Madras District (Srikumar) throughR. Krishnan who is a member of the Party. It is also in evidence thatthe first respondent printed about 500 badges with his Jiarne jn boldletters, R. M. SESHADRI, to be worn by his volunteers aricl workerson the date of the election significantly with a blue ribbon, it beingthe colour of the flag of the Swatantra Party. These badges weredistributed to the party workers through the branch offices of the Swa-tantra Party. There is evidence to show that these badges were wornby the workers of the first respondent on the date of the^eledtibn. Thereis evidence to show that, on the date of the election, rnany SwatantraParty workers, whose names and other complete particulars have beengiven by the petitioner's witnesses, were seen wearing these badges andcanvassing or soliciting votes for the first respondent and also convey ingvoters in hired and procured motor vehicles. P.Ws. 3,%rS,'6 and 10,15, 18, 20 and 23 have spoken to their seeing Swatantra'Party memberslike Jacob, Violin Mahadevan, Venkataraman, Vinayakam, Appu Kuttyand Sundararajan, wearing badges and soliciting voters,' conveyed bysimilar workers in hired tourist cars and taxis. After the election wasover and the first respondent had come out successful in the election,a fitting end was given to the first respondent's successful electioncampaign by Sri C. Rajagopalachari, the founder of the SwatantraParty. To a meeting to felicitate the first respondent on his success, hesent a message (See Ex. P-119) conveying his thanks -to the workersof the Swatantra Party and the D.M.K. for having brought about thefirst respondent's success against a 'strong opponent'. Now^f we takea comprehensive view of the events chronologically from the date ofthe announcement of the election for the Madras District Graduates'Constituency to the date of declaration of the result and also the:thanks-giving party arranged by R. Krishnaswami on behalf of the first respon-dent to all the workers who brought about his success, k conclusivelyproves that the Swatantra Party and its prominent workers ^afore-mentioned acted as the agents of the first respondent, who, in his turn,acquiesced in their conduct and in their furthering his election. Thereis absolutely no evidence on record to show that the first respondentappointed any independent agents of his own to do the election workfor him. Nor is there any evidence to show that the first respondent

2 9 6 G. VASANTH PAI V. R. M. SUSHADRI & ORS. [VOL. XXXVIII

forbade the Swatantra Party and its workers from so working for him.On the other hand, the printing, distribution and wearing of Ms badgeby its workers would show that everyone who were his badge withhis name in bold letters virtually became his agent intended to do workin conduct of the election and in the furtherance of his election. It isa fact that the first respondent printed 500 badges. These badges wereworn by his workers who are all party workers on the day of the election.There is evidence to show that these volunteers and workers conveyedvoters to and from the polling booths. There is evidence to show thatR. Krishnaswami hired and procured tourist cars to convey voters onthis election day. I shall presently discuss the evidence of R. Krishna-swami and Kumaraswami and show that Krishnaswami hired and pro-cured the tourist cars of Kumaraswami to be used by the first respondentand his agents to commit the corrupt practice mentioned in section 123(5) read with section 100(1) (b) of the Act.

(29) R. Krishnaswami is something more than an agent of thefirst respondent. He need not be the appointed agent or the namedagent or statutory agent. He is a personal friend of the first respondentand" his altejf ego. He is associated with the first respondent for thelast 15 years. He admitted in his evidence that he had known the firstrespondent for the last 15 years, ever since the first respondent becamea Director of the Hindustan Ideal Insurance Company. When thefirst respondent formed the Sahayak Finance and Investment Corpora-tion, he joined the same .in a responsible position. Later, he left thesame and joined the Andhra Scientific Company formed by one Rama-nath Babu who was also a Director of the Hindustan Ideal InsuranceCompany. Thus from 1951 to 1966, there is clinching evidence toshow thajt^R. Krishnaswami was indebted to the first respondent forhis source of living. In the evidence of R. Krishnaswami there ismaterial to show that he has taken a keen interest in the personal andpublic affairs of the first respondent—personal in the sense that he usedto help the first respondent in his business activities and public in thesense that he has helped the first respondent in the endowment andadministration of the school called the Padma Seshadri MatriculationSchool. He has admitted that he hired the tourist cars of Kumara-swami Automobiles to be used on the election date. There is also evi-dence to show that Krishnaswami just before the day of election phonedto Kumaraswami to arrange for 40 taxis for use on 21st August 1967.Thus, in all, he arranged for 59 cars for use on the date of election.After considering the evidence on the allegation of the petitioner aboutthe part played by one Shri R. Krishnaswami who was more than anagent of the first respondent, in procurement of a fleet of cars for con-veyance of voters, the judgment proceeded :

E.L.R.] G. VaSANTH PAI V. R. M. SESHADRI & ORS. 2 9 7

The petitioner has, therefore been able to place before Court amass of materials and overwhelming evidence both oral and documen-tary, to establish that on the date of the election (21st August, 1967)hired and procured vehicles were used on an extensive scale for con-veying voters to and from the polling stations by the volunteers of thefirst respondent wearing the badge with the name 'R. M. Seshadri', inbold letters. The way in which these cars were used would prove thatthere has been colossal violation of the provisions of the Representationof the People Act, 1951. In spite of this mass of materials and over-whelming evidence the first respondent contended that the electionpetitioner had not discharged the burden of proof. This was his burdenof song till the election petitioner closed his evidence. It is true thatthe burden of proof is on the petitioner. The burden of proof neverremains static. It is worthwhile to quote a passage from the book AnIntroduction to Evidence, which is extracted by Rupert Cross in hisbook on Evidence (1958) at page 69:

"The prosecutor or plaintiff has one burden3 that is, theobligation to prove one set of facts; while the accused or thedefendant may have another burden, that is, an obligation toprove different facts, such as an alibi or payment of a debt, orother matters in disproof of the opposing evidence. The shiftingof the burden means that A lays down his load and B takesup another load. But A never tosses his load to B, and B nevertosses it back to A. What shifts is the obligation; but it is anobligation to prove different facts."

In this case, I am of the opinion that the first respondent has notdischarged his obligation. He has not taken the trouble of summoningany workers mentioned by the petitioner and his witnesses to rebutthe evidence that the election petitioner has placed before Court andto prove that the Swatantra Party is not his agent, that he did notappoint its worker as agents to work for him in the election andthat he did not consent to their committing any corrupt practice orelectoral offence. He has also not proved by clear and cogent evidencethat he did not appoint R. Krishnaswami as his agent and that hedid not consent to his committing any corrupt practice. For bestreasons known to himself, he stayed away from the witness box. Whatall he did was; to summon a handful of formal witnesses, mostlyofficials like Collector of Madras (R.W, 1) and the Assistant Com-missioner of Police (Intelligence), Madras City (R.W. 7) to say thaton the date of the election everything went on normally, that the electionwas conducted according to the rules and regulations and no unto-ward incident happened. This evidence is neifiher useful nor helpful tothe first respondent or to the Court. Compared to the colossal evidenceof the election petitioner, the first respondent did not practically adduce

2 9 8 G. VASANTH PAI V. R. M. SESHADRI & ORS. [VOL. XXXVIH

any evidence except merely saying that the evidence adduced by theelection petitioner would not be sufficient in law to show that he haddischarged the burden placed on him to prove his case.

(39) For the foregoing reasons, I come to the conclusion that theSwatantra Party and the persons mentioned in the election petition-by the petitioner acted as the agents of the first respondent and com-mitted the corrupt practice mentioned in section 123(5) of the Actwith the consent of the first respondent. I have also come to the con-clusion that R. Krishnaswami acted as the agent of the first respondent,,and that, with the consent of the first respondent, he procured thehired vehicles belonging to Kumaraswami Automobiles and thus com-mitted the corrupt practice mentioned in section 123(5). Taking acomprehensive view of the events that took place on the date of theelection, I am also convinced that the extensive use of the hired andprocured cars by the badged volunteers of the first respondent forconveying voters and soliciting votes has materially affected the resultof the election, and that, but for the hiring and procuring of cars andcanvassing and soliciting of votes by the army of badged volunteers, thefirst respondent would not have secured so many votes. It is clearthat his success is due to his commanding his resources in the formof vehicles and volunteers to secure his election.

(40) In view of the conclusions already come to by me, it isunnecessary for me to consider the other part of the case, namelywhether the electoral offences committed by the first respondent wouldinvalidate his election. Nonetheless, I shall consider the propriety ofthe first respondent using his name in the badge which was worn byhis volunteers on the date of the election while welcoming, conveying^and soliciting votes for the first respondent. The petitioner has allegedthat the first respondent and his agents violated the provisions ofSection 130 of the Representation of the People Act, .1951, by exhibitinga sign in the form of a badge containing the name R. M. Seshadri inbold letters attached to a blue ribbon and pinned to their shirts andinfluencing the voters directly or indirectly by standing at and nearthe polling stations. Evidence has been let in, in the course of trial,to prove that the volunteers with their badges were found within the-prohibited distance from the polling stations and also outside thatdistance. These volunteers were also seen conveying voters in hiredor procured vehicles. In one of the polling booths, S. Balasubramanian,an advocate working for the election petitioner presented a petition(Ex. P. 39) to the Presiding Officer of Booth No. 35, Chepauk, thatthe polling agent of the first respondent was wearing a badge withthe name of the candidate printed in bold black letters. He objectedto such display of the candidate's name inside the booth, as he sus-pected that it would influence the voters. The polling agent of the

E.L.R.] . G. YASANTH PAI V. R. M. SESHADRI & ORS. 299

election petitioner was informed that it was not objectionable. It iscommon knowledge that the election to the Madras Legislative Councilfrom the Madras District Graduates' Constituency is a non-partyelection, that none can stand on a party ticket and that no party symbolsare allotted to the candidates. If it is a General Election where thedifferent political parties contest, then party symbols like Two bullockswith a yoke on (Congress), Hut (Praja Socialist), Ears of corn andsickle (Communist) and Star (Swatantra) are allotted to the candi-dates. The question for consideration is when this is an electionwhere party symbols are not allowed and political parties cannot contestthe same, can the first respondent use a badge containing his nameon the ground that the same is not prohibited. It appears thatthe election officials did not object to the first respondent's agents usingsuch a badge. But in Ex. P-150, the Chief Electoral Officer stated thatthe question whether the mere wearing of badges bearing the symboland even the name of a candidate thereon at the polling stations wouldnot per se amount to commission of any of the acts prohibited underclauses (a) to (e) of Section 130(1) of the Representation of the PeopleAct, 1951, was a matter to be decided by a competent court. I am ofthe view that a badge bearing the symbol of a political party can beused in a General Election, because there the symbol would representthe Party to which the candidate belongs. The persons wearing thebadge with the symbol would remind voters to give their votes tothe Party represented by the symbol. In Kataria Takandas v. VintoFrederick, Michael(25), the question for consideration was whetherdistribution of badges of huts to workers and voters would amountto a corrupt practice under the Act. The Election Tribunal held thatthe wearing of badges could not be said to violate any rule or anyprovisions of the Act and that mere wearing of badges could not scareaway or intimidate people to an extent that they would not on thataccount exercise their electoral right freely. But the ratio of thatdecision cannot have any application to the facts of the present case.As stated previously by me, the badge does not contain any symbolof any political party, but it contains the name of the candidate R. M.Seshadri in bold letters. When any polling agent or volunteer wearsthis badge and stands inside or outside the polling station and therebysolicits votes for the first respondent, it would certainly amount to asort of canvassing, either by the candidate or his agent. It is more orless a notice inviting voters to vote for that candidate whose name thebadge bears. In Parker's Election Agent and Returning Officer (Ex.Sixth Edition) it is stated at page 72 :

"The expression 'canvassing' appears to mean endeavouring topersuade any person to give, or dissuade any person from givinghis vote whether as any elector or proxy."

(25) 18 E. L. R. 403.

300 G. VASANTH PAI V. R. M. SESHADRI & ORS. [VOI/ XXXVIII

The wearing of the badge with the name of the first respondentwould certainly mean endeavouring to persuade voters to give theirvotes to the first respondent. This would only amount to breach ofthe provisions of section 130 of the Act but would not amount to non-compliance with the provisions of the Act or the Rules. The word'non-compliance' in S. 100(1) (d)(iv) denotes an omission to do whatis directed to be done and not the doing of an act which is prohibited-Vide Naunihal Singh v. Kishorilal (26) and Madhu Singh v. RamSaran (27). Since I hold that it is only a breach of the provisions ofthe Act, the question whether it has materially affected the result ofthe election under section 100(1) (d)(iv) of the Act does not arise.

(41) As a result of the conclusions arrived at by me, my findingsare as follows: Issue 3:— I find that the votes of 1,700 diploma-holders are rightly included in the Electoral Roll. Issue 4 (a):— I findthat the first respondent was not put up by the Swatantra Party as itscandidate for the election. Issue (4) (b) :—I find that the SwatantraParty and the persons mentioned therein acted as the agents of thefirst respondent and committed the corrupt practice mentionedin S. 123(5) of the Act, with the consent of the first respondent. Issues5 and 6:— Though I have found that H. V. Hande, M. Santhoshamand S. Parthasarthy Iyengar acted as the agents of the first respondent,still I do not think that the first respondent or any of his agentsappealed to the electorate on grounds mentioned in Section 123(3) and(3A) of the Act, or that the printing and publishing of pamphlets orexhibiting sign as alleged by the petitioner amount to non-compliancewith the provisions of the Act or the Rules. Issues 1 and 2 do notarise for consideration, in view of my finding on the aforementionedissues. Issue 7:—The election of the first respondent (the returnedcandidate) is void under section 100(1) (b) and d(ii) read with section123(5) of the Representation of the People Act, 1951. Consequently,under issue 8, I find that the election petitioner is entitled for a decla-ration that he is duly elected under section 101 (b) of the Act.

(42) For this result of the first respondent, I must say here that theelectoral officers are in a way responsible. Long before the electionthe election petitioner urged before the authorities the arrangement ofpolling booths in such a manner as to enable the electorate to exercisetheir franchise within a walking distance from their houses. But theofficers made a rule of thumb in arranging polling booths in analphabetical order ; with the result, if there are three voters in a house,one voter would be going to the nearest polling booth where as theother two would have to go a mile or two to exercise their franchise.This arrangement is opposed to common sense and convenience of

(26) A. I. R. 1961 M. P. 84(27) A. I. R. 1966 Pun. 66.

E.L.R.] G. VASANTH PAI V. R. M. SESHADRI & ORS. 301

voters. If the polling booths are arranged within a walking distance,there may not be any attempt by the candidates to commit the corruptpractice of conveying voters in hired and procured cars. Equally, theelectorate are also in a way responsible. The electorate for the MadrasDistrict Graduates' Constituency consist of an intelligent and educatedclass, being all graduates. It is really surprising that some of them atleast should have allowed themselves to become the victims of a cheappractice namely having a free ride in a motor car for the mere sakeof casting their votes. They should have known and they ought tohave known that going in a hired or procured vehicle of the candidateor his agents is a conupt practice in the election law. The intelligentiashould have realised that by their action they would be doing only adisservice and harm to their candidate, if and when the matter comesto Court as in the present case.

(43) To me, the trial of this election petition was a distastefulresponsibility. But my task was made lighter by the neat, able andconvincing arguments advanced by Mr. Govind Swaminadhan appear-ing for the election petitioner, and equally by the clear exposition ofthe case-law in a rather detached manner by the first respondent, whochose to argue his case himself.

(44) In regard to costs, Section 119 of the Representation of thePeople Act, 1951, provides that costs shall be in the discretion of theCourt. In the ordinary course of events, the petitioner would beentitled to his costs. But it is my misfortune to record in this judgmentthat, eversince proceedings were started in this election court, therewas always sound and fury in the court, there was stress and strainon me in conducting the proceedings in a cool and calm manner; notto speak of the vituperative language used by the election petitionerin his pleadings. On the last day of the trial especially, both the electionpetitioner and the first respondent suddenly flared up, hurled abuseson each other, got up from their seats, rolled up their sleeves andadvanced towards each other in a menacing manner, with a view toassault each other, thereby creating disturbance within the precinctsof the Court and thus converting the court proceedings into a streetbrawl. The election petitioner and the first respondent, two seniormembers of the Bar, are expected by the very nature of their calling,to show the utmost regard to a Court of law. They failed to givethe respect due to a Court. Their behaviour in the Court was mostdisrespectful to the Court, their conduct disorderly and their demean-our insulting. Both of them have thereby lowered the prestige anddignity of the Court interfered with the administration of justice forthe time being and have also in a way shaken the confidence of thepublic in the administration of justice. This is certainly a contemptuousinterference with judicial proceedings in the precincts of a Court hall.

302 G. VASANTH PAI V. R. M. SESHADRI & ORS. [VOL. XXXVIII

In this connection, I am citing a passage from a judgment of theSupreme Court In the Matter of Mr. G. A. Senior Advocate of theSupreme Court (28). What the Supreme Court laid down in that caseprovides a caution for the lawyers in general, so far as high moralprinciples in the profession are concerned. His Lordship Justice Bosewhile delivering the judgment observed :

"To use the language of the Army, an Advocate of this Courtis expected at all times to—comport himself in a manner befittinghis status as an 'officer and a gentleman' he is bound toconduct himself in manner befitting the high and honourableprofession to whose privileges he has so long been admitted, andif he departs from the high standards which that profession hasset for itself and demands of him in professional matters, he isliable to disciplinary action."

Now, instead of giving costs to the election petitioner, I am ratherconstrained to take contempt proceedings against both the petitionerand the first respondent for their action on the last day of the argu-ments, following the dictum of his Lorship of the Supreme Court,separately, in this matter. However, I am inclined to give costs for thepetitioner's learned counsel Mr. Govind Swaminadhan, who has arguedthe case for another member of the learned Profession. Professionaletiquette requires not to charge fees or take from another member ofthe Profession for services rendered to him. Under such circumstances,I feel I must direct the first respondent to pay the fees of Mr. GovindSwaminadhan, in this case, which I fix at Rs. 1,000/-.

Petition allowed.

(On an application made by the petitioner to the Court for certainclarification and modification in the judgment, dated 28th May, 1968,the Court passed the following order on August 7> 1968.)

ORDER

Application praying (1) that the rendering of issue No. 4(b) inthe petition be modified by adding the name of the 1st respondenttherein; (2) that the cost of the petitioner against the 1st respondentin accordance with the order in Application No. 2863 of 1967 for prov-ing and admitting facts and documents be taxed by this Court (3) thatthe order as to costs in the judgment be reviewed and the petitionerbe awarded his cost of the petition; (4) that notice be issued to the

(28) 1954 Cr.. L. J. 1410 (S. C.)

E.L.R.] G. VASANTH PAI V. R. M. SESHADRI & ORS. 303

Swatantra Party, Mr. H. V. Hande, Mr. Violin Mahadevan, Mr. P. K.Vinayagam and Mr. Venkatraman as to why action should not betaken against them under Section 99(1)(a)(12) of the Act; and (5)that the 1st respondent be named ; (6) that a positive finding be recor-ded thatr the. petitioner would have got the majority of votes.

This application coming on for hearing before this Court, theCourt made the following.

ORDER

This is an application filed by the election petitioner for reviewof the judgment in the above said election petition. It is stated that thewords "first respondent" have been omitted while incorporating issue4(b) in the judgment. The complaint of the petitioner in his electionpetition was that the first respondent also committed corrupt practicesin the conduct of the election. It is also stated that by virtue of myfinding on issue 4(b), I have to give a positive finding that the peti-tioner would have obtained a majority of the valid votes but for thecorrupt practices adopted by the first respondent and his agents. Itis also prayed that this Court should name the first respondent. Thereare also other prayers.

This application is opposed by the first respondent in the electionpetition. It is contended that this Court has no power to review itsown judgment. It is also contended that once an appeal has beenfiled in the Supreme Court under the provisions of the Representationof the People Act, 1951, this Court cannot interfere in any mannerwith the judgment delivered.

It is clear that long before the appeal was filed in the SupremeCourt, the present application has been taken out by the electionpetitioner. This application was filed into Court on 25th June 1968,while the appeal was filed in the Supreme Court only on 8-7-1968.Even though an appeal has been filed in the Supreme Court, yet thisCourt can dispose of the present application. Their Lordships of theSupreme Court have, in THUNGABHADRA INDUSTRIES LTD.-vs- GOVERNMENT OF ANDHRA PRADESH (A.I.R. 1964, S.C.1372 at 1376), observed :—

"The crucial date for determining whether or not the termsof O.XLVII R. 1(1) are satisfied is the date when the applicationfor review is filed. If on that date no appeal has been filed, it iscompetent for the Court hearing the petition for review to disposeof the application on the merits notwithstanding the pendency ofthe appeal, subject only to this that if before the application forreview is finally decided the appeal itself has been disposed of,

304 G. VASANTH PAI V. R. M. SESHADRI & ORS. [VOL. XXXVIU

the jurisdiction of the Court hearing the review petition wouldcome to an end."

In the present case, as I said, this application was filed long beforethe appeal was filed in the Supreme Court and further that appeal isstill pending in the Supreme Court. Therefore, I do not agree withthe contention of the respondent that because the appeal is pendingbefore the Supreme Court, I cannot interfere with my judgment inany manner.

In regard to his contention that this Court cannot review its ownjudgment, the respondent cited BRIJIMOHAN LAL v. ELECTIONTRIBUNAL (A.I.R. 1965 All. 450) where it is held that an electiontribunal has no power to review an earlier decision. But it has beenrightly pointed out by learned counsel for the applicant that the elec-tion tribunal constituted under Section 86 is only a creature of thestatute, that it is not a Court, and that it has only such powers as areconferred on it by the statue expressly or by necessary implication;.whereas under Section 80-A the High Court alone has got the juris-diction to try election petitions. Section 87 provides that the electionpetition should be tried by the High Court as nearly as may be inaccordance with the procedure applicable under the code of Civilprocedure to trial of suits. Review is provided under Order XLVIIof the Civil Procedure Code. I am therefore of the opinion that theapplicant is entitled to maintain this application for review.

I have given a finding in paragraph 41 of the Judgment in the •election petition that the election of the first respondent (the returnedcandidate) is void under Section 100(1) (b) read with section 123(5)of the Act, on the ground that he committed corrupt practice whichhas been proved by the election petitioner. The first respondent is,therefore, named under Section 99(a)(ii) of the Act. Again, in para-graph 39 of the judgment, I have observed that but tor the hiring andprocuring of cars and canvassing and soliciting of votes by the armyof badged volunteers, the first respondent would not have secured somany votes and that, 'it is clear that his success is due to his command-ing his resources in the form of vehicles and volunteers to secure hiselection'. In view of the voluminious evidence in regard to the corruptpractice adduced by the petitioner, it is clear, and l a m also convinced,that the election petitioner would have obtained a majority of the validvotes but for the corrupt practices adopted by the first respondent inthe election petition. The words "first respondent" will be includedin Issue 4(b) in the judgment, as the words are found in the issuessettled by this Court on 19-124967.

Under those circumstances prayers 1, 5, and 6 are ordered andthe application is allowed accordingly.

Application allowed.

E.L.R.] HARISH CHANDRA DEOGAM V. BAGUN SUMBRUI 3 0 5

IN T H E H I G H COURT OF PATNA

HARISH CHANDRA DEOGAM

. ; . v. : ;'•

BAGUN SUMBRUI

(A. B. N. SINHA, J.)

June 3, 1968

Representation of the People Act 1951, Sections 9A, 36(2), 123—Constitutionof India, Article 299(1)—Corrupt practice—Appeal in the name of religion andthreat of divine displeasure—Burden of proof—'his" in Sub-Section (3) of Section123, Scope of—"Mandis" and "Mundas" of Kolhan area—Whether they areGovernment servants—contract not executed in terms of Article 299(1) of theConstitution but covered by Section 9A of the Act—Whether creates disqualifi-cation—subsisting contract—Whether the contract should be in the course of tradeor business to attract Section 9A—Improper acceptance of nomination—Scope ofSection 36(3)—Petitioner's objection to the nomination of a P.S.P. candidate—objection upheld by Returning Officer—Whether the petitioner can raise the issueof improper rejection of that candidate in the election petition against the respon-dent—Rule of estoppel, whether applicable.

The petitioner, a defeated candidate, challenged the election of the respon-dent on the ground inter alia that the respondent had committed corrupt practiceswithin the meaning of sub-sections 3, 3((A), (4) and (7) of Section 123 of theAct and that he was also disqualified from being a candidate as he had acontract with the State Government which subsisted on the relevant date. Itwas further alleged that there was an improper rejection of the nomination of acandidate of the Praja Socialist Party on the ground that he was disqualified tofile the nomination as he had a subsisting contract with the Government. Itwas also claimed that the respondent issued leaflets seeking the votes of Adivasisin the name of religion and upon threat of divine displeasure.

HELD : Dismissing the petition :

(i) Words like "Dhokhebaj", "treachery", "Deception", "fraud", "dis-honesty" etc. used in the impunged pamphlet, Ex. 3 (a) referred to the allegedbetrayal by the petitioner of the Jharkhand Party and thus to his public andpolitical character or conduct. The alleged offending words and expressions didnot relate to the personal character or conduct of the petitioner. The man beneaththe politician had not been attacked at all. The issuance of the impungedpamphlet could not be held to have prejudicially affected the prospects of thepetitioner's election and it did not attract Section 123(4) of the Act.

Kultar Singh v. Mu\htiar Singh, A.I.R. 1963, S.C. 141; Maganlal v. Han-Vishnu Kamath, 15 E.L.R. 205; Inder Lai v. Lai Singh and others, A.I.R. 1963S.C. 1156; Sheopal Singh v. Ram Pratap, A.I.R. 1965, S.C. 677; Kumaranand vBrij Mohan Lai Sharma, A.I.R. 1957, S.C. 808; ]adunandan Mahton v. MosahebSingh and others, Indian Election Case by Sen and Podar 1951, Edition 641;Tha\ur Udaya Vir v. Arjuna, (Hammond, Page 326); Mehta Govardhan Das \Gridhar Lai, 7 E.L.R. 374; referred to;21—3Elc.Gom./71

306 HARISH CHANDRADEOGAM V. BAGUN SUMBRUI [VOL. XXXVHI

(ii) The word "his" in sub-section (3) of Section 123, which has been usedin the first para of the Section, clearly means the religion of the candidate, andnot the religion of the elector, to whom the appeal is made in the name ofreligion. An apepal to vote or refrain from voting for any person must be onthe ground of that person's religion, race, caste, etc. A mere appeal systematicallyor otherwise to vote on the ground or in the name of religion generaly, is notsufficient.

Shubnath Deogan v. Ram Narain Prasad, A.I.R. 1960, S.C. 148; KultarSingh v. Mu\htiar Singh, A.I.R. 1965, S.C. 141; ]agdev Singh Sidhanti v. PratapSingh Daulta and others, A.I.R. 1965, S.C, 183; refered to;

(iii) It had not been established that the "Rising Sun", which was thesymbol of the respondent, constituted the religious symbol of the Adivasis. Theappeal by the respondent to Adivasis voters to vote for his symbol would notamount to an appeal on the grounds of religion or threat of divine displeasureand it would not attract the provisions of Section 123(3) of the Act.

Shubnath Deogan v. Ram Narain Prasad, A.I.R. 1960, S.C. 148; KultarSingh v. Mu\htiar Singh, A.I.R. 1965, S.C. 141; Jagdev Singh Sidhanti v. PratapSingh Daulta and others, A.I.R. 1965, S.C. 183; referred to;

(iv) It had not been proved that there was any relationship of master andservant between holders of the office of "Mankis" and the "Mundas" of theKolhan area on the one hand, and the Government on the other, and that therewas any control by Government over their duties. The holders of these offices,therefore, could be said to be in the service of the Government.

Raja Bahadur K. C. Deo Bhang v. Raghunath Misra and others, A.I.R. 1959,S.C. 589; Shanti Lai v. Bipen Lai, A.I.R. 1964, Madhya Pradesh 92;

(v) The disqualification which results from Section 9A of the Act, isconditioned by a number of circumstances, for instance, there must be a subsistingcontract, that is to say, in actual existence between the appropriate governmentand the candidate concerned; the contract must be in the course of the trade orbusiness of the candidate; and finally it must be inter-alia for the execution ofany works undertaken by the said government. In the present case the subsistingcontract alleged was one which cannot be said to have been a contract enteredinto in the course of die trade and business of the respondent, and therefore, itdid not attract section 9A of the Act.

A contract otherwise covered by section 9A of the Act and made with theGovernment will create a disqualification in spite of the fact diat it is notexecuted in the manner prescribed by Article 299(1) of the Constitution.

It was open to the Petitioner to challenge the validity of the Respondent'selection even though his nomination had not been rejected under Section 36(2).either because there was no objection or otherwise.

C. V. K. Rao v. Dantu Bas\ar Rao, A.I.R. 1965, S.C. 93; L. P. Sahi v.Bateshwar Prasad, A.I.R. 1966, S.C. 580; C. Vithal Das v. Mereshwar P. Ram,9 E.L.R. 301; S. M. Banerji v. Shri Krishna, A.I.R. 1960, S.C. 368; Durga Shan\arMehta v. Raghuraj Singh and others, A.I.R. 1954, S. C. 520; referred to.

(vi) The principle is well settled that no man is allowed to benefit by hiswrong. The petitioner who raised an objection against the nomination of theP.S.P. candidate and the objection was upheld by the Returning Officer, could not

E.L.R.] HARISH CHANDRA DEOGAM V. BAGUN SUMBRUI 307

now be allowed to raise the issue again in the present election petition that therejection of the nomination of that candidate was improper; the petitioner wasunder a personal disability in the nature of estoppel.

Subramania Iyer v. United India Life Insurance Co, Ltd., A.I.R. 1928, Madras1215; Vanges Manufacturing Company v. Sura] Mall, 5 Calcutta 669; Alamgirv. Kamrunissa, 4 C.L.J. 442; referred to.

Election Petition No. 5 of 1967.

Kanhiya Prasad Verma and Akhouri Binod Sekhar Sinha for Petitioner.

Naseem Ahmad and Naseeruddin Ahmed for the Respondent.

JUDGMENT

A.B.N. SINHA, /.—At the last general elections to the Bihar Legis-lative Assembly from Chaibasa (Schedule Tribes Assembly Consti-tuency) No. 289, nine persons filed their nominations. Two of them,however, withdrew and the nomination paper of one was rejected bythe Returning Officer, thus leaving only six persons including the peti-tioner and the respondent in the field. The result of the elections wasannounced on the 23rd of February, 1967 and while all the other fivecandidates including the petitioner forfeited their securities, the respon-dent was declared elected by majority of votes as a Member of the BiharLegistlative Assembly for the said Constituency.

2. The petitioner has challenged the election of the respondent onthe grounds specified in Sections 100(1) (a) (b) and (c) of Repre-sentation of the People Act, 1951 (hereinafter referred to as "the Act").It has been alleged in the Election petition that the respondent hadcommitted corrupt practices within the meaning of sub-section (3),(3A), (4) and (7) of Section 123 of the Act. It has also been allegedthat on the date of his election the respondent was disqualified becausea contract for the execution of works undertaken by the State Govern-ment and entered into in course of his trade or business with the saidGovernment was subsisting on that date within the meaning of Sec-tion 9A of the Act. and, lastly it has been alleged that the nominationof one Shri Bishwanath Boipa, a Praja Socialist Party candidate forelection from the said Constituency had been improperly rejected bythe Returning Officer on the erroneous ground that Shri BishwanathBoipai was disqualified to be chosen to fill a seat in the Assembly be-cause a contract entered m to by him in course of his trade or busi-ness with the State Government for execution of a particular workundertaken by the Government was subsisting on the relevant date.

3. The respondent in his written statements has repudiated thetruth and correctness of each of the allegations made in the electionpetition. It was asserted that neither the respondent nor his agents or

308 HARISH CHANDRA DEOGAM V. BAGUN SUMBRUI [VOL. XXXVHI

workers with his consent or connivance had committed any corruptpractice as alleged in paragraphs 18 to 28 of the Election petition. Itwas denied that the respondent was in any manner disqualified to con-test the election as alleged by the petitioner. It was further assertedthat the petitioner was debarred from raising the question of therespondent being disqualified because he had failed to raise anysuch objection to the acceptance of the respondent's nominationpaper. Lastly it was stated that the nomination paper of Shri Bishwa-nath Boipai had been legally and validly rejected and indeed it wasso rejected on the objection of the petitioner himself and upon ShriBishwanath Boipai admitting the correctness of the objection raisedagainst the acceptance of his nomination paper.

4. On the aforesaid pleadings the following issues were framed fordetermination :

(1) Was Bishwanath Boipai not disqualified to contest the elec-tion, and were his nomination papers improperly rejected ?

(2) Was the respondent, Bagun Sumbrui, disqualified to con-test the election as alleged by the petitioner and were his nominationpapers improperly and illegally accepted ? Is the petitioner debarredfrom raising this point in the present case as he had failed to raiseany objection to the acceptance of the nomination papers of BagunSumbrui ?

(3) Did the respondent, or his agents or worker with his consentor connivance, commit corrupt practices, as alleged in paragraphs 18to 28 of the election petition.

(4) Is the election of the respondent liable to be declared void?

5. Though each of the three grounds, as mentioned above, on whichthe election of the respondent has been challenged are equally im-portant and decisive, and thus will be required to be examined ontheir merits, it may be convenient to take up the consideration of issueNo. 3 on which a large volume of evidence has been adduced beforetaking up the other issues, enumerated above.

6. First as to the alleged commission of corrupt practice by the res-pondent, his agents and workers, within the meaning of Section 123(3)of the Act; the relevant a allegations are contained in paragraphs 19,22 and 24 of the Election Petition. The respondent's denial of thoseallegations are contained in paragraphs 11 and 13 of his written state-ment. It has been alleged that the respondent had written and gotprinted and published the two leaflets, marked as Annexure A and Brespectively to the Election Petition, and had distributed them him-self and through his workers throughout the Constituency. The leaflets

E.L.R.] HARISH CHANDA DEOGAM V, BAGUN SUMBRUI 309

in question Exts. 3/a and 13), it was urged, offended against theprovisions of Section 123(3), (3A) and (4) of the Act. It was statedthat while publishing and explaining the contents of the offendingleaflets at several meetings held at different places on dirrerent dates,within the Constituency, particulars whereof were mentioned in para-graph 27 of the Election petition, appeals to vote for the respondenton the ground of religion generally were made and further votes wereasked for by the respondent, his agents and workers in the name ofthe "Sun" and "Birsa Bhagwan", the former being the Supreme Godfor the Adivasis and the symbol of the light of the soul of "BirsaBhagwan" and "Birsa Bhagwan" himself believed to be a religioushead, a messenger and an incarnation of God. According to the peti-tioner in the speeches and oral appeals voters were being told that un-less they gave their offerings to "Sun" God known in the local dia-lect as "Sin-Bonga" by casting their votes for the respondent, "Sin-Bonga" (the Supreme God) would get offended and punish them bysending famine and epidemics etc. in which they would perish. Itwas further stated that the respondent was an Adivasi and had adop-ted "the Sun" as his symbol in the election ostensibly with the viewto be able to appeal to the religious sentiments of the Adivasi voters.It was admitted that one of the aims and objects of the respondent wasto secure a separate Administrative, Unit for the Adivasis and otherinhabitants of the Cbotanagpur Division. The respondent admittedthat he was an Adivasi and that as a Member of the All India Thar-khand Party, one of his objects was to secure a separate Adminis-trative Unit for the residents of the Chotanagpur Division. He alsoadmitted that he bad adopted the "rising sun" as his symbol with theapproval of the Election Commission. He, however, stated that itwas wholly untrue that "the Sun" was considered as the Supreme God(sm-Bonga) by the Adivasis or that "Birsa Manda" was believed bythe Adivasis to be a messenger or an incarnation of God, or even reli-gious head. He further denied the truth of the statement that he orhis workers or agents had made appeals to the voters, whether Adi-vasis or non-Adivasis to vote on the ground of religion etc. Accordingto him no meetings were held at all and no oral appeals or speecheshad been made during the election on the lines, as alleged, in the Elec-tion Petition or otherwise. v

7. On the petitioner's case, as stated above, the corrupt practicewithin the meaning of Section 123(3) of the Act was committed intwo ways : (1) by printing, publishing and distributing of the twoleaflets (Annexure 'A' and 'B' • to the Election petition) throughoutthe Constituency at meeting held at different places where the contentsof these leaflets were read out and explained and (2) by making oralappeals at those meetings to vote for the Respondent in the names of"the Sun" and "Birsa Bhagwan". On the evidence of R. K. Sarkar

310 HARISH CHANDRA DEOGAM V. BAGUN SUMBRUI [VOL. XXXVIH

(P.W. 2) and of Akli Ahmad (P.W. 6) the manuscript copies ofAnnexure 'A' and 'B' to the Election petition have been proved andmarked as Exts. 2 and 12 respectively. P.W. 2 has proved Annexure'A' as one of the printed copies made out of the manuscript (Ext. 2)and the same has been marked as Ext. 3(a). P.W. 6 has also proveda printed copy made out of Ext. 12 and the same has been marked asExt. 13. These witnesses have stated that both Exts. 2 and 12 were inthe hand of the Respondent and it was the Respondent who had placedorders for printing and had paid the printing charges. Though therespondent has not admitted that he had paid the printing charges, hehad admitted that both Exts. 2 and 12 were in his hand and that hehad placed orders for their printing. His case is that it was the AllIndia Jharkhand Party which was supporting his candidature thathad paid the printing charges and had got the leaflets in question dis-tributed on their behalf through their own volunteers. Holding ofany election meeting during the election campaign was denied byhim. He also denied to have distributed the printed copies of theleaflets or to have read out and explained their contents. Thus the res-pondent has owned up the authorship of the two leaflets and has alsoadmitted that he had got them printed through at the instance of andat the cost of All India Jharkhand Party of which he was a mem-ber. He has admitted distribution of the printed copies of the twoleaflets though not by himself but by the volunteers of his party to hisknowledge. He has, however, urged that the contents of the leaflets(Exts. 3/a and 13) did not come within the mischief of any of thesub-sections of section 123 of the Act as claimed on behalf of the peti-tioner. The first question which arises therefore, is whether the con-tents of Exts. 3(a) and 13 offend against the provisions of Section123(3) of the Act.

8. In regard to Ext. 13, it was conceded on behalf of the petitionerthat its contents did not come within the mischief of Section 123(3) ofthe Act, but in regard to Ext. 3(a) it was urged that the contents ofparagraph 4 thereof, if not the rest, did come within the mischief onthese provisions, and in so far its printing, publishing and distribu-tion was admitted it must be held that a corrupt practice as defined inSection 123(3) had been committed.

9. It may be convenient at this stage to read the provisions of Sec-tion 123(3) of the Act as it stands after its amendment by Act 40 of1961. It lays down that :

"appeal by a candidate or his agent or by any other person withthe consent of a candidate of his election agent to vote or refrainfrom voting for any person on the ground of his religion, race,caste, community or language or the use of, or appeal to, religioussymbols, or the use of, or appeal to, national symbols, such as the

E.L.R.] HARISH CHANDRA DEOGAM V. BAGUN SUMBRUI 311

national flag or the national emblem, for the furtherance of theprospects of the election of that candidate or for prejudically affec-ting the election of any candidate."

shall be deemed to be a corrupt practice for the purposes of theAct. It is plain that if it is shown that the impugned leaflet (Ext. 3/a),printing, publication and distribution of which to the knowledge andwith atleast the implied consent of the Respondent may be taken tohave been established, contained an appeal to the voters of the con-stituency to vote for the respondent on the ground of his religion etc.,that would amount to a corrupt practice under the first part of Sec-tion 123(3) of the Act. Far from showing that the contents contain-ed any such appeal, even the allegation is different. What has beenalleged is that appeal for vote was made on the ground of or in thename of religion generally and not on the ground of the religion ofthe Respondent. Even a cursory reading of the leaflet in question wouldshow that vote has been asked for the Respondent on the ground ofthe services rendered by the Respondent, in the capacity of a socialand political worker, to the residents of the constituency. An Englishrendering of the leaflet is annexed to the Election petition itself.Paragraph 4 on which alone stress was laid on behalf of the petitionerreads as under :

"If you want to illuminate the entire world and universe with thelight of great holy soul of Bhagwan Birsa Munda, want to makethe ]ay]ay\ar (slogans for victory) of not only the great Adibasileaders, but of Bhagwan Birsa Munda, all-pervading and lastingin the world for all time to come and want to preserve the Chhota-nagpur Tenancy Act for the welfare of the aboriginals, you mustvote for the All India Jharkhand Party which has been organisedand formed with the sacrifices and blessings of the persons whosuffered and laid down their lives for you, by putting seal on the"Rising Sun" and vote for the man who is striving for preserva-tion of the Chhotanagpur Tenancy Act,"

I fail to see how the above passage can be said to amount to anyappeal to vote for the Respondent on the ground of his religion. Allthat it says is that in order to keep the memories of the great Adivasileaders including that of Birsa Bhagwan alive for ever and for the pre-servation, of Chhotanagpur Tenancy Act containing provisions for theWelfare of the aboriginals, . viz, the Adivasi, the electorate should votefor the All India Jharkhand Party, and, therefore, for the Respon-dent who has been "striving for the preservation of the ChhotanagpurTenancy Act". This, in my opinion, is the only reasonable and fairmeaning which can be ascribed to the contents of paragraph 4 of Ext.3(a). It follows, therefore, that there is nothing in the offending lea-flet which comes within the mischief of the first part of Section 123(3)

312 HARISH CHANDRA DBOGAM V. BAGUN SUMBRUI [VOL. XXXVIII

of the Act. The decision in Shubnath Deoga v. Ram Narain Prasad(l).rendered under Section 123(3) as it stood before its amendment is notat all relevant. In that case on the finding the systematic appeal tovote had been made to a large section of the electorate on the groundof religion, the majority opinion held that a corrupt practice withinthe meaning of Section 123(3) had been made out. But the case aspointed out earlier was rendered on the language of Section 123(3)as it stood before the amendment of that section effected in 1961 andnot on the section as it stands after its amendement. The word "his"in the context in which it has been used in the first part of Section123(3) quite clearly means the religion of the candidate and not thereligion of the electorate to whom the appeal is made or religion gene-rally. That the word "his" cannot be ascribed any other meaning isapparent from atleast two decisions of the Supreme Court, one atpage 141 and the other at page 183. In paragraph 5 of the decisionKultar Singh versus Mu\htiar Singh (2), Gajendragadkar, C. }. deli-vering the judgment of the Court made the following observations :

"It is thus plain that if it is shown that the impugned poster whichthe appellant is proved to have published and distributed at hiselection meetings contained an appeal to the voters of his consti-tuency to vote for him on the ground of his religion, that wouldamount to corrupt practice under S. 123(3) of the Act—"

The second case of the Supreme Court, referred to above, namely, thedecision in Jagdev Singh Sidhanti versus Pratap Singh Daulta andolhers(3), also throws considerable light on the meaning of the word"his" as it appears in the first part of Section 123(3); only the word"religion" has to be substituted in place of the word "language" whichoccurs in that decision. In that case in paragraph 26 of the judgmentShah, J. delivering the judgment of the Court made the followingsignificant observations :

"The corrupt practice defined by Cl. (3) of S. 123 is committedwhen an appeal is made either to vote or refrain from voting onthe ground of the candidate's language. It is the appeal to theelectorate on a ground personal to the candidate relating to hislanguage which attracts the ban of S. 100 read with S. 123(3).Therefore, it is only when the electors are asked to vote or not tovote because of the particular language of the candidate that acorrupt practice may be deemed to be committed."

It may be pointed out that before the amendment of Section 123(3)with effect from the 20th of September, 1961 by Act 40 of 1961, thelanguage employed in the section banned a systematic appeal to vote

(1) A. I. R. 1960 S.C. 148(2) A. I. R. 1965 S.C. 141(3) A. I. R. 1965 S.C. 183.

E.B.R.] HARISH CHANDRA DEOGAMV. BAGUN SUMBRUI ' 313

or refrain from voting on the ground of religion etc., but by the amend-ment, this ground has been narrowed down by saying that the ap-peal to vote or refrain from voting for any person must be on theground of that person's religion, race, caste etc. A mere appeal, systema-tic or otherwise to vote on the ground or in the name of religion gene-rally is no longer sufficient as it was before the amendment. This pointis thus disposed off. In regard to the question whether the contents ofExt. 3(a) or of any portion thereof came within the mischief of thesecond part of Section 123(3) of the Act, the only relevant allegationwhich appears to have been made is in paragraph 2 of the Electionpetition which is to the effect that the Respondent and his agents andworkers "made appeals for religious symbol 'Sun' ". It is true that underthe second part of Section 123(3) of the Act an appeal to religioussymbol for the furtherance of the prospects of the election of a candi-date or for prejudicially affecting the election of any candidate isdeemed to be a corrupt practice. There is no dispute that the respon-dent had adopted the "rising Sun" as his symbol and there are atleasttwo passages in Ext. 3(a) where the voters had been asked to put theirseal on the "rising Sun" and thus vote for the respondent. The diffi-culty, however, is that on the evidence adduced, it cannot be said tohave been established that the "rising Sun" constituted a "religiousSymbol", or that asked the voters to put their seal on the "rising Sun"which was the symbol of the respondent amounted to an appeal to a"religious Symbol" muchless to such an appeal for the furtherance ofthe prospects of the election of the respondent.

10. Evidence, both oral and in the shape of published materials,was adduced on behalf of the petitions to establish that the Adivasisregarded "the Sun" as the Supreme God. Oral evidence is of P.Ws.7 and 8(a). It is significant that the petitioner who examined himselfas P.W. 12 and who is also an Adivasi has not spoken a word aboutthe "Sun" being the Supreme God of the Adivasis. According to hisevidence, the Adivasis believed in a formless God, and they were notidol worshippers at all. After considering the evidence, both oraland in the shape of published materials, on the allegation of the peti-tioner that the respondent appealed to Adivasis in the name of "theSun" which is alleged to be their Supreme God, the judgment pro-ceeded. On the above state of evidence it is difficult to hold that "theSun" or "the rising Sun" constituted a religious symbol at all, orthat "the Sun" formed an integral part of the religious faith or cere-monies of the Adivasis. Moreover there is no appeal to "religioussymbol" in furtherance of the prospects of the election of the respon-dent or otherwise anywhere in Ext. 3(a). P.W. 10 has clearly admittedthat there was nothing in the leaflets suggesting that votes were beingasked for in the name of "the Sun" as offerings to him. On the con-tents of paragraph four of Ext. 3 (a) or on its contents as a whole the

314 HARISH CHANDRA DEOGAM V. BAGUN SUMBRUI [VOL. XXXVIII

allegation made in paragraph 22 of the Election petition cannot be,thus said to have been established. Asking the voters to put theirseals on the respondent's symbol which happened to be the "RisingSun" does by no means amount to "appeal to a religious symbol" withinthe meaning of the second part of Section 123(3) of the Act. Lastly itwas urged that as Birsa Bhagwan was considered by the Adivasis as anincarnation of God and as voters have been asked to vote for the res-pondent for perpetuating the glory of Birsa Bhagwan it must be heldthat paragraph four contained an appeal to vote in the name of religion.I have already held above that a mere appeal to vote in the name ofreligion generally, even if established, was not sufficient to bring theprovisions of the first part of Section 123(3) into operation and it isnot suggested that the name of Birsa Bhagwan could be equated witha "religious symbol". Even if, therefore, it were assumed that the termsin which Birsa Munda has been referred to in paragraph four of Ext.3(3) indicated that appeal to vote in the name of or on the ground ofreligion had been made in that paragraph, it cannot be held that itoffended against the provisions of either the first or the second part ofSection 123(3) of the Act. The case of the petitioner in regard tocommission of corrupt practice within the meaning of Section 123(3)so far as it was based on Ext. 3 (a) or on any portion thereof must, asdiscussed above, fail.

11. The second question which arises upon the allegations made inparagraphs 22 and 24 of the election petition is whether the respondent,his agents and workers held or attended any meetings during the elec-tion campaign at all at which meetings besides explaining the contentsof the leaflets (Exts. 3/a and 13), they delivered speeches and madeappeals to voters to vote for the respondent on the ground of religion,race and community and further made appeals for religious symbol"Sun" and in the name of "Birsa Bhagwan" telling the voters that unlessthey voted for the respondent, they would incur the wrath of BirsaBhagwan and of the Sun God who would punish them by sending un-told miseries in the shape of famine, epidemic etc. The respondent asmentioned earlier, has denied the truth of the allegation that he or hisworkers or agents had made any appeals to the voters to vote on theground of religion etc., and he has also denied to have held or addressedany meeting during the election campaign or to have made any appealsor speeches on the lines as alleged. On the evidence adduced, I have nodoubt that the petitioner has miserably failed to establish this part ofhis case. In the first place, the evidence of R.Ws. 8, 9 and 11 to theeffect that no meetings were held or addressed at all during the elec-tion campaign finds support from the evidence of the petitioner himself,,who is P.W. 12. After considering the evidence on the allegation thatthe respondent, his agent and workers held meetings in which they

E.L.R.] KARISH CHANDRA DEOGAM V. BAGUN SUMBRUI 315

appealed in the name of religion, race and community and on the threatof divine displeasure if the voters failed to vote for the respondent'ssymbol "the Sun", the judgment proceeded :

#

It follows from what has been discussed above, that the allegationsin regard to the commission of corrupt practice within the meaningof Section 123(3) of the Act, either by the publication and distributionof Ext. 3(a) or by making of oral appeals cannot be accepted, and itmust be held that the petitioner has failed to substantiate this part ofhis case.

12. In paragraph 22 and 26 of the Election petition allegations havebeen made which, if proved, would have made out a case of the com-mission of corrupt practice within the meaning of Section 123 (3A) ofthe Act. There is, however, no evidence in support of those allegations.None of the witnesses for the petitioner have spoken about any speechdelivered at any place wherein any attempt to promote feelings ofenmity and hatred between different classes of the citizens of thiscountry was made. The only witnesses who have spoken about themeetings or oral appeals are P.Ws. 7, 8, 8(a), 9, 10 and 11. I have al-ready held above that their evidence was unacceptable. There is alsonothing in either Ext. 3(a) or in Ext. 13 wHich can bring any of thoseleaflets within the mischief of Section 123 (3A) of the Act. Ext. 13appears to have been issued in the nature of an election manifesto ofthe newly formed All India Jhar-Khand Party. It deplores the decisionof the leaders and founders of the old Jharkhand Party to merge thesame with the Congress party and while criticising their aforesaidaction it had attached them in rather extravagant language. The Cen-tral theme of the leaflet, however, is to impress upon the voters the mainobjective of the New Jharkhand Party, namely, the establishment of aseparate Administrative Unit for the Jharkhand Area, the establishmentof which according to the leaflet was essential for the welfare of all theresidents living in the area whether they were aboriginals or non-aboriginals. With a view to enlist the support of the voters of the areawhether Adivasis or non-Adivasis, for its candidates at the comingelection, the leaflet has characterised almost all the All India PoliticalParties as outside parties, having their roots outside the Jharkhand Areaand as such not entitled to the support of the residents of JharkhandArea in preference to the candidates of the New Jharkhand Party. ButI fail to discover anything in Ext. 13 which can be said to be in thenature of even an attempt to promote feelings of enmity and hatredbetween any of the two classes of the citizens of this country. Far from

316 HARISH CHANDRA DEOGAM V. BAGUN SUMBRUI [VOL. XXXVIII

promoting feelings of enmity and hatred between Adivasis and non-Adivasis, it treats both of them at par and indeed seeks to achieve thewelfare of both. It concludes by saying that—"equality, fraternity andfriendship will remain intact in Jharkhand Area". Practically in thesame vein are the contents of Ext. 3 (a) with this difference that inthat leaflet emphasis is on the many sided services rendered by the res-pondent to the residents of the area in the capacity of a social andpolitical worker. It will appear that one of the services alleged to havebeen rendered by the respondent and mentioned in paragraph 14 ofthe leaflet is that he has been raising his voice and fighting fearlesslyfor preference being given to all the residents of the Area whetheraboriginals or non-aboriginals in Government or private offices andany other institutions according to the principle of Mahatma Gandhiand in keeping with the Constitution of India. It cannot, therefore,be legitimately urged that there was anything at anywhere in the con-tents of either of Ext. 3(a) or Ext. 13 which can bring them withinthe mischief of Section 123 (3A) of the Act. Indeed, the learned Coun-sel for the petitioner hardly addressed anything on this point and oneis left with impression that the serious allegations as have been madeparticularly in paragraph 26 of the Election petition were made ratherlight heartedly, otherwise there was no reason why having made suchallegations the petitioner would not have adduced any evidence insupport thereof. I am inclined to think that such conduct on the partof an Election petitioner might legitimately be held to be an abuse ofthe process of the Court. Be that as it may, it must be held that nocorrupt practice within the meaning of Section 123(3A) of the Actcan be said to have been committed, as alleged.

13. The contention that the respondent, his agents and his workerswere guilty of corrupt practice within the meaning of Section 123(4)of the Act is based on the allegations contained in paragraph 25 of theElection petition. That paragraph states "that the Respondent and hisagents and his workers also stated and printed and published fact whichis false in relation to the personal character of the petitioner—that thepetitioner sold the Cock symbol by receiving money and he got thepaddy of the poor cultivators looted. It was said and published thatthe petitioner has done dishonestly and in "Gaddar" and "Dhokhabaj"etc. etc. which prejudiced the election of the petitioner. With referenceto these allegations the respondent's case is contained in paragraph 14of the written statement, wherein it has been stated that the statementin paragraph No. 25 of the Election petition was true to this extent thatthe policy of the ruling party i,e. the Congress, was criticised and thePaddy Levy was described as a black act and this was the consensusof the electorate. It was also stated that it was also to say that anypersonal attack on the character of the election petitioner was made bythe respondent or by any one on his behalf. After examining the peti-

E.L.R.] HARISH CHANDRA DEOGAM V. BAGUN SUMBRUI 317

tioner's allegations that the respondent and his agents and workers,printed and published facts which were false and were in relation tothe personal character of the petitioner in that he sold the "Cock Sym-bol" of Jharkhand Party, by receiving money and he got the paddy ofthe poor cultivators looted, contained in (Exts. 3(a) and 13), the judg-ment proceeded :

18. In order to appreciate the true import and meaning of theoffending words or expressions as used in Ext. 3(a), it will be useful tobriefly refer to the background and the context in which the documentcame to be issued. On the evidence of P.W. 12, the election petitionerand R.W. 11, the respondent, the following facts emerge :

(1) That the Jharkhand Party of which the petitioner was a mem-ber was a party of the residents of Chotanagpur area and had beenfounded by Shri Jaipal Singh in that area itself.

(2) That the general election in 1962 several persons including thepetitioner, Shri Jaipal Singh, Shri Sushil Kumar Bage and Shri BariarHembrom had got elected to the different Legislatures on JharkhandParty's ticket with 'Cock' which was the symbol of the Jharkhard Partyas their symbol.

(3) That in the year 1963 without consulting the electorate or thepublic of the locality, the leaders of the Jharkhand Party including theabove named persons brought about a merger of the Jharkhand Partywith the Congress Party; the erstwhile symbol of the Jharkhand Party,namely, the "Cock" thus lapsed.

(4) That according to the respondent, as a result of the aforesaidmerger, but according to the petitioner independently of the mergerthe above named persons including the petitioner were given importantassignments under the Congress Government. Shri Jaipal Singh andhis wife Mrs. Jaipal Singh became Minister and Deputy Minister res-pectively at the State and at the Centre respectively. Shri Sushil KumarBage and Shri Bariar Hembrom became Cabinet Minister and Ministerof State respectively at the State level, the petitioner himself was givento hold the office of the Chief whip of the Congress party some time in1964.

(5) That a new Jharkhand Party came to be organised under newleadership. Its attempt to get the "Cock" symbol again assigned to itfailed and "Rising Sun" became the symbol of the New Jharkhand Partywith the approval of the Election Commission.

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(6) The petitioner (P.W.12) and the respondent (R.W.ll) areagreed that the paddy Levy which was promulgated during the Con-gress Ministry after the merger of the Jharkhand Party with Congresswas not well received in the Jharkhand area. They are, however, notagreed on the question whether the said Levy Order was an oppressivemeasure, according to P.W.12, he could not say if the electorate regardedthe paddy Levy Order as an oppressive measure, but according to R.W.11, the respondent, the Paddy Levy Order proved to ban oppressive mea-sure in the area on account of the fact that the people were extremlypoor. He has further stated that, nonetheless, the petitioner used toexport people to make the Paddy Levy order a success because he wasat that time a member of the Congress Party and a Chief whip of theparty in the State Legislature and for that he used to go along with theB.D.O. and Kramchari for enforcing the Paddy Levy Order.

15. Reading in the contest of the above facts constituting the back-ground in which Ext. 3(a) came to be issued, it appears to me that thealleged offending words and expressions as occurring in paragraphs 1and 2 of that document and underlined by me above were more in thenature of an expression of the opinion than statement of facts. Themerger of the old Jharkhand Party effected without reference to the elec-torate had coincided with its leaders getting into various offices in theGovernment or in the Congress Party. The attempt on the part of theleaders of the newly formed Jharkhand Party to get the "Cock) Symbol"restored to them had failed, and to crown all the Paddy Levy Orderwhich had been promulgated soon after the merger had not been wellreceived in the area. In such circumstances, the opinion which mighthave gained ground atleast amongst the organisers of the New Jhar-khand Party was that the erstwhile leaders of Jharkhand Party hadproved traitors and had betrayed the party. It may be that the opinionitself was not justified, but that is hardly material. The fact that thePaddy Levy Order which came to be promulgated soon after the mergerand was enforced in the area, but was not well received, might havelegitimately led the people into the belief that their own erstwhileleaders including the petitioner who had betrayed their cause by dis-solving the Jharkhand Party were in some sense responsible for the pro-mulgation of such an unpopular measure. The expression "whohave sold the beloved 'Cock symbol' of the All India Jharkhand Partyfor posts in the Congress Ministry and for money "or the impression"addicted to treachery, deception, fraud, dishonesty and who have gotpaddy looted and realised from us, the poor cultivators through B.D.Os.and Block employees by force and harassment "give figurative expres-sion to the opinion held in a rather extravagant language. The otherexpression "tyranny arid fraud of Deogam of Dumbisai" and "greedy,crack headed, shameless, tout candidates "also in my opinion, partakeof the same character. Assuming, however, that the words and expres-

E.L.R.] HARISH CHANDRA DEOGAM V. BAGUN SUMBRUI 319

sion of opinion, on the evidence on the record, I am constrained to holdthat it has not been shown that they were false statements. It is truethat we have the ipse dixit of P.W. 12, the petitioner saying that thestatements contained in the pamphlet (Ext. 3/a) about his personalconduct were wholly false. But not much reliance can be placed onthis self-serving statement. It was open to the petitioner to examinesome of the B.D.Os. or Kramcharis of the area to prove the falsity ofthe statements that he had got paddy realised from cultivators thoughB.D.Os and Block employees by force and harrassment: Indeed apartfrom making a general statement in his exmination-in-chief that thestatements contained in Ext. 3(a) were false, the petitioner himselfhas no where specifically denied the truth of the allegation againsthim in regard to his activity "in the collection of the paddy.No independent witness has been examined in support of thedenial. In regard to the rest of the facts stated in the leafletin question, P.W. 12 as will appear from the summary of thebackground given above, has admitted the correctness of merelyall of them. On the other hand, we have the definite statement ofR.W. 11, the respondent made in the course of his examination-in-chiefthat so far as the petitioner was concerned he used to exhort peopleto make the Paddy Levy Order a success because he was at that timea member of the Congress Party and a Chief whip of the party in theState Legislature and for that he used to go along with the B.D.O. andKarmchari for enforcing the Paddy Levy Order. Nothing has been eli-cited in the lengthy cross-examination of this witness which, in my opi-nion, goes to discredit him. The only question put to him was whetherhe had filed a criminal case against the petitioner for looting paddyor for causing paddy to be looted. He had no where stated that anycriminal case had been filed against the petitioner for exhorting thepeople to make the Paddy Levy Order a success and for accompanyingthe B.D.O. or other members of his staff to help in collecting the paddy.The question, therefore, put to R.W. 11, as mentioned above, was whollybesides the point. It may be mentioned that no contradiction wasissued by either the petitioner or the Congress Party to any of the state-ments contained in Ext. 3(a). It is inconceivable that if the facts werereally untrue or if the opinion expressed was not justified, the petitionerwho happens to be an Advocate and had worked as the Chief whip ofthe Congress party in the Legislative Assembly would not have eitherissued himself or would not have induced the Congress Party to issuea contradiction atleast with a view to disabuse the mind of the elec-torate as to the truth of the statements made in Ext. 3(a). The onuswas on the petitioner to prove that the statement of facts, if any, werefalse, and that onus he has failed to discharge. The petitioner's failureto issue any contradiction also goes to prove that the statements what-ever they were, were not considered to be of any importance and, there-

320 HARISH CHANDRA DEOGAM V. BAGUN SUMBRTJI [VOL. XXXVIII

fore, it can not be said that they were reasonably calculated to affectthe prospects of his election. If the statements were such as were likelyto produce an adverse effect on the mind of an average voter who readthem in a reasonable manner, the petitioner would have been the firstperson to take steps to counter-act any such effect by promptly issuinga contradiction and giving it due publicity. He may have been underno duty to issue any such contradiction but surely it was unnatural onhis part not to have done so if he considered that the statements asmade in Ext. 3(a) were of any consequence so far as the prospects ofhis election was concerned. In this connection his statement as P.W. 12to the effect that he had anticipated his defeat "even before enteringthe arena of election" is indeed revealing. Thus the requirements thatthe statements as made should be such as were calculated to affect theprospects of his election has also not been made out. In any case it isdifficult to hold that the statements in question related to the personalcharacter or conduct of the petitioner. In my opinion, reading thewords and expressions in question in their context and in the light ofthe background as discussed above, there can be no doubt that the state-ments related clearly to the public and political character or conductof the petitioner as distingushed from his personal character or conduct.It is well settled that criticism of public or political activities, however,ill-mannered unfair or exaggerated is not forbidden. As to what ispublic and what is private or personal no hard and fast rule can be laiddown. Each case must be decided on its facts and circumstances. Thewords should be interpreted according to their real and true meaningwhich has to be gathered from the context in which they have beenused and not necessarily according to their literal sense. Reading inthat manner, I fail to see in the words and expressions in question anyreflection on the personal character as such of the petitioner, all the cri-ticisms relate to and spring from his political activities. It has beenheld in several cases that in order that the election should be free, itis necessary that the electorate should be educated on political issuesin a fearless manner and so the Legislature thought that free and amplescope should be left for free and fearless criticism by candidates againstthe public and political character of their opponents. It was held inthe case of Kultar Singh versus Mu\htiar Singh (2) that a documentof the type of Ext. 3 (a) "must be read as a whole and its purport andeffect determined in a fair, objective and reasonable manner. In readingsuch documents, it would be unrealistic to ignore the fact that whenelection meetings, are held and appeals are made by candidates of oppos-ing political parties the atmosphere is usually surcharged with partisanfeelings and emotions and the use of hyperboles or exaggerated languageor the adoption of metaphors, and the extravagance of expression inattacking one another, are all a part of the game ; and so, when thequestion about the effect of speeches delivered or pamphlets distributed

(2) A.7. R. 1965 S. C. 141.

E.L.R.] HARISH CHANDRA DEOGAM V. BAGUN SUMBRUI 321

at election meetings is argued in the cold atmosphere of a judicial cham-ber, some allowance must be made and the impunged speeches or pam-phlets must be constructed in that light". On the facts of the instantcase, and on relating Ext. 3(a) as a whole, I am definitely of the opinion,that the alleged offending words and expressions do not at all relate tothe personal character or conduct of the petitioner. The man under-neath the politicians has not been attacked at all. The cases on whichreliance was placed on behalf of the petitioner are all distinguishableon facts and are thus of no assistance to him. In Maganlal Bagdi versusHari Vishnu Kamath (4), in a pamphlet under the heading "chetawani"widely distributed among the voters in various villages through theappellant's agents and also read in a public meeting of voters held ata particular place, it was stated that the respondent had called PanditJawahar Lai Nehru, a Nakabil Prime Minister. On the finding thatPandit Nehru was doubtless the most beloved leader of the people,it was held that if any candidate were reported to have called him aworthless Prime Minister, it would in the estimation of vast majorityof the people who adore him, affect his own worth in relation to hispersonal character of conduct within the meaning of Section 123(4) ofthe Act. I have shown above that in the instant case, on petitioner'sown estimate as evidenced by his failure to issue a contradiction toExt. 3(a), the statements as made in Ext. 3(a) were of no importanceat all, and, therefore, its issuance cannot be held to have prejudiciallyaffected the prospects of the petitioner's election. In Inder Lai versusLai Singh and other (5) on the facts of that case it was held by theSupreme Court that the allegations made in the pamphlet in questionthat the respondent was a purchaser of the Opponents of the Congressby means of money clearly amounted to an allegation of buying votesby offering bribes and as bribery was itself a corrupt practice, it mustbe held that the allegation clearly and unequivocally affected his privatecharacter. I have shown above that in the instant case, there is no suchspecific allegation and the statement as to the selling the "Cock Symbol"of the All India Jharkhand Party for posts in the Congress Ministryand for money when read in its proper context merely amounts to afigurative way of expressing certain facts which had came to transpirecoincidentally with the merger of the Jharkhand Party with the Con-gress. In Sheopal Singh versus Ram Pratap (6), the appellant hadpublished a poster. The words used in that poster were considered inthe context of the facts found and it was held that they reasonablylead to only one inference, namely, that what had been alleged wasthat Ram Chandra Chowdhary who was a Minister had misappro-priated the cement of the Rajasthan Canal of which he was incharg*.

(4) 15 E. L. R. 205.(5) A. I. R. 1962 S. C. 1156.(6) A. 1. R. 1965 S. C. 677.

22—3Elec.

322 HARISH CHANDRA DEOGAM V. BAGUN SUMBRUI [VOL. XXXVIII

and had built a big theatre in the name of his sons. On those facts itwas held that to make a statement that the Minister had misappro-priated the cement in his charge and had built a theatre out of theproceeds was certainly a reflection on his personal character or conduct,I fail to see how this decision can be of any assistance to the petitionerin this case. Assuming that in Ext. 3(a) the words like "addicted totreachery, deception, fraud, dishonesty" amount to false statement offacts, they clearly refer to, in my opinion, the petitioner's conduct in thepolitical field. In Kumw-a Island versus Bnjmohan Lai Sharma (7),the last case on which reliance was placed on behalf of the petitioner,again, the facts were different. Certain lines in a poem beginning withthe words "Pakka Pandit Sharma Hoon" and containing in its sixthstanza word reading "Sab Choron Ka Sartaj" were held, on a readingof the poem as a whole, referable to the respondent and containing aclear statement of fact saying that the respondent was a thief of thegreatest of all thieves and not a mere expression of opinion. The poemwas put as if it was coming from the mouth of the respondent. It washeld that if a candidate is called the greatest of •:.!! thieves, the personssaying so must be taken to be making a statement of fact. I have shownabove that upon the facts and circumstances of this case considered inthe light of the background in which Ext. 3(a) had been issued andpublished, the offending words and expressions in the present caseamounted to a mere expression of opinion and not to statement of facts.But even if it was otherwise, it will appear from the foregoing discus-sion that the petitioner has not been able to establish that the statementof facts so made were untrue or that they related to petitioner's privatecharacter or conduct. It follows that none of the decisions referred toon behalf of the petitioner are helpful to him. On the other hand, re-ference may be made to some of the decisions referred to on behalf ofthe respondent which may be said to be relevant. In Jadunandan Mah-ton versus Mosaheb Singh and others (8), the term "Government-Dalai" came for consideration and it was held that the said term didnot cast any reflection on the personal character of the petitioner. TheTribunal found that it was only a description of his public conduct andcharacter. The petitioner in that case was a Government contractor inthe Public Works Department and it was found that he could reasonablybe described as a Government man. In the present case, admittedly,the petitioner had got elected on Jharkhand Party's ticket to the BiharAssembly, but later without reference to the electorate, he along withothers was a party to the liquidation of the Jharkhand Party itself andhad been transformed into a member of the Congress party and hadcome to enjoy the status of the Chief whip of that party in the Assembly.In the circumstances, to describe him "the candidate-tout of the Con-

(7) A. I. R. 1967 S. C. 808.

(8) Indian Election cases by Surt Poddar, (196!) 641.

E.L.R.] HARISH CHANDRA DEOGAM V. BAGUN SUMBRUI 323

gress" on the eve of another general election at which he was a can-didate of the Congress Party was clearly discriptive of his public con-duct and character. In Thaktir Udaya Vir v. Arjun, (9), referred toin the above-mentioned decision, expressions like "Khudgarz" and"Deshdrohi" were held as referring to the conduct of the petitioner inthat case as a public man. In Mehta Gobardhan Das versus GirdharLai C. A\har Dalu Mian (10), a statement that a certain person whohad left one political party and had joined another and was described asa "betrayer" was held to be not a statement of fact at all. It may benoted that P.W. 8(a) himself admitted that if a member of one partyjoins another party, he will be called a "Dhokhebaj" in common par-lance. In my opinion, the words like, "treachery, deception, fraud, dis-honesty etc." as used in Ext. 3(a) refer to the alleged betrayal of thepetitioner of the Jharkhand Party and thus to his political conduct. Itfollows from the aforesaid discussion that the corrupt practice undersection 123(4) of the Act as alleged cannot be said to have been madeout.

20, The last category of corrupt practice alleged comes under sec-tion 123(7) (f) of the Act. The case of the petitioner is that for thefurtherance of the prospects of his election, the respondent by includingthe names of two persons, who were "Mankis" and of one person whowas a "Munda" amongst the signatories to Ext. 3(a) and by gettingthe said leaflet distributed by them at some of the meetings held byhim must be held to have obtained or procured their assistance andas they were all persons in the service of the Government and wereRevenue Officers discharging public functions, a case of corrupt practicewithin the meaning of section 123(7) (f) of the Act had been com-mitted. The two "Mankis" in question were Chanshyam Boipal, aManki of Barkella and Pradhan Party, a Manki of Karlajur. The Mundain question was Mathura Bari of Barkundia. The respondent whileconceding that the above mentioned persons were in fact "Mankis" or"Mundas" whose duty was collection of revenue on commission basis intheir respective jurisdiction has disputed that their assistance in anymanner as alleged or otherwise had been obtained or procured by therespondent for the furtherance of the prospects of his election and hasalso disputed that they were "in the service of the Government" andwere "discharging any police functions".

21. Obviously, on the aforesaid cases of the parties, three things willhave to be established before the provisions of Section 123(7) (f) of theAct can be said to be attracted :

(1) That the respondent had obtained or procured the services ofthe aforesaid persons for the furtherance of the prospects ofhis election.

(9) Hammond, P. 236.(10) 7. E. L. R. 374.

324 HARISH CHANDRA DEOGAM V. BAGUN SUMBRUI [VOL. XXXVIII

(2) That 'Mankis' or 'Mundas' were persons in the service of theGovernment ; and

(3) That they came within the class specified in clause (f) of theSection.

22. On the first question, the petitioner has examined P.W. 7, 8(a)and himself and has also relied on the fact that the names of the afore-said three persons appear as included amongst the signatories to Ext.3(a). I have already discussed the evidence of P.Ws. 7 and 8(a) on thequestion of holding of election meetings by the respondent, and I havefound that their evidence in that regard was not at all reliable. It isat those alleged meetings that these witnesses have stated that MathuraBari and Pradhan Purty had distributed leaflets. It is difficult to acceptthis part of their evidence as well specially in view of the fact that thepetitioner himself has admitted that the respondent did not hold anyelection meetings at all. So far as the petitioner is concerned, he hasnot spoken a word about distribution by any of the aforesaid persons.Further P.W. 7 and P.W. 8(a) have contradicted themselves on manypoints including the date on which and the duration for which themeeting was at Chaibasa Hat. Even in the matter of distribution theirevidence is not free from discrepancies. There is thus no satisfactoryevidence in support of alleged distribution. On the other hand there isno reason to disbelieve the evidence as given by the aforesaid personsthemselves (R.Ws. 5, 9 and 10) denying distribution by them or doingany work for the Respondent in the election, P.W. 12, the petitionerhas, however, stated that the Respondent had made the aforesaid per-sons sign as "Mibedaks" to Ext. 3(a). As deposed to by P.W. 2 andP.W. 6, Exts. 3(a) and Ext. 13 were both written out by the Respon-dent himself in their presence. It is nobody's case that any of theaforesaid persons were present with the Respondent at the Press whenthe manuscripts of the two leaflets were written out by him. A lookat Ext. 2 (the manuscript of Ext. 3(a)) shows that the entire docu-ments including the names of the signatories thereto have been writtenin one hand and in one pen. In the circumstances, the evidence ofP.W. 12 that Respondent had got the above-named three persons signtheir names on Ext. 2 cannot be accepted. All that can be said is thattheir names are found amongst the signatories to Ext. 3(a). In myopinion that by itself cannot on the facts of this case establish that therespondent had obtained or procured their assistance for the further-ance of the prospects of his election. It appears to me that the obtain-ing or procuring of the assistance of a person in the service of the Gov-ernment should be with the object or intention of furthering the pros-pects of a candidate's election and the assistance must be taken becausethe individual happens to be a Government servant which fact in theopinion of the candidate concerned was likely to influence the prospectof the election. In the instant case, it appears from the evidence of the

E.L R.] HAR1SH CHANDRA DEOGAM V. BAGUN SUMBRUI 325

respondent (R.W. 11) that all these persons were members of theJharkhand Party and that he knew them as such. Now Ext. 3(a)purports to be an appeal to the people of Chaibasa Constituency issuedon behalf of the newly formed Jharkhand Party. The respondent whoadmittedly drafted the appeal was at the time the General Secretaryof the Zilla Jharkhand Party, Singhbhum and it was in that capacitythat he appears to have included the names of the members of the Jhar-khand Party including those of the aforesaid three persons. In the cir-cumstances, it is difficult to hold that their names were so includedbecause they were "Mankis" or "Mundas", or that in the opinion ofthe respondent their status as such was likely to influence the prospectsof the election. There is also no evidence suggesting that their nameswere included as signatories to Ext. 3(a) with their consent and know-ledge. To none of them when they were examined as witness for theRespondent any suggestion importing their consent was made. ToR.Ws. 5 and 9 not even their attention was drawn to Ext. 3(a), andthe only question that was put to R.W. 10 was whether he knew thesignatories to the said document. It appears most likely that the Res-pondent included their name in their capacity as members of the Jhar-khand Party on whose behalf the appeal was being made, and, never,intended to do so in their capacity as 'Mankis' or 'Mundas' with a viewto procure the assistance of any person in the service of the Govern-ment for the furtherance of the prospects of his election. The requisiteintention was absent. Nor, does the fact that the Respondent hadhanded over a certain sum of money to Ghanshyam Boipal for enter-taining the volunteers establishes the requisite intention. The evidenceof the Respondent (R.W. 11) is clear on the point that he had no volun-teers of his own. It was the Jharkhand Party which had engaged volun-teers for the purpose of distribution and doing other work in theelection, the mere fact that the Respondent had handed over on oneoccasion a sum of Rs. 60/- to Ghamshyam Boipal does not in my opinion,show that it was done with the intention of obtaining the assistance ofa person in the service of the Government. Apparently the intentionof re-imbursing the party to the extent of Rs. 60/- by handing overthe amount to a member of the party cannot be ruled out. It followsfrom what has been discussed above that it has not been established thatthe Respondent had procured or obtained the assistance of any of thethree aforesaid persons who were "Mankis" or "Mundas" for the fur-therance of the prospects of his election.

23. The next question, viz., whether the "Mankis" and "Mundas"of the Kolhan area can be said to be persons "in the service of the Gov-ernment", it must be admitted is not free from difficulty. The decisionof the Supreme Court in the case of Raja Bahadur K. C. Deo Bhanjversus Raghunath Mirsa and others (11), however, appears to me to be

(11) A. I. R. 1959 S. C. 589 at P. 549.

326 KARISH CHANDRA DEOGAM v. BAGUN SUMBRUI [VOL. XXXVIII

decisive on the question, and it must be held that they were not persons'in the service of the Government' though at the highest they may besaid to be 'serving under the Government'. The following observationsof their Lordships in the said case may be usefully set out :

"In our opinion, there is a distinction between 'serving underthe Government' and 'in the service of the Government', because,while one may serve under a Government, one may not necessarilybe in the service of the Government ; under the latter expressionone not only serves under the Government but is in the service ofthe Government and it imports the relationship of master and ser-vant. There are according to Batt (on the Law of Master andServant), two essentials to this relationship : (1) The servant mustbe under the duty of rendering personal services to the master orto others in his behalf and (2) the master must have the right tocontrol the servant's work either personally or by another servantor agent and according to him.

'It is this right of control or interference, being entitled to tellthe servant when to work (within the hours of service) or whennot to work, and what work to do and how to do it (within theterms of such service), which is the dominant characteristic in thisrelation & marks off the servant from an independent contractor,or from one employed merely to give to his employer the fruits orresults of his labour. In the latter case the contractor or performeris not under his employee's control in doing the work or effectingthe service ; he has to shape and manage his work so as to givethe result he has contracted to effect. Consequently, a jobbinggardener is no more the servant of the person employing him thanthe doctor employed by a local authority to act as visiting physicianto its fever hospital: "

Applying the conotation of the expression "in the service of the Gov-ernment" as laid down in the passage extracted above, I am of theopinion that the evidence on the record falls short establishing that bet-ween the 'Mankis' or 'Mundas' on one hand and the Governmenton the other there was any relationship of master and servant. Theymay be exercising certain administrative functions in the nature ofGovernmental duties under the control of the Kolhan Superintendentor that of the Deputy Commissioner, but there is nothing to suggestthat the Government had any right of control over the manner inwhich and the time when they were to perform those duties.

24. On the method of the appointment of "Mankis" and "Mundas"the petitioner has produced papers relating to the appointments of theaforesaid three persons (Exts. 6, 6/a and 6/b), On the rights and dutiesof "Mankis" and "Mundas" the petitioner has produced the relevant

E.L.R.J HAR1SH CHANDRA DEOGAM V. BAGUN SUMBRUI 327

Hakuknamas (Exts. 1 series) and the Survey Settlement Report of1913-1918 (Ext. 30). In this connection, he lias also relied on a cycio-styled copy of a letter of the Government of Bihar dated 21/23rd ofMay, 1959 (Ext. 5). The oral evidence relevant on this question is thatof P.Ws. 3, 9 and 12. On the aforesaid materials the position thatemerges is as follows :—

In the Kolhan area of Chotanagpur, mainly populated by the "Hos"their old communal system with the "Mankis" as the head of the Pirand the "Mundas" as the head of the village community has been con-tinuing. They are primarily officials chosen from the people and toa great extent by the people. Their offices are hereditary and the formalappointment by the Kolhan Superintendent is by way of recognitionof their rights to their office by succession. They are responsible for thecollection of the revenue in the areas, their remuneration being a cer-tain percentage of the revenue collected are also described as policeofficers, the "Manki" for the Pir and the "Munda" for the village, andin that capacity they are bound to carry out lawful orders issued by theGovernmental authorities. On the evidence adduced in this case, theextent of the police functions which "Mankis" or "Mundas" exercise is,however, very limited, P.W. 9, himself a "Manki" has stated that theonly police work which they do is to report about crimes to the policestation, P.W. 12, the petitioner has also stated that the only functionwhich "Mankis" perform is to inform authorities about the incidentstaking place in their area, and in case of disturbances, they get thosedisturbances settled by compromise. The appointment of a "Manki"in some cases at least is on the basis of election by the "Mundas" of thevillage comprised in his pir. The Government has no control overeither the time during which or the manner in which they have to per-form their duties specified in their respective pattas called Hakuknamas.On the above position, it cannot be said, on the principle laid down inthe decision of the Supreme Court, referred to above, that the "Mankis"or "Mundas" were "in the service of the Government". The essentialcriteria for determining the relationship of master and servant is absentin their case, and as such, it must be held that the petitioner has failedto establish that the persons whose names appears as signatories to Ext.3(a) were in the service of the Government.

25. On the question whether any of the aforesaid three personscame within the class specified in Clause (f) of Section 123(7) of theAct, I am of the opinion, that on the evidence adduced in this case asto the work which "Mankis" and "Mundas" generally do in regard tocrimes committed in their areas, it is difficult to hold that they weredischarging any police functions. As held in Shanti Lai versus BipinLai (12), mere making of reports in regard to crimes committed

(12) A. 1. R. 1964 Machya Pradesh 92.

328 HARIS HANDRA PEOGAM V. BAGUN SUMBRUI [VOL. XXXVIII

cannot in any sense be regarded as exercising police functions. In theinstant case, as already mentioned above, on the evidence of P. Ws. 9and 12 all that can be said to have been established is that the "Mankis"and "Mundas" report about incidents or crimes to the police stationand in case of disturbances, they get them settled by compromise. Iam in respectful agreement with the view expressed in the aforesaiddecision of the Madhya Pradesh High Court that the essential policefunction consists in the effective prevention and detection of crime inorder to maintain law and order. There is no evidence in this casethat the "Mankis" or "Mundas" either generally or in the case of anyof the three persons concerned were doing anything, effective orotherwise, towards the prevention and detection of crime. In thisview of the matter, it must be held that the petitioner has failed toestablish that the three persons concerned fell within the class specifiedin clause (f) of Section 123 (7) of the Act.

26. From the foregoing discussion, it follows that the petitionermust be held to have failed to establish all the corrupt practices alleged.Indeed as will appear from what I have found above that, the alle-gations in this behalf by and large are issues of fabrications. IssueNo. 3 is accordingly disposed of against the petitioner.

27. Issue No. 2.—Another ground urged in support of this peti-tioner is that the Respondent by virtue of having taken a number ofcontracts in the course of his business as such from the Governmentof Bihar and from the District Board for execution of several workswhich had been undertaken by the Government and those contractsbeing subsisting at the relevant time, was disqualified within themeaning of Section A read with Article 191(1) (e) of the Constitutionfor being chosen as and for being a member of the LegislativeAssembly and therefore, his election was void under Section 100(1) (a)of the Act.

28. Apart from there being no evidence in support of the case ofcontracts from the District Board, Singhbhum, subsisting or otherwise,the Respondent, it must be held has successfully established his denialby producing a certificate signed by the District Engineer, DistrictBoard, Singhbhum saying that a scrutiny of the records of the DistrictBoard revealed that at no time any contract for executing any workor for doing anything had been given by the District Board to theRespondent. Nothing can be said against the authenticity and genuine-ness of that certificate which has been marked as Ext. B. In regardto contracts with the Bihar Government evidence has been given ofthree instances only including the one covered by the agreement dated16-3-1960 (Ext. 8); the other two being of the year 1955-56. According

to the evidence of the petitioner (P.W. 12), the Respondent had taken

E.L.R.] HARISH CHANDRA DtOGAM V. BAGUN SUMBRUI 3'29

two contracts in that year from the Agriculture Department, Gov-ernment of Bihar, both for construction of Bandhas, one invillage Buta and the other in village Chhota Runja. In support ofthis statement reliance has been placed on a document (Ext. 22)alleged to be in the hand of the Respondent himself and bearing hissignature (Ext. 22/a). This document dated 15-5-1967 purports to bea sort of a petition from the Respondent to Shri Subh Nath Deogamdescribed therein as a Jharkhand member of the Bihar Assembly, withcopies to as many as five persons including Shri Subh Nath Deogamhimself, complaining inter alia about delay in payment of his billsin respect of the construction work of the Bandhas in the aforesaidtwo villages and requesting for an immediate enquiry. It is however,difficult to place any reliance on this document. In the first place itsgenuineness has not been established at all. Despite the fact the Res-pondent categorically asserted in his evidence as R.W. 11 that thedocument was a forgery and that he was prepared to give his specimenwritings and signature in Court so that the forgery may be establishedon a comparison of the writings in and the signature on Ext. 22 withhis specimen writings or signature, no attempt was made by thepetitioner to get them so compared and their identity established. Inview of Respondent's repudiation in clearest terms to the effect thatExt. 22 was not in his hand at all and the purported signature of hison Ext. 22 was a forgery, it was incumbent on the petition to get thedisputed writings and signature compared with Respondent's provedor admitted writings and signatures. After all apart from the Res-pondent's offer to give his specimen writings and signature in Court,his admitted writings were available in Exts. 2 and 12—the manus-cripts of the alleged offending leaflets, Exts. 3(a) and 13. In the cir-cumstances, there appears to be truth in the Respondent's challengesand it can be safely held that the petitioner did not get them comparedand their identity established because in that case it would have beenestablished that neither the contents of Ext. 22 nor the signature thereon(Ext. 22/a) were in the hand of the Respondent. Nor did the peti-tioner take any steps to call for and produce the copies of Ext. 22from the several persons to whom it purports to have been sent. TheAgriculture Department itself in connection with the alleged contractswith the Respondent were called for and produced. It is true thatShri Subh Nath Deogam was an M.L.A. from that locality and evenif he had no connection with the Agriculture Department as such, amember of his Constituency as the Respondent was, might very likelyapproach him to get his grievances redressed and thus there may benothing unnatural or unusual in the fact that a petition of the typeor Ext. 22 was addressed to Shri Subh Nath Deogam, but in absenceof any proof of its genuineness and also in the absence of any support-ing materials in the shape of its copies from the offices of the variouspersons including the Deputy Commissioner, Singhbhum to whom

330 HARISH CHANDRA DEOGAM V. BAGUN SUMBRUI [VOL. XXXVIH

Ext. 22 purports to have been sent or in the shape of original recordsin relation to the contracts theraselvds, or the testimony of Subh NathDeogam himself, no reliance can be placed on it and the petitioner canderive no advantage from the same. The circumstances in which thepetitioner claims to have to come to know about the existence ofExt. 22 are also far from convincing. He has stated as P.W. 12 thatin course of a casual talk with his uncle who lived in the same houseas himself, only three days before the date on which he was deposinghis uncle informed him that he had in his possession a document show-ing that the Respondent: had taken contracts from the AgricultureDepartment in the year 1955-56, and thereafter his uncle looked forthe said document and having found Ext. 22 handed it over to thepetitioner for making use of it by producing it in Court. The peti-tioner is a practising lawyer and his uncle as admitted by him was atthe time President to the District Congress Commitee, Singhbhumand was himself a candidate for election on Congress ticket like thepetitioner though from a different constituency. The petitioner hasalso admitted that he and his aforesaid uncle used to have frequenttalks about the facts and details of this Election petition. On theevidence, therefore, it must be assumed that the petitioner's uncle was-interested in the success of the petitioner. In the circumstances, it isdifficult to believe that if at all there was in fact any such paper asExt. 22 purporting to be in connection with the Respondent havingdone contract work with the Government in the possession of the Peti-tioner's uncle he would have brought the same to the notice of thepetitioner at the time when the Election petition was drawn up orsoon thereafter and its discovery would not have been left to a casualconversation alleged to have taken place only three days before thedeposition of P.W. 12. The petitioner has further admitted that onlya week after the election results were announced he had contacted hislawyer at Patna who had advised him "to check up if there was anysubsisting contract in case of the successful candidate", and, that itwas on account of that advice that he had taken steps "to ascertainthe position". It is rather curious that the alleged checking was notdone in the family itself or if done Ext. 22 was not easily availableat that stage. For all these reasons, I am not inclined to place anyreliance on Ext. 22. No other evidence, whether oral or documentary,has been adduced in support of the petitioner's case that the Respondenthad taken any contract with the Government at any time expect theone covered by Ext. 8—the agreement dated 16-3-1960. Indeed exceptExt. 22 which has been discussed above no evidence has been producedwhich might tend to show that taking contracts was a sort of a businessof the Respondent. On the other hand, apart from P.W. 2 who hasadmitted that he knew the respondent because be was a social worker,,various witnesses coming from the locality and examined on behalfof the Respondent like R.Ws. 2, 3, 5 and 6 have all stated that the

E.L.R.] HARISH CHANDRA DEOGAM V. BAGUN SUMBRUI 331

Respondent was a social arid public worker and some oi them havespoken about his specific social services rendered to the residents ofthe area. Nothing has been elicited in their cross-examination todiscredit their testimony. These witnesses are drawn from all walksof life, for instance, R.W. 2 is a petition—writer in the Courts atChaibasa, R.W. 5 is a business man at Chaibasa, R.W. 5 is an Adivasiand comes from a village in the neighbourhood of the Respondent'svillage and R.W. 6 is a clerk working in the office of the AssociatedCement Company at Jhinkaani, and none of them can be said to beinterested witnesses. The respondent has himself deposed as R.W.11 and has denied that taking contract was his business. Indeedhe has denied to have ever taken any contract. He has given a listof his various social work done in the locality. According to him, heearned his livelihood through cultivating his lands. Particularly nocross-examination has been directed against this part of his deposition.On the evidence of P.W. 2 as also on the evidence of the aforesaidwitnesses for the Respondent including that of the Respondent himselfit must be held that taking contracts was not the business or avocationof the Respondent and that he maintained himself by cultivation oflands and further that he was a social and public worker of somestanding and repute in the locality. In the circumstances, I am ofthe opinion that even if it were assumed in favour of the petitionerthat the Respondent had taken some contract work from the Agri-culture Department of the Government of Bihar as stated by the peti-tioner at the trial and as sought to be established by producing Ext. 22,it cannot be said to have been established that the Respondent wasdoing contract business. One or two isolated acts do not constitutebusiness. In trade as well as in business, there is continuity of ope-rations the essence of business is that there should be a course of deal-ings, a more or less habitual doing of an act and though notice ofprofit may not be an essential accompaniment, the act is generally suchwhich is capable adduced, there can be no doubt that the Respondentwas not a contractor by profession and that taking of contract workwas not his business or avocation and one or two isolated acts of thetype alleged even if true were not sufficient to clothe him with thatcharacter. The disqualification which results from Section 9A is con-ditioned by a number of circumstances, for instance, there must be asubsisting contract, i.e. to say in actual existence between the appro-priate Government and the candidate concerned, and, then the con-tract must be in the course of the Trade or business of the candidateand finally, it must be inter alia for the execution of any works under-taken by the said Government. In the present case, the subsistingcontract alleged is the one covered by the agreement dated 16-3-1960(Ext. 8) and evidence by the ordersheet (Ext. 7) maintained in theCentral Block Office, District Singhbhum in relation to constructionof a well for drinking purposes in the village of the Respondent as

332 HARISH CHANDRA DEOGAM V. BAGUN SUMBRUI [VOL. XXXVI11

a welfare measure. It will follow from what has been held above thateven if the said agreement can be held to have brought into existencea contract with the appropriate Government by the Respondent andwhich was subsisting at the relevant time, it cannot be said to havebeen a contract entered into in the course of the trade and businessof the Respondent, his avocation being that of a cultivator and not thatof a contractory, and, thus one of the essential conditions for attractingthe mischief of Section 9A was not satisfied. Nor can be said thatthe contract under Ext. 8 was such which by itself constituted thestart of a business and as such it was not necessary for the petitionerto establish a course of business based upon other transctions. Thedecision in the case of C.V.K.Rao versus Dantu Bhaskar Rao (13), isof no assistance to the petitioner. In that case the respondent—thereturned candidate had obtained a mining lease from the State ofAndhra Pradesh which was admittedly subsisting at the relevant time.It was with reference to a contract of mining lease that on the factsof that case their Lordship held that so long as the contract by itselfcan be said to constitute the start of a business, and there could be nodoubt that a contract of mining lease was of that type, it was notnecessary "that a course of business based upon other transactions mustfirst exist before the offending contract can be said to be in the courseof business", because "the contract may itself be the start of the busi-ness" and "the words in the course of business" as used in Section9A would "still be apt". It is obvious that a contract for sinkingand constructing a well for drinking purposes, even if there was onein the instant case, can not be equated with a contract of mininglease. In the latter case the very contract involving winning, raisingand supply of minerals constituted the start of a business buf in nosense can any business be said to have been started by obtaining acontract for constructing a well, the venture even if any is completeon the execution of the work and no continuity is at all implied. Inabsence, therefore, of proof of a course of business based on othertransactions the existence and subsistance of the contract for construc-tion of the well even if proved will not be enough to establish thatthe Respondent had entered into that contract in the course of tradeand business. This finding is sufficient to dispose off this issue againstthe petitioner and in favour of the Respondent, but as on behalf of theRespondent certain points in relation to the work of constructing awell by him under the Agreement (Ext. 8) were strenuously agreedthey may also be referred to and disposed off.

29. It was firstly urged on behalf of the Respondent that theagreement (Ext. 8) not having been drawn up in accordance withArticle 299(1) of the Constitution and not being otherwise in confor-mity thereof was void ab in'itio and as such no-est. In support of

(13) K. I. RTT965 S. C. 93.

E.L.R.] HARISH CHANDRA DEOGAM V. BAGUN SUMBRUI 333

his contention reliance was placed on the decision of the SupremeCourt in the case of L. P. Sahi versus Bate si war Prasad (14). I amsatisfied that there is no force in this contention and that the observa-tions in the above noted decision have no application to the facts ofthe present case. In my opinion, a contract otherwise covered bySection 9A of the Act and made with the Government will create adisqualification in spite of the fact that it is not executed in the mannerprescribed by Article 299(1) of the Constitution, and, the test in suchcase, as has been laid down by the Supreme Court in the case ofC. Vithal Das Versus Moreshwar P. Ram (15), is not whether theGovernment could be sued on such a contract or not or whether thecontract was enforceable against the Government, Indeed all that hasbeen held in the case relied upon on behalf of the Respondent is thatthe decision in Chatturbhuj's case (1954 S.C.R. 817) could not be ex-tended to cover a case where the Government had in fact refused ordeclined to ratify the contract in question. In that case an oral con-tract for the execution of certain works had been entered into betweenthe Executive Engineer and the Patna Flooring Company, but theGovernment had refused to ratify that contract, indeed, the evidencein that case clearly suggested that the Government had acted in amanner which was inconsistent with the existence of the contract itself.In the instant case, on Exts. 23 and 25 in Ext. 7 showing receipt ofadvance by the Respondent of Rs. 300/- on 21-3-1960 and of Rs. 400/-on 18-4-1966 respectively in connection with the work of constructingthe well clearly shows that the authority concerned was acting on thebasis of an existing contract and there was no question of any refusalto ratify the same. Thus so far as the present case is concerned, thereasoning of the decision of the Supreme Court in Chattarbhuj's case,referred to above, was applicable and there is nothing in the decisionof L. P. Sahi's case, relied upon on behalf of the Respondent to under-mine that position. This contention, therefore, fails.

30. It was not contended for the Respondent that on the evidenceread as a whole and keeping in mind the nature and type of workwhich formed the subject matter of Ext. 8 it should be held that theRespondent had undertaken to execute the work of sinking and cons-tructing a well for drinking purposes not out of any motives of pecu-niary gain or material advantage but purely in a spirit of social serviceas a social and public worker of the locality, and, as such no contractwithin the meaning of Section 9A had come into existence or wassubsisting. Alternatively it was argued that even if a contract of thenature contemplated by Section 9A had come into existence on 16-3-1960when Ext. 8—the Agreement was signed by the Respondent and evenif on the ordersheet (Ext. 7) or on Ext. 23—the endorsement by the

(14) A. I. R. 1966 s. c. 580.(15) 9E, L. R. 301.

334 HARISH CHANDRA DEOGAM V. BAGUN SUMBRUI [\OL. XXXVIU

Respondent acknowledging receipt of advance of Rs. 300/- on 21-3-1960,it could be said that such a contract was incourse of performance, itshould be held that the said contract stood discharged sometime inJuly-August, 1961, and thus, in any case, thereafter the contract inquestion could not be said to be subsisting. It was pointed out thatafter the contract had come to an end in the manner aforesaid theRespondent had no doubt again undertaken to get the work goingbut that was in his capacity of the Mukhiya of his village and not inhis personal capacity, and, as such he could not be said to have anyinterest in the contract even if one had come into existence afresh asto disqualify him under Section 9A of the Act.

31. In support of the first contention referred to above mentionwas made to two factors: (1) that the Respondent was a social anda public worker and (2) that not the entire estimated cost of Rs. 1050/-but only a definite percentage of it was to be borne by the Governmentand the balance had to be raised from amongst the beneficiaries of thewell by subscription. In regard to the first factor I am of the viewthat though it has been established beyond doubt that the Respondentwas well known social and public worker of the locality as has alreadybeen found above and though it might be that it was his sense ofsocial service which had to a certain degree prompted him to go infor getting the well constructed, the evidence does not justify a con-clusion that he had no pecuniary or material interest at all in the cont-ract for the execution of the work concerned. There is nothing toprevent a social worker from engaging in a remunerative venture.Indeed in a welfare State such as ours is, opportunities are not wantingwhen a certain work can be both social as well as remunerative. Theterms and conditions, the rates at which the finished work had to bepaid for and the penalty for not completing the work in time ascontained in the agreement of 16-3-1960 admitted to have been enteredinto by the Respondent clearly suggest that so far as the parties tothat agreement were concerned they contemplated an usual workscontract and though motive of profit may not have been the predomi-nant motive, yet it can not be said that a hope of making some profitout of the venture was altogether absent. The ability to raise a partof the estimated cost by public subscription was just one of the necessaryand additional requisites to bring about a sussessful completion of thework so that whatever profits the venture was to yield or was expectedto yield might fructify. The Respondent must have been confident byreason of his position as a public worker to be able :o raise the re-quisite amount by public subscription. There is thus nothing in eitherthe terms of the contract or in the position of the Respondent whichcan be said to militate against the contract under Ext. 8 being a workcontract of the usual type in which the person taking the contract hadno pecuniary or material interest. Nor does anything turn upon the

E.L.R.] HAR1SH CHANDRA DEOGAM V. BAGUN SUMBRUI 335

term tliat: only a certain percentage of the total estimated cost of thework contemplated was to be borne by the Government. The works"undertaken by that Government" as used in Section 9A do not excludecases in which the Government had agreed to bear only a certain per-centage of the total cost, whether estimated or actual. All that isnecessary is that the works covered by the contract or the executionwhereof was the subject matter of the contract should have beenundertaken by the Government, "undertaken" has been used in thesense of sponsoring through sponsoring of any work involving incur-ring of expenses carries with it an idea of financial liability in thesponsorer but it is not necessary that the said liability should be to thefullest extent. Generally welfare schemes which are sponsored orundertaken by the Government require fostering of a sense of partici-pation in the beneficiaries of the scheme and therefore they are requiredto contribute a certain proportion of the cost for the execution of theScheme in the shape of either labour or money, but that will not makethose schemes or the works involved in them any the less undertakenby the Government. In this case, however, it appears from Ext. 24—a cyclostyled copy of letter sent from the Welfare Department of theGovernment of Bihar, copies whereof had been sent to the local autho-rities by the middle of February, 1966 that the Government had waivedthe condition of raising public subscription in the shape of manuallabour or otherwise to meet the cost in sinking and constructing ofwells for drinking purposes in backward areas with effect from Febru-ary, 1966 and, it may be mentioned that the Respondent had receivedthe second instalment of advance amounting to Rs. 400/- in March,1966, that is, at a time when the condition of meeting any portion ofthe estimated cost by public subscription had been already waived.

32. In my opinion, on a proper reading of the entries in Ext. 7it is not possible to hold that the contract which had come into existencehad stood rescinded in July-August, 1961 or that at any state theRespondent had taken over the contract in the capacity of a Mukhiyaof his village. It appears that by July-August, 1961 when the Respon-dent had failed to complete the works as undertaken by him underExt. 8 dated 16-3-1960 or give any satisfactory explanation for the delayorders were passed to issue notice to the Respondent to refund theentire amount of advance given to him on 21-3-1960 (Ext. 23) butthat did not amount to a rescinding of the contract but to a mereenforcement of one of the terms thereof, viz. condition No. 3 of Ext. 8.Failure to perform the contract by the party on whom the obligationto perform had been imposed under the terms of a contract does notipso facto discharge the contract. The general principle is that abreach may be treated as a discharge of the contract only if its effectis to render it purposeless for the innocent party to proceed furtherwith performance. The breaches that fall within this general princi-ple are, first where a party indicates, either expressly or implicitly, that

336 HAR1SH CHANDRA DEOGAM V. BAGUN SUMBRUI [VOL. XXXVIII

he does not intend to complete his side of the contract and secondwhere having regard to the contract as a whole the obligation thatis broken is of vital as distinct from trivial importance. The innocentparty may be free to refuse further performance of his own obligationonly if the obligation broken affects the very substance of the contractbut not otherwise. How in the instant case no intention on the partof the Government or its local agent to discharge the contract can bespelled out from any of the orders contained in Ext. 7, all that wasdone was to direct a notice to be issued in terms of condition No. 3of the contract calling upon the Respondent to refund the whole ofthe advance made to him. No effect was given, however, to that direc-tion either. In the very next order passed in June, 1962 the staffwas directed to get to work completed by the Respondent, and, itappears from order dated 9-7-1962 that the Respondent had mean-while given assurances to the authority concerned that he would getthe work completed. Thus there is no substance at all in the con-tention that the contract had stood discharged by rescission. Nor doesthe use of the word Mukhiya in the order dated 9-7-1963 justifies aconclusion that with effect from that date the Respondent took overthe contract in his capacity as a Mukhiya and his personal capacity wasat an end. The contract as arrived at in March 1960 under Ext. 8being intact and not discharged as found above there was no questionof any alteration in the capacity in which the Respondent had takenthe contract coming into effect. Moreover the true meaning of therelevant sentence in the order dated 9-7-1962 is that the word 'Mukhiya'there has been used as merely descriptive of the Respondent andcannot by any means be read as implying a new contract between theRespondent in the capacity of a Mukhiya and the Government.

33. It follows from what has been discussed above that there isno merit in any of the contentions raised on behalf of the Respondentin regard to the contract under Ext. 8. But in view of the findingthat it had been entered into by the Respondent in the course oftrade or business one of the conditions requisite for attracting theprovisions of Section 9A of the Act that condition cannot be said tohave been satisfied, and, thus it is held that the Respondent was notat all disqualified for being chosen as, and for being a member of theLegislative Assembly and as such no question of declaring his electionas void under Section 100(1) (a) of the Act arises.

34. There is absolutely no merit in the allegation contained inparagraph 14 of the Election petition that the nomination paper ofthe Respondent had been improperly accepted. Indeed the learnedCounsel for the petitioner did not address anything on this point. Itmay be, however, pointed out that it has neither been averred any-where nor was it suggested to the Respondent that his nominationpaper was in any manner defective. Nor has it been suggested any-where that it had not been received with-in the proper time as is

E.L.R.] HARISH CHANDRA DEOGAM V. BAGUN SUMBRUI 337

laid down in Section 33(4) of the Act. When a candidate appearsto be properly qualified on the face of the electoral roll and of thenomination paper and no objection was raised to the nomination, asis the case here, the Returning Officer had no other alternative, butto accept the nomination (16). This view was reiterated in the caseof S. M. Banerji versus Shri Krishna (17), wherein it was further heldthat "even if there was a proper acceptance, it was open to an electionpetitioner to question the validity of the election under Section100(1) (d)(iv) on other grounds, viz. that the candidate whose nomi-nation was accepted was not qualified at all or could not be deemedto be duly nominated as a candidate for the reason that he did notcomply with the provisions of Section 33(3) of the Act". It followsthat on the grounds specified in the above extract it was open to theElection petitioner to challenge the validity of the Respondent's elec-tion even though his nomination had not been rejected under Section36(2) of the Act either because there was no objection or otherwise.

35. It follows that, subject to what has been observed in regardto the right of the petitioner to question the validity of the Respondent'selection, Issue No. 2 must be decided against the petitioner and infavour of the Respondent.

36. Issue No. 1.—The last ground urged in support of this peti-tion is that the nomination of Shri Biswanath Boipai one of the candi-dates for election having been improperly rejected, the respondent'selection was void under Section 100(1) (c) of the Act and should bedeclared as such.

37. The order of the Returning Officer rejecting the nomination ofShri Viswanath Boipai under Section 36(2) (a) of the Act has beenexhibited in this case and is Ext. A/1 for the Respondent. It reads asunder :

"Shri Harish Chandra points out that this candidate Shri Biswa-nath Boipai had entered into a contract with respect to construction ofBaralagia L. P. School and had already taken an advance of Rs. 1000/-the same subsists. Shri Biswanath Boipai admits the above. Nomi-nation rejected".

Shri Biswanath Boipai has been examined as P.W. 11 for the peti-tioner. After considerable prevarication, the extent of which it is notnecessary to refer at this stage, he has admitted as follows:

"After hearing me, the Returning Officer, passed order reject-ing my nomination paper in my presence and read out the orderto me."

(16) A. I. R. 1954 s. c. 520.(17) A. I. R. 1960 s. c. 368 at 373.

23—3 Ele. Com./71

3 3 8 HARISH CHANDRA DEOGAM V. BAGUN SUMBRUI [VOL. XXXVIII

He has further stated that the "statement in the order of theReturning Officer, which was read out to me to the effect that Iadmitted the correctness of the objection to my nomination paper wastrue and correct. The nomination paper was rejected on my ad-mission". The petitioner as P.W. 12 has admitted that he was presentwhen the nomination papers of the several candidates were taken upfor scrutiny, that he had filed a written objection to the acceptanceof the nomination paper of Biswanath Boipai and that the order reject-ing the nomination paper of Biswanath Boipai was read out in thepresence of all the candidates. A certified copy of the said writtenobjection is Ext. A. From the above summary of the relevant evidenceit is clear that the nomination of Shri Biswanath Boipai was rejectedat the instance of the petitioner and on the admission of BiswanathBoipai himself as to the correctness of the ground of objection. Havingsecured the elimination of Biswanath Boipai, the petitioner contestedthe election, and the results announced show that while the Respon-dent was successful by an overwhelming majority, the petitioner asalso the rest of the four contestants forfeited their securities. Now inthe Election petition as also in his evidence the petitioner's case isthat as a matter of fact there was no contract at all much less anysubsisting contract entered into by Shri Biswanath Boipai in course oftrade or business or otherwise with the appropriate Government andas such he could not be said to have been disqualified either underany of the provisions of the Constitution or of the Act, and, therefore,his nomination must be held to have been improperly rejected withinthe meaning of Section 100(1) (c) of the Act.

38. The first question which, in my opinion, arises for determi-nation is whether the petitioner be permitted to take up a positionin regard to the nomination of Shri Biswanath Boipai which wasinconsistent with the position which he took successfully before theReturning Officer. Before taking up this question. I would like tomake it clear that it has not been suggested, and, indeed it couldhardly be suggested on the weighty judicial pronouncements on thequestion, that the scope of enquiry in regard to the determination ofthe question whether a nomination has been properly or improperlyrejected in a proceeding arising upon an Election petition filed underSection 81 of the Act was co-extensive with that before the ReturningOfficer or that the jurisdiction which a Court exercises in hearing anElection petition when it raises a question under Section 100(1) (c) ofthe Act was in the nature of an appeal against the decision of theReturning Officer. It is now well settled that an Election petitionwas an original proceeding and the right which is given to a partyunder Section 100(1) (c) of the Act to challenge the propriety of anorder of rejection or acceptance of a nomination paper envisaged aright in the Court hearing the Election petition to decide that ques-tion on the basis of all the relevant materials available to it and not

E.L.R.] HARISH CHANDRA DEOGAM V. BAGUN SUMBRUI 339

merely on the basis of the materials that were available to the Return-ing Officer. In other words, the parties can, if they so like, adducefresh evidence or materials which can throw light on the issue.These rules are well settled and indeed the petitioner has broughton the record a host of additional materials to establish his contentionthat Shri Biswanath Boipai was not disqualified at all. In my opinion,before he can avail of those materials he must satisfy the Court thathe is suffering under no personal disability, in the nature of anestoppel which, it has been urged attaches to him. According to theargument, it is the petitioner alone who is debarred by his ownprevious conduct from now showing that what he himself assertedat an earlier stage in regard to Shri Biswanath Boipai was not correctand the truth was otherwise. Any other person whether a candidateat the election or an elector could have been competent to show thatthe truth was otherwise than what was held by the Returning Officer.I have considered this argument carefully, and I am firmly of the viewthat there is great force in it.—

"It does not lie in the mouth of any one who has by hisown act prevented something taking place afterwards to take ex-ception to that state of affairs and to use that state of affairs forhis own benefit . It seems to me that it would be atravesty of the law if a person who has deliberately brought totake exception to that state of affairs and use that changed statefor his own advantage."

The above extract from the judgement of the Madras HighCourt in the case of Surbramanra Alyar versus United India LifeInsurance Co. Ltd. (18), in my opinion, is applicable to the petition.He by his own act brought about the rejection of the nomination ofShri Biswanath Boipai or prevented the nomination from being ac-cepted. He cannot now be allowed to take exception to the state ofaffairs brought about by him and use that state of affairs for his ownadvantage. There can be no doubt that if he is allowed to agitatethe question of improper rejection of the nomination of BiswanathBoipai and succeed in showing that the nomination had been impro-perly rejected the election o£ the returned candidate will have to beset aside as void under Section 100(1) (c) of the Act with the resultsthat his defeat at the polls will be wiped out for the time being andhe will have gained for himself another chance to contest for thesame seat afresh. This is no mean advantage. The principle is wellsettled that no man is allowed to benefit by his wrong. I am assumingthat the petitioner get the nomination wrongly rejected. It may alsobe pointed out that "estoppels in the sense in which the term is usedin English legal phraseology are matter of infinite variety and are by

(18) A.l.R. 1928 Mad. 1215.

340 HARISH CHANDRA DEOGAM V. BAGUN SUMBRUI [VOL. XXXVI1S

no means confined to the subjects which are dealt with in ChapterVIII of the Evidence Act" (per Garth, G.J. in Vanges ManufacturingCo. vs. Surajmall, (19). In Alamgir vs. Wamrunissa (20), it seems tohave been held that apart from Sections 115-117, upon equitableprinciples a man might be debarred from relying upon any particularstate of things. Rules of estoppel in the Evidence Act, are, therefore,not exhaustive. The petitioner has, however, sought to make out acase that at the time when he filed the written objection to the accept-ance of the nomination of Biswanath Boipai he was labouring undera mistake about the true state of affairs. In the first place, I findmyself unable to accept this part of the petitioner's testimony. Hewas a member of the Assembly at the time and in that capacity was-member of the Block Development Committee which according tohis own evidence had sanctioned the giving of the contract to Biswa-nath Boipai and also the giving of the advance of Rs. 1000/- in respectof that contract. He is an advocate and it is difficult to believe thathe had rushed in with the objection without being sure of his stand-in the second place, I suppose, it is well settled so far as estoppelarising under the Evidence Act is concerned that the person whose actsand declaration induced another to act in a particular way must havebeen under no mistake himself. The same rule, in my opinion,should apply to estoppels outside the Evidence Act. I am, therefore,satisfied that the petitioner in the instant case is under a sort ofpersonal disability in the nature of estoppel from urging that thenomination paper of Shri Biswanath Boipai was improperly rejected..

39. Indeed on the evidence on the record it is clear that the actor conduct of the petitioner in objecting to the nomination of ShriBiswanath Boipai before the Returning Officer was in fact the resultof a collusion between him and the very person whose nominationwas got rejected for the purpose of getting the Respondentunseated somehow. I have already mentioned above that the nomina-tion of Shri Biswanath Boipai was rejected on his own admission.Besides the fact that Shri Biswanath Boipai has been examined by thepetitioner as a witness on his behalf as P.W. 11, there are othermaterials on the record to show that the petitioner and P.W. 11 havebeen on very friendly terms throughout. P.W. 11 has admitted thathe had worked as the Polling Agent of the petitioner at 1962 election.He has further admitted that he had handed over copies of the allegedoffending leaflets to the petitioner just about the time when theelection results were announced and that had developed friendlyrelations with the petitioner, "for I also wished that somehow thesuccessful candidate be defeated". P.W. 12, the petitioner in his evi-dence has feigned lapse of memory and has stated that he did not

(19) 5 Cal. 669.(20) 4 C. L. J. 442 at 460.

E.L.R.] HARISH CHANDRA DEOGAM V. BAGUN SUMBRUI 341

remember if P.W. 11 had worked as his polling agent or electionagent at 1962 election. There are clear indications in the evidence ofP.W. 12 that he was fighting shy of admitting the position that heor his family was on friendly terms with P.W. 11. Reading theevidence of P.W. 11 and P.W. 12 together one is left with the im-pression that P.W. 11 was on friendly terms with P.W. 12 and hisfamily. [After examining the evidence on the allegation of the petitionerthat the nomination of Shri Biswanath Bajpai was improperly rejected•on the ground that he had a contract with Govt. on the relevant date,the judgment proceeded]:

*# *# #* *# ##

In the circumstances, there is no reason to discredit the evidenceof these two witnesses to the effect that Shri Biswanath Boipai was-doing contract work as a business. As already pointed out, there isno evidence adduced on behalf of the petitioner at all one way or theother. I am, therefore, constrained to hold that on the evidence onthe record, the unrebutted position is that Shri Biswanath Boipai was•doing contract work as a business and thus the contract which he tookunder Ext. 11 must be held to have been so taken in course of hisbusiness as a contractor. That being the position, it must follow thatShri Biswanath Boipai was, in fact, a disqualified person for beingchosen for or for being a member of the Bihar Legislative Assemblywithin the meaning of Section 9A of the Act, and, as such, his nomi-nation paper cannot be said to have been improperly rejected. Thusthe ground under Section 100(1) (c) of the Act cannot be said tohave been made out, and apart from the question of estoppel, on meritsas well, this issue must be decided against the petitioner.

42. Issue No. 4.—In view of the findings, in Issue Nos. 1, 2 and 3,as recorded above, this issue as well as must be decided against thepetitioner. The several grounds on which the election of the Respon-dent had been challenged having failed, the election of the Respondentcannot be declared to be void.

43. In the result, this petition must be dismissed with costs; hear-ing fees to be assessed at Rs. 1,000/-.

Petition dismissed.

342 GULZAR AHMAD V. ABDUL RASHID [VOL. XXXVIII

I N THE H I G H COURT OF JAMMU AND KASHMIR

GULZAR AHMAD

V.

ABDUL RASHID

(ANANT SINGH, J)

June 13, 1968

Jammu and Kashmir Representation of the People Act, 1957, Ss. 44(5),47(7)—Non-compliance with s. 44(5)—/'/ renders nomination paper liable torejection—if provision mandatory—Questions of citizenship and identity ofcandidate—if material when name appears as a voter in the Constituency.

The petitioner who was recorded as a voter in the Darhal Assembly Cons-tituency, filed his nomination papers for election from the Rajouri AssemblyConstituency (where he was earlier also registered as a voter). The respondentwas the only other candidate who filed his nomination papers. On scrutiny o£the nomination papers the Returning Officer held that on a comparison of thenames in the two Electoral Rolls of the Darhal and Rajouri Constituencies thepetitioner was not entered anywhere as an elector and that there were gravedoubts with respect to his identity; he accordingly rejected the petitioner'snomination papers. The respondent was therefore declared elected unopposed.The petitioner challenged his election by the present petition on the groundthat his own nomination papers were wrongly rejected. The respondent con-tended that the petitioner had failed to file the Electoral Roll of the DarhalConstituency or a certified copy of the relevant entries therein with his nomina-tion papers. As there was non-compliance with s. 45(5), the petitioner's nomina-tion papers were rightly rejected in any event.

HELD : Dismissing the petition ;

(i) The requirements of s. 45(5) are mandatory and if not complied with;the nomination paper of the candidate must be rejected.

Section 44(5) of the Act makes no exception that in a case like the presentone, when the Returning Officer is in possession of the relevant Electoral Rolfother than the one filed by a candidate from another constituency, (in thepresent case of copies filed by the objectors) the filing of the necessary ElectoralRoll by the candidate can be dispensed with or ignored. The provision is obli-gatory, prescribing, as it does, the mode, how and what document a candidatefrom another constituency should file with his nomination paper and when heshould do so. If he fails to comply with this requirement which is obligatory,his nomination paper is not a nomination paper in the eye of law.

B. Ruram v. Smt. Prasanni & ors., A.I.R. 1959, S.C. 93; Ranjit Singh v.Pritam Singh and others, A.I.R. 1966, S.C. 1626; Rattan Imol Singh and anotherv. Chaudhury Atma Ram and others, A.I.R. 1954, S.C. 510; Mohammad AyubKhan v. Beli Ram & others, A.I.R. 1962, J. & K. 24; fagan Nath v. JaswantSingh, A.I.R. 1954, S.C. 210 at 212 and 213; Ratta Anmal Singh in 1954, S.C.510 at 513; referred to.

(ii) It is true that the Returning Officer rejected the petitioner's nominationpapers on other grounds than for the petitioner's failure to have produced the

E.L.R.] GULZAR AHMAD V. ABDUL RASHID 343

requisite Electoral Roll, but rejection would be proper whatever may havebeen the reason given by the Returning Officer.

(iii) The issue for the purpose of this case has to be decided only on thebasis of the Electoral Roll, so long as it is not cancelled or set aside by theproper authority. The question of citizenship (of the petitioner which was alsochallenged) is beside the point, when the petitioner's name appears as a voterin the Darhal Constituency.

The identity of the petitioner could not be decided with reference to somemistake or some discrepancies in the name and the age of the petitioner or theentries relating to his father or wife. The Returning Officer had, therefore, toconfine himself only to the entry in the Electoral Roll to decide whether thepetitioner was duly recorded as a voter.

Election Petition No. 40 of 1967.

T. R. Bhasin for the petitioner.

}. L. Malhotra and B. L. Suri for the respondent.

JUDGMENT

ANANT SINGH J.—This Election Petition has been filed by thePetitioner, Gulzar Ahmad, against the orders of the Returning Officer,Exibits PW 2/1 and, PW 2/la. PW 2/lb and PW 2/lc all dated 244-67,.passed by the Returning Officer, P. W. No. 2, rejecting the nominationPW 3/1 papers, exhibits PW 3/la, PW 3/lb and PW 3/lc which werefiled by him on 204-67 from Rajouri Assembly Constituency.

The petitioner was recorded as a voter, his S. No. being 541 inpart six/R. J. R.—11 of the Electoral Roll for Darhal Assembly Consti-tuency, and he filed four nomination papers from Rajouri AssemblyConstituency on 204-67 before the Returning Officer, P. W. No. 2,.who was the Returning Officer also for Darhal Assembly Constitu-ency.

The petitioner was also recorded as a voter bearing S. No. 154in Rajouri Proper of the Rajouri Constituency but on his applicationmade before the Electoral Registrar, his name as a voter of RajouriConstituency had been cancelled earlier.

The petitioner, was also a sitting member of the State LegislativeCouncil. The respondent Abdul Rashid was the only other candidatewho filed his nomination papers from Rajouri constituency as a candi-date of the congress party. The scrutiny of the nomination papersof the petitioner, and the respondent were taken up by the ReturningOfficer on 23-1-67, when certain objections were raised by one Mr.Abdul Majid as to the validity of the nomination papers of the peti-tioner on the ground that he had ceased to be a citizen of India sincehe had gone over to Pakistan in the year 1947, and came back with-out any proper permit. A similar objection was raised also by one

344 GULZAR AHMAD V. ABDUL RASHID [VOL. XXXVII1

Moh'd Shaft that the petitioner had crossed over to Pakistan heldarea, and he returned back without any valid permit in 1965. Thescrutiny was: adjourned on 24-1-67 to afford an opportunity to thepetitioner to rebutt the objections. Thus the scrutiny was finallytaken up on 23-1-67, when the two objectors produced certain docu-ments to show that the petitioner was not a citizen of India., but hewas an evacuee. They also produced the Electoral Rolls of Darhaland Rajouri Assembly Constituencies. In the Electoral Roll for RajouriConstituency, the petitioner's name appeared against S. No. 154, andin Electoral Roll of Darhal Constituency, against S. No. 541. TheReturning Officer by his impugned orders made on the nominationpapers exhibits, PW 3/lc which was to govern the other nominationpaper as well, held that he was not competent to decide the questionof citizen-ship of the petitioner, but on a comparison of the names inthe two Electoral Rolls of the Darhal Rajouri Constituencies, he heldthat the actual candidate before him was not entered any where as anelector, and there were grave doubts with respect to the identity ofthe petitioner. He accordingly found that he was not eligible tocontest for a seat in the Legislative Assembly of the State, and, there-fore, he rejected his nomination papers. The result was that therespondent was declared elected as uncontested.

The petitioner, thereafter filed his Election petition on 10-1-67before the Election Commission New Delhi. The Election Tribunalconsisting of Shri Hakim Ghulam Hussan, District and Sessions Judge,Poonch was constituted for the trial of the petition. The parties appear-ed before the Tribunal. The respondent filed his written statement. Onthe pleadings, the Tribunal drew up some seven issues. The Tribunal, inthe meantime, was abolished by an Act of the State Legislature andthe record was sent to this High Court, and the petition in due coursecame to my court on 20-12-67, and parties were re-summoned. Theyhave examined certain witness, and put on record certain documentsas well.

The issues which were framed by the Tribunal have remained thesame with some modification in No. 2 though, at the time of argu-ment, all of them were pressed before me. The following are theissues :—

(1) Whether the petitioner is neither a permanent resident of theState of Jammu and Kashmir, nor a voter in any AssemblyConstituency in the State.

(2) Did the petitioner file his nomination papers from RajouriAssembly Constituency duly completed along with the requi-site electoral Roll or produce it at the time of scrutiny.

E.L.R.] GULZAR AHMAD V. ABDUL RASHID 345

(3) Did the Returning Officer adjourn the scrutiny preceedingson 23-1-67 without jurisdiction and if the answer of that bein the affirmative, what is its effect on the petition.

(4) Was the nomination paper of the petitioner rejected impro-perly.

(4) If so, what is the effect.

(5) Was the nomination paper of the petitioner liable to be reje-cted for any reason whatsoever.

(6) Has the petition been presented properly.

(7) Was, in view of allegations made in the petition, the Return-ing Officer, a necessary party to the petition.

FINDINGS.

Issue No. 1 :

At the time of the recording of the evidence., this issue was verymuch convassed on behalf of the respondent. It was being suggestedthat the petitioner has ceased to be a permanent Citizen of India. Itwas said that the State Subject certificate which the petitioner hasfiled was procured surreptitiously, and that the matter was underinvestigation before the Government. The Deputy Commissioner, whohad been holding the enquiry into the matter is said to have madean adverse report against the petitioner to the appropriate minister,and with whom the record of the enquiry was pending at the time ofthe trial of this Election Petition. It was admitted on behalf of therespondent that the petitioner was a sitting member of the StateLegislative Council, but it was being said that he managed to get him-self elected by filing a wrong Electoral Roll of 1957 in which, the lastNo. of voter was 3137 and there was no voter, No. 3137 on the basisof which, the petitioner had managed to get himself elected as a mem-ber of the Legislative Council. The issue was however, not pressedon behalf of the respondent at the time of the argument, in view ofthe fact that his name appeared as a voter in the Electoral Roll of DarhalConstituency, exhibit PW 2/6 against S. No. 541. The conceding ofthis fact was quite proper, for the issue for the purpose of this case,has to be decided only on the basis of the Electoral Roll, so long as itis not cancelled or set aside by the proper authority. The question ofcitizen-ship is beside the point, when the petitioner's name appears asa voter in the Darhal Constituency. I may mention here at this stagethat also the identity of the petitioner was not challenged before meat the time of the argument, for it was conceded, that it is this peti-tioner who is recorded as a voter against the aforesaid S. No. 541 ofDarhal Constituency.

346 GULZAR AHMAD V. ABDUL RASHID [VOL. XXXVIII:

The issue is decided in favour of the petitioner.

Issue No. 3 :

This issue was not pressed at the trial.

Issue Nos. 6 and 7 :

These issues were also not pressed at the trial.

Issue Nos. 2, 4 and 5 :

These three issues were pressed but in a different form. Therejection of the nomination papers of the petitioner was sought to bemaintained on the ground that as required under Section 44(5) ofthe Representation of the People Act, to be referred, to, hereafter asthe Act, the petitioner, being an elector of a different constituency, hadnot filed along with his nomination papers or at the time of thescrutiny any copy of the Electoral Roll of that Constituency or of therelevant part thereof or a certified copy of the relevant entries in suchrolls and this was fatal.

The two Electoral Rolls P.W. 2/6 and PW 2/6a of Darhal andRajouri Constituencies respectively have been brought on the recordof this case.

In exhibit PW 2/6, as against S. No. 541, "Gulzar Ahmad son ofChaudry Dewan Ali, aged 35 years" is entered. In the same ElectoralRoll against S. No. 542 "Nagina Begum wife of Gulzar Ahmad aged27 years is* entered"; and as against S. No. 540 "Chaudry Dewan sonof Balla aged 76 years is entered."

In exhibit PW 2/6a, against S. No. 154, "Chaudry Gulzar Ahmadson of Dewan Ali aged 40 years as against S. No. 153" Dewan Ali sonof Chaudry Wali aged 75 years"; and as against S. No. 155 "ZarianBegum wife of Gulzar Ahmad aged 35 years" are entered.

It was because of the aforesaid discrepancy in the name and theage of the petitioner himself, his wife, his father and also that of hisgrand father that the Returning Officer doubted the identity of thepetitioner. He also took exception why the petitioner allowed thenames of his father and wife to remain in Rajouri Constituency andfor this reason also apart from the discrepancy above stated theReturning Officer doubted the identity of the petitioner. His approachwas entirely wrong. The identity of the petitioner could not be decid-ed with reference to some mistake or some discrepancies in the nameand the age of the petitioner's wife or his father. He had to confinehimself to the entry in the Electoral Roll concerning the petitioner

E.L.R.] GULZAR AHMAD V. ABDUL RASH1D 347

alone. The learned counsel for the respondent has rightly not triedto justify the order of the Returning Officer doubting the identity ofthe petitioner. It is provided in sub-section 7 of Section 47 whichdeals with the grounds on which the nomination papers can be rejectedthat for the purpose of this section "a certified copy of an entry inthe Electoral Roll for the time being in force of a constituency shallbe conclusive evidence of the fact that Che person referred to in thatentry is an elector for that constituency, ". The ReturningOfficer, had, therefore, to confine himself only to the entry in theElectoral Roll to decide whether the petitioner was duly recorded as avoter in Darhal Constituency.

The question for consideration, as now it falls, is whether thepetitioner as required under Sub-Section 5 of Section 44 of the Acthad filed a copy of the Electoral Roll of Darhal Constituency or evenof the relevant part or a certified copy thereof to show that, he wasrecorded as a voter in that Constituency.

The parties were at variance at one stage, because on behalf ofthe petitioner, it was claimed that it was he who had filed before theReturning Officer the two Electoral Roll exhibit PW 2/6 of the DarhalConstituency as also exhibit PW 2/6a of Rajouri Constituency, where-as on behalf of the respondent, it was asserted that they were filed beforethe Returning Officer at the time of the scrutiny on his behalf byhis counsel Mohd Din Banday, R. W. No. 2 who had represented himat the time. R. W. 2 has testified to th'is fact, and there is no reasonto disbelieve him.

There is no satisfactory evidence on petitioner's behalf to showthat the aforesaid Electoral Rolls including the one exihit PW 2/6 ofDarhal Constituency were filed by him or on his behalf before the Re-turning Officer. It is only the petitioner PW No. 3 who has spoken aboutit that the Returning Officer had compared the entries in his nominationpapers with the entries in the Electoral Rolls which he had producedbefore him at the time of the presentation of his nomination papers.The Returning Officer PW 2 has, however, said that the ElectoralRolls were produced before him by the objectors, and not by the peti-tioners. He has said that he had put his own exhibit marks as Ex 04on exhibit PW 2/6 and Ex PO 3 on exhibit PW 2/6a showing that theyhad been filed by the objector Abdul Rashid, the respondent. Thelearned Counsel, Mr. Bhasin, appearing for the petitioner, at the timeof argument^ did not also press this point that the Electoral Rolls forDarhal Constituency and Rajouri Constituency were filed before theReturning Officer on petitioner's behalf, but he contended that thetwo Electoral Rolls, including the one for Darhal Constituency werein possession of the Returning Officer P. W. No. 2 at the time thepetitioner had filed his nomination papers, before him, as he hadhimself admitted in his evidence.

3 4 8 GULzAR AHMAD V. ABDUL RASHID [VOL. XXXVIII

The contention of Mr. Bhasin is that the Returning Officer did notreject the nomination papers of the petitioner on the ground of non-production of the Electoral Rolls or a certified copy of the relevantentries therein an any time, even at the time of the scrutiny, but ondifferent grounds. He had in his possession at the time of the filingof the nomination papers by the petitioner the Electoral Rolls ofDarhal Constituency in which the petitioner was recorded as a voterand when some how the Electoral Roll was with the Returning Officer,its production by the Petitioner was not necessary. He would contendthat the object of producing such an Electoral Roll of the different Con-stituency by a candidate is only for the object of the satisfaction of theReturning Officer to show that such a candidate is really recorded asa voter in a different Constituency, and he would not consider the non-compliance of the provision as mandatory, necessitating the rejectionof the nomination papers of candidate in the particular circumstancelike the one in the present case.

The learned counsel, Mr. V. S. Malhotra, appearing for the respon-dent, has on the other hand relied upon certain decisions of theSupreme Court. They are :—

(1) Shri Baru Ram Vs. Smt. Prasanni and others A. I. R. 1959S. C. 93.

(2) Ranjit Singh Vs. Pritam Singh and others A. I. R. 1966 S. C.page 1626.

(3) Rattan Anmol Singh and another Vs. Chaudry Atma Ramand others A. I. R. 1954 page 510.

The respondents learned counsel has also relied upon a DivisionBench case of this court in Mohd. Ayub Khan Vs. Beli Ram andothers A. I. R. 1962 J & K page 24.

The provisions of Section 47 of the Act which deals with thescrutiny of the nomination papers are similar to those of Section 36 ofthe Central Representation of the People Act. The prevision of Section44(5) are similar to the provisions of Section 33(5) of the said CentralAct. Section 47(2) (b) authorises the Returning Officer toreject any nomination paper for "a failure to comply with any of theprovisions of Section 44 or Section 45" Section 44(5) lays down.

"Where the candidate is an elector of a different constituency, acopy of the electoral roll of that constituency or of the relevantpart thereof or a certified copy of the relevant entries in such rollshall, unless it has been filed along with the nomination paper,be produced before the Returning Officer at the time of scrutiny."

E.L.R.] GULZAR AHMAD V. ABDUL RASJHID 349

In the case of Shri Baruram, above referred to, one of the questionsinvolved was a failure on the part of the candidate to have produceda copy of the Electoral Roll of a different Constituency in which hewas recorded as a voter or the relevant part thereof or a certified copyof the relevant entry of such roll. After review of the relevant provi-sions, bearing on the matter, it was held :—

"When the stage of scrutiny is reached the Returning Officer hasto be satisfied that a candidate is an elector of a different Consti-tuency and for that purpose the statute has provided the mode ofproof . . . i n other words the scheme of the Act appears to bethat where a candidate is an elector of a different Constituency,he has to prove that fact in the manner prescribed and the produc-tion of the prescribed copy has to be taken as conclusive evidenceof the said fact."

There was an argument in that case that the requirement of Sec-tion 33(5) is not mandatory, but is directory. But this argument wasnot accepted "because the statute itself has made it clear that failureto comply with the said requirement, leads to the rejection of the nomi-nation papers, whenever the statute requires a particular act to bedone in a particular manner and also lays down that failure to complywith the said requirement leads to a specific consequence, it would bedifficult to accept the argument that the failure to comply the said re-quirement should lead to any other consequence".

In the aforesaid case an argument had also been advanced that thefailure to produce the requisite copy was a defect not of a substantialcharacter, but that argument was also not accepted, with the followingobservations :—

"There is no doubt that the essential object of the scrutiny of nomi-nation papers is that the Returning Officer should be satisfiedthat the candidate who is not an elector in the Constituency inquestion is in fact an elector of a different Constituency. Thesatisfaction of the Returning Officer is thus the matter of substancein these proceedings; and if the statute provides the mode inwhich the Returning Officer has to be satisfied by the candidateit is that mode which the candidate must adopt. In the presentcase Jia Bhagwan failed to produce any of the copies prescribed andthe Returning Officer was naturally not satisfied that Jia Bhag-wan was an elector of a different Constituency. If that in substancewas the result of the Jia Bhagwan's failure to produce the rele-vant copy of consequence prescribed by Section 36(2) (b) mustinevitably follow. It is only if the Returning Officer had beensatisfied that Jia Bhagwan was an elector of a different constituencythat his nomination papers could have been accepted as valid. Itis well settled that the statutory requirements of election law have

. to be strictly observed."

350 GULZAR AHMAD V. ABDUL RASHID [VOL. XXXVIII

An observation by Mahajan C.J. in Jagan Bath. Vs. Jaswant SinghA.I.R. 1954 S. C. Page 210 at pages 212 and 213 has been quoted in theabove case of the Supreme Court to the following effect :—

"An election contest is not an action at law or a suit in equity butis purely a statutory proceeding unknown to the common lawand that a court possesses no common law power."

An observation in the case of Rattan Anmol Singh in 1954 S. C.page 510 at page 513 has also been quoted as follows :—

"When the law enjoins the observance of a particular formality, itcannot be disregarded and the substance of the thing must be there."

The Division Bench case of this court referred to above followingthe case of Shri Baruram has held that a candidate's failure to producea certified copy of the Electoral Roll before the Returning Officeras required by Sub-section (5) of Section 44 is fatal, and that his nomi-nation paper is liable to be rejected by the Returning Officer.

In Ranjit Singh's case it has been held that when even one copy ofthe Electoral Roll is filed with one nomination paper, and no copiesare filed with other nomination papers, the one copy could be lookedinto at the time of the scrutiny of the nomination papers withwhich no Electoral Roll is filed, but at least one copy of the ElectoralRoll had got to be filed. It has also been held in the same case thatan incomplete copy of the relevant Electoral Roll is not sufficienteven though, the complete copy may have been filed before the ElectionTribunal . The further finding is that the filing of the incompletecopy of the relevant part of the Electoral Roll is a defect of a substan-tial character which would make the nomination papers liable to berejected and the fact that the Returning Officer rejected the nomina-tion paper on some other grounds is of no consequence. It has beenobserved :•—

"If there was in truth a defect of a substantial character in thematter of compliance with S. 33 of the Act, the nomination paperwas liable to be rejected, and if it was so rejected, rejection wouldbe proper whatever may have been the reasons given by the re-turning officer.".

Mr. Bhasin has, however, tried to distinguish the decisions in thevarious cases referred to above on the ground that in none of them,the relevant Electoral Roll was available otherwise to the ReturningOfficer so as to be able to check from it, if the candidate concerned wasa voter in an other Constituency, as in the present case. The subs-tance of the requirement being one for the satisfaction of the Return-ing Officer, he could satisfy himself about the petitioner being a

E.L.R.] GULZAR AHMAD V. ABDUL RASHID 351

voter in another constituency from the relevant Electoral Roll whichwas in possession of the Returning Officer himself, he being the Re-turning Officer of the other constituency as well. He could also satisfyhimself from the Electoral Roll filed by the other party. The argu-ment of Mr. Bhasin is, no doubt, quite attractive and plausible, buton a careful consideration of the law on the subject, it does not appearto be sound when a statute requires a thing to be done in a particularmanner, it has to be done in that manner alone, as was emphasisedin the case of Baruram, above referred to. The law on the subjectis one of procedure as to what a candidate should do, if he is an elec-tor in an other constituency, and it is obligatory on him to complywith the requirement of it. An analogy may be found in the provi-sion of order 41 Rule 1 of the Civil Procedure Code. It provides thata memorandum of appeal shall be accompanied by a copy of the decreeappealed from and (unless the appellate court dispenses therewith)of the Judgment on which it is founded. It would appear that thefiling of a copy of the decree is mandatory, and not even the appellantcourt can dispense with it, though he can do so with a copy of thejudgment. The non filing of a copy of the decree by an appellantshall entail a dismissal of the appeal. It may be that in the event ofa part decree, the plaintiff and the defendant have both filed theirrespective appeal. If the plaintiff does not file a copy of the decreealongwith his appeal, and the defendant has done so, or the appellantcourt has got before it, the original record of the suit with the origi-nal decree on i t ; the plaintiff appellant cannot plead that the objectof filing a copy of the decree can be served by looking into the copy ofdecree filed by the Respondent or the original decree present beforethe court on the record of the court. The filing of a copy of the decreeby the appellant is a must and he cannot depend on a copy of thedecree or the original decree present before the court otherwise. Thefailure to do so will lead to the necessary consequence that the appealhas to be dismissed on this ground alone, for, in the eye of law, it is noappeal at all.

In the same way, the argument is not available to the petitionerthat the object of filing of an Electoral Roll or the relevant part of itby him could be served by looking into the Electoral Roll that was inpossession of the Returning Officer or into the one that was filed bythe Respondent before him, when S. 44(5) requires that the candidatemust file with his nomination papers or at the time of scrutiny,the requisite Electoral Roll of the other Constituency in whichhe was recorded as a voter; although in the particular circumstance ofthis case, the filing of the Electoral Roll by the petitoner may havebeen only a superfluity. Section 44(5) of the Act makes no excep-tion that in a case like the present one, when the Returning Officeris in possession of the relevant Electoral Roll other than the one filed

352 GULzAR AHMAD V. ABDUL RASHID [VOL. XXXVIII

by a candidate from another Constituency, the filing of the necessaryElectoral Roll by the candidate can be dispensed with or ignored. Theprovision is obligatory, prescribing, as it does, the mode, how and whatdocument a candidate from another constituency should file with hisnomination paper and when he should do so. If he fails to complywith this requirement which is obligatory, his nomination paper isnot a nomination paper in the eye of law. This non-compliance ofthe obligatory procedure would render him illegible (sic.) to stand asa candidate from a Constituency other than the one in which he is anelector.

It has been found that the petitioner cud not file the requisiteElectoral Roll of the Darhal Constituency in which he was recordedas a voter, and, therefore, there was a non-compliance of the provisionof Section 44(5) of the Act, and for this non-compliance, all his fournomination papers were liable to be rejected by the Returning Officer,because, the non-compliance was a defect of a substantial character. Itis true that the Returning Officer rejected the petitioner's nominationpapers on other grounds than for his failure to have produced the re-quisite Electoral Roll, but as held in the case of Ranjit Singh,above referred to, rejection would be proper whatever may have beenthe reason given by the Returning Officer. Thus the nomination papersof the petitioner were rightly rejected by the Returning Officer,though, he gave different reasons for doing so.

These issues are answered against the petitioner. The Election Pe-tition fails, and it is dismissed, but without costs, in the circumstancesof the case.

Let the result, be communicated to the Election Commission, NewDelhi, and the Speaker of the Assembly of the Jammu and KashmirState forthwith, and a copy of the Judgment be forwarded to each o£them in due course.

Petition Dismissed.

E.L.R.] S. L. SARAF V. M. S. QURESHI & ORS. 3 5 3

I N THE H I G H COURT OF JAMMU AND KASHMIR, SRINAGAR

S. L. SARAF

' V.

M. S. QURESHI AND ANOTHER

(J. N. BHAT, J.)

June 13, 1968

Representation of the People Act, 1951, Ss. 22(2), 100(l)(c), 123(7), 129—Constitution of India, Article 84(«), Handbook for Returning Officers, 1966{General Election) 1967—Instructions contained therein, whether have force oflaw-making and subscribing an oath, when it should be made—Assistant Return-ing Officer, whether competent to receive nominations—Allegations of malafidesof the Returning and Asstt. Returning Officers—Burden of Proof.

The petitioner alleged that he filed his nomination paper on the due dateand that he had asked to be allowed to subscribe the prescribed oath beforethe scrutiny, which is permissible under the law, but his request was improperlyrejected by the Assistant Returning Officer. Thereafter his nomination paperwas rejected on the ground that the petitioner had not subscribed the oath asrequired under the law. It was also averred that the Asst. Returning Officerhad no jurisdiction to conduct the scrutiny, when the Returning Officer waspresent in office.

The second respondent contended that his four oath forms, which were filedwith his nomination papers were removed and his nominations were rejectedon the ground that they were not accompanied by the requisite oath forms.The Returning Officer in his rejection order gave wrong reasons for suchrejection, in that the second respondent had failed to produce the electoral rollat the time of scrutiny.

HELD : Dismissing the petition :

Under the provisions of the Act, if a candidate fails to make and subscribeto the oath before the day of scrutiny, then his nomination paper has to berejected for non-compliance with the provisions of Article 84(a) of the Constitu-tion. Further, when the nomination paper of a candidate suffers from aninherent defect, its rejection by the Returning Officer or the Assistant ReturningOfficer is not improper. Therefore, thj question of the petitioner or his proposerseeking permission to make or subscribe to the oath at the time of scrutinydid not arise. The instructions issued by the Election Commission in the Hand-book for Returning Officers, 1966 (General Elections 1967), permitting thecandidate to take the oath before the Returning Officer upto the time of scrutiny,can only be taken as a sort of administrative guide, but the instructions do nothave the force of law.

Rajinder Singh v. Manga Ram and others, Doabia's Election Cases, 1966P. 192; Peare Lai v. Amba Prasad and another, Doabia's Election Cases, Vol. I(1864-1935) P. 45; T. Gulab Singh v. Rai Bahadur Kharajit Singh Misra,Manipuri Case, N.M.R. No. XXII, Reports of Indian Election Petitions, 1927 byHammond!, Vol. Ill, P. 178; referred to.

24—3 Bkc. Com./71

354 S. L. SARAF V. M. S. QURESHI & ORS. VOL. XXXVIII

Pashupati Nath Singh v. Hari Har Prasad Singh, AJ.R. 1968, S.C. 1064relied on; Khaje Khanawar and another v. S. Nijalingappa, A.I.R. 1968, Mysore18; dissented from.

Under Section 22 of the Act, the Assistant Returning Officer is competentto perform all or any of the functions of the Returning Officer under his con-trol. Further, the Election Commission had duly notified on 29th November,1966 that the Assistant Commissioner be the Assistant Returning Officer of theConstituency and therefore he was legally competent to receive the nominationsand scrutinise the same.

The second respondent had failed to prove beyond reasonable doubt thatthe Returning Officer had acted malafide in contravention of the provisions ofSections 123(7) and 129 of the Act and therefore the election of the first res-pondent could not be set aside as void under Section 100(l)(c) of the Act.

D. Murlidhar Singh v. Manga Ram and others, Doabia's Election Cases, 1966,p. 192; Raju V. B. v. Ramchandra Rao and others, 21 E.L.R. 81; Gopala Kurupv. Samuel V- Arulappan Paul and others, Doabia's Election Cases 1961, p. 185;Nanda Kiseaore Rath v. Himanshu Se\hara Pandhi, Doabia's Election Cases1962, p. 181; referred to.

Election Petition No. 1 of 1967.

T. R. Bhasin, P. L. Handoo and R. N. Kaul for the petitioner.

A. K. Sen, O. N. Tikkoo and K. N. Raina for Respondent No. 1.

A. N. Raina for intervener.

ORDER

J. N. Bhat J.—Shri Sham Lai Saraf, the petitioner, seeks to challengethe election of the respondent No. 1, Shri Mohammed Shafi Qureshito the Parliamentary Constituency Anantnag, Kashmir in the last gene-ral elections of 1967. The petitioner and the two respondents MessrsMohammad Shafi Qureshi and Rugh Nath Vaishnavi respondent No.2 sought to contest th'is election. The petition recites that the petitioneris a resident of the State of Jammu & Kashmir, and is registered asa voter in the Parliamentary Constituency Srinagar District. Theregistered voters of the Parliamentary constituencies in the State ofJammu and Kashmir were called upon to elect their representatives tothe House of People. The nomination papers were to be'filed before theReturning Officer (hereinafter referred to as R. O. in this judgment)between the hours of 11 O' clock to 3 P.M. each day from 13th ofJanuary 1967 to 20th of January 1967. The petitioner belongsto the National Conference party and the respondent No. 1to the Indian National Congress party, both of which partieswere recognized by the Election Commission. On 20th January1967, accompanied by his proposer, the petitioner went to

E.L.R.] S. L. SARAF V. M. S. QURESHI & ORS. 355

file his nomination papers in the office of the R.O., who was the DeputyCommissioner/District Magistrate Anantnag. He found the R. O.absent from his office. The matter was telephonically reported to hisDeputy Electoral Officer by the petitioner's proposer. At about 2 P.M.the Assistant Returning Officer (hereinafter referred to as A.R.O. inthe Judgment) of this Parliamentary constituency, who was the Assis-tant Commissioner Anantnag, came to his office. The petitioner along-with his proposer approached him to accept the nomination paper ofthe petitioner and accept the necessary election deposit. Thisgentleman was not inclined to accept the nomination paper of thepetitioner for a pretty long time and on the insistence of the petitioner'sproposer told the petitioner and his proposer that he would accept thenomination paper only if the R.O. would not come to his office till 10minutes to 3 P.M. The A.R.O. accepted the nomination paper of thepetitioner at 2-55 P.M. and recorded on the back of the nominationpaper that he had accepted it because of the insistence of the petitioner.The A.R.O. signed it as Assistant Commissioner and he was persuadedby the petitioner's proposer to put three letters 'A.R.O'. meaningAssistant Returning Officer, with the word Assistant Commissioner. Theelection deposit was made by the petitioner and a receipt obtained fromthe Assistant Returning Officer. During the night of the 20th January1967 the petitioner received a telegram from the A.R.O. Designatinghimself as R.O. informing the petitioner that the scrutiny of his nomi-nation paper would be taken up on 21st instant at 11 in morning. Thistelegram was unintelligible to the petitioner but it confirmed the sus-picion that the R.O. had earlier on the same day manouvered hisabsence from his office according to a plan and there was somethingmore up his sleeve for the 21st January 1967, the date of the scrutiny.The petitioner's proposer informed the Chief Election CommissionerNew Delhi about the happening till 2-45 P.M. on 20th January 1967.The Dy. Chief Electoral Officer, Srinagar, was also informed on tele-phone. On 21st January 1967, the petitioner reached the office of theR.O. much before 11 O'clock and waited alongwith his proposerand other friends and colleagues in his office. As soon as the R.O.entered the room the petitioner's proposer sought permission of theR.O. to allow the petitioner to read and subscribe to the oath ofallegiance as required by Section 84 of the Constitution of India. TheR.O. did not agree but surprised the petitioner and his proposer bytelling them that the scrutiny of the nomination papers of the petitionerwould be conducted by the A.R.O. where the nomination papers of thepetitioner were lying at that time. The petitioner's proposer pointed outto the R.O. that the A.R.O. had no jurisdiction to conduct the scrutinywhen the R.O. was present in his office and it would be very strangethat the scrutiny of the nomination papers of the petitioner would beeffected by the A.R.O. and that of the two other candidates by the R.O.There was no warrant in law for such a procedure. Respondent No. 1,

356 S. L. SARAF V. M. S. QURESHI & ORS. [VOL. XXXVIII

the candidate of the Congress party entered the room of the R.O. andsought an adjournment of the proceedings before him for half an houras he had to present himself before the A.R.O. for the scrutiny of thenomination paper of the petitioner. The insistence of the petitioner orhis proposer before the R.O. for conducting the scrutiny of his nomina-tion paper by him proved of no avail and they therefore went to theA.R.O., whose room is adjacent to the room of the R.O. The petitioner,his proposer and other colleagues found the papers of the petitionerbefore the A. R. O. and the Respondent No. 1 asked the A. R. O. toconduct the scrutiny of the nomination papers of the petitioner. Itwas pointed out by the petitioner's proposer to the A.R.O. that he hadno jurisdiction to conduct the scrutiny and his action would be illegaland without Jurisdiction. They demanded that the question of juris-diction should be decided first. The A. R. O. after hearing the partiesover-ruled this preliminary objection of the petitioner and his proposerpertaining to jurisdiction and started conducting the scrutiny. Thepetitioner and his proposer requested the A. R. O. to permit the peti-tioner to make and subscribe to the oath as required by the Constitu-tion but he did not permit the petitioner to do so. On a perusal of thenomination paper of the petitioner by the Respondent No. 1, the Res-pondent No. 1 raised an objection to the nomination paper of the peti-tioner that as there was no oath form attached with the nominationpaper of the petitioner, the nomination paper was liable to be rejected.This found favour with the A. R. O. and the A. R. O. verbally pronounc-ed the order of rejection of the Nomination paper of the petitioner.The petitioner further states that he is a citizen of India and has beena member of the J & K Legislative Assembly for over a decade andwas elected to the Lok Sabha in the year 1962 and owed and owes un-faltering faith to the Constitution of India and regards every mandateof the Constitution as something which a citizen of India should feelproud to live and die for. By rejecting the nomination paper of thepetitioner, the result of the election has been materially affected. Theorder of the A. R. O. is without jurisdiction and is baseless in law.Respondent No. 2 was also & duly nominated candidate, his nominationpaper was also improperly rejected by the R.O. and for that reason toothe election of the Respondent No. 1 was liable to be set aside. As theA.R.O. had no authority to conduct the scrutiny of the nominationpaper of the petitioner it is prayed that the election of the RespondentNo. 1 be declared void and set aside, and appropriate costs be awarded.The petitioner deposited Rs. 2,000 as security in terms of Section 117 ofthe Representation of People Act, 1951.

This petition was sought to be amended by the petitioner by meansof his application dated 15-6-67. The amendment sought to be effectedby means of this application will be mentioned a little later after Isumarize the written statements of the two respondents.

E.L.R.] S. L. SARAF V. M- S. QURESHI & ORS. 357

Respondent No. 1 filed his first written statement on 26-5-1967.The pleas raised in the written statement of the respondent No. 1 inreply to the petition of the petitioner are as follows:—

The petitioner was not a duly proposed candidate for election tothe Parliament from the Anantnag Constituency because his nomina-tion paper was not accompanied by the requisite oath form. The Res-pondent No. 1 does not know what time the petitioner reached the officeof the R.O. on the first day nor does he know about the telegraphiccommunication between the petitioner and the Electoral Officer of theconstituency. The R.O. of the Anantnag Parliamentary constituencywas also the District Magistrate of Anantnag. As far as the RespondentNo. 1 knows the law and order situation in Tral was getting bad on20th January 1967 and the Returning Officer being in-charge of the lawand order in the entire District had to go personally to Tral and forsome time he was not in his office. He had duly authorised one of hisA.R.O's., there were more than one for this Constituency, to receive thenomination papers for election to the Parliamentary constituency. Thepetitioner did not go to the authorised R.O. and insisted upon the un-authorised A.R.O. to receive his nomination paper. The nominationpaper of the petitioner was not accompanied by the requisite oath formor a certificate to that effect as required by law. It was not a propernomination form. The petitioner had tried to magnify the smallmatters which had no bearing on the election of the Respondent No. 1.The telegram alleged to have been sent by the A.R.O. to the petitioneron 20th January 1967 must have been issued in confirmation of theearlier information communicated to the petitioner about the scrutinyto be held on 21st of January 1967. On 21st of Jan. 1967 the date fixedfor scrutiny of the nomination papers, the R.O. having had to deal withthe deteriorated law and order situation at Tral where there had beenfiring and some deaths as a result thereof, was not sure about his beingable to attend to the scrutiny personally. He had on the previous dayauthorised the A.R.O., who received the nomination paper of the peti-tioner, to start on 21st January 1967 the scrutiny of the nominationpapers filed both before the R.O. and the A.R.O. in case the R.O.could not, due to circumstances stated above, be personally present todo so. The R.O. had specifically authorised the A.R.O. to carry on withthe scrutiny till such time as the R.O. returned and the R.O. came to hisoffice when the petitioner's nomination paper had been duly scrutinizedby the A.R.O. and the order of rejection announced. The R.O. wasnot in his office till 11 A.M. on 21st January 1967. The A.R.O. startedthe scrutiny as authorised and directed by the R.O. After that the R.O.came and called for the other unscrutinized nomination papers fromthe A.R.O. and scrutinized them personally. When the R.O. was un-avoidably absent to effect the scrutiny, the A.R.O. was justified to con-duct the scrutiny. No permission to read and subscribe to the oath

358 S'. L. SARAF V. M. S. QURESHI & ORS. [VOL. XXXVHI

was ever sought by the petitioner. It is in the alternative pleaded thateven if an attempt was made to make and subscribe to the oath afterthe question of jurisdiction was decided against the petitioner, thatwould not render the nomination paper of the petitioner valid: But asa matter of fact no offer to take and subscribe to the oath was made.Even when the Respondent No. 1 took the objection on account of theabsence of the oath forms, no offer was made to take and subscribe tothe oath. The petitioner's claim that he has been a member of theLegislative Assembly for over a decade or of the Lok Sabha since 1962has no bearing as the essential pre-requisite for being eligible to standfor an election to the Lok Sabha is to make and subscribe to the oathwhich the petitioner did not do. The fact that the nomination paperof the respondent No. 2 was wrongly rejected is denied. It is statedthat the Respondent No. 2 also had failed to make and subscribe tothe oath as required by the Constitution nor had he filed any oath formwith the nomination papers. The nomination papers of the RespondentNo. 2 and of the petitioner were properly rejected. The petitiondeserved dismissal with costs.

The Respondent No. 2 in his written statement filed on 26th May1967 admitted most of the contentions in the petition and added inreply to Para 20 of the petition which is the paragraph pertaining tothe rejection of his nomination paper in the petition as follows :—

That he was a duly nominated candidate and his nomination paperwas improperly rejected by the R.O. He stated that he took the oathand read out the same and subscribed to it as prescribed by law in thisbehalf and each and every requirement laid down by the Constitutioain this respect was duly complied with by the Respondent No. 2 andthe certificate to this effect was recorded by the R.O. on each one ofthe four oath forms which the sa'id R.O. took into his custody on 19thJanuary 1967 alongwith the four nomination papers of the RespondentNo. 2. It may be stated that the Respondent No. 2 and the RespondentNo. 1 both filed their nomination papers before the R.O. on 19th ofJanuary 1967. This respondent had shown to the R.O. at the time ofthe presentation of his nomination paper, the electoral roll of SrinagarParliamentary Constituency containing the name of the RespondentNo. 2 and he was asked to present it at the time of scrutiny. On theday of scrutiny he found that the four oath forms presented by himon the 19th of January 1967 before the R.O. alongwith the nominationpapers had been removed and his nomination paper was rejected onthe ground that he had failed to make and subscribe to the oath. Noother ground was mentioned by the R.O. while rejecting his nomina-tion paper. The R.O. had later on falsely and fraudulently stated inhis order that the Respondent No. 2 had failed to produce the electoralroll. The Respondent No. 2 had complained to the Chief Election

B.L.R.] S. L. SARAF V. M. S. QURESHI & ORS. 359

Commissioner of India about the tampering of the record and makingfalse and fraudulent additions in the said order of rejection. Thisrespondent also presented copies of letters sent by him to variousgentlemen and dignitaries. : .

The learned advocate of the Respondent No. 1 by means of hisapplication dated 13th June 1967 presented on 14th June 1967 soughtpermission to amend his written statement. The amendments soughtwere as under :—

"(a) The readiness to take the oath on the date of scrutiny orthe refusal of the Returning Officer not to administer oath on thedate of scrutiny is not relevant to the scope of enquiry and doesnot constitute a ground for the improper rejection of the nomina-tion paper.

(b) The rejection for the non-compliance of the provisions ofS-51 of the Constitution does not constitute improper rejection ofthe Nomination Paper."

The petitioner also by means of his application dated 15th June 1967presented on 16th June 1967 sought permission to amend certain para-graphs of his petition. The petitioner sought to amend paras 19, 20, 23and 11 of the petition. In paras 19, 20, and 23 in substance the follow-ing words were sought to be added :—

"The election of Respondent No. 1 is void because of improperrejection of the petitioner's nomination paper, and non-compliancewith the provisions of Constitution and of the Representation ofthe People Act, 1951, and the orders made under this Act by theReturning Officer and the Assistant Returning Officer by whichthe result of the election in so far as it concerns the RespondentNo. 1 who is a returned candidate has been materially affected."

And in para 11 the words "a little before 11 A.M." were sought to beadded after the words "the Returning Officer entered the room."

These applications were opposed by the other side but ultimatelywere disposed of by my order dated 26th June 1967 which is a detailedone. I permitted the petitioner as well as the Respondent No. 1 tomake the amendments as prayed for by them. Consequently amendedpleadings were put in.

Another application was moved by the learned counsel for theRespondent No. 1 on 6th of June 1967 that the name of the RespondentNo. 2 be struck off from the proceedings under Order 1, Rule 10 ofthe Code of Civil Procedure but this application was not seriously pres-sed by the Respondent No. 1 subsequently.

360 S. L. SARAF V. M. S. QURESHI & ORS. [VOL. XXXVIII

An application was moved by Syed Mir Qasim on 23rd of May 1967for being added as an Intervener. This was opposed by the petitionerand the Respondent No. 2 but ultimately by my order dated 1st ofJune 1967. I permitted Syed Mir Qasim to be added as an Intervenerfor the limited purpose of arguing the law points raised in this case.But in view of the subsequent developments and the authority of theSupreme Court as that point has lost importance it is not mentioned indetail.

Respondent No. 1 further put in an application on 3rd of July 1967for review of my order dated 26th of June 1967 but that application wasrejected by me on 11th of July 1967.

The respondents filed their written statements to the amendedpetition of the petitioner on 4th July 1967 and 27th June 1967. Afterthis chequered career issues in this case were struck on 11th of July1967. Issue No. 8 was recast by means of my order dated 11th ofAugust 1967. The final issues on which evidence was led by the parties,which arose from the pleadings of the parties, are as under :—

1. Was not the A.R.O. empowered to receive the nominationpapers of the petitioner ? O.P.R. 1.

2. Whether the R.O. was unavoidably absent from his head-quarters on 21st Jan. 1967 on account of law and order situa-tion in Tral and had therefore authorised the A.R.O. to startthe scrutiny of the nomination papers in case the R.O. couldnot be personally present on spot on 21st of January 1967 at11 A,M. O3>.R. 1.

3. (a) On proof of issue 8, whether the scrutiny of the nomina-tion paper of the petitioner by the A.R.O. was without juris-diction ? O.P.P.

(b) If issue No. 2 is not proved, is the scrutiny of the nominationpaper of the petitioner by the A.R.O. valid and proper ? O.P.R.1.

4. Whether on 21-1-1967 on entry of the R.O. into his office a littlebefore 11 A.M. the proposer of the petitioner got up and soughtpermission of the R.O. for allowing the petitioner to read andsubscribe to the oath of allegiance as required by Art. 84 of theConstitution of India ? O.P.P.

5. Whether on the request of the proposer of the petitioner toallow the petitioner to make and subscribe to the oath of alle-giance, the R.O. did not permit the petitioner to make andsubscribe to the oath, and directed the petitioner to presenthimself for scrutiny before the A.R.O. ? O.P.P.

(B.L.R.] S. L. SARAF V. M. S. QURESHI & ORS. 361

6. If issues 4 and 5 or both are proved, what is the effect on thiselection petition ? O.P.P.

7. Did the R.O. on 21-1-1967 adjourn the scrutiny of the nomina-tion paper of Respondent No. 1 and 2 for half an hour on therequest of Respondent 1 to enable him to be present at thescrutiny of the nomination paper of the petitioner by theA.R.O. ? O.P.P.

8. When after the A.R.O. had rejected the contention of the peti-tioner with regard to the jurisdiction of the A.R.O. to conductthe scrutiny of the nomination paper of the petitioner, did thepetitioner's proposer seek permission of the A.R.O. for enablingthe petitioner to read and subscribe to the oath as required bythe Constitution of India ?

9. Whether the A.R.O. rejected this request of the petitioner'sproposer ? If so, what is its effect on the election petition ?O.P.P.

10. Was the nomination paper of the petitioner improperly reject-ed by the A.R.O. ? O.P.P.

11. Was the nomination paper of Respondent 1 improperly accept-ed by the R.O. O.P.P.

12. Was the nomination paper of Respondent 2 improperly reject-ed by the Returning Officer ? O.P.P.

13. Whether the rejection of the nomination paper of the peti-tioner being based on a constitutional disqualification is a validground for rejection of the petitioner's nomination paper ?O.P.R. 1.

After the issues were framed, the parties filed their list of witnesses,the petitioner on 29th of July 1967 and the Respondent No. 1 on 25thof July 1967. The Respondent No. 2 did not produce any evidence norfurnish any list of witnesses, nor did he intend to do so, vide his state-ment dated 13th of September 1967. He did not after some time followor attend the proceedings even. Evidence of the petitioner started from9th of August, 1967.

Before I discuss the evidence or record my finding on various issues,I have to offer an explanation for the delay in the disposal of this elec-tion petition. The interim orders passed in this petition are detailedand self speaking. But what was mainly responsible for the length oftime that this case took was that the evidence of the petitioner wasclosed on 13th of September 1967. The Respondent No. l's evidence

•started from 29th of September 1967. Then there were some distur-

362 S. L. SARAF V. M. S. QURESHI & ORS. [VOL. XXXVIir

bances in the Valley which did not permit the Respondent No. l's wit-nesses to be examined in Kashmir, the witnesses being the Deputy Com-missioner and Assistant Commissioner and Station House Officer whowere reported to be busy with law and order situations. Later on thecase was taken to Jammu where the witnesses could not turn up becauseof bad weather, the Banihal road being blocked for a pretty long time.The evidence of the Respondent No. 1 could not be finished in Jammu,as the Respondent No. 1, who is a Deputy Minister in the UnionCabinet, had gone out of India. The evidence of Respondent No. 1however was recorded on 13th and 14th of May 1968. An adjournmentwas sought for arguing the case.

The petitioner produced three witnesses, Messrs Peary Lai Handoo,Syed Nizam-ud-Din, Rughanath Vaishnavi, Respondent No. 2 and ap-peared himself as his own witness. Similarly the Respondent No. 1produced three witnesses namely Syed Muzaffar Indrabi, Assistant Com-missioner, Anantnag, A.R.O., Mr. M. A. Khaliq, Deputy Commissioner-cum-Distiict Magistrate, Anantnag, R.O., and Hakim Ghulam RasulStation House Officer, Awantipora and himself also appeared as his ownwitness. The statements of witnesses are very very long and no useful'purpose would be served in summarizing those lengthy statements. Thestatements of different witnesses will be discussed while discussing therelevant issues—that would both save time and duplication of labour.

According to me issues 2 to 7 are connected. They pertain to thealleged absence of the R. O. from his Headquarters on 21st of January1967 at 11 A.M., the time of his coming to Office that day, and the mat-ters upto the time the nomination paper of the petitioner was taken upfor scrutiny by the A. R. O. Issues 8, 9 and 10 pertain to the part playedby the A.R.O. in this case and his competence to hold the scrutiny andrejection of the nomination paper of the petitioner by him, Issue No. 11pertains to the improper acceptance of the nomination paper of the re-spondent No. 1 and issue No. 12 pertains to the improper rejection ofthe nomination paper of the respondent No. 2 by the R. O. Issue No. 13is more or less a constitutional issue. Therefore these issues will be dis-cussed according to the grouping above mentioned.

Now beginning with issue No. 1, this issue was not seriously pres-sed by the Respondent No. l's learned counsel at the time of arguments.But the basis of this issue is the endorsement of the A.R.O. on the backof the nomination paper of the petitioner wherein he has stated that hewas not one of the officers mentioned in Column 6 of the Notificationissued to receive the nomination papers, but it was on the insistenceof the petitioner that he had received this nomination paper. This en-dorsement which is marked as Ex. P.W. 1/5 is entirely misconceived.It is admitted by the R.O. in his statement of 6th March 1968 that a

E.L.R.] S. L. SARAF V. M. S. QURESHI & ORS. 363

notification was issued on 2nd of January 1967 by the Election Com-mission wherein the Deputy Commissioner, Anantnag had been designa-ted as the R.O. of this Constituency and another notification of theCommission dated 29th of December 1966 had mentioned the AssistantCommissioner as the A.R.O. Mr. Pearey Lai Handoo, the petitioner'switness also state that there was a Notification making all the R.Os.of the Assembly Constituencies as the A.R.Os. for the ParliamentaryConstituency. Mr. Indrabi A.R.O. also admits that there was a notifica-tion that all the R.Os. of the Assembly Constituencies would be A.R.Os.for the Parliamentary Constituency. This A.R.O. was undoubtedly andadmittedly R.O. for some Assembly Constituencies of Anantnag. There-fore this issue is decided against the Respondent No. 1 and it is heldthat the A.R.O. was legally competent to receive the nomination paperof the petitioner, because admittedly according to the case of the boththe parties the R.O. was not present at the relevant time in his office.

Out of the next group of issues which comprises issue Nos. 2 to 7certain factual findings have to be recorded and then in the light ofthese findings it can be possible to record findings on the different issuesin this group. In fact this group is according to me, on ultimateanalysis, the storm centre in this case. According to the respondent No.1 the R.O. was unavoidably absent from his Headquarters on 21st ofJanuary 1967 on account of the law and order situation in Tral. Hehad authorised the A.R.O. to conduct the scrutiny of the nominationpapers in' his absence and until his arrival in office. He did not returnto his office till about 12 noon. By the time the R.O. arrived in hisoffice, the A.R.O. had conducted the scrutiny of the nomination paperof the petitioner and finding that no oath had been taken and subscri-bed to, he had rejected this nomination paper. At the time the R.O.came to his office the scrutiny of the two* other nomination papers ofthe respondent No. 1 and 2 had not yet been effected by the A.R.O. TheR.O. called back the papers from the A.R.O. and completed the scrutinyof the nomination papers of the respondents.

According to the petitioner the R.O. purposely kept himself awayfrom his office till some minutes before 11 A.M., the time fixed forscrutiny of the nominatition papers; came to his office 3 or 4 minutesto 11 A.M. The petitioner and his proposer went to him and asked h'lmto administer the oath to the petitioner and permit him to make andsubscribe the same but the R.O. directed the petitioner and his proposerto go to A.R.O. for the scrutiny of his nomination paper. This was objec-ted to by the petitioner and his proposer. It was pointed out to theR.O. that as the R.O. was present in his office, the A.R.O. had no juris-diction to conduct the scrutiny of the nominatition papers. Respon-dent No. 1 entered the office of the R.O. and asked him to adjourn thescrutiny of his nomination paper for half an hour during which time

364 S. L. SARAF V. M. S. QURESHI & ORS. [VOL. XXXVIII

he would attend to the scrutiny of the nomination paper of the peti-tioner before the A.R.O. The R.O. rejected the contentions both of thepetitioner's proposer and the petitioner and directed them to appearbefore the A.R.O. for scrutiny of the nomination paper of the petitioner.

Before discussing the evidence produced by the parties in this case,I would like to remark that more evidence could have been producedby either party to prove their contentions but that has not been done.The result is that I have to confine my findings on the evidence produc-ed by the parties whatever it is. I might further incidentally remarkthat it is settled law that if no or insufficient evidence is given, the partywho has to prove his case in order to succeed in an action, must fail.In election matters there are numerous authorities for the propositionthat a returned candidate should not be unseated unless the petitionerproves the case very very clearly. Reference may be made to RajinderSingh versus Manga Ram and ors. etc. (1).

Now let me take the evidence. In the original petition in para 11,the petitioner stated that—

"On 21st January 1967 the petitioner reached the office of theReturning Officer much before 11 O'clock and waited in the com-pany of his proposer and other friends and colleagues of his party.As soon as the Returning Officer entered the room, the petitioner'sproposer got up and sought his permission for allowing the peti-tioner to read and subscribe to the oath of allegiance as requiredby Section 84 of the Constitution of India. . . ."

In his amended petition, the petitioner states that—

"On 21st January 1967 the petitioner reached the office of theReturning Officer much before 11 O'clock and waited in the com-pany of his proposer and other friends and colleagues of his party.As soon as the Returning Officer entered the room a little before11 A.M. the petitioner's proposer got up and sought his permissionfor allowing the petitioner to read and subscribe to the oath ofallegiance "

In the original petition no time of the arrival of the R.O. was men-tioned. In this amended petition his arrival was placed a little before11 A.M. later on this "a little" was explained by the witnesses as fol-lows. Shri P. L- Nandoo placed the arrival of the R.O. on 21st ofJanuary 1967 in his office at 10-50 A.M., Nizam-ud-Din stated that theR.O. came to his office 3 or 4 minutes to 11. Mr. Vaishnavi P.W. 4states that the R.O. came to his office a few minutes before 11 vide hisstatement dated 12th of September 1967. The petitioner himself put

(1) Doabia's Election cases, 1966, P. 132 (Case No. 24.)

E.L.R.] S. L. SARAF V. M. S. QURESHI & ORS. 365

the arrival of the R.O. 9 or 10 minutes to 11 vide his statement dated8th of September, 1967. In my opinion there has been a shift in thecase of the petitioner from his original stand taken in the initial peti-tion and I think that With a purpose. The time fixed for scrutiny was11 O'clock and the scrutiny had to start at 11 A.M. As will appear alittle later in this judgment the A.R.O. had written authority of theR.O. to conduct the scrutiny in case the R.O. was not present in hisoffice. If the petitioner had left the time of the arrival of the R.O. inhis office indefinite, it would be taken that that the scrutiny would andhad actually started at 11 A.M. before the A.R.O. Then after the scru-tiny had once started there was no point in the petitioner's going tothe R.O. This explains the basis for this shift. It is true that the burdenof proof of the main issue in this respect i.e. whether the R.O. wasunavoidably absent from his headquarters on 21st of January 1967 onaccount of law and order situation in Tral rests on the respondent No. 1;but as parties have led evidence, the question of burden of proof losesimportance. I have mentioned the evidence of the petitioner, let menow discuss the evidence produced by the respondent No. 1 in this be-half. The Respondent No. 1 produced the R.O., Hakim Ghulam RasulStation House Officer Awantipora, extracts from Roznamcha of Awan-tipora Police Station and the respondent himself. After consideringthe evidence on the allegation that the Returning Officer purposely keptaway from his office on the plea of law and order situation at Tral andAwantipore on the day of scrutiny and left the scrutiny to the Asstt.Returning Officer, even though the Returning Officer was present in hisoffice on that day, the judgment proceeded :

#* ## *# *# ##

About the other argument whether the law and order situationat Tral was so serious, I have already mentioned the statement ofR.O.; even the A.R.O. states the same, the Roznamcha entries alsoindicate that the law and order situation had deteriorated in Tral.Deterioration of the law and order situation need not manifest itselfin murder and arson but if there is tension between the rival groups,skirmishes and fights and there is danger to public peace that is defi-nitely a deterioration in the law and order situation. It is also provedin this case and not denied by the petitioner or his witnesses that twomurders did take place in that part of the District Anantnag, may notbe before 21st of January 1967 but in that very month i.e. to say on29th of January 1967, which shows that tension was mounting there.Secondly there can be no hard and fast rule laid down as to when aDistrict Magistrate who is incharge of law and order situation shouldpersonally visit a particular disturbed area or direct any one of hissubordinate Magistrates to go on the spot and assess the situation. Itis after all a matter within the discretion, and the responsibility, of

366 S. L. SARAF V. M. $. QURESHI & ORS. [VOL. XXXVIII

the District Magistrate as the gentleman in-charge of the District tosee what situation necessitates his personal presence and what shouldbe entrusted to the other Magistrates working under him. In thiscase the District Magistrate may have thought it necessary to go onspot himself to see the situation. It is different that Mr. Bhasin oranyone also may not have the same view or same perspective as theDistrict Magistrate had. After all it is the District Magistrate's res-ponsibility and discretion to have acted to save a bad situation fromgetting worse.

The District Magistrate as the R.O. had taken further precuationsand given written authority to the A.R.O. to conduct the scrutiny incase he would be required to go to Awantipore on that day. There-fore, in my opinion the respondent No. 1 has proved that the R.O.was unavoidably prevented from being present in his office at 11 O'clockon 21st of January 1967 when the scrutiny of the nomination paperswas to be conducted. He in my opinion reached his office after thescrutiny of the nomination paper of the petitioner had been completedby the A.R.O. With this finding of fact let me try to dispose of issuesof this group.

The finding on issue No. 2 is returned in favour of the respondentNo. 1 Part (a) of the issue No. 3 cannot be held in favour of the peti-tioner. The scrutiny was performed by the A.R.O. of the nominationpaper of the petitioner under proper authority of the R.O.

About part (b) of issue No. 3 Mr. Bhasin's argument is that thescrutiny conducted by the A.R.O. of the nomination paper of thepetitioner is entirely without jurisdiction and on that ground alonethe election of respondent No. 1 should be set aside. In support ofthis contention Mr. Bhasin has cited two authorities, one known asAgra District Case, Peare Lai Versus Amba Prasad and another (2),and another known as Mainpuri (N.M.R.) Case T. Gulab Singh v.Rai Bahadur Kharagjit Misra (3). In the Agra District case Babu Ramone of the candidates presented his nomination paper at the Bungalowof the Returning Officer Mr. Willienson, on the 3rd Sept. 1930 along-with the amount of scrutiny sometime before 3 P.M. The ReturningOfficer however, returned his nomination paper for presentation toMr. Hari Shanker. Babu Ram presented his nomination papers at3-5 P.M. to Mr. Hari Shankar. On the date of scrutiny that is on the4th September, 1930 the Returning Officer rejected the nominationpaper of Babu Ram accepted those of others. It was argued that theReturning Officer not being unavoidably prevented from performing

(2) Doabia's Election Cases (Case No. 3) Vol. I (1864—1935) P. 45.(3) (Case No. XXII) Reports of 16 Election petitions, 1927, HAMMOND,

Vol. Ill, p. 178.

E.L.R.] S. L. SARAF V. M- S. QURESHI & ORS. 367

his functions, the nomination papers could not be received by Mr. HariShanker. This contention was upheld in this case the ReturningOfficer being present had taken the nomination paper and then re-turned for presentation etc. Mr. Hari Shanker, the finding that itwas not proper presentation is very well justified. In the Mainpuricase & T. Gulab Singh Vs. Rai Bahadur Kharagjit Misra (3). Thepetitioner T. Gulab Singh, Rai Bahadur Kharagjit Misra and oneBhagwan Dial were candidates for election and filed their nominationpapers. On 23-10-1926 owing to the illness of the District Magistrate.Mir Ali Raza, Senior Deputy Collector Mainpuri performed the scru-tiny of nomination papers. He declared that the nomination paper ofthe petitioner was invalid on certain grounds and accepted the nomi-nation paper of the two other candidates. The officer competent toreceive the nomination papers were the joint Magistrate or the SeniorDeputy Collector Mainpuri. It was discovered that Mir Ali Raza wasnot a joint Magistrate and therefore the Tribunal held that Mir AliRaza was not capable of performing the functions of a ReturningOfficer which relate to the acceptance of a nomination paper or tothe scrutiny of nomination. His acceptance of the nomination paperof Rai Bhadur Misra was held improper. This case also is distin-guishable. Although in view of my finding on issue No. 1 this question,which is more or less academic in nature has lost its importance anddoes not arise for consideration in this petition yet I would' like tomake the following remarks :

As will be clear from my finding on other issues the nominationpaper of the petitioner had to be rejected under the Constitution andthe law because the petitioner had not made and subscribed to theoath upto 21st of January 1967 i.e. the date of the scrutiny. The A.R.O.was not an officer entirely without jurisdiction. He had authorityfrom the R.O. to conduct the scrutiny vide Ex. D.W1/2. Under section22 Representation of People Act, 1951 an A.R.O. is competent to per-form all or any of the functions of the R.O. subject to the control ofthe R.O. Before the amendment in this sub-section in the year 1956by Section 10 of Act 27 of 1956, the A.R.Os. were not permitted toaccept the nomination papers or to conduct the scrutiny of the nomi-nation papers or to count the votes but after that amendment the onlyprohibition remains with respect to the' scrutiny of the nominationpapers. That can be done only when the R.O. is unavoidably pre-vented from performing such functions. But as I said earlier, theA.R.O. is not officer completely devoid of authority, he has authority todo all acts even to scrutinize the nomination papers subject to certainlimitations. When the nomination paper of a particular candidate suff-ers from an inherent defect which is apparent on the face of the nomi-nation paper, its rejection by the R. O. or even by A. R. O. is not, in my

(3) Reports of Indian Election Petitions, 1927, HAMMOND, Vol. Ill, p. 178.

368 S. L. SARAF V. M. S. QURESHI & ORS. [VOL. XXXVIII

opinion at all improper. I am fortified in this view of mine by. R. B.Biswaswarlal Halwasya Versus Babup Rang Lai Jajodia (4) in whichthe Election Tribunal has held while dealing with issue No. 3 asfollows :—

"There was no returning officer on the 8th October 1923 inthis constituency. Under Schedule 1 of the Regulations, however,Jatindranath Benerjee was empowered to do all the duties of theReturning Officer. It is pointed out that under the control of theReturning Officer and that he could not receive nomination papersand hold a scrutiny unless regulation 3 he could only act underthe Returning Officer was 'unavoidably prevented' from perform-ing these functions. The words in an English case were 'incapableof acting' and Lord Campbell thought that they might cover a caseof this kind.—Queen Vs. Ownes, (5).

The Personal Assistant had not usurped the office. He tookup his duties when the Returning Officer became incapable of act-ing. Want of title in the person acting as Returning Officer willnot invitiate an election which is otherwise valid. Parker, P. 61"Elections made under usurping Returning Officers when there hasbeen the form of an election have been uniformly supported"(Heyu Bo. 62). Turning to the Bengal Electoral Rules it wouldappear that non-compliance with the rules and regulations is notenough. The petitioner has to show that the result of the electionhas been materially affected by such non-compliance. If the peti-tioner's nomination was bad, his names goes out on that ground.If his nomination was good he succeeds on that ground and not byreason of the fact that the Personal Assistant acted as the ReturningOfficer."

Issue No. 4. As I have held that the R.O. was not in his office at11 O'clock on 21st Jan. 1967, the question of the petitioner or hisproposer seeking permission for the petitioner to make and subscribeto the oath does not at all arise. This issue is decided against thepetitioner.

Same applies to issue No. 5 and that also is decided against thepetitioner.

In view of this finding, issue No. 6 does not arise in this case.Issue No. 7 also does not arise and both these issues are decided againstthe petitioner.

(4) Doabia's Election cases Vol. I (1955) Edition p. 186.

(5) Vol. 121 English Reports p, 36.

E.L.R.] S. L. SARAF V. M. S. QtfRBSHt & ORS. 369

I will now take up the second group of issues which compriseissues 8, 9 and 10. I have dealt with the part played by the R.O.I based my findings on the evidence on record produced by the parties.Now I take up the role played in this matter by the A.R.O. In myopinion the accusations levelled against this officer by the petitionerare justified. From an over all impression of the evidence in this caseled by the parties, I am convinced that the A.R.O. at least tried toput off the petitioner from contesting the election. The R.O. wasabsent from his Headquarters. Whether that was intentional absenceor necessitated by circumstances is not relevant for the disposal of thispetition in view of the finding that I am returning. The A.R.O. wasapproached by the petitioner and his proposer. He avoided receivingthe nomination paper. The learned counsel for the respondent No. 1however argued that it was admitted by Shri P. L. Handoo P.W. 1and by the petitioner that the A.R.O. had told them that he wouldreceive the nomination paper if the R.O. did not turn up by 2-50 P.M.But even that appears to me to be a ruse. He has been compelled onthe insistence of the proposer of the petitioner and the petitioner toreceive the nomination paper much against his wish. He tried tododge the petitioner and his proposer till the time would run, thisday i.e. 20th Jan. 1967 being the last date for filing the nominationpapers. I believe the story of the petitioner and his proposer that itwas due to the intervention of the Deputy Chief Electoral Officer whowas contacted on telephone that the nomination paper of the petitionerwas received by the A.R.O. Mr. P. L. Handoo P.W. 1 states that hecontacted the Deputy Chief Electoral Officer and the latter assuredhim on telephone that the A.R.O. would receive nomination papersof the petitioner. The proposer was asked to go out of the roomwhen the A.R.O. received the telephonic call; after the telephonic callthe A.R.O. received the nomination paper of the petitioner. Whenhe was after all compelled to receive the nomination paper, he still didnot behave straight. He affixed 21-1-1967 as the date of receipt whereasit was 20-1-1967. He was made to correct it. He designated himselfas the Asstt. Commissioner Anantnag under his signature. He wascompelled to add A.R.O. Then the endorsement on the back of thenomination paper that he was not an officer empowered to receive thenomination paper and it was only on the insistence of the candidatethat he received the nomination paper shows which Way his mindworked. This gentleman had to admit that under a properly issuednotification all the R.Os. of Assembly Constituencies should be ipsofacto A.R.Os. for the Parliamentary constituency. He knew this andyet he made the endorsement and hesitated to accept the nominationpaper. The R.O. was not present. Under section 22 of the Represen-tation of People Act, 1951 he could discharge and perform all thefunctions of the R.O. except the scrutiny. The petitioner's proposerat that very time conveyed to the Chief Election Commissioner what

25—3 Elec. Com./71

370 S. L. SARAF V. M. S. QURESHI & ORS. [VOL. XXXVIII

had transpired on the 20th of January 1967. This telegram is Ex.P.W. 1/2. It confirms the statement of the petitioner and his proposer.Not only this the A.R.O. after having received the letter Ex. DW1/2from the R.O. sent a telegram Ex. DW 1/6 to the petitioner askinghim to present himself for scrutiny at 11 O'clock on 21st of Jan. 1967.He did not send any such telegram to the other two candidates. It isadmitted by this gentleman A.R.O. that he had all the nominationpapers with him on the evening of 20th January 1967 sent by theR.O. to him alongwith the letter Ex. DW 1/2. Yet why he sentthe telegram only to the petitioner and not to the other two candidatesis not at all explained by him. The reason given by him that thetwo other candidates had already been informed about the scrutinyis meaningless because the receipt given to the petitioner which isEx. P.W. 1/3 also clearly indicated that the scrutiny of his nominationpaper would be held at 11 A.M. on 21st of January 1967. This receiptwas given by this very A.R.O. Therefore if on receipt of Ex. DW 1/2any information was necessary to be conveyed by this gentleman it wasto the other candidates and not to the petitioner who had already beeninformed by this very person about the scrutiny. Then on the day ofscrutiny if the R.O. was not present according to him, he should havestarted with the scrutiny of the respondent No. 2's nomination paperbecause he had presented his nomination papers first of all on 19-1-1967and then the respondent No. 1 who also presented his nominationpapers on 19-1-1967. The petitioner's nomination paper was receivedon 20th January 1967 and as such it should have been No. 3. Hesingled out the petitioner's nomination paper for scrutiny. Why thatis not understandable and no satisfactory explanation has been givenby the A.R.O. His only explanation is as this was the only nominationpaper received by him, he started the scrutiny of the same first whichis neither legal nor morally justified. I have no hesitation in furtherbelieving the petitioner's evidence supported by his three witnessesthat the petitioner and his proposer offered more than once (1) atthe time of appearing before the A.R.O., (2) at the time when thequestion of jurisdiction was being argued, and (3) later when theA.R.O. held that he had jurisdiction, to make and subscribe to theoath and sought permission of'the A.R.O. to permit the petitioner todo so. The A.R.O. has all along lied and I am sorry to remark thateven the respondent No. 1 has not spoken the truth on this point. Aswould presently appear, the petitioner was under the belief, so wereothers, that he could make and subscribe to the oath at any timeupto the time of scrutiny. Therefore, he pressed the A.R.O. to allowhim to make and subscribe to the oath on 21st of January 1967 whichthe A.R.O. did not permit. The petitioner was an experienced poli-tician, had been a member of the Legislature of the State, of the LokSabha, as well as a Minister in the State. He knew that by the amend-ment of 1956 making and subscribing to the oath by him was obliga-

E.L.R.] S. L. SARAF V. M. S. QURESHI & ORS. 3 7 1

tory to entitle him to be returned as an M.P. Therefore the story setup by the A.R.O. or by the respondent No. 1 to the effect that thepetitioner never offered to make and subscribe to the oath does notstand to reason.

I believe this part of the story of the petitioner cent per cent thoughthe petitioner and his witnesses have tried to exaggerate and somewhatdistort facts and make the petitioner's case more forceful by introduc-ing the presence of the R.O. in his office at 11 A.M. or before 11 O'clockon 21st January 1967. I have given reasons, which appear to mecogent, for holding that part of the story of the petitioner as incorrect.Therefore my finding on this group of issues will be as follows:—

The A.R.O. has refused to permit the petitioner to make andsubscribe to the oath on 21st Jan. 1967. Issue No. 8 is found in favourof the petitioner.

I must now take up issues 9 and 10 together. So far as the ques-tion of fact is concerned, I have held that the A.R.O. rejected therequest of the petitioner and his proposer to allow the petitioner tomake and subscribe to the oath more than once before the scrutiny.But the question still remains whether the nomination paper of thepetitioner was wrongly rejected which is the subject matter of issueNo. 10. It appears that the petitioner and most other people had an ideathat oath could be made and subscribed to even upto the time ofscrutiny. For this there seems to be sufficient justification as willpresently appear. First let us see on what date the petitioner soughtto make and subscribe to the oath. Nizam-ud-Din P.W. states that noattempt was made by the petitioner or by his proposer to make andsubscribe to the oath before the A.R.O. on 20th January 1967 becausethe A.R.O. had refused to receive the nomination paper vide his state-ment dated 8th September 1967. Mr. Saraf, the petitioner in hisstatement dated 11th September 1967 states "since it was open to meto make and subscribe to the oath even immediately before the scrutinystarted and secondly the attitude of A.R.O. was so hostile towards methat prevented me from making an attempt from taking an oath. Idid not make any attempt to take the oath before the authorisedofficer at Srinagar because I was otherwise busy and I knew the pro-cedure " Similarly Mr. Vaishnavi states in his statement dated

11th Sept. 1967 while this argument was on, I read out the relevantsection to the A.R.O. to the effect that as the question of jurisdictionwas being discussed and the scrutiny had not started yet, the peti-tioner was within his right to seek permission to take and subscribeto the oath. "So it is common ground or rather proved from theevidence of the petitioner himself that he offered to make and subs-cribe to the oath on the morning of 21st January 1967. I said earlier

372 s. L. SA'RAF'V. &. s. QURESHI & ORS. [VOL. xxxvm

that there seems to be some justification for this belief in the mind6f the 'petitioner and his well-wishers and even other'people. A pub-lication entitled ''General Elections 1967", Hand-book for ReturningOfficers, 1966 at page 19 contains:—

"The oath or affirmation should be made and subscribed beforethe R.O. takes up the scrutiny of nomination papers at theelection on the date fixed by the Election Commission for scru-tiny of nomination papers at that election. The candidates how-ever, would be well advised to do it at the time of presentingtheir nomination papers to you."

Then in para 6 on the same page it further lays down :• -

. " . . . . I f the oath or affirmation is not made and subscribedbefore the scrutiny of a candidate's nomination papers, the candi-date will be held by you as not qualified to stand for the election."You will reject his nomination paper at the time of scrutiny. Theonus of proving to your satisfaction that the candidate has madeor' subscribed the oath or affirmation prior to the time of scrutinyof the nomination paper is on the candidate himself."

Reading of these paras would indicate that the Election Com-mission contemplated that the oath could be made and subscribed toeven immediately before the, scrutiny. This belief misled the peti-tioner in not making and subscribing to the oath before the date ofscrutiny. The point to be determined now is when should an oathbe made and subscribed to or in other words can it be made on thedate of scrutiny or should it be done before the scrutiny. The learnedcounsel for the respondent No. 1 relied upon the latest Supreme Courtauthority Rashupati Nath Singh Venus Harihar Pfasad Singh (6),decided by the Supreme Court on 22nd of January 1968. This pointcame up for consideration in that case and their Lordships remarkedas under :—

"The short question which arises in this appeal is whetherit is necessary for a candidate to make and subscribe the requisiteoath or affirmation as enjoined by clause (a) of Art. 173 of theConstitution before the date fixed for scrutiny of nominationpaper. In other words is a candidate entitled to make and subs-cribe the requisite oath when objection is taken before the Return-ing Officer or must he have made and subscribed the requisiteoath or affirmation before the scrutiny of nomination paper com-menced? The answer to this question mainly depends on theinterpretation of S. 36(2) of the Act."

(6) A. 1. R. M. 18 S.C.I064.

E.L.R.] S. L. SARAF V. Jf. S. QyR^SJHU &j ORS, 373

Then their Lordships after reproducing some provisions of theRepresentation of People Act, 1951, held:—

"It will be noticed that u/s 36(2) of the Act, one of thegrounds on which a nomination paper can be rejected is that onthe date fixed for the scrutiny of nominations, the candidate is not;qualified for being chosen to fill the seat under Art. 173 of theConstitution."

Further on their Lorships held that:—

"The words "having been nominated" in this form clearlyshow that the oath or affirmation cannot be taken or rnade by acandidate before he has been nominated as a candidate.'*

Then repelling a further contention on behalf of the learnedcounsel for the petitioner Mr. Gokhale their Lorships held that:—

"It seems to us that the expressiori "the date fixed for scrutiny"in Sec. 36(2) (a) means "on the whole of the day on which thescrutiny of nomination has to take place." In other words thequalification must exist from the earliest moment of the date ofscrutiny...."

And then after quoting some English authorities their Lorshipshave finally held:—

"In this connection it must also be borne in mind that law-disregards, as far as possible fractions of the day. It would leadto a great confusion if it were held that a candidate would beentitled to qualify for being chosen to fill a seat till the very endof the date fixed for scrutiny of nominations. If the learnedcounsel for the petitioner is right, the candidate could ask theReturning Officer to wait till 11-55 P.M. on the date fixed for the

, scrutiny to enable him to take the oath."

Further on their Lordships observed:—

"This in our view does not mean that the oath or affirmationcan be taken and subscribed on the date fixed for scrutiny. Itseems to us that the nomination paper does not provide for thestatement about the oath because the oath or affirmation has to betaken after a candidate has been nominated."

In this authority their Lordships have clearly laid down that oathshould be made and subscribed to before the date qf'trje scrutiny. Theyhave further held that the petitioner must be qualified i.e. he rousthave subscribed to the oath from the very earliest moment o£ die dayof scrutiny. Mr. Bhasin tried to distinguish this authority prj. theground that facts of the case before their Lordships $ tlje Sujjjreme

374 S. L. SARAF V. M. S. QURESHI & ORS. [VOL. XXXVIII

Court were different. In that case even upto the time of scrutiny acandidate had not made or subscribed to the oath. When at the timeof scrutiny an objection was raised, the candidate had not made orsubscribed to the oath, he offered to do so but that request of his wasrejected. Mr. Bhasin says that in this case the scrutiny had not started.Therefore the petitioner was in law authorised to make and subscribeto the oath before the scrutiny started. In fact he tried his best todo the same before the A.R.O. many times right from the time heappeared before him at 11 A.M. He further relied on a Mysore autho-rity reported as Khage Khanavar and another Vs. Nijalingappa(7), whichdeals with this point. But I am afraid in view of the clear pronounce-ment of the law by their Lordships of the Supreme Court, portionsof which have been quoted in extenso above, I cannot accept theinterpretation sought to be put either by Mr. Bhasin or by the Mysoreauthority however eloquent and cogent the reasoning of the MysoreHigh Court authority might be in the words of Mr. Bhasin. Mr.Bhasin tried to address a further argument that under Article 324, thesupervision, direction and control of the preparation of the electoralrolls for, and the conduct of, all election to Parliament and to theLegislature of every State... .vested in the Commission i.e. ElectionCommission and according to him the Election Commission had issuedthe instructions under this Article in the form of the Hand-book; therelevant passages from 19 of the said book been quoted above. There-fore, according to Mr. Bhasin the law as it existed on the 21st of January1967 was that oath could be taken and subscribed to any time beforethe scrutiny. This argument is ingenious but is not legally sound.The law was not different on 21st Jan. 1967 from what it now isafter January 22, 1968 when the Supreme Court decided the casePashuputi Nath Singh Vs. Harihar Prasad Singh (6). Their Lord-ships of the Supreme Court only interpreted the law as it stood thenand as it stands now, there was no amendment in the law. UnderArticle 141 of the Constitution of India, the law laid down by theSupreme Court shall be law of the land and shall be binding on allof us. Further under Article 327 of the Constitution of India theParliament is empowered to make provisions with respect to electionsto legislature "Subject to the provisions of this Constitution Parliamentmay from time to time by law make provisions with respect to allmatters relating to or in connection with elections to either House ofParliament or to the House of or either House of Legislature of aState . . . ."

""' The Representation of People Act has been enacted under thisprovision of the Constitution by the Parliament and therefore thatWould be the law governing the subject. Any other interpretationput upon the law by the Election Commission or for the matter of

(7) A. I, R.. 1968 Mysore 18.(6) A. I. R. 1968 S.C. 1064.

E.L.R.] S. L. SARAF V. M. S. QURESHI & ORS. 375

that by any other authority against the interpretation put on thelaw by the Supreme Court is of no consequence. Moreover this Hand-book is only as a sort of administrative guide and has not the forceof any law. If on the authority of this Supreme Court judgment, thepetitioner had not made and subscribed to the oath till 21st of January1967, the date of scrutiny, his nomination paper was rejected; it wasrightly rejected because he had not fulfilled the requirement of lawas laid down in Article 84(a) of the Constitution of India. Thereforeissue No. 10 is decided against the petitioner and it is held that asthe petitioner had failed to make and subscribe to the oath beforethe day of scrutiny, his nomination paper was rightly rejected by theA.R.O. This was an inherent defect in his nomination paper andthe A.R.O.'s action in rejecting his nomination paper was legallyright though in arriving at this conclusion recourse has been takento untruths and falsehood.

As alternative argument has been advanced on behalf of therespondent No. 1 for rejection of the nomination paper of the peti-tioner. It has been argued that the refusal by the R.O. or the A.R.O.would be a non-compliance with the provisions of the Constitutionor the Representation of People Act or Rules and orders madethereunder and therefore unless it is proved by the petitioner thatthe result of the election in so far as the returned candidate is con-cerned, was materially affected, the election of the respondent No. 1cannot be set aside. In my opinion this argument deserves to bementioned simply to be rejected. The learned counsel for the respon-dent No. 1 entirely ignores the provisions of Section 100(1) (c) ofthe Representation of People Act, which lays down that an electionshould be declared void on the simple ground that any nominationpaper has been improperly rejected. If the nomination paper ofthe petitioner on facts had been held to be improperly rejected thatby itself would be sufficient to declare the election of the respondentNo. 1 as void.

Issue No. 11.

This issue was not at all pressed by the learned counsel for thepetitioner. The respondent No. 1 has been properly nominated.

* # * # #

No objection was taken by anybody to his nomination paper. There-fore his nomination paper has been rightly accepted and thereforethis issue is decided against the petitioner.

Then we come to another contentious issue i.e. rejection of thenomination paper of the respondent No. 2. In para 20 of the Petition,the petitioner has made a simple statement that respondent No. 2was also a duly nominated candidate and his nomination paper was

376 S. L- SARAF V. U- $. QtJRESHI & ORS. [VOL. XXXVIII

also improperly rejected by the R.O. etc. etc. Whca the respondentNo, 2 filed his written statement on 26-5-1967, he narrated certainfacts in reply to this para in his written statement. The case of therespondent No. 2 briefly put is that on 19th January 1967 he presentedfour nomination forms of his which are PW 4/6, 4/7, 4/8, and 4/9alongwith these he presented four oath forms. On the day of scru-tiny the oath forms were missing from his nomination forms. Aftersome controversy with the R.O., his nomination paper was rejectedbecause no oath form was found attached to them. This was the onlyground of rejection conveyed to this respondent at that time. Lateron the R,O. had fraudulently and falsely added another ground thatthe respondent No. 2 had failed to present the Electoral Roll of theconstituency wherein he was registered as a voter for rejecting hisnomination paper. In support of this case of the respondent No. 2,the only evidence on record is the statement of the respondent No. 2.It is admitted by him that Ghulam Mohammad Ganai, a candidatefor the Assembly Constituency of Devsar was also with him when hepresented the nomination papers. That Ghulam Mohammed Ganaihas not been produced as against this testimony of the respondentNo. 2 there is the statement of the R.O. The learned counsel for therespondent No. 1 has argued that there is a presumption under section114, illustration (E) of the Evidence Act that all official acts will bepresumed to have been regularly performed. There is a statutorypresumption in favour of the version of the R.O. that there was nooath form present at the time of the scrutiny of the nomination paperof the respondent No. 2. The presumption in law shall be that nosuch oath forms were presented. This is further strengthened by thepositive statement of the R.O. On the other hand it is argued thatrespondent No. 2 is an Advocate of the Supreme Court and his state-ment should be believed as against the R.O. whose conduct has beenmost shady and doubtful in most of the election matters conductedin his District. It has been argued that this gentleman, Mr. A. K.Malik has managed to see the ruling party candidates returned un-contested in most of the seats in his District, and therefore his state-ment should not be believed. I do not mean to express any opinionon these arguments because the conduct of this officer will be dis-cussed in the election petitions which are admittedly pending in thisvery Court before other Hon'ble Judges. My comments shall be strictlyconfined to the credibility or otherwise of this R.O. to the facts ofthis case. Each case will have to be decided on its own merits andcircumstances. Therefore I shall not very much draw upon the legalpresumption so much relied upon by learned counsel for the respon-dent No. 1 but shall consider the other pieces of evidence producedby either side in this case. As I stated earlier that Ghulam MohammadGanai who could be expected to throw light on this contention of therespondent No. 2 has not been produced. Further the learned counsel

rE,L;Rv] S. t ; SARAPtt M. S. QJ0KESH* & ORS. 377

for the petitioner has put in thfl cross'-exaaainatsiott of the R.O. thetwo certificates issued by this R.O. one to Ghulam Mohammad Ganaiand1 the other- t© Shri Monoharnath Kaul which are marked as Ex.D.W. 2/18j and 2/19. If Ghulam Mohammad Ganai could secure acertificate from the R.O. about his having made and subscribed tothe oath, there is apparently no reason why the respondent No. 2should' not have secured the same. The respondent No. 2 states thathe was the legal adviser of Ghulam Mohammad Ganai. The respon-dent No, 2* should1 have insisted oa this- certificate being issued to him.

'Oath- fo*ms were not removed from- Ghulam Mohammad Ganai'snomination* papers; according to respondent No. 2 they were removedfrom- his nomination papers although: all the nomination, papers ofthe respondent Nok 2 and Ghulam Mohammad Ganai were presentedon the same day; Respondent No. 1 has also been given-the certificateof his having- made and subscribed to the oath by this R.O. whichhas been produced in this case and is Ex. DW 4/1.

The learned; counsel for the respondent No. 1 has crossTexaminedthe respondent No.. 2 at length about his political convictions and acti-vities. In crossrexamination Mr. Vaishnavi has stated that he was amember of the political conference and its aim was not to makeKashmir accede to Pakistan. The Policy statement was, made in June1953. "Kashmiris should be given the right to decide the questionof accession by the exercise of their free will as was contained in theresolution of the Security Council and other commitments made by thetwo States of India and Pakistan and respondent No. 1 was also anactive member of this conference." The political conference stillconsiders the question of accession undecided even upto the presentmoment because Govt. of India has been carrying on negotiations withthe Govt. of Pakistan. The Constitution of India does not recognise

*the accession of Kashmir with Incfia as final because of Art. 370 andsome other sections. So far as my personal view is concerned, legallyspeaking Kashmir is a part of India, but as a political issue it is verymuch on the nerves of Government of India, and Pakistan and thepeople of Kashmir. I resigned from Political Conference in June orJuly 1964. The object of the political conference was that the "willof the people should be ascertained". "The objective of the politicalconference was always to allow the people of Kashmir to expresstheir views". "I was detained in Jail for about 5\ years with inter-mediate periods on parol." In reply to another question Mr. Vai-shnavi states "one of my objectives after being elected; was to demandthe release of- Sheikih Mohammad Abdullah and other- prisoners whichwas part of my demand for grant of civil liberties and secondly thereshould be a round table conference of Govt. of India, Pakistan andpeople of Kashmir to have the issue, of accession settled". Vide state-ment of the respondent No. 2 dated 13th Sept. 1967:; It is suggested:that the respondent No. 2 did not believe in the accession of Kashmir

378 S. L. SARAF V. M. S. QURESHI & ORS. [VOL. XXXVIII

to India and therefore he did not purposely make and subscribe tothe oath. I need not go into all these questions. I am deciding thiselection petition on the evidence before me. Mr. Rughnath Vaish-navi's charges against the R.O. are very grave. They constitute acorrupt practice also under section 123(7) of the Representation ofPeople Act. These allegations disclose the offence of a very seriousnature under the ordinary penal law besides disclosing an offenceunder section 129 of the Representation of People Act. It is settledlaw that the standard of proof for establishing a corrupt practice shouldbe that of a criminal case. Reference be made to D. Murlidhar ReddyVs. Pagafulla Reddy and another (8), decided by the Andhra PradeshHigh Court. Another authority V. B. Raju Vs. Ramchandra Rao andors.(9), decided by the Andhra Pradesh High Court. Another judg-ment of the Kerala High Court Gopala Kurup Vs. Samuel ArulappanPaul and others(lO), A Division Bench of that court held that the:—

"Burden of proving the alleged corrupt practices is on theelection petitioner and the allegations should be proved beyondany reasonable doubt. If any reasonable doubt arises after theevidence has been scrutinized the benefit thereof should go to theperson charged."

See also Nanda Kiseaore Rath Vs. Himanshu Se\hara Pandhi(ll).

Keeping the pronouncements on this subject by the variousCourts in view, I think without straight-away disbelieving Mr.Vaishnavi or accepting the testimony of the R.O. Mr. A. D. Malik itwill not be safe and proper for me to hold the story related byMr. Vaishnavi as proved. In fact this story is not proved. It isimportant to note in this behalf that the petitioner, who must haveknown about these facts which according to Mr. Vaishnavi were verymuch advertised by him, did not make any specific allegation about thismatter in his petition. He contented himself by making a brief re-ference to the improper rejection of the nomination paper of the res-pondent No. 2. A legal argument has been raised on behalf of therespondent No. 1 that as these allegations of Mr. Vaishnavi are theallegations of serious corrupt practices, they should have beenspecifically mentioned in the election petition. They should not havebeen enquired into because Mr. Vaishnavi in his written statementhas made these allegations after the time for filing an election peti-tion had expired. Mr. Vaishnavi, as already stated, filedthe written statement on 26th of May 1967. The result of election

(8) Doabia's Election cases (1964) P. 218 (Special Appeal No. 34 of 1963).(9) Doabia's Election cases (1961) P. 14, (Special Appeal No. 8 of 1958).

(10) Doabia's Election cases (1961) P. 185 (E.P. No. 1 of 1960).(11) Doabia's Election cases (1962) P. 181 (E. Cases No. 2/3 of 1961).

E.L.R.] S. L. SARAF V. M. S. QURESHI & ORS. 379

was declared on 21st January 1967. The limitation for filing the elec-tion petition is 45 days from the date the election of a returned can-didate is announced under section 81 of the Representation of thePeople Act. This written statement was filed much after the timefixed for filing an election petition. In view of my finding on thefactual side, I need not go into this legal argument at all. The othercontention of Mr. Vaishnavi is that the R.O. rejected his nominationpaper only on the ground of absence of oath forms, but later fraudul-ently and falsely entered another ground of non-presentation of theelectoral roll of the Constituency where this respondent was enteredas a voter at the time of scrutiny in his order, copy whereof wassupplied to this respondent. In this behalf an attempt was made bythe learned counsel for the petitioner to cross-examine the respondentNo. 1 by confronting him with a newspaper cutting of Khidmat, theofficial organ of the Congress party, dated 22-1-1967. In this paperMr. Qureshi respondent No. 1 is alleged to have addressed a PressConference. According to the learned counsel for the petitioner theaddress that he made to the newspaper people is reproduced withininverted commas and the learned Counsel for the petitioner tried tosuggest that this ground of rejection namely the non-presentation ofthe relevant electoral roll by the respondent No. 2 at the time ofscrutiny does not find place in that statement. Mr. Qureshi has notadmitted the correctness of this press statement. There is no proofadduced by either the petitioner or the respondent No. 2 that thisstatement was actually made by the respondent No. 1. Therefore noth-ing can be made out of this statement. Similarly respondent No. 1tried to put in a statement alleged to have been made by the petitioneralongwith Messrs Trilochan Dutt and G. L. Dogra on 2-2-1964. inJammu in the statement of the respondent No. 1 a copy whereof hasbeen placed on the file and is Ex. DW 4/2. In my opinion neitherthe alleged press conference of respondent No. 1 nor this allegedstatement of the petitioner, can be used in evidence, the first as nothaving been proved, the second has neither been proved nor put tothe petitioner. Therefore I ignore both these statements. However Ineed not go into this allegation because in my opinion this is also asserious a charge as the first namely removal of oath forms and is crimi-nal in nature. The same remarks will apply muftxtis mutandis tothis part of the case also.

With these findings, I have no option but to hold that the nomi-nation paper of the respondent No. 2 was not improperly rejected.Therefore this issue is decided against the petitioner. I would howeverlike to make a suggestion to obviate such disputes in future. Thenomination paper should at a proper place have a column for theenclosures attached with the same. If the authorities consider thissuggestion worth while, the necessary addition may be made in thenomination forms.

380 S. L. SA&AF V. >§. S, QVRESIJI & OflLS. [VOL, XXXVJftl

Issue No. 13. In view of ray findings on issue No. 10) this issuedoes not require any specific finding.

The result is that this election petition fails and is dismissed.

Before concluding I have to place on record my highest apprecia-tion, for- whatever it is worth, for the great ability, dexterity, withwhich this case was argued by Mr. Bhasin, the learned counsel for thepetitioner and the hard labour he has put in.

The last point to be considered is about the costs; in my opinionthe petitioner had a very good case but for the exposition of the lawin the latest authority of the Supreme Court referred to above. In m,yopinion he has only exaggerated the part attributed to the R.0. on21st Jan. 1967. Therefore in my opinion he should be made liable fornominal costs. I therefore direct that while I dismiss this petitionof the petitioner, he will pay only the cost incurred by the respondentNo. 1 on his witnesses. The rest of the costs will be borne by theparties in view of the peculiar features of the case.

The substance of this order shall be intimated to the ElectionCommission and the Speaker of the Lok Sabha immediately and anauthenticated copy of this judgment shall be sent as soon as possibleto the Election Commission as per terms of Section 103 of the Repre-sentation of the People Act.

Petition dismissed.

'E.L/R.] B. C DUTTA v. j . 'K. efcb'WDftuRY 381

Ik THE COURT OF THE JUDICIAL Goiii&nssio'i'-rER OF TRIPURA AGARTALA

BIRENDRA CHANDRA DUTTA

V.

J. K. CHOWDHURY

(C. JAGANNADHACH'ARYULU, J.C.)

June 14,1968

Representation of the People Act, 1951, Sections 81(3), 82(b), 86(5),100(l)(b)(d)(iv), 106, 123(2), (3), (3A), (4) and (7)—"Any other candidate"in section 82(b)—meaning of—Copy of petition to respondent not endorsed as"true copy"—Whether infringes section "81(3)—Election Petition—Amendmentfor amplification of particulars—Scope of Sub-section (5) of 86—Conduct ofElection Rules, 1961, Rule 94-A, form 25—Affidavit vague and laconic and notin the prescribed form—Whether fresh affidavit can be filed—Discrepancy inthe account of ballot papers—Difference in design of reprinted ballot papers—Whether the result of election materially affected under section 100(l)(d)(iv)and Rule 30 of Conduct of Election Rules, 1961, Corrupt practice—Burden ofproof—Whether section 106 of the'Evidence Act, 1872, applies—"Agent" inClause (7) of Section 123—Scope of—Representation of the People Act, 1950,Section 30—Delimitation Commission Act, 1962, Section 10—Plea of non-inclusion in'voters list and wrong delimitation of constituency—Whether can beraised in an election petition—Indian Oaths Act, 1873, Section 13—Irregularityof oath of witness—-Whether evidence is admissible.

The petitioner, a defeated candidate of the United Front Party, challengedthe election' of the respondent a Congress nominee, to the Lok Sabha fromTripura, alleging inter alia that there was improper reception of votes, that theelection of the respondent was materially affected by non-compliance with theprovisions of the Act, Rules and Orders and that corrupt practices underSection 123 of the Act were committed by the respondent and his agents orothers who were interested in the result of the election. It was further allegedthat there was discrepancy between the total number of ballot papers anddifference in design of ballot papers. The petitioner also alleged that a supple-mentary voters list was supplied to his party just before the poll which hadresulted in his party not being able to contact the voters in time. It was alsoalleged that the Chief Minister who belonged to the Congress Party abused hispowers to influence and helped the Congress candidates by various corruptpractices. The respondent denied all the charges and urged that other personsagainst" whom the petitioner had alleged corrupt practice had not been madeparties to the petition and the petition was liable to be dismissed for non-joinderor mis-joinder of parties.

HELD : Allowing the petition: (i) On the evidence the petitioner hadproved that the respondent committed various corrupt practices under section123(2), (3), (3A), (4) and (7) of the Act, and therefore the election of therespondent was liable to be set aside.

(ii) In the context of the provisions of Part IV of the Act, the words "anyother candidate" occurring in Section 82(b) of the Act only refer to any othercandidate for the particular constituency and not to any other constituency, andthe petition'was, therefore, not bad for non-joinder of parties.

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Jagan Nath v. Jaswant Singh and others, A. I. R. 1954, S. C. 210; TriveniRam v. Satadeo Singh and others, A.I.R. 1966, All. 20; Neel Chand v. RaliaRam Panna Lai and another, A.I.R. 1963, Punjab 516; Gulab Chand Palliwalv. Govind Sahai and others, A.I.R. 1964, Rajasthan 155; Har Sarup and anotherv. Brij Bhushan Saran and another, A.I.R. 1964, Allahabad 340; Mohan Singh v.Banwarlal, A.I.R. 1964, S.C. 1366; Amin Lai v. Munna Mai, A.I.R. 1965, S.C.1243; Nardev v. foti Saroop and others, A.I.R. 1964, Allahabad 83; referred to.

(iii) As the petitioner signed the copy of the petition served upon therespondent, the petition was not liable to be dismissed, though there was noendorsement of "True Copy" on the petition, under Section 81(3) of the Act.

Murar\a Radhey Shyam Ram Kumar v. Rup Singh Rathore and others,A.I.R. 1964, S.C. 1027; Dr. Anun Singh v. Shri Abdul Gani and Shri LachmanSingh, A.I.R. 1965, S.C. 815; Ch. Subbarao v. Member, Election Tribunal,Hyderabad and others, A.I.R. 1964, S.C. referred to.

(iv) An amendment to the election petition cannot be allowed beyond thestatutory period of limitation of 45 days under Section 86(5) of the Act. Butthe Court is bound to give an opportunity to the election petitioner to amplifythe particulars already given.

Bhi\aji Keshao Joshi and another v. Brijlal Nandlal Biyani and others,A.I.R. 1955, S.C. 610; S. Kandaswami v. S. B. Adityan, A.I.R. 1959, Mad. 288;Balwan Singh v. La\shmi Narain and others, A.I.R. 1960, S.C. 770; Chandra-se\har Singh v. Sarjoo Prasad Singh and another, A.I.R. 1961, Patna 189;Tribeni Ram v. Satyadeo Singh and others, A.I.R. 1966, All. 20; referred to.

(v) Where an affidavit is filed with the original petition which was vagueand laconic and not in accordance with Form No. 25 read with Rule 94A ofthe Rules, 1961, the Court can direct the petitioner to file it afresh in accordancewith the rules so long as the contents of the affidavit are confined to the parti-culars mentioned in the petition.

Satis Kumar v. Election Tribunal (Dist. Judge) Alwar and another, A.I.R.1963, Rajasthan 157; Kamalnarain Shartna v. Pt. Dwar\a Prasad Mishra andothers, A.I.R. 1965, M.P. 15, and A.I.R. 1966, S.C. 436.

(vi) Where there is some discrepancy in the account of the ballot papersand there was some difference in the design of reprinted ballot papers, it hadto be proved that election was materially affected on account of non-compliancewith the provisions of section 100(1 )(d)(iv) of the Act and Rule 30(1) of theConduct of Elections Rules, 1961.

Champa Devi v. ]amuna Prasad and others, 15 E.L.R. 436 (443); T. C.Basappa v. T. Nagappa and others, 3 E.L.R. 197; Govind Malaviya v. MurliManohar and others, 8 E.L.R. 84; Shanta Devi Vaidya v. Bashir Hussain Zaidiand others, 8 E.L.R. 300; Jang Bahadur Singh v. Basant Lai and others, 8 E.L.R,429; Ganga Prasad Sastri v. Panna Lai and others, 8 E.L.R. 448; Shah UmairSahib v. Ramcharan Singh and others, 10 E.L.R. 162; Naunihal Singh v.Kishorilal Paliwal and others, A.I.R. 1961, M.P. 84; Madhu Singh Mu\h Ram v.Ram Saran Chand Mittal and others, A.I.R. 1966, Punjab 66; Vashit NarainSharma v. Dev Chandra and others, A.I.R. 1954, S.C. 513; N. Pothu Reddiar v.Muthiah and another, A.I.R. Mad. 390; Ri\hab Das v. Ridhichand Pelliwal andothers, 9 E.L.R. 115; Vashit Narain Sharma v. Deochand and others, 10 E.L.R.30; Sudhir Kumar Mandal v. Abhoy Pada Saha, A.I.R. 1966, Calcutta 141;Hariram Singh v. Kamta Prasad Sharma, A.I.R. 1966, M.P. 255; referred to.

-E.L.R.] B. C. DUTTA V. J. K. CHOWDHURY 383

(vii) Section 106 of the Evidence Act is not applicable in so far as theproof of corrupt practices under the election law is concerned. The burden ofproof cannot be thrown on the successful candidate on the ground that the factsare specially within his knowledge. Circumstantial evidence should be of aconclusive nature.

Hanumant Govind v. State of Madhya Pradesh, A.I.R. 1952, S.C. 343;Chadalavada Subba Rao v. Kasu Brahmananda Reddy and others, A.I.R. 1967,A.P. 155; referred to.

(viii) For the purpose of clause 7 of Section 123 the term "agent" has awider connotation in Election Law. A candidate is bound by the action of hisagents and others including the party that set him up, provided there is proofthat he adopted their action or gave his consent to their action.

T. C. Bassappa v. Nagappa and others, 3 E.L.R. 197; Sardul Singh Gaveesharv. Hu\am Singh and others, 6 E.L.R. 316; Abdul Jalil Choudhury v. RathindraNath Sen, A.I.R. 1958, Assam 51; Nani Gopal Swami v. Abdul Hamid Chou-dhury and another, A.I.R. 1959, Assam 200; Maganlal Radhakfishan Bagdi v.Hari Vishnu Kamath, A.I.R. 1960, M.P. 362; Sudhir Laxman Hendre v. ShripatAmrit Dange and others, A.I.R. 1960, Bombay 249; lnder Lai v. Lai Singh,A.I.R. 1961, Rajasthan 122; Dina Nath Kaul Nadim v. Peer Mubara\ Shah,A.I.R. 1962, Jammu and Kashmir 28; Raj Krushna Bose v. Binod Kanungo,A.I.R. 1964, S.C. 202; Bam Ram v. Prasanni, A.I.R. 1959, S.C. 93; KrishnanajiBhimrao Antroll\ar v. Shan\ar Shantaram More and others, 7 E.L.R. 100;Nyalchand Virchand Sheth v. Election Tribunal Ahmedabad and others, 8 E.L.R.437; Rajendra Prasad Yadav v. Suresh Chandra Mishra, 11 E.L.R. 222; GurbantaSingh v. Piara Ram Baggu Ram and others, A.I.R. 1960, Punjab 614; LalsingKeshrising Rehvar v. Ballabhdas Shan\erlal The\di and others, A.I.R. 1967,Gujarat 62; referred to.

(ix) A plea of non-inclusion in the voters list nor the question of delimita-tion of a constituency under section 10 of the Delimitation Commission Act canbe raised in an election petition.

Under Section 13 of the Indian Oaths Act, the irregularity of oath affectsthe credibility of the witness and not the admissibility of his evidence.

Meghamal Kothari v. Delimitation Commission and others, A.I.R. 1967,S.C. 669; Rameshar v. The State of Rajasthan, A.I.R. 1952, S.C. 54; referred to.

(x) All benevolent acts of public and civic benefits, without distinction ofcaste, creed etc. on the eve of elections, by the Government of the party inpower would not lead to a presumption that such acts were done with a corruptmotive, unless the contrary is proved. If at all, the case may be one of evilpractice or a malpractice and not of corrupt practice within the meaning of section123 of the Act.

Swaminatha Mer\ondar v. Ramalingam and others, 2 E.L.R. 390; HariramSingh v. Kamta Prasad Sharma, A.I.R. 1966, M.P. 255; Ban\abehari Das v.Chittaranjan Nai\, A.I.R. 1963, Orissa 83; Chadavalavada Subba Rao v. KasuBrahmananda Reddy and others, A.I.R. 1967, A.P. 158; S. Khadu Sheriff v.Muniswami, A.I.R. 1955, S.C. 775; Ghasi Ram v. Dal Singh and others, C. A.No. 1632 of 1967, S.C. dated 7-2-1968; Mrs. Om Prabha ]ain v. Abnash Chandand another, C.A. No. 1862 of 1967, S.C. dated 7-2-1968; referred to.

(xi) There was no force in the contention of the respondent that Section123(7) of the Act contemplates a positive act on the part of the candidate inprocuring the assistance of a Govt. servant and that the word "obtain" in the

384 B. C. BUTTA V. J. K. CHOWDJHURY [VOL. XXXVIIE

Section is not used in the sense of a mere passive receipt ©f assistance, withoutthe candidate being even conscious of the fact that the assistance has beenrendered. Such a. contention is not sustainable, when there is sufficient evidenceon record to show that the Government servant was canvassing for the respon-dent with his knowledge and it was clear that the respondent had procured theassistance of the Government servant; his conduct therefore falls under Section123(7) of the Act.

Ra\habdas v. Nidhichand Palliwal and others, 9 E.L.R. 115; Moti Lai v.Mangallal Prasad and others, A.I.R. 1958, All. 794; Dinesh Misra v. Ram NathSarma and others, A.I.R. 1969, Assam 139; referred to.

(xii) By the non-supply of the supplementary list of about 32,000 voters tothe petitioner and his party in time by the authorities the petitioner's electoralright of canvassing these votes was prejudiced within the meaning of Section123(2) of the Act. As the same list had been supplied to the respondent and hisCongress Party sufficiently before the election, there had been an invidious dis-crimination between the petitioner and the respondent, in contravention ofArticle 14 of the Constitution. Thus the purity of the election was imperilledand the election of the respondent was materially affected, as the margin of32822 votes obtaining between the petitioner and respondent pales into insignifi-cance and the respondent's election is void under Section 100(1 )(d)(iv) of the Act.

M. A. Muthiah Chettiar v. S. Ganesan and another, A.I.R. 1958, Mad. 553;referred to.

(xiii) When the distribution of the impunged pamphlets by the respondent,his election agents and workers attacking the personal conduct and character ofthe petitioner had been proved, it was not necessary to prove the authorshipof those pamphlets and the respondents was responsible for the statements con-tained in the pamphlets, which attracted Section 123(4) of the Act.

Nani Gopal Swami v. Abdul Hamid Chotvdhary and another, A.I.R. 1959,Assam 200; Maganlal Radha\rishan Bagdi v. Hari Vishnu Kamath, A.I.R.1960, M.P. 362; Chunilal Kan v. Radhacharan Sharma and others, 21 E.LJl.320; Brisk Misra v. Ramnat Sharma, 17 E.L.R. 243; Kataria Ta\andas v. PintoFrederic Michael, 18 E.L.R. 457; referred to.

(xiv) The propaganda and leaflets issued by the respondent and his partypromoting ill-feelings between different communities and the publication of astatement of fact that the petitioner was anti-Bangali, which the respondent didnot believe to be true, in relation to the personal character and conduct of thepetitioner, being a statement calculated to prejudice the prospects of the peti-tioner's election, the first respondent committed a corrupt practice, within themeaning of sub-sections (3), (3A) and (4) of Section 123 of the Act.

Brisk Misra v. Ram Nath Sharma, 17 E.L.R. 243; Kataria Ta\andas v.Pinto Frederic Michael, 18 E.L.R. 403; fujhar Singh v. Bhairon Lai, 7 E.L.R.457; Abdul Jalil Chaudhary v. Jatindra Nath Sen, A.I.R. 1968, Assam 51; KultarSingh v. Mu\htiar Singh, A.I.R. 1965, S.C. 141; Lalsingh Keshrising Rehan v.Vallabhdas Shan\arlal The\di and others, A.I.R. 1967, Guj. 63; Inder Lai v.Lai Singh and others, A.I.R. 1962, S.C. 1156; Kumara Nand v. Brijmohan LaiSharma, A.I.R. 1967, S.C. 803; Abdul Majeed v. Bhanwarlal and others A.I.R.1964, S.C. 1366; Didar Singh Gheeda v. Sohan Singh Ram Singh and others,A.I.R. 1966, Punjab 282; Sheomal Singh v. Ram Pratap, A.I.R. 1985, S.C. 677;Dr. J-agjit Singh v. Giani Kartar Singh and others, A.I.R. 1966, S.C. 773; KeshavLa\shman Bar\ar v. Deorao La\shman Anande, A.I.R. 1960, S.G. 131; Keshav

E.L.R.] B. C. DUTTA V. J. K. CHOWDHURY 385

La\shman Bar\ar v. Deorao La\shman Anande, A.I.R. 1960, S.C. 131; SudhirKumar Mondal v. Abhoy Pada Saha, A.I.R. 1966, Cal. 141; Chadalavada SubbaRao v. Kasu Brahmananda Reddy and others, A.I.R. 1967, A.P. 156; KuttimandiChan'dappa joshappa Settlement Hubli v. Laxman Sidappa Nai\ and others,A.I.R. 1967, Mysore 182; referred to.

Election Petition No. 1 of 1967.

B. C. Dev Barma, M. K. Datta and M. Majumdar for the petitioner.

R. Ghosh, R. C. Bhattachargu, J. K. Roy, H. Datta, B. B. Gupta andM. K. Bhowmik for the respondent.

JUDGMENT

JAGANNADHACHARYULU J.—This is an election petition filed on4-4-1967 under section 81 of the Representation of the People Act, 1951(Act 43 of 1951 hereinafter called as the Act by one Shri BirendraChandra Datta against Shri J. K. Chowdhury for declaration that theelection of the respondent to the Lok Sabha from the Tripura WestParliamentary Constituency is void and for further declaration thatthe petitioner himself had been duly elected.

2. In the last General election, which took place on 18-2-1967 tothe Lok Sabha from Tripura West Parliamentary Constituency, thelater comprised of 15 Bidhan Sabha Constituencies namely, Mohanpur,Agartala Sadar I, Agartala Sadar II, Agartala Sadar III, Uttar Deben-drangar, Old Agartala, Takerjala, Bishalgarh, Charilam, SonamuraSouth, Sonamura North, Salgarh, Balonia, Mohuripur arid Agartalatown. The last date for filling of nomination papers was 20-1-1967.The date for scrutiny of the nomination papers was 21-1-1967. The peti-tioner contested for the said West Parliamentary Constituency as acandidate of the United front (U.F.) which consisted of 4 Politicalparties namely, Communist Party of India (Marxist), CommunistParty of India, Tripura Congress and Tripura Tapshill Jati Parishad."The respondent contested the election on the Congress ticket. Thepolling took place on 16-2-1967. The counting was held on 21-2-1967and 22-2-1967. 2,23,765 votes votes were polled. Out of them, 5,657 ballotpapers were rejected. So, there were 2,18,108 valid votes. The peti-tioner secured 92,143 votes, while the respondent secured 1,25,965 voteswith a margin of 33,822 votes. So, the District Magistrate of Tripura,who was the returning officer for the Constituency in question, declar-ed the respondent as having been duly elected.

3. The petitioner filed the present petition under section 81 of theAct on 4-4-1967 within the statutory period of 45 days, challenging theelectron of the respondent on various grounds. They can be classifiedunder four categories as mentioned in paras 5 and 6 read with paras 7to 10 of his petition. The first category is that there were reception

26—3 Elec. Com./71

386 B. C. DUTTA V. J. K. CHOWDHURY [VOL. XXXVIII

of votes,- which were void, and improper reception within the meaningof section 100(1) (d)(iii) of the Act. The second category is that theelection of the respondent was materially affected by non-compliancewith the provisions of the Act and the rules and orders framed there-under and the Constitution of India within the meaning of Section100(1) (d)(iv) of the Act. The third category is that corrupt practiceswere committed by the respondent, his election agent and others withtheir consent within the meaning of section 100(1) (b) of the Act.The fourth category consists of corrupt practices said to have beencommitted in his interests by agents, other than his election agent andthe result of his election was materially affected within the meaningof section 100(1) (d)(ii) of the Act. The petitioner enumerated vari-ous corrupt practices in paras 7 and 8 of his petition. In para 9 ofhis petition, he mentioned how the result of the election was materiallyaffected by non-compliance with the provisions of the Act and therules. In para 10 also he mentioned how the non-compliance withthe provisions of the Act and the rules and the orders materially affectedthe result of the election. He filed a affidavit dated 4-4-1967 alongwiththe petition.

4. After the respondent received the summonses and a copyof the petition, he appeared and filed C.M.P. 206 of 1967 on 15-9-1967under Order 6 rules 5 C.P.C. and section 87 of the Act to direct thepetitioner to furnish better particulars of the allegations made in thepetition. The petitioner's Advocate stated that he would take the riskif his petition was found to be defective and refused to furnish betterparticulars. So, in view of his representation, the petition was dismissedon 19-9-1967. Then the respondent filed his written statement denyingthe allegations of the petitioner. He denied the various charges broughtagainst him and pleaded that the election was properly held and thatit was not vitiated.

*

5. On the pleadings the following issues were framed on 20-9-1967.

(i) Is the petition not maintainable in the present form?(ii) Whether the papers furnished to the respondent along with

the summonses to appear and answer were not legally attest-ed as required by section 81(3) of the representation of PeopleAct of 1951 and whether the petition is not maintainable.

(iii) Whether the petition does not contain the full particularsand material facts as required by section 83 of the Act and ifnot, whether the petition is liable to be dismissed?

(iv) Whether the various acts of corrupt practices mentioned in thepetition are duly supported by affidavits, as required by sec-tion 83(3) of the Act if not, what is the effect?

E.L.R.] B. C DUTTA V. J. K. CHOWDHURY 387

(v) Whether the affidavit filed by the petitioner in support of thepetition is bad in law, and whether it does not comply withthe provisions of section 83 of the Act and the Rules madethereunder. If so, whether the petition is liable to be dis-missed ?

(vi) Is the election petition liable to be dismissed for non-compli-ance with the provisions of section 81 and section 83 of theAct?

(vii) Is the case barred by waiver, estoppel and acquiecsence ?

(viii) Are the allegations of corrupt practices covered by section 123of the Act?

(ix) Has the result of the election been materially affected by non-compliance with the provisions of the Act, Rules and orders ?

(x) Is it competent to the petitioner to raise any objection atthis stage about the despatch, scrutiny and opening of ballotpapers and counting of votes ?

(x) Is it competent to the petitioner to raise any objection atballot papers used or issued to the Presiding officers and thenumber of ballot papers found for counting on the table, asalleged in the petition. If so, whether it had materiallyaffected the result of the election?

(xii) Whether the election of the respondent is void?

(xiii) Is the petitioner entitled to be declared to be duly elected tothe seat?

{xiv) Whether any corrupt practices as alleged in the petition hadbeen committed by the respondent or his election agent orany other person with the consent of the respondent or hiselection agent?

(xv) To what relief is the petitioner entitled?

6. On 2-11-1967 the respondent filed C.M.P. 236 of 1967 under sec-tions 83 and 87 of the Act read with Order 6 rule 16 and section 151C.P.C. to strike off the allegations made in paras 5 to 10 of the electionpetition on the ground that they were vague. The petitioner filedC.M.P. 238/1967 objection petition. An order was passed by this Courton 6-11-1967, under which the petitioner was directed to furnish betterparticulars of the various corrupt practices averted in paragraphs 7 and8 of the petition, except the one relating to one Hari Mohan Deb Nathmentioned in paragraph 7 (vii) of the petition. The petitioner was alsodirected to file a proper affidavit according to rule 94 (A) read withform 25 of the Conduct of Elections Rules of 1961 (hereinafter called

388, B. C. DUTTA V. J. K. CHOWDHURY [VOL. XXXVIII

as the Rules of 1961). It was mentioned in the order that better parti-culars of the allegations made in paragraphs 7 and 8 of the petitionshould be furnished by the petitioner by filing a separate schedule andan affidavit and that, if he did not comply with the order in full orin part evidence regarding the corrupt practices would be recordedonly about those matters whose particulars were mentioned asrequired by the order and that the others would be deemed to havebeen struck off. The petitioner accordingly filed C.M.P. 251 of 1967together with a schedule and a fresh affidavit on 13-11-1967 describingin detail and furnishing better particulars of the incidents of corruptpractices alleged by him in paragraphs 7 and 8 of the petition. Therespondent filed additional written statement on 19-1-1968 and thepetition was allowed on 20-1-1968. The following additional issueswere framed on 29-1-1968 :—

(i) Whether the amendment petition is barred by limitation?

(ii) Whether the amendment petition is in substance a newpetition ?

(iii) Whether the amendment petition introduced new grounds ofcharges and allegations and altered the nature of the originalpetition ?

(iv) Whether the above objections are not tenable in view of thefact that the amendment had already been ordered ?

7. ISSUE (I).—Though the respondent did not take any plea inhis written statement or additional written statement that the electionpetition is bad for non-joinder of parties and though no issue was fra-med on this point, the learned Counsel for the respondent contendedthat as the petitioner made allegations of corrupt practices against oneHari Mohan Deb Nath (R.W. 9) and Shri S. L. Singh, the thenCongress Chief and Chief Minister (who is also at present the ChiefMinister) of Tripura they are necessary parties under section 82 ofthe Act, but that they were not made parties and that, therefore, thepetition is liable to be dismissed under section 86(1) of the Act. Hiscontention is1 that the petitioner not only claims declaration that theelection of the returned candidate, namely the respondent is void, butthat he also claims a further declaration that he had been duly electedand that R.W. 9 Hari Mohan Deb Nath and Shri S» L. Singh, againstwhom allegations of corrupt practices were made in the petitionj arethe other "candidates" within the meaning of section 82 (b) of the Act,that they should have been added as respondents in the petition andthat, therefore, the petition is liable to be dismissed under section86(1) of the Act.

E.L.R.] B. C. DUTTA V. J. K. CHOWDHURY 389

8. As can be seen from Jagan Nath Vs. Jaswant Singh andothers (I), the general rule is well-settled that an election contest isnot an action at law or a suit in equity, but that it is a purely statu-tory proceedings unknown to the common law and that the statutoryrequirements of election law must be strictly observed. It is also to beborne in mind that though the election of a successful candidate is notlightly to be interfered with, one of the essentials of the election lawis to safeguard the purity of the election process and also to see thatpeople do not get elected by flagrant breaches of that law or by corruptpractices. This decision was also followed in Tribem Ram Vs. SatadeoSingh and others(2), wherein it was held that no general equitableconsiderations, which are not recognised or supported by the Act or bythe rules framed thereunder, can be imported into proceedings rela-ting to election petitions.

9. It has to be mentioned in this connection that R. W. 9 HariMohan Deb Nath was a candidate for Tripura Bidhan Sabha fromMohanpur Constituency. But, he subsequently withdrew his candi-dature. The case of the petitioner is that he withdrew the candidatureas consideration for a promise made by Shri S. L. Singh that the latterwould make him the President of Mohanpur Development Block.Shri S. L. Singh contested for a seat in the Bidhan Sabha from Sadar II,Agartala Constituency. So, both of them were candidates from AssemblyConstituencies and not for the Lok Sabha from the West Parliamentaryconstituency in question. The contention of the learned Counsel forthe respondent is that the expression "any other candidate" in section82(b) of the Act means any candidate either for the Assembly Consti-tuencies or the Parliamentary Constituency and contended that R.W. 9Hari Mohan Deb Nath and Shri S. L. Singh are, therefore, necessaryparties under section 82 (b) of the Act. He relied on the definition of"candidate" in section 79 (b) of the Act, which defines "candidate"as a person who has been or claims to have been duly nominated as acandidate at any election and the definition further reads that any suchperson shall be deemed to have been a candidate as from the time when,with the election in prospect, he began to hold himself out as a pros-pective candidate. So, even if a candidate withdrawn his candidature,than also he fails under the definition of candidate in section 79 (b)of the Act. Vide Neel Chand Vs. Rulia Ram Panna Lai andanother(3). It was held that section 82(a) of the Act concerns contest-ing candidates who include validly nominated candidates, who havenot withdrawn, and returned candidates and that section 82 (b) also

(1) A.I.R. 1954 S. C. 210

(2) A.I.R. 1966 Allahabad 20.

.(3) A.I.R. 1963 Punjab 516.

390 B. C. DUTTA V. J. K. CHOWDHTJRY [VOL. XXXVIK

includes candidates who, after being validly nominated, have with-drawn their candidature. To the same effect are the decisions inGulabchand Palliwal Vs. Govind Sahai and others (4) and Har Swampand another Vs. Brij Bhushan Saran and others{5). In the above deci-sions as well as in Har Sarup and another v. Brij Bhusan Satan andanother{6). Mohan Singh Vs. Bhanwarlal and others(7). Amin LaiVs. Munna Mai (8), it was held that a candidate against whom allega-tions of corrupt practices are made in the election petition, whereinthe petitioner claims further declaration that he himself has been dulyelected, is a necessary party, that the petition is bad for his non-Joinderand that it is liable to be dismissed under section 86 of the Act. But,a close study of all the above rullings goes to show that the candidateswho contested or who had withdrawn and against whom allegationsof corrupt practices were made in the election petitions were all fromthe same Constituency, from which the petitioner also stood. Part VIof the Act relates to disputes regarding elections. It begins with sec-tion 79 and ends with section 122. Section 80 of the Act lays downthat no election be called in question except by an election on petitionpresented in accordance with the provisions of Part VI of the Act.Section 2(1) (d) of the Act defines the word "election" as "an electionto fill a seat or seats in either House of the Parliament or in theHouse or either House of the Legislature of a State other than theState of Jammu and Kashmir". So, whenever an election to a seateither in the Parliament or in the House of the Legislature of a Stateis sought to be questioned, it can only be done by filing an electionpetition according to the provisions of Part VI. Section 81 lays downthe grounds on which and the persons by whom an election petitionmust be filed. The person who is entitled to present an election peti-tion calling in question any election is according to section 81 anycandidate at such election or any elector. The explanation to section 81lays down that the word "elector" used in sub-section (1) means a per-son who was entitled to vote at the election to which the election peti-tion relates, whether he had voted or not. This shows that only that can-didate or elector, who answers the description contained in section 81 ofthe Act, who can challenge the election for the particular Constituency.As such, section 81 unmistakably goes to show that the intention of theParliament was to confine the presentation of the election petition onlyto the candidates or electors of the Constituency, to which the petitionrelates. So, in the context, "any other candidate" occurring in section82(b) of the Act only refers to "any other candidate for the particularConstituency" and not to any other Constituency. The reason why

(4) A.I.R. 1964 Rajasthan 155.(5) A.I.R. 1967 S. C. 836.(6) A.I.R. 1964 Al'ahabad 340.i7) A.I.R. 1964 S. C. 1366.(8) A.I.R. 1965 S. C. 1243.

E.L.R.] B. C. DUTTA V. J. K. CHOWDHURY 391

a candidate, against whom allegations of corrupt practices are made,is required to be made party is that he should be given an opportunityto meet the allegations made against him, before he is named by theHigh Court under Section 99(1) (a) (ii) of the Act if he has beenproved at the trial to have been guilty of any corrupt practice. But,under the proviso to section 99(1) of the Act, the High Court is notempowered to name such a person who is not a party to the petition,unless section is taken under sub-clauses (a) & (b) of the proviso tosection 99(1) of the Act. So, section 99 safeguards the interests of aperson including a candidate from any other Constituency who is nota party to the petition and against whom allegations of corrupt practi-ces are made. As such, a person who was not a candidate for theconstituency in question is not a necessary party under section 82 (b)of the Act. Vide also Nardet/ Vs. Joti Saroom and otherf(9) which ison all fours with the facts of the present case.

10. For the above reasons, I find on issue (i) that the petition isnot bad for non-joinder of R.W. 9 Hari Mohan Deb Nath and ShriS. L. Singh.

11. ISSUE (11).—The respondent as R.W. 1 deposed in the Chiefexamination that along with the summonses he received a copy of theelection petition, which was said to be a "true copy", without any en-dorsement that it was a true copy of the election petition. He was notcross-examined on this point. So, his evidence that the true copy ofthe election petition served on him does not bear the endorsementas true copy stands. The contention of the learned Counsel forthe respondent it that section 81(3) the Act requires that every elec-tion petition shall be accompanied by a copy and that every such copyto be served upon the respondent shall be attested by the petitionerunder his own signature to be a true copy of the petition, but thatas in the present case it does not bear such an endorsement, the peti-tion is liable to be dismissed. Though the respondent's Counsel reliedon Ch. Subbarao Vs. Member, Election Tribunal, Hyderabad andothers (10). Murar\a Radhey Shy am Ram Kumar Vs. Rup SinghRathore and others{\\), in support of his contention, they do not, in fact,support. In the former case the election petition was type written andthe copies, which accompanied the petition, were carbon copies of thetypes scripts. The copies bore two signatures in original of the electionpetitioner authenticating both the contents of the petition as well asthe verification thereof. But, the petitioner did not however insert thewords "true copy" before or above his signatures. It was held that ifthe signature of the petitioner whose name was sec out in the body of

(9) A.I.R. 1964 Allahabad 83.(10) A.I.R. 1964 S. C. 1027.(11) A.I.R. 1964 S.C. 1545.

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the petitioner was appended at the end, surely it authenticated thecontents of the document, that if the signatures found on the copieswere intended to authenticate the document to which it was appendednamely, the copy, it would only mean that the copy did not reproducethe signature in the original, that there was no compelling necessityto hold that the signatures were merely intended to be a copy of thoseon the original in order to spell out a non-compliance with section81(3) of the Act, seeing that a signature in original was not neededon the copy and a writing coping out the name of the signatory wouldsuffice, that the absence of a writing in the copy indicating the signa-ture in the original would not detract a copy from being a true copyand that, in the circumstances, there was substantial compliance withthe requirement of section 81(3) of the Act. In the other case, thecopies served upon the respondent did not contain the signatures ofthe petitioner at the foot of the petition, though the original containedhis signatures. It was held that when every page of the copy servedon the respondent was attested to be a true copy under the signatureof the petitioner, a fresh signature below the word "petitioner" wasnot necessary. In Dr. Anun Singh Vs. (1) Shri Abdul Ghani andothers and (2) Shri Lachman Singh(l2), it was held that though thewords "true copy" were not written on a copy of the petition above thesignature there was substantial compliance with section 81(3) of theAct, that the presence of the original signature in the copy was sufficientto indicate that it was attested as a true copy even though the words"true copy" were not written above the signatures in the copy and thatthe petition could not be rejected under section 80(3) of the Act. Theruling in Ch. Subbafao Vs. Member, Election Tribunal, Hyderabadand others (10), mentioned above was relied on. In this case also as thepetitioner signed the copy of the petition served upon the respondent,the petition is not liable to be dismissed though there was no endorse-ment of "true copy" on the petition. I find issue (ii) against the res-pondent.

12. ISSUE (III) AND ADDITIONAL ISSUES (I) TO (IV) .—It has already been mentioned that in C.M.P. 236 of 1967 filed by therespondent and C.M.P. 238 of 1967 objection petition filed by the peti-tioner, this Court passed an order dated 6-11-1967 directing the peti-tioner to furnish better particulars with regard to the corrupt practicesmentioned in paragraphs 7 and 8 of the election petition. The conten-tion of the learned Counsel for the respondent is three-fold. Firstly,he urged that the amendment petition C.M.P. 251 of 1967 filed by thepetitioner on 13-11-1967 furnishing better particulars as ordered by theCourt is barred by limitation, that it is in substance a new petition andthat, therefore, it is liable to be dismissed. Whether the petitioner

(12) A.I.R. 1965 S.C. 815.

E.L.R.] B. C DUTTA V. J. K. CHOWBHURY 393

should be called upon to furnish better particulars or whether the elec-tion petition should be dismissed straightaway was considered by mein any order dated 6-11-1967. There is a distinction between "materialfacts" and "particulars of corrupt practices". Section 83 of the Actlays down what the petition should contain. Section 83(1) (a) laysdown that an election petition shall contain a concise statement ofmaterial facts on which the petitioner relies. Clause (b) of sub-section(1) of section 83 also states that the election petition will set forth fullparticulars of any corrupt practice that the petitioner, alleges, includingas full a statement as possible of the names of the parties alleged tohave committed such corrupt practices and the date and place of thecommission of each such practices. Section 86 of the Act, which en-joins on the High Court to dismiss an election petition, shows thatthe High Court can straightaway dismiss only when it does not com-ply with the provisions of section 81 or section 82 or section 117 of theAct. It does not cover section 83. On the other hand, sub-section (5) ofsection 86 gives discretion to the High Court and allows it to permitthe election petitioner, on such terms as to costs and otherwise as itmay deem fit, to furnish particulars of any corrupt practice alleged inthe petition to be amended or amplified in such manner as may, inits opinion, be necessary ensuring a fair and effective trial of the peti-tion. But, the Court shall not allow any amendment of the petitionwhich will have the effect of introducing particulars of a corruptpractice not previously alleged in the petition. So, the Court is notentitled to dismiss the election petition for want of material facts orfull particulars of the corrupt practices, which should be mentionedaccording to section 83 of the Act. But the court is bound to givean opportunity to the election petitioner to amplify the particulars.Vide page 273 of Hallsbury's Laws of England, Volume XIV, thirdedition. The law in India is also the same. Vide page 382 of Deabia'sElection Manual, Volume I, 1967 edition and also Bhi\aji KeshaoJeshao and another v. Brijlal Nandlal Bivani and others(13). S. Kan-daswami Vs. S. B. Aityan(\A) and Balwan Singh Vs. L,a\shtni Narainand others{\5). The Supreme Court held that the procedure, to befollowed in cases where insufficient particulars of a corrupt practice areset forth in an election petition, is that it should not be dismissed inLimine merely because full particulars of a corrupt practice alleged inthe petition are not set out, but that where an objection is raised bythe respondent that the petition is defective for want of full particulars,the Tribunal is bound to decide whether the objection is well found-ed or not, that, if the Tribunal upholds the objection, it should give

(13) A.I.R. 1955 S. C. 610.

(14) A.I.R. 1959 Madras 288.

(15) A.I.R. 1960 S. C. 770.

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an opportunity to the petitioner, to apply for leave to amend or amplifythe particulars of the corrupt practice alleged and that, in the event ofnon-compliance with that order, the Tribunal may strike out chargeswhich remain vague. So, the procedure, already adopted by this Courtin directing the petitioner to furnish full particulars of the allegedcorrupt practices mentioned in paragraph 7 and in the election peti-tion, is corrupt. It cannot be said that the particulars mentioned inthe amended petition and the schedule filed on 13-11-1967 changedthe character of the petition and that in substance the amended peti-tion is a new one.

13. There is, however, force in the second contention of the learnedCounsel for the respondent that an amendment altering the nature ofthe charges or introducing new charge cannot be allowed, inasmuchas their introduction for the first time in the schedule on 13-11-1967beyond the statutory period of 45 days is barred by limitation. Sub-section (5) of section 86 itself is clear on this point. It lays down thatthe High Court shall not allow any amendment of the petition whichwill have the effect of introducing particulars of a corrupt practicenot previously alleged in the petition vide also the passages at pages 36and 37 of Volume II of Digest of the Election Laws Reports (1955-1960).The contention of the learned Counsel for the petitioner is that therespondent did not take any objection to the petitioner letting evidenceon the various alleged corrupt practices and in making the exhibitsand that, therefore, it is not now open to the respondent to contendthat there are new allegations in. the schedule. He relied on BalivcmSingh Vs. Lahjhmi Narain and other (15) already referred to. But, hiscontention is not correct. The Supreme Court held that if despite theabsence of full particulars of the corrupt practices the parties go to trialand evidence of the contesting parties is led on the pleas raised in thepetition, the petition cannot be dismissed thereafter for want of parti-culars, because the defect is one of procedure and not one of jurisdictionof the Tribunal to adjudicate upon the plea in the absence of parti-culars. This decisions of the Supreme Court applied only when, in spiteof the order directing the election petitioner to furnish better particu-lars, he failed to do so and the parties go to trial. But, it was not heldthat particulars of new corrupt practices, not previously mentioned inthe petition, could also be introduced. This is prohibited by sub-section(5) of section 86 itself. In discussing the evidence on the various allega-tions of corrupt practices made by the petitioner, the evidence regardingnew incidents has to be discorded. Thirdly, the learned Counsel forthe respondent urged that the petitioner did not furnish all the detailseven in the new schedule filed on 13-11-1967. He relied on BhikajiKeshao Jeshao and another Vs. Brijlal Nandlal Bivani and others (13),

E.L.R.] B. C. DUTTA V. J. K. CHOWDHURY 395

Balwan Singh Vs. La\shmi Narain and others (15), ChandrashehharSingh Vs. Sarioe Pmsad Singh and another (16), and Tribeni RamSaiyadeo Singh \and others (2) in support of his contention that theallegations are liable to be STRUCK OFF. He pointed out certaininstances where the particulars are not in full. For example, in the caseof test relief work and drought relief no exact dates were furnished.Only months and year were mentioned. Money sanctioned for each ofthe constructions was not noted. My order dated 6-11-1967 is that thepetitioner should comply with the order in full or in part. I also men-tioned in para 9 of my order the dates, timings and numbers might beapproximately mentioned. So, in view of this order the allegations ofthe petitioner regarding the corrupt practices mentioned in the schedulecannot be struck off, unless they are very vague still.

14. For the above reasons, issue (iii) does not arise now in view ofthe order of this Court dated 6-11-1967 in C.M.P. 236 of 1967 andC.M.P. 238 of 1967. I find on additional issue (1) that the amendmentpetition is barred by limitation in so far as the new incidents are con-cerned. I find on the additional issue (ii) that the amendment petitionis in substances a new petition only with regard to the new incidentsand not with regard to the incidents already mentioned in the electionpetition. I find on additional (iii), that the amendment petition did notalter the nature of the original petition in so far as the particulars,furnished in compliance with the order of this Court dated 6-11-1967,are concerned. I find on additional issues (iv) that the objections ofthe respondent regarding the particulars furnished by the petitionerabout the matters covered by paragraphs 7 and 8 of the original petitionin pursuance of the order of this Court dated 6-11-1967 are not tenable.

15. ISSUES (IV) AND (V).—The contention of the respondent'sCounsel is that the affidavit filed with the petition with regard to thealleged corrupt practices is not according to the prescribed form 25read with rule 94 (A) of the Rules of 1961 and that, therefore, theallegations are to be struck off. He relied on Satis Kumar v. Elec-tion Tribunal (District Judges), Alwar and another (17) and Kamal-narain Sharma Vs. Pt. Dwar\a Prasad Mishra and others(lS), whereinit was held that the intention of the Legislature in introducing theproviso to section 83 of the Act is to prevent the petitioner from filingan election petition making wild allegations about corrupt practicesand to impose on him a reasonable restraint, so that, if false statementsare made, he can be prosecuted for perjury. It was also held that theLegislature also considered it proper that the Central Governmentshould prescribe the form of affidavit so that the petitioner may beable to file affidavit in that form stating clearly which facts are true

(17) A.I.R. 1963 Rajasthan 157.(18) A.I.R. 1965M.P. 15.

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and which of them he believes to be correct on tihe basis of theinformation gathered from others, but that this does not mean thatif an affidavit substantially complies with the form prescribed, it mustbe thrown out simply because it does not tally with the prescribedform in immaterial particulars. In my order dated 6-11-1967 inC. M. Ps. 136 of 1967 and 238 of 1967 I stated that the affidavit filedwith the original petition regarding the alleged corrupt practices isvery vague and laconic and that it is not in accordance with theform. So, the petitioner was directed to file it in accordance with form25 prescribed under rule 94-A specifying the various particulars. Ac-cordingly the petitioner filed a separate affidavit on 13-11-1967 regard-ing the corrupt practices alleged by him in the amended petition. Thisaffidavit is according to the form 25. The contention of the peti-tioner's Counsel is that the previous affidavit regarding the other alle-gations in the election petition is not in proper form. The previousaffidavit contains only the allegation about R. W. 9 Hari Mohan DebNath mentioned in sub-paragraph vii of para 7A of the election petition,about which I held that no further particulars were required. Theprevious affidavit regarding the said allegation is substantially in formand the allegation cannot be struck off. The petitioner's Counselrelied on Kamcd Narain Sharma v. Dwarka Prasad Mishra andothers (19) where the affidavit was sworn before the "District Clerkof Court" Jabalpur, who described himself as "Officer for Administer-ing Oaths on Affidavits, Jabalpur". It was held that rule 94-A doesnot lay down before what kind of commissioner of oaths an affidavitshould be sworn, that the "District Clerk of the Court" was a Com-missioner of Oaths on affidavits and that he could be excluded onlyby taking an extreme and technical view which was not justified. Thisdecision shows that a technical view about the form of affidavit neednot be taken. The petitioner wrote in his previous affidavit, filedwith the election petition on 444-1967, that the statements made by himin paragraphs 7 to 10 of his affidavit regarding the commission ofcorrupt practices of bribery, undue influence, circulation of leaflets andphamphlets inciting communal feelings and hatred between Ben-galees and tribals and the particulars of such corrupt practices weretrue to his knowledge. This affidavit is now confined to item vii inparagraph 7A of the petition, inasmuch as a proper affidavit had beenfiled subsequently regarding the other alleged practices.

16. For the above reasons, I find issues (iv) and (v) against therespondent.

17. ISSUE (VI).—In view of my findings, on issues (ii) to (v)the election petition is not liable to be dismissed for noncompliancewith the provisions of sections 81 and 83 of the Act. Findingaccordingly.

(19) A.l.R. 1966 S. C. 436.

E.L.R.] B. C. DUTTA V. J. K. CHOWDHURY 397

18. ISSUE (VIII).—This issue was not pressed by the respondent's.Counsel. I find issue (vii) in the negative.

19. ISSUES (IX), (X) AND (XI).—These issues are connectedand are, therefore, considered together. The petitioner listed out anumber of items in A to D in para 9 and in A and B in para 10 ofhis petition regarding non-compliance with the provisions of the Act,the Rules and the orders with reference to the ballot papers and ballotboxes.

20. In para 9A, the petitioner alleged that after the polling wasover the United Front polling agents were not premitted to put theirsignatures on sealed up paper packets and that they were not allowedto take note of the ballot paper accounts. There are no details as towhere the polling agents of the United Front were not permitted toput their signatures and by whom they were not allowed to take noteof the ballot paper accounts. The petitioner did not examine any pol-ling agent or polling officer to prove his allegations. Under rule 46(2)of the rules of 1961 the presiding officer shall get the packets of theelectoral rolls, unused ballot papers, cancelled ballot papers etc. sealedand may also premit such of these polling agents, who are present andwho desire to affix their seals thereon, to put their seals on them.P. W. 10 (Atikul Islam) stated that he did not remember whetherthe United Front party had any seal. So, there was no question ofthe presiding officer not permitting United Front party polling agentsto put the seals of the party on the packets. There is no provision forputting signatures on the sealed packets. So, the allegations in sub-para A are baseless.

21. In sub-para B of para 9, the petitioner alleges that there was agreat discrepancy between the total number of ballot papersprinted and sent to Tripura and the total number of ballot paperssent to returning officers, that in a number of polling stations therewas a discrepancy between the number of ballot papers used or issuedto presiding officers and the number of ballot papers found for count-ing on the tables. P. W. 1 (Benu Sen Gupta) who was the electionagent of the petitioner, P. W. 9 (Nripendra Chakraborty) who was acandidate set up by the United Front for Mohanpur Assembly Consti-tuency and P. W. 26 the petitioner himself are the witness as whospoke to this aspect of the case. The respondent examined the Chief..

Electoral officer and the Suprerintendent of the Gov-ernment Press in Tripura as R. Ws 2 and 13 to explain the discrepan-cies in the total number of ballot papers received for being used inthe elections. The evidence of R. W. 2 (N. G. Choudhury) is thatthe local Government Press had no sufficient capacity to print the bal-lot papers, that he brought this fact to the notice of the ElectionCommission, that the latter asked him to get them printed in the

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Central Government Press in Calcutta and that, accordingly, he gavean order for 3,04,000 and odd ballot papers for Tripura West Parlia-mentary Constituency to Calcutta Central Press. He received theballot papers from 5-2-1967 to 9-2-1967. Then, he sent a portion ofthe ballot papers from 1,00,001 to 1,31,200 to Senamura with instruc-tions to the returning officer of Sonamura to count all the ballot paperssent to him and to divide them into smaller packets to be used in dif-ferent polling stations. But, after counting, he reported to R. W. 2(N. G. Choudhury) that the ballot papers fell short by 1460 from1,18,541 to 1,20,000. Vide Ext. 2379. R.W. 2 (N. G. Choudhury) gotthis information by telegram and by telephone also on 11-2-1967. Thenon 14-2-67 he sent a telegram to the Central Government Press in Cal-cutta to print the missing ballot papers with their serial numbers and todespatch them as early as possible. Then the evidence of R. W. 2(N. G. Choudhury) is that, on looking into the calender, he foundthat 14-2-1967 happened to be a public holiday on account of SaraswatiPuja. He doubted whether he could sent the ballot papers to Sonamuraat least 4 to 5 days ahead of the scheduled dates of polls. So, to ensurethat the polling would take place on the due dates, he instructed theGovernment Press, Tripura, to print the missing ballot papers with theabove serial numbers. But, on 13-2-1967 R. W. 2 (N. G. Choudhury)received the ballot papers duly printed with serial numbers fromCalcutta and his evidence shows that in the same night he despatchedthem to Sonamura. Vide Ext. B43. But, in the meanwhile R.W. 13(Bhababanda Sarkar) the Superintendent of Government Press, Tripuragot printed the required number of baillot papers. As he sent awaythe ballot papers received from Calcutta he preserved the ballot papersprinted by R. W. 13 (Bhababanda Sarkar) in Agartala in a box Ext.A-2378 in the Treasury and produced it into the Court. The sealedpacket was marked as Ext. B.41 R. W. 2's evidence further shows thatthe S. D. O., Sadar informed him on 14-2-1967 that 900 ballot paperswere marked in duplicate and that a bunch of 900 was missing, thatthen he wired to the Central Press in Calcutta to print again 900 ballotpapers with the missing serial numbers and that in the meanwhile hegave those 900 ballot papers marked in duplicate to the local Press forbeing re-marked with the missing numbers. Ext. B-42 bundle refersto those 900 ballot papers, which were sent to R. W. 13 (BhababadaSarkar) for being re-marked. Thus, according to him, the ballotpapers, which were received from Calcutta, only were used, the ballotpapers got printed by R. W. 13 (Bhabananda Sarkar) were not usedand they are in tact in Exts. B-41 and B-42 bundles. His evidence in thecross examination shows that the returning officer of Sonamura statedin Ext. A. 2379 telegram that serial nos. 1,08,601 to 1,20,000 were notfound due to duplicate numbering of ballot papers with serial nos.1,08,60 to 1,10,000 and that serial nos. 1,20,651, 1,20,652, 1,29,427and 1,29,428 were not found. He added that the returning officer

E.L.R.] B. C. DUTTA V. J. K. CHOWDHURY 399

phoned to him that the ballot papers bearing serial Nos. 1,18,541 to1,18,600 were illegible. But, R.W. 2 (N. G. Choudhury) did not makeany arrangement to reprint the 4 ballot papers mentioned above. Hisevidence is that he instructed the returning officer that the number ofthe missing ballot papers should be noted in the list. R.W. 2 (N. G.Choudhury) deposed that he got back the 1400 ballot papers by issue-ing Ext. A-2380 latter and remarked them for the Sadar AssemblyConstituency. With regard to the 900 ballot papers required by theS.D.O., Sadar, R.W. 2 (N. G. Choudhury) stated in the cross-examina-tion that according to Ext. A-2381 the number of ballot papers whichfell short was 929 from 3,41,072 to 3,42,000. The Sadar S.D.O. statedin the letter Ext. A-2381 that the returning officer would be able toadjust the required number of ballot papers for the old Agartala Con-stituency by writing the serial numbers on the back of the ballot paperswhich were found with symbol without serial numbers. He furtherstated that if 29 ballot papers were adjusted by writing with hand theserial numbers then the ballot papers would have to be reprinted onlyfrom serial No. 3,41,101 to 3,42,000. So R.W. 2 (N. G. Choudhury)agreed to his proposal and gave an order as per Ext. A-2382 to CalcuttaPress to print the ballot papers from serial Nos. 3,41,101 to 3,42,000instead of giving order for printing ballot papers from serial Nos.3,41,072 to 3,41,100. He thereby allowed the returning officer, Sadar tomark with hand the un-numbered 29 ballot papers.

22. The evidence of R.W. 13 (Bhabananda Sarkar) is that aftergetting information by phone from R.W. 2 (N. G. Choudhury) to print1,460 ballot papers, he got 1,500 ballot papers printed by way of cautionto meet the exigencies and handed over 1,460 ballot papers found inExt. B-41 and got the remaining ballot papers burnt in his presence. Hegot them numbered as 1,18,541 to 1,20,000. Ext. A-2376 shows that aclass IV employee wrote that he numbered ballot papers as 1,18,541 to1,20,000 and stated that their number was 2,500. Of course, this is obvi-ously a mistake because their number would be 1,500 Ext. A-2375 writtenby another class IV employee correctly mentions that 1,500 ballot paperswere printed and that 750 were the total impressions Ext. X-22 alsoshows that the Assistant Foreman correctly wrote that 1,500 copies wereprinted. Ext. X-25 is a sample ballot paper received by R.W. 13 fromthe Election department on 11-2-1967. Ext. X-24 is the first proof andExts. X-22 and X-23 are the final proofs. According to him, though hegave an order in writing for printing and hand numbering 1,460 ballotpapers, he verbally gave an order for printing 1,500 copies. Ext. X-23(b)shows that the papers in stock for some other works was used for print-ing the ballot papers on 12-2-1967. But, it was accounted for on 18-8-67.He was not able to explain what Ext. X-22 (a) dated 21-8-1967 relatesto. Though R.W. 13 (Bhabananda Sarkar) passed a remark as per Ext.A-2376(a) that the out-turn was poor and the computer made a remark

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Ext. A-2376(b) that he checked the out-turn, the remark in Ext. A-2376that 2,500 ballot papers were printed is clearly a mistake, because theballot papers which were printed were numbered from 1,18,541 to1,20,000.

23. The evidence of R.W. 13 (Bhabananda Sarkar) with regard tothe re-numbering 900 ballot papers contained in Ext. B-42 is that theold numbers on 300 ballot papers were blocked and erased with type—quads and that 800 ballot papers were re-numbered as per Ext.A-2307(a). On actual counting of the ballot papers in Ext. B-42 R.W.13 (Bhabananda Sarkar) found that 253 were defaced and that 705 weredefaced and re-numbered and that the rest were neither defaced nor re-numbered. His evidence is that he received information that the Elec-tion department received ballot papers from the Central GovernmentPress, Calcutta and that, therefore, further defacing and re-numberingwere stopped.

24. Thus, a set of 1,400 ballot papers returned by the returningofficer, Sonamura and 900 ballot papers which were marked in dupli-cate were received by R.W. 2 (N. G. Choudhury). Their total numberwas 2,300. But, Ext. B-42 contains two items of 985 plus 500=1,485.So, there is a balance of 815 ballot papers not accounted for. The ballotpaper account for Polling Stations 6 to 8 in Ext. A-2334 shows thatballot papers with serial Nos. 118541 to 120060 were used. So, the ballotpapers sent by the Calcutta Press were used. Also, the respondent'sCounsel pointed out that the 29 ballot papers referred to by R.W. 2were not used, as can be seen from Ext. B-48 in Ext. A-2312 ballot papersaccount. But, still there in no accounting for the 815 ballot papers.Besides this, it can be seen from a comparison of Exts. X-22 to X-24and the ballot papers printed in Agartala Printing Press with Ext. X-25model ballot, ballot paper, the design differs. As admitted by R.W. 13(Bhabananda Sarkar) the design cannot be changed without the per-mission of the Election Commission. Vide also rule 30(1) of the Rulesof 1961 which lays down that every ballot paper shall be in such formand the particulars therein shall be in such language or languages, asthe Election Commission may direct. As such there was some bunglingregarding the ballot papers and non-compliance with Rules 30(1) ofthe Rules of 1961.

25. Again, it may be seen from the ballot paper accounts Exts.A-2311 to A-2340 in respect of the various polling stations in the Par-liamentary and Assembly Constituencies, the number of ballot papers,which were issued, does not tally with the number of the ballot papersfound on the counting tables in several polling stations as stated by thepetitioner P.W. 26, though there are some mistakes in the account fur-nished in para 9B of the petition. It may be mentioned that there is-

-E.L.R.] B. C. DUTTA V. J. K. CHOUWDHURY 401

discrepancy not only in the account relating to some stations in theParliamentary Constituency but also in the account for the same pollingstations relating to the Assembly Constituencies. The elections for theParliamentary Constituency and the basic Assembly Constituencies wereheld at the same time. The evidence of R.W. 1 the respondent showswhat procedure was followed. The voters who were within the com-pound were allowed to vote by standing in a queue. A voter had to gofrom table to table. The parties' agents gave slips to the voter men-tioning his number in the voting list. Then a clerk within the pollingbooth verified his identity. One polling officer gave a mark with in-delible ink on one of the thumbs or the fingers. The last! pollingofficer gave the direction to the voter and also a seal. The voter wouldenter into the enclosure and put the seel on the candidate's electionsymbol. He would fold the papers and come out and put it in the ballotbox before the presiding officer. Then, he was given another ballotpaper. He followed the same procedure. One had to enter into thebooth one after another. So, votes were cast for both the Parliamen-tary and the Assembly Constituencies at the same time. But, yet somediscrepancies are found in the ballot paper accounts. Ext. A-2320shows that while 780 ballot papers were issued 776 were found on thecounting table for the Parliamentary Constituency and while 778 ballotpapers only were issued and 774 were found on the counting table forthe Assembly Constituency in old Agartala, for polling station No. 19.In Charilam Parliamentary Constituency 574 ballot papers were issuedwhile 573 ballot papers were found on the counting table. Vide pollingstation No. 19 in Ext. A-2322. There are similar discrepancies regard-ing the ballot paper account for polling stations 12, 13, 14, 15, 18, 19, 22in Ext. A-2326 regarding Mahuripur Constituency. Exts. A-2316 andA-2315 show that there are discrepancies in the number of ballot papersissued and found on the counting tables for both the Parliamentary aswell as Assembly Constituency for Agartala Sadar I. For example, inpolling station No. 12, 836 ballot papers were issued while 833 werefound for the Parliamentary Constituency and 835 ballot papers wereissued and 834 were found on the Assembly Constituency countingtable. In some cases there were excess ballot papers which could notbe explained by the learned Counsel for the respondent. For example,in polling station 15 in Uttar Debendranger Parliamentary Constituencywhile 817 ballot papers were issued 819 were found on the counting tablefor the Parliamentary Constituency. Vide polling station No. 15 inExt. A-2318. Similarly in polling station 16 in old Agartala while 667ballot papers were issued, 676 ballot papers were found on the countingtable for the Parliamentary Constituency. Vide Ext. A-2320. For thesame polling station there was excess of 10 ballot papers on the count-ing table for the Assembly Constituency also. Ext. A-2322 shows thatwhile 593 ballot papers were issued 594 ballot papers were found onthe counting table for polling station No. 15 in Charilam Parliamentary27—3Elec.Com./71

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Constituency. Of course, the discrepancy in the accounts here andthere is not abnormal. But, there was discrepancy.

26. In para 10A, the petitioner mentioned that a ballot paper bear-ing serial No. 296986 of polling station No. 10/20 of Charilam Con-stituency was found on the main road in Agartala town opposite to theSecretariat building, that it contained a seal upon the petitioner's elec-tion symbol and that it must have been removed from the ballot box. Itwas marked as Ext. A-2352 and it tallies with the model Ext. X-25ballot paper. The evidence of P.W. 18 (Debandra Chandra Deb) isthat he had cast his vote in the last election, that he came to his sister'sresidence in Joynagar, Agartala after the election was over, that on Mon-day when he was going to the Motor Stand by Akhaura Road after thecounting was over, he saw Ext. A-2352 ballot papers lying in the streetand that he picked it up and gave it to P.W. 26. It was elicited in hiscross examination that his house is adjacent to P.W. 26's father-in-law'shouse, that P.W. 26 the petitioner usually visits the house of the father-in-law of P.W. 18 (Debendra Chandra Deb) and that, therefore, he wasknown to him. He further stated that the wife of the petitioner P.W.26 was also present in the Court when he was examined. He admittedthat he was not summoned, that the petitioner's son asked him to attendthe Court and that, therefore, he attended the Court. The fact that notonly he but most of the other witnesses were not summoned is not amaterial fact in this case. The petitioner was detained under the Pre-ventive Detention Act after he filed the election petition. So he hadno opportunity to summon the witnesses. Except a few witnesses, whowere also detained under the Preventive Detention Act and who wereSummoned from the Central Jail in Agartala, all the other witnessesattended the Court without summonses. Some of them stated that theywere asked by the petitioner (before he was detained) to attend theCourt. Some others stated that the petitioner's son requested themto attend die Court. P.W. 21 (G. Chakraborty) attended the Courtat the instances of the petitioner's daughter. As such, the fact that thewitnesses attended the Court without summonses cannot be countedagainst them. But, the name of P.W. 18 (Debendra Chandra Deb) isfound in the second list filed by the petitioner. It was elicited fromP.W. 26 that in memorandum submitted by him to the President ofIndia complaining of the last election, he mentioned some other ballotpaper and not Ext. A-2352. The Respondent's Counsel stated that theballot paper bearing serial No. 2,96,986 in polling station No. 10/20 ofCharilam Constituency was one of the 4 ballot papers missing as canbe seen from Ext. B.-47 with reference to polling station No, 20 in Ext.A-2322. R.W. l's evidence is that in some cases the voters might havetaken away the ballot papers without putting them in the ballot boxes,when the presiding officers were unawares. But Ext. A-2352 bears theseal on the petitioner's election symbol. So, the person, who had put

B.L.R.} B. C. DUTTA V. J. K. CHOWDHURY 403

the seal on the petitioner's election symbol evidently cast his vote inhis favour and it is unlikely that he would have gone away withoutpatting the ballot paper in the ballot box. As such, it is not knownhow it came out of the ballot box and there is no explanation for itsflying in the streets.

27. The petitioner made some more allegations in sub-para B ofpara 9 of his petition, about which there is no evidence. Though hementioned that ballot box No. 1 in polling station No. 51 in Pur anAgartala J. H. School was found empty Ext. A-2320 shows that thatthere was no polling station No. 51 at all in that school. He allegedthat two ballot boxes were found on the counting table, while threeballot boxes were used at polling station No. 12 in town Agartala BidhanSabha Constituency covered by Ext. A-2340. But, there is no Evidenceabout 'it. Nor is there any evidence about his allegation that the ballotbox in polling station No. 10 in Mohanpur Bidhan Sabha and that inthe Craft Training Institute polling station in Sadar III Constituencydid not bear seals. His further allegation that the ballot boxes used inpolling station No. 3, 13, 19 and 22 in Ext. A-2336 in Bishalagarh werenot wrapped up with sack cloth and sealed up is not borne out by anyevidence.

28. In sub-para C of para 9, the petitioner alleged that there was noproper guard when the ballot boxes were sent to the headquarters. But,no particulars of the polling stations from which the ballot boxes weresent without guard were mentioned.

29. In Sub-para D of para 8, he alleged that the United Front can-didates were not allowed to lock up the doors and windows and putguard when the ballot boxes were brought to Agartala from SadarAssembly Constituency. P.W. 19 (Atikul Islam), who was one of thecandidates for Sadar Assembly Constituency set up by United Front, de-posed that Shri S. R. Chakraborty, the S.D.M. And the returningofficer did not permit him to put his seals on the doors and windowsof the room in which the ballot boxes were kept. P.W. 19 (AtikulIslam) lodged a complaint Ext. A-2369 on 20-2-1967. Though it is atyped petition, the words "might be tampered with" were written withhand in Ext. A-2369. It may be seen that this allegation refers to theSadar Assembly Constituency and not to the Parliamentary Constituency,for which the District Magistrate was the returning officer. The peti-tioner himself did not file any petition

30. Sub-para E of para 9 comes under corrupt practices alleged inpara 7 and will be considered thereunder.

31. In sub-para B of para 10, the petitioner made a number of alle-gations about ballot boxes, about which he did not lead any evidenceat all.

404 B. C. DUTTA V. J. K. CHOWDHURY [VOL. XXXVIII

32. Thus, the petitioner has made out three allegations namely,firstly that 815 ballot papers were not accounted for, secondly that therewas a discrepancy in the ballot paper accounts for many polling sta-tions and, thirdly, that Ext. A-2352 ballot paper was removed from theballot box. From these facts, the petitioner's Counsel argued that theballot boxes must have been tampered with. From these facts alone itdoes not follow that the ballot boxes might have been tampered with.For, in almost all the polling stations where discrepancy in the accountswas found the petitioner secured more votes than the respondent. Inthe very polling station No. 20 Ext. A-2322 ballot papers account forCharilam shows that the petitioner secured 394 votes, while the respon-dent secured only 137 voters. In the other polling stations where thereis discrepancy in the account the petitioner secured more votes thanthe respondent. He got 397 as against 187, 783 as against 82 and 489as against 355 votes in polling stations 5, 14 and 18 as per Ext. A-2312.He got 204 as against 149, 330 as against 233, 708 as against 225 and 418as against 370 in polling stations 10, 11, 12 and 20 as per Ext. A-2314.He got 392 as against 314, 517 as against 441, 254 as against 246 and 516as against 300 in polling stations 5, 13, 15 and 20 of Ext. A-2316. Hegot 434 as against 152, 426 as against 256, 770 as against 23,442 as against122, 697 as against 20 and 553 as against 68 in polling stations 4, 7, 15,19, 20 and 21 in Ext. A-2318. He got 492 as against 241 and 634 asagainst 51 in polling stations 19 and 20 as per Ext. A2320. He got 533as against 231 and 536 as against 11, in polling stations 2 and 19 as perExt. 2322. He got 310 as against 283, 467 as against 354 and 555 asagainst 280 in polling stations 14, 15 and 17 in Ext. A2324. He got190 as against 67 and 306 as against 277 in polling stations 6 and 10 asper Ext. A2326. So, if there was tampering, then it is not probablethat the petitioner would have got more votes than the respondent asper the alleged tampered ballot boxes. It was held in Champa Devi.Vs Jamuna Prasad and others (20) page 16 of Digest of the ElectionLaw Reports (Vol 11—1955 to I960) that the fact that all the ballotpapers which were issued to voters had not been accounted for, doesnot bring the case with the purview of section 100(1) (d)(iii) of theAct, at it is possible that the voters who had taken them might not havemade use of them. In T. C. Basappa Vs. T. Nacappa and others (21)it was held that discovery of excess ballot papers in a ballot box is noground for setting aside the election of the returned candidate.

In Govind Malviva Vs. Mulli Makonar and others (22), someballot papers which were not genuine were found in the ballot box ofthe respondent. There was no evidence to show who put them in theballot box. It was held that their presence did not prove any corrupt

(20) 15 E.L.R. 443.(21) 3 E.L.R. 197.(22) 8 E.L.R. 84.

E.L.R.] B. C. DUTTA V. J. K. CHOWDHURY 405

practice under sub-section (3) or (8) of section 123 of the Act of 1951(as it then stood) on the part of the respondent. But that the case wasone which was covered by rule 47 of the Representation of the PeopleRules, 1951 and that the Returning Officer should have rejected theballot papers as supurious ballot papers under that rule. In Shanta DeviVaidya v. Bashir Hussain Zaidi and others(23), it was held that evenif it is proved that the ballot boxes were defective and were such thatthey could be tampered with and that there were irregularities in con-ducting the election, it cannot be set aside under the Indian law unlessit is proved further that the result of the election had been not merelymight have been materially affected by the said defect or irregularity.Vide also Jung Bahadur Singh Vs. Basant Lai and others (24) andGanga Prasad Shastri Vs. Panna Lai (25) to the same effect. In ShahUmair Sahib Vs. Ramachandran Singh and others (26) it was heldthat mere fact that the outer seals of some ballot boxes were missjilngor broken did not raise an inference or even a presumption of "tamper-ing", but that it must be proved as a fact. It was further held that toconstitute "tampering" it is not necessary to prove that the ballot paperswere taken out, added to or destroyed and the actual moddling withthe boxes is enough. In the present case, there is no evidence that theseals of the ballot boxes were broken or tampered with, when theywere brought out, before the ballot papers were counted. Mere suspicionand conjecture are not enough.

33. Regarding Ext. A-2352 the contention of the learned Counselfor the petitioner is that the secrecy of voting under for the petitioneris that the secrecy of voting under sections 94 and 128 of the Act wasviolated, that taking away of a ballot paper even by a voter is a cogniz-able offence under section 135 of the Act and that, therefore, the electionof the respondent is liable to be sent aside, but, as can be seen fromparagraph 679 at page 468 of the Law of Election, and Election Petitions,Volume I and II by H. S. Doabia, 1967 Edition, Committing an offenceunder the rules is not non-compliance with the rules within the meaningof section 100(1) (d)(iv) of the Act.

34. Assuming that there was irregularity with regard to the ballotpapers and the conduct of the election, then the petitioner can succeedonly if he can prove that the election of the respondent was materiallyaffected due to non-compliance with the provisions of the Act and theRules under section 100(1) (d)(iv) of the Act. This is the only provi-sion under which this aspect of the case falls. The word "non-com-pliance" in section 100(1) (d)(iv) of the Act denotes an omission to

(23) 8 E.L.R. 300.(24) 8 E.L.R. 429.(25) 8 E.L.R. 444.(26) 10 E.L.R. 162.

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do what is directed to be done and does not denote doing of an actwhich is prohibited. Vide also Naunihalsingh v. Kishorilal Paliwal(27) followed in Madhu Singh Mukji Ram Vs. Ram Saran ChandMittal and others (28). Section 100(1)(d)(iv) of the Act requires thepetitioner to prove that the election of the respondent was materiallyaffected on account of the non-compliance with the provisions of theAct and Rules. This requirement is, no doubt, onerous but has to bedischarged. In Vashit Narain Sharma Vs. Dev Chandra and others(29), the Supreme Court laid down that the words "the result of theelection has been materially affected" indicate that the result should notbe judged by the mere increase or decrease in the total number of votessecured by the returned candidate but by proof of the fact that the wa-sted votes would have been distributed in such a manner between thecontesting candidates as would have brought about the defeat of thereturned candidate. It was further held that this is a matter which hasto be proved and that the onus of proving it lies upon the petitioner.There cannot be a conjectural finding that the result of the election wasmaterially affected. In N. Pothu Reddiar Vs. V. A. Muthiab andanother (30) it was held that illegality or irregularity in an election orin the process of counting of votes is a matter for proof and that nothingcan be done on the basis of mere suspicion. Vide also Ri\hab Dass Vs.Ridhichand Palliwal and others (31) and Vashist Narain Sharma Vs.Dev Chand and others (32), the rulings cited at pages 286 and 287 ofVolume II of Digest of the Election Law Reports 1955-60. SudhirKumar Mondal v. Abhoy Pada Saha(33) and Hariransingh v. Kam-taprasad Sharm (34) (relied on by the respondent's Counsel). In thepresent case there is a margin of 33,822 votes by which the respondentsucceeded, The petitioner has to show how the balance would havebeen tilted in his favour, if there was no non-compliance with the pro-visions of the Act, the Rules and orders thereunder. He has been ableto show that there is discrepancy in the account of the ballot papersonly upto one or two thousands. There is no proof that the respondent'selection was materially affected on account of the non-compliance withthe provisions of the Act and the Rules and orders thereunder withreference to the ballot papers.

35. I find on issue (ix) that the result of the election of the respon-dents was not materially affected by non-compliance with the provisionsof section 100(1) (d)(iv) of the Act so far as regards the ballot papers

(27) A.I.R. 1961 M. P. 84.(28) A.I.R. 1966 Punjab 66.(29) A.I.R. 1954 S. C. 513.(30) A.I.R. 1963 Madras 390.(31) 9E.L.R. 115.(32) 10 E.L.R. 30.(33) A.I.R. 1966 Calcutta 141.(34) A.I.R. 1966 M. P. 255.

E.L.R.] B. C. DUTTA V J. K. CHOWDHURY 407

are concerned. I find 'issue (x) in the affirmative. I find on issue (xi)that there was discrepancy between the number of ballot papers usedor issued and number of ballot papers found for counting, but thatthe discrepancy did not materially affect the result of the respondent'selection.

36. Issues (VIII), (XII) and (XIV).—These issues are connected.Before discussing the evidence relating to these issues, it will be con-venient to refer to the circumstances under which both the parties con-tested the election to the Lok Sabha from the Tripura West Parliamen-tary Constituency. The father of the petitioner P.W. 26 was an Advo-cate of the local Bar. The petitioner is a Bangalee. His fore-fathers be-longed to Charges in East Pakistan about 100 years back. His fatherand brothers came away to Agartala. He was born in Tripura. Hepassed LA. Examination in Comilla Victoria College which is now inEast Pakistan. He belongs to the Communist Party (Marxist). In1931, one Mr. Elison was murdered. P.W. 26 was arrested in 1933 andhe does not remember whether he was arrested in connection withMr. Elison's murder. After he was released from prison, he came awayto Agartala. He was considered to be indulging in anti-state activities,as he was opposed to the regime of the then monarch of Tripura. In1940, he was arrested for disobeying an externment order in Tripuraand he was tried and sentenced to undergo rigorous imprisonment. Hefought for the freedom of the people of Tripura. He joined the C.P.I.in Hizli Detention Camp. He was transferred from Agartala to Mai-mensingh Jail (which is now in East Pakistan) in 1942. Again afterhis release, he came over to Agartala. He associated himself with theC.P.I. group in Agartala. He published a newspaper called TripuraRajyer Katha. He was the sponsor of Tripura Rajya Praja Mandal. Hewas detained in Gauhati Central Jail and shifted to other jails in Assamfrom 1948 to 1951. He was associated with Ganatantric Sangha startedby his Advocate Shri B. C. Dev Barma. He started a Weekly Organby name Tripura Katha. In 1957, he contested for a seat in Lok Sabhaon C.P.I. ticket, buc he did not succeed. In the first general electionwhen there was only a single member Constituency, he was elected tothe Lok Sabha. He was elected in 1962 from the same Tripura WestConstituency to the Lok Sabha.

37. The respondent R. W. 1 is also a Bengalee and is anHonours Graduate of the Oxford University and a Master ofArts and a Law Graduate of the Calcutta University. He isa member of the local Bar. In 1920, he was a professor in MahashinCollege in Hooghly. After he served in that College for about 6 months,he joined another Government College by name Murarichand Collegein Sylhet in Assam. He worked there upto 1947. When he was askedto opt for the rest of India or Pakistan, he opted for the rest of India..

4 0 8 B. C. DUTTA V. J. K. CHOWDHURY [VOL. XXXVIII

The Government of Assam granted him proportionate pension witheffect from 1-4-1948. After the partition, he was compulsorily retired.He was one of the agitators for forming a non Assamees speaking Statecomprising Cachar, Tripura, Mizo Hills, Manipur and Nagaland. Hedenied the suggestion that Assam Government wanted to get rid of himon account of his agitation for forming a non-Assam speaking State.He filed a suit against the Government of Tripura and the Governmentof India against the order for compulsory retirement and succeeded.From 1920 to about 1948 he was in Government service with a breakof few months in the beginning. His promotion was stopped for about20 years by European Principals, as he was connected with Gandhianconstructive programme. He worked as Principal in Sylhet from 1946to 1947. He worked as Principal of the M.B.B. College in Agartalafrom 1948 to 1954. He worked as the Principal in the G. C. College inSilchar from 1954 to 1959. Again, he worked as Principal in CacharCollege in Silchar from 1960 to 1964. So, he is popularly called as Prin-cipal. After retirement, he was coaching up students in his house inAgartala for M.A. Examination. For the first time, he contested for aseats in the Lok Sabha in 1957 as an independent candidate. But, heforfeited his deposit.

38. R.W. 1 narrates the circumstances under which he joined thepolitics in 1967. When he was engaged in tuitions in 1966, politics inTripura was rather in dis-array. The communists were divided intoleftist and rightist, after the Chinese aggression in 1962. The congresswas also divided with Shri Sukhomoy Sen Gupta, a powerful ex-memberof the congress and ex-Minister, having resigned his post as Minister.The other parties were virtually non-existent. In the month of Juneor July, 1967, on one day Shri Sukhomy Sen Gupta met R.W. 1 in hishouse and told him about the split in the congress and his resignation,He told R.W. 1 that he had been on a tour almost throughout Tripuraand sounded people how it would work to have a Gandhian branch ofthe congress. R.W. 1 informed him that he had bitter experience in1957, as he was let down and that he was reluctant to accept his offer.On or about 7-9-66, a conference was called by 8 persons excludingShri Sukhomoy Sen Gupta in Ranirbazar. Shri Sukhomoy Sen Guptapersuaded R.W. 1 to tell the persons in the gathering about Gandhianprinciples. R.W. 1 agreed and attended the conference. Shri SukhomoySen Gupta presided over the meeting and was made the Convenor.After some days, 6 out of 8 persons approached R.W. 1 and told himthat Shri Sukhomoy Sen Gupta who proposed to frame the rules andpromised to form the committee, did not do so though there was aresolution and asked R.W. 1 to intervene. Then R.W. 1 went to ShriSukhomoy Sen Gupta's house. From the conversation with him, R.W. ]could gather that Shrj Sukhomoy Sen Gupta wanted to be only a con-venor and run the organisation. Shri Sukhomoy Sen Gupta subse-

IE.L.R.] B. C. DUTTA V. J. K. CHOWDHURY 409

quently met R.W. 1 when those 6 persons revolted against him andwhen they requested R.W. 1 to be the president of the Tripura Con-gress. R.W. 1 understood that Shri Sukhomoy Sen Gupta wanted tohave an independent congress organisation. At that time, the petitionerand others, who were in the jail, were released. The petitioner P.W. 26also approached R.W. 1 and told him that as the communist party alsowas losing ground from election to election and as Shri Sukhomoy SenGupta, the enemy of the communist party, was divided from the con-gress, they should all form United Front and that R.W. 1 should beits leader and stand from the town Constituency R.W. 1 told P.W. 26also that he had bitter experience in 1957 and refused to stand for theelection. In the meanwhile, the congress was also sending its emissa-ries to him for about one month and R. W. 1 refused to accept theirsuggestions. He suddenly became important and could see what waswhat and what was working in what way and for what purpose. Final-ly, P.W. 26 went to him with Shri Dasaratha Dev Barma and R.W. 1refused to join their alliance. R.W. 1 issued Ext. A-2377 pamphlet ex-plaining his position vis-a-vis Shri Sukhomey Sen Gupta and others.Towards the end of November, 1966 at about 10 P.M. Shri S. L. Singhsuddenly called on him and asked him why he refused the congressticket for the Lok Sabha, being a follower of Mahatma Gandhi andwearing Khadi dress. R.W. 1 replied that the extent to which the con-gress deviated in practice from Gandhian principles was also the extentto which he deviated from the congress of today. Then, Shri S. L. Singhexplained to him certain drawbacks in the Administration on accountof practical difficulties. R.W. 1 suggested that the Administrationshould be streamlined. He also told him about the incident of shootingof students, some deaths in the shooting and about the wounded personswhom he saw in the hospital 'in an incident which happened in thosedays. R.W. 1 further informed Shri S. L. Singh that he must be per-mitted to retain his freedom of conscience. Shri S. L. Singh agreedthat he would do his best with regard to the above matters. As con-gress was formed by Mahatma Gandhi, R.W. 1 at last agreed to acceptthe congress ticket. Shri S. L. Singh told him that Tripura local con-gress and the A.I.C.C. should give their acceptance. The local congressinformed R.W. 1 that the A.I.C.C. accepted his candidature on 23-12-1966Then R.W. 1 commenced canvassing for votes from January, 1967 on-wards.

39. The petitioner pleads innumerable instances of corrupt prac-tices, said to have been indulged in by the respondent or his electionagent R.W. 7 or by his agents in his interest or by others with his con-sent for the furtherence of the prospect of his election. Trial in an elec-tion petition is a quasi-criminal trial. The charges of corrupt practices,if proved, entail double penal consequences. Not only does not return-ed candidate lose his seat but he is debarred from standing again for

4 1 0 fi. C. DUTTA V. J. K. CHOWDHURY [VOL. XXXVIIT;

the election. So, there should be clear, precise and cogent proof tobring home the charges. Vide R. Narasimha Reddy and another Vs.Bhoomaji and another (35), Mohan Singh Vs. Bhanwarilal and others(7). Jagdev Singh Sidhanti v. Pratap Singh Daulta and others (36),Kondaveti Gurunath Reddy Vs. V. Seshaiah and others (37), Hariram-singh v. Kamtaprasad Sharma(3S), Dr. Jagjit Singh v. Giani KartarSingh and others (39), Pyaah V en\atanarayana Vs. G. V. Sudha\ar Raoand othersi^SS) and Chadalavada Subba Rao v. Kasu BrahmanandaReddy and others (41). The onus is always on the petitioner to establishthe commission of corrupt practice beyond all reasonable doubt. Thecorrupt practices should be proved in the same manner as criminaloffences. The benefit of doubt will go to the successful candidateagainst whom the charges of corrupt practices are made. Vide pages479 and 480 of Doabia's Law of Elections and Election Petitions, Vol.I and II, 1967 Edition. The respondent is not to prove facts especiallywithin his knowledge. So far as the proof of corrupt practices underthe Act is concerned, section 106 of the Evidence Act is not applicable.The burden of proof cannot be thrown on the successful candidate onthe ground that the facts are especially within his knowledge. Videpage 53 of volume II of the Digest of the Election Law Reports 1955-60.Circumstantial evidence must not only be full and cogent but alsoshould be of conclusive nature as to exclude to moral certainty and anyother hypothesis, on which it could be explained, by the one proposed tobe proved. Vide Hanumant Govind Vs. State Madhya Pradesh (42),followed in Chadalavada Subha Rao Vs. Kasu Brahmananda Reddy andothers (41).

40. Section 100, which lays down the grounds on which an electionmay be declared to be void, runs as follows :

The provisions of Sections 100 and 123 of the Representation of thePeople Act, 1951, not printed.

As a candidate is made liable for the acts of his agents or byany other person with his consent or his election agent in certaincirmustances, it becomes necessary to understand the correct implica-tion of agency and consent. Chapter II in Part II of the Act refers-

(35) A.I.R. 1959 A.P. 35.(7) A.I.R. 1964 S. C. 1366.(36) A.I.R. 1965 S.C.I 83.(37) A.I.R. 1966 A.P. 331.(38) A.I.R. 1966 M.P. 255.(39) A.I.R. 1966 S. C. 773.(40) A.I.R. 1967 A.P. HI.(41) A.I.R. 1967 A.P. 155.(42) A.I.R. 1952 S.C. 343

E.L.R.] B. C. DttTTA V. J. K. CBOWDHURY 411

to the appointment of election agents, polling agents and countingagents specifically. According to English Law, a candidate's liabilityto have his election avoided under the doctrines of election agency isdistinct from, and wider than his liability under the criminal orcivil law of agency. Once the agency is established a candidate isliable to have his election avoided for corrupt or illegal practices com-mitted by his agents, even though the act was not outhorised by thecandidate or was expressly forbidden. The reason for this stringentlaw is that candidates put forward agents to act for them. If it werepermitted that these agents should play foul, and that the candidateshould have all the benefit of their foul play without being responsiblefor it in the way of losing his seat, great mischief would arise. Therelationship beween candidate and agent resembles that of master andservant. The crucial test is whether there has been employment orauthorisation of the agent by the candidate to do some election workor the adoption of his work when done. In the absence of authorisa-tion or—ratification the candidate must be proved to have either byhimself or his acknowledged agents employed the agent to act onhis behalf, or to have to some extent put himself in he hands of theagent, or to have made common measure with him for the purposeof promoting the candidates election. Vide paragraphs 300 and 301at pages 169 and 170 of Volume 14 of Halsbury's Law of England,Third Edition. In Indian Law the candidate is bound by the actionof his agents and also by the action of others done with his consentor of his election agent in some circumstances. Vide the Commentaryat page 152 and 153 of the Law of Elections and Election petitions,Volumes I and II of Doabia. In T. C. Basappa Vs. T. Nagappa andothers(2l) it was held that the word "agent" in election law has awide significance, that no authorisaion or—declaration in writing isnecessary and that the fact of agency may be established by circumst-ances arising out of the general features of the case, the conduct andconnection of the parties, and the subsequent recognition of the acts ofthe supposed agent or ati least an absence of disavowal of such acts. Itwas also held that the doctrine of agency is carried by election lawmuch farther than in civil and criminal cases. To the same effect inSardul Singh Caveeshar v. Hukam Singh & others(4S). It was heldthat newspapers, which make special propaganda for the election ofa particular candidate, can be treated as his agents for the purpose ofElection Law. Vide Abdul Jalil Choudhury v, Rathindra Nath Sen(44). The liability of a candidate for a publication was considered.This was followed in Nani Gopal Swami Vs. Abdul Hamid Chou-dhury and another(45). It was held that, for the purposes of the Act, the

(21) 3 E.L.R. 197(43) 6E.L.R.316(44) A.I.R. 1958 Assam 51(45) A-I.R. 1959 Assam 200

412 B. C. DUTTA V. J. K. CHOWDHURY [VOL. XXXVIII

expression "agent" has a much wider connotation than it is ordinarilyunderstood to have under the law of contract, that anybody, whoacts in furtherence of the prospects of the candidate's election maybe said to be an agent of the candidate concerned, provided he doesso with the consent of the candidate, but that the expression "consent"may not be necessarily an express consent, that no written documentis necessary and that it may be gathered and implied from the cir-cumstances of the case. It was further held that the word "agent"under the Act includes not only a person, who has been specificallyengaged by the candidate or his election agent to work for him inthe election, but also a person, who does in fact work for him andwhose services have been accepted by the candidate, that thusan association of persons or a society or a political party and its pro-minent members, who set up the candidate, sponsor his cause andwork to promote his election, may be aptly called the "agent" of thecandidate for election purposes. It was further laid down that if it isfound that the person concerned was merely an efficious intermeddlerin the election or a mere volunteer, then of course the candidate can-not be said to have any responsibility for this action, even though theperson may have acted for the candidate's benefit and with a viewto advance his interest in the election. In Maganlal Radha\rishanBagdi Vs. Hari Vishnu Kammath(46), it was held that where the elec-tion compaign, publicity and propaganda of a party's candidates forelection to the State Assembly as well as to the House of the People areconducted conjointly, the Assembly candidates are in fact and law theagents of the candidates for the House of the People and vice versa,within the meaning of section 123(4) of the Act. Sudhir LaxmanHendre v. Shripat Amrit Dange and others{M), also explains thetrue legal position of an agent in elections. It was held that the word"agency" in elections means that the relation is not the common lawone of principal and agent, but that the candidate may be responsiblefor the act of one acting on his behalf, though such acts are beyondthe scope of the authority given or indeed in violation of expressinjunction. It was held that a person, who is a member of thecandidate's election committee, is his agent. In Inder Lai Vs. LaiSingh(48), the Rajasthan High Court held that an association ofpersons or a society or a political party and its prominent members,who set up the candidate, sponsor his cause and work to promote hiselection may be aptly called the "agent" of the candidate for electionpurpose.

42. As against the above rulings the respondent's Counsel con-tended that the rulings in Nani Gopal Swami Vs. Abdul Hamid

(46) A.I.R. 1960 M.P. 362(47) A.I.R. 1960 Bombay 249.(48) A.I.R. 1961 Rajasthan

E.L.R.] B. C. DUTTA V. J. K. CHOWDHURY 413

Choudhury and another'(45), \and Inder Lai Vs. Lai Singh{ft%) weredissented from in Dina Nath Kaul Naditn Vs. Peer Mubara\ Shah(49), which relied on Raj Krushna Bose v. Binod Kanungo(50), andBaru Ram Vs. Prasanni(5l). It was held that where a candidate issponsored by a body of persons, then the members of that particularbody, who are canvessing for the candidate, cannot be deemed to behis agents within the meaning of Explanation (1) to section123(7) of the Act, that the word 'consent" in Explanation (1)implies not mere passive support to what persons interested in thecandidate may do, but that it requires! that there was some sort ofassent given by the candidate to those acts. It was held that even non-interference with the activities of those persons who may be actingand canvassing for the candidate without something more should notbe sufficient to make them agents and make the candidate guilty ofcorrupt practice as contemplated by section 123 clause (7) of the oldAct. In Krishanaji Bhimrao Antrolikar Vs. Shan\ar Shantaram Moreand others{52), it was held that even though the term "agent" has amuch wider signification in election law than in the law of agency,the Secretary of the Election Propaganda Committee of a party, whopublishes leaflets and posters in his capacity as such Secretary, cannotbe deemed to have done such act as the agent of the candidate set upthe party, unless there is evidence to show that the act was done withthe knowledge, consent or connivance of the candidate. In NyalchandVirchand Sheth Vs. Election Tribunal Ahemdabad and others(53)s itwas held that it is the duty of the Election Tribunal to considerwhether a candidate had knowledge of the Propaganda made by thePresident of the Congress Propaganda Board or had ratified his actsor whether on the facts the President could be considered to be anagent of the candidate. In Rajendra Prasad Yadav v. SureshChandra Mishra(54), it was held that in certain circumstances apolitical party which sets up a candidate my be deemed to be hisagent and the candidate may be held responsible for the corrupt pra^ctices committed by the workers of the said political party. In suchcases however, the crucial test is whether there had been an employ-ment or—authorization of the agent by the candidate to do some elec-tion work or the adoption of his work when done. At pages 58, 59, 63,

(45) A.I.R. 1959 Assam 200.(48) A.I.R. 1961 Rajasthan 122.

(49) A.I.R. 1962 J. & K. 28.(50) A.I.R. 1964 S.C. 202.(51) A.I.R. 1959 S.C. 93.

(52) 7 E.L.R. 100.

(53) 8 E.L.R. 417.

(54) 11 E.L.R. 222.

4 1 4 B. C. DUTTA V. J. K. CHOWDHURY [VOL. XXXVIH

65, 66 and 67 of Volume II of Digest of the Election Law Reports (1955-1960) a number of cases on the subject are found. In Shri GurbantuSingh v. Tiara Ram Jaggu Ram and others(55), it was held thatthere must be some further evidence, apart from the mere fact thatthe two candidates set up by one political party enjoin mutual assist-ance to show that each is the agent of the other. The decision inBam Ram Vs. Prasanni{5\), relates to the appointment of pollingagent. It was held that there must be evidence to prove that a candi-date appointed a person as his polling agent and that the latter personacted as such polling agent for him. So, this decision has no bearingon this question in issue. In Lalsing Keshrising Rehvor Vs. Valla-bhdas Shan\erlal The\di and others{56), it was held that the term"agent" has not the same connotation as that term has in the lawof contract and that the question to be noted is whether a person isor is not an agent of a candidate in the field of election.

43. As all the Courts agree that the term "agent" has a widerconnotation in the Election Law, whether the candidate is bound bythe action of another candidate set up by the same party or by theaction of the party which has set him up or by the action of othersis a question of fact which has to be determined in this case withreference to the evidence, facts and circumstances. The respondentwas selected by Shri S.L. Singh, the then Congress Chief and wasset up by the Pradesh congress organisation. They and the congressworkers worked for him. They were all his agents and he is boundby their actions and propaganda according to the circumstances ofthe case. He is also bound by the actions of others done in hisinterests and to further the prospects of his election, provided, ofcourse, there is proof that he adopted their action or gave his consentto their actions. In this connection it may be mentioned that R. W.1 admitted in this cross examination that his success in the last elec-tion was due to Shri S.L. Singh as the latter introduced the respondentto the audience in the public meetings. But, he added that he wasnot himself a cypher. In the election in 1957, when he stood as anindependent candidate, he however forfeited his deposit. So, theevidence has to be examined in the light of the facts and circumstanceswhich prevailed on the eve of the election.

44. The evidence regarding the various items of corrupt practiceswill now be considered.

45. Supplementary voters' listThe petitioner alleges in paragraph 7B of his petition that in

preparing the voters' lists while bonafide Indian citizens and tribals in

(55) A.I.R. 1960 Punjab 614.(51) A.I.R. 1959 S.C. 93.(56) A.I.R. 1969 Gujarat 62.

S.L.R.J B. C. DUTTA V. J. K. CHOWDHURY 415

particular were excluded, though they duly applied for inclusion,thousands of new refugees, who did not hold any citizenship certifi-cates, got their names enlisted. P.Ws. 1 (Benu Sen Gupta) and 26 thepetitioner are the witnesses who speak to this aspect of the case. Exts.A-20 to A-2257 are the petitions filed by the residents of BishalgarhConstituency. They were all disposed of by Shri S. R. Chakra-borty, the then Electoral Registration Officer on 15-10-1966, Exts. A-2258 to A-2269 are application forms without stamps. Ext. A-2341 isa bundle of 2809 applications of persons for enrolment as voters inCharilam Constituency. Ext. A-2342 is a bundle of 2353 applicationsof persons for enrolment as voters in Takarjala Constituency. Ext.A-2343 is a bundle of 1480 applications of persons for enrolment asvoters in Agartala Sadar I Constituency. Ext. A-2244 is a bundle of1203 applications for enrolment of persons as voters in old AgartalaConstituency. Ext. A-2345 is a bundle of 1254 applications of personsfor enrolment as voters in Charilam Constituency. Ext. A-2346 is abundle of 569 applications of persons for enrolment as voters inAgartala town Constituency Ext. A-2347 is a bundle of 2474 applica-tions of persons for enrolment as voters in Agartala Sadar III—Cons-tituency. Ext. A-2348 is a bundle of 1934 applications for enrolmentof persons as voters for Agartala Sadar II Constituency. Ext. A-2349is a bundle of 330 applications for enrolment of persons as voters inCharilam Constituency. Ext. 2350 is a bundle of 781 applications ofpersons for enrolment as voters in Uttar Debendranagar Constituency.Ext. A-2351 is a bundle of 3353-applications of persons for enrolmentas voters in Mohanpur Constituency. Ext. 2370 is a bundle of 2631applications from the persons of Sonamura South Constituency. Ext.A-2371 is a bundle of 236 applications from the persons of Salgarh—Constituency. Ext. A-2372 is a bundle of 1560 applications from thepersons of Belonia Constituency. Ext. A-2373 is a bundle of 2679applications from the voters of Muhuripur Constituency. Ext. A-2374is a bundle of 4595 applications from the voters of Sonamura NorthConstituency. Thus, on the whole about 32,513 voters were enlistedfrom September to 12th December, 1967, All the applications bear anote "accepted" as can be seen from Ext. A-2342(a), A-2343(a),A2344(a), A-2345(a), A^346(a), A-2347(a) A-2348(a), A-2349(a),A-2350(a) and A-2351(a). There are similar remarks on the applica-tions in the other bundle also. They were disposed of by Shri S. R.Chakraborty and another Electoral officer from September to 12thDecember, 1967. The claim petitions are all in the form no. 6 pre-sented for registration by the Registration of Electors Rules of 1960.According to rule 26 of the said Rules, the Electoral officers registeredthe names of the supplementary voters as they were satisfied that theapplicants were entitled to be registered in the rolls. So, they appearto have made only one endorsement as "accepted". Reasons are tobe furnished by them under rule 26(4) proviso only they reject the

4 1 6 B. C. DUTTA V J. K. CHOWDHURY [VOL. XXXVIII

applications. Appeals lie under rule 27 to the Chief Electoral Officeragainst the order of the Registration officers passed under rule 26.After the list was published, it becomes final. It cannot now be ques-tioned in any Civil Court as can be seen from section 30 of theRepresentation of the People Act of 1950. This Court acts as a CivilCourt within the meaning of section 87 of the Act in dealing withthe present election petition. So, this question cannot beagitated in the present election petition.

46. P.W. 1 (Benu Sen Gupta), the election agent of P.W. 26 ad-mitted that most of the voters were enrolled at the instance of theUnited Front and that neither P.W. 1 (Benu Sen Gupta) nor P.W. 26the petitioner raised any objection to their—enrolment. According toP.W. 26, one Shri Aghore Dev Barman filed written objection to theinclusion of supplementary voters in the list, though P.W. 26 himselfdid not file any written objection. But, the written objection, said tohave been filed by Shri Aghore Dev Barma was not sent for. P.W. 26could not state the name of the supplementary voter who was enlistedcontrary to the rules. No bonafide tribals or any other—citizens,whose applications were said to have been rejected, were examined.

47. Over and above the points discussed above, it may be note'dthat the validity or otherwise of a supplementary voters' list or evenoriginal voter's list is no ground of attack under section 100 of heAct. Section 100(1) (d)(iv) itself clearly shows that the non-compli-ance with the provisions of the Constitution or of the Act should bewith reference to the Representation of the People Act of 1951 or ofany rules or orders made under it. No authority is necessary for thisproposition. The petitioner's Counsel agreed that he could not raisethis question as a ground in the present election petition and did notpress the point.

48. Delimitation of Sadar II Assembly Constituency.—The petitioneralleges in sub-para B of para 7 of his petition that the office of the chiefElectoral Officer acted in a partisan way in favour of the Ruling Congressparty and the Congress candidates including the respondent, thatthe Sadar II Assembly Constituency was delimited after the submissionof nomination papers to create advantage for Shri S. L. Singh the ChiefMinister who stood as Congress candidate from that Constituency andthat almost all the polling stations were fixed up without consulting therecognised political parties. P.Ws. 1 (Benu Sen Gupta), 6 (Saraj Chanda)and 26 (Birendra Chandra Datta) are the witness who speak to thedelimitation of the Sadar II Assembly Constituency. Delimitation wastaken up at the instance of Shri Umesh Lai Singh, a congress candidate.of Bisalgarh Constituency. Ext. A-2279 is the application filed by ShriUmesh Lai Singh to the Chairman, Delimitation Committee, New Delhi

E.L.R.] B. C. DUTTA V. J. K. CHOWDHURY 417

for making the changes as suggested by him. Ext. A-2270to A-2278 and A-2280 to A-2287 relates to the correspondence,notifications on the subject etc. P. W. 1 (Benu Sen Gupta)stated in the cross examination that it was the duty of the Deli-mitation Committee to adjust, on the basis of the latest Census figures,the division of each constituency in the Union Territory of Tripurainto Parliamentary Constituency. He admitted that after his partysubmitted objections to the delimitation, the commission made proposalfor delimitation of the Constituency and that Shri Umesh Lai Singhwas an associate member of the Delimitation Commission. Accordinglyto P.W. 6 (Saraj Chanda), who is the Secretary of the C.P.I. and whowas a candidate from Agartala Sadar II Assembly Constituency, thefirst delimitation took place on 22-6-1966 as can be seen from Ext. A-2282.The next delimitation took place on 7-1-1967 asi can be seen from Ext.

. A-2270. The delimitation was published in Tripura Gazette dated12-1-1967 as can be seen from Ext. A-2272. His evidence is that he can-vassed for votes for him as well as the petitioner that when the voterswere ready to vote for them, the Assembly Sadar II Constituency wasdelimitted within a few days prior to the election, that most of the voterswith whom he canvassed were asked to vote in Sadar III AssemblyConstituency and that they were in a confusion. In the cross-examina-tion, he admitted that he did not file any petition objecting to thedelimitation of the Constituency and that no voter told him that hewas affected by the delimitation. P.W. 26 (Birendra Chandra Datta)explained that he was also a sitting member of the Parliament and assuch an associate member of the Delimitation Committee from Tripura,but that he had no prior information about the delimitation, that hecame to know about this only at the time of the distribution of thevoters' slips, that, as regards the delimitation covered by Ext. A-2282,he had previous information and that he submitted his objection to itbefore it was finalised. He further explained that in Sadar II AssemblyConstituency he and his agents and the other candidates popularisedtheir election symbol, but that suddenly when some portions of SadarII were tacked on to Sadar III, there was confusion, that in SadarII their supporters had to cast their votes in favour of one symbolnamely, hammer, sickle and star, but that in Sadar III there weredifferent symbols for Assembly Constituency on account of delimita-tion and that there was confusion among their supporters. In thecross-examination, he stated that he popularised his election symbolwhile advancing his policies and that he could not mention the namesof those persons, whom he could not approach on account; of delimita-tion. He stated that he did not remember whether he sent any objec-tion to the delimitation after he saw it in the Gazette. Article 327 ofthe Constitution of India provides that the Parliament may, fromtime to time, by law make provision with reject to all matters relat-ing to, or in connection with, elections to either House of Parliament

28—3 El. Com./71

418 B. C DUTTA V. J. K. CHOWDHURY [VOL. XXXVIII

or to the House or either House of the Legislature of a State includingthe preparation of electoral rolls, the delimitation of constituenciesand all other matters necessary for securing the due constitution ofsuch House or Houses. The Parliament enacted the DelimitationCommissions Act of 1962 in pursuance of the power given to it byArticle 327 of the Constitution. Section 10 of the Act shows thatobjection can be entertained only before the date specified undersection 9(2) that, after the publication of the order in the Gazette,no objection can be raised and that the matter can no longer bereagitated in a Court of law. This is also covered by the latest decisionof the Supreme Court in Machal Kothari v. Delimitation Commissionand others(57) which is to the above fact. So, it is not now open to thepetitioner to agitate in this election petition matters relating to delimi-tation of Sadar II—Assembly Constituency. The petitioner's' Counselconceded this position and did not advance any argument in supportof the petitioner's allegations made in the election petition.

49. Test relief, Flood relief, Tube wells & Ring wells.—In para-graph 7(a)(i) of the election petition, the petitioner alleges that themoney sanctioned by the Central Government for that relief and floodrelief about 6 months' prior to the election was withheld till about afortnight before the election, that the Tripura Government then ruledby the Congress party used the money within a fortnight prior tothe election to construct roads, bridges, embankments, tube-wells etc.to create an impression in the minds of the electorate favourable tothe Congress and to influence the voters to make them vote in favourof the Congress. Particulars were mentioned about construction ofroads, bridges, embankments, tube-wells in pages 1 to 8 of the schedulefiled on 13-11-1967. The particulars are the same as those given bythe Government in the Tripura Legislative Assembly in answer toquestions put in the Assembly as per Exts. A-l(a), A-l(b), A-l(c),A-2(a), and A-2(b). Ext. A-l(a) refers to the work done and the amountspent in Dishalgarh block for road construction. Exts. A-l(b) andA-l(c) refer to the construction of tube-wells and R.C.C. wells inSadar and in other divisions. Ext. A-2(a) relates to construction ofroads, bridges, embankments etc. in the Sadar division. Ext. A-2(b)relates to test relief works in Dharmanagar, Mailashahar, Sadar andother places in January and February 1967. P.Ws. 1 (Benu Sen Gupta),6 (Saraj Chanda), 21 (Gopal Chandra Chakraborty), 23 (Haran Chan-dra Choudhury) and 26 (Birendra Chandra Datta) are the witnesseswho speak to the construction of roads etc. under test relief work andconstruction of tube-wells etc. After examining the evidence on theallegations of corrupt practice by the respondent i.e. undertaking ofpublic works like flood relief work, tube-wells, sanctioning of agricul-tural loans, gifts of radios to various clubs, liberal grants from the

(57) A.I.R. 1967 S.C. 669.

E.L.R.] B. C. DUTTA V. J. K. CHOWDHURY 419

Chief Minister's discretionary funds, allotment of Government landsto landless peasants, starting new and upgrading of schools etc. onthe eve of elections, by the Congress Govt., to influence and inducevoters to vote for Congress candidates, the judgment proceeded :

** *# #* ## ##

P.W. 9 (Nripendra Chakraborty) stated that in his Constituencysome schools were upgraded just on the eve of the election, that hewent to Gopalnagar when his voters told him that tjiey changed theirmind and that they would vote for the congress because a promise wasgiven to start a Senior Basic School in Gopalnagar.

He further deposed that one Dhirendra Debnath was running aschool previously, that he joined the congress as a promise was madeto him that a Senior Basic School would be started and that in fact heclosed his school. With regard to his evidence the learned Counsel forthe respondent argued that his evidence is inadmissible, because he didnot take proper oath under the Indian Oaths Act. Before he wasexamined in Chief, he swore on God according to the form prescribed.But, when the cross examination began, the respondent's Counselquestioned him whether he believed in God. P.W. 9 (Nripendra Chakra-borty) replied that he did not believe in God. So, he was then swornby solemn affirmation and he was cross-examined. The contention ofthe respondent's Counsiel is that his evidence is inadmissible. But, this isnot correct. Under section 13 of the Indian Oaths Act, the irregularityaffects the credibility of the witness and not the admissibility of hisevidence. Vide Rameshwar v. The State of Rajasihan(5&). However, thepetitioner did not examine Dhirendra Debnath. p. I l l (DakshinaRanjan Chakraborty) is a resident of Gopalnagar colony in Sidhai.

After examining further evidence on the allegations of corruptpractice by the Congress Govt. of upgrading the Schools and writing offof the refugees' loans on the eve of elections, the judgment proceeded :

## ## ## *# ##

59. Thus, the petitioner has proved out of the various allegationsmade by him in paragraph 7(A) (except the incident no. vii whichwill be referred to later on that the then care taker Congress Govern-ment headed by Shri S. L. Singh spent huge sums of money for the con-struction of roads, bridges, embankments, tube-wells etc. and for up-grading 32 schools on the eve of the election in the months of Januaryand February, 1967. It is true that the respondent was then mixingwith the opposite parties and that he had no direct hand in the works

(58) A. I. R. 1952 S. C. 54.

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ordered to above. But, evidently the works were taken up in Januaryand February, 1967 by the then Congress Government to create animpression in the mind of the electorate that the Congress Governmentwas doing beneficial acts. Shri S. L. Singh thereby prepared the groundfor a favourable atmosphere for the success of the candidates, set upby the congress. The respondent, having accepted a congress ticket,must be held to be bound by the action of the Congress Government.The Congress Government and Shri S. L. Singh, whose actions wereadopted by the respondent by accepting their ticket were his agents.It is true that there are a number of decisions which held that theparty in power can execute public beneficial acfis even on the eve ofthe election. An offer made to landless peasants and poor without anydistinction of caste, creed etc. does not amount to a corrupt practice.Vide Swaminathan Merkpndar v. Ramalingam and others(59). Pro-viding for public fountains in the locality isi not a corrupt practice. Itcannot be suggested that candidate holding civic or other offices shoulddiscontinue or show down his official activities due to elections forfear that they might have an effect on the fortunes of the elections.It is highly dangerous and subversive of all good civic administrationto start with a presumption that all benevolent and public utility actson the eve of the election were done with a corrupt motive, unlessthe contrary is proved. Vide Hariramsingh v. KamtaprasadSharma(38). It is legitimate for a member of the Parliament or aState Legislature to benefit his Constituency, though the element oftime becomes a very material one to find out whether his acts weredone with ulterior motive to influence the voters. Vide Ban\abehariDas v. Chittaranjan Nai\(60). Vide also Chadcdavada Subba Rao v.Kasu Brahmananda Reddy and others(41).

60. But there are three rulings of the Supreme Court which havebearing on this aspect of the case. In S. Khader Sheriff v. Munu-swami(6V), it was held that while it is meritorious to make a dona-tion for charitable purposes, if that is made at the time or on the eveof an election, it is open to the charge that its real object was to inducethe electorate to vote in favour of die particular candidate and that itshould therefore be treated as election expense. The matter is, however,now covered by two latest rulings of the Supreme Court dated7-3-1968. They are Ghasi Ram v. Dal Singh and others(62). and Mrs.Om Prabha Jain v. Abnash Chand and another(63) on the file of the

(59) 2 E. L. R. 390.(38) A. I. R. 1966 M. P. 255.(60) A. I. R. 1963 Crissa 83.(41) A. I. R. 1971 A. P. 158.(61) A. I. R. 1955 S. C. 775.(62) C. A. No. 1632 of 1967 S. C. dt. 7-2-1968.(63) C. A. No. 1862 of 1967 S.C. dt. 7-2-1968.

EJUR.] a. C. DUTTA V. J. K. CHOWDHURY 421

Supreme Court of India. In the former case the petition was filed inthe High Court of Punjab and Haryana to set aside the election ofShri Dal Singh, who was the Minister for Irrigation and Power in theMinistry of Shri Bhagwat Dayal Sharma, till the result of the electionwas pronounced. He was charged with having abused his position asMinister and having committed corrupt practices. It was alleged thathe used certain discretionary funds to bribe the voters and that heused his position to favour some of the villagers to secure support forhis candidature. It was held that the gist of the corrupt practice layin attempting to do something for those opposed to the candidate witha view to changing their votes and as a bargain for their votes. TheirLordships summarised the position of law that a corrupt practiceinvolving bribery must be fully established, that the evidence mustshow clearly that the promise or gift directly or indirectly was madeto an elector to vote or refrain from voting at an election, that theposition of a Minister is difficult, that it isi obvious that he cannotcease to function when his election is due, that he must of necessityattend to the grievance and that otherwise he must fail. He mustimprove the image of his administration before the public. If everyoneof his official acts done bonafide is to be construed against him andan ulterior motive is spelled out of them, the administration mustnecessarily come to a stand-still. It was further observed that the moneywas not distributed among the voters directly but was given toPanchayatsi and the public at large. It was to be used for the good ofthose for and those against the candidate. That, no doubt, had theeffect of pushing forward his claim, but that was inevitable even if nomoney was spent and good administration changed the people's con-dition. But, however, it was finally observed that election is somethingwhich must be conducted fairly, that to arrange to spend money onthe eve of elections in different constituencies, although for generalpublic good is when all is said and done, an evil practice, even if itmay not be a corrupt practice, that the dividing line between an evilpractice and a corrupt practice is a very thin one, it should be under-stood chat energy to do public good be used not on the eve of elec-tion but much earlier and that even slight evidence might changethis evil practice into a corrupt practice. The court; further said thatpayments from discretionary grant's on the eve of elections should beavoided. In the present case also there is no evidence to show that themoney was spent by way of bargain to purchase the votes. The cons-tructions were made for the benefit of both in favour of the congressand those who were against the Congress Government. So, the caseis one of an evil practice or a malpractice and not of corrupt practicewithin the meaning of section 123 of the Act. The learned Counselfor the petitioner could not get over these two recent rulings of theSupreme Court. They are directly applicable to this case, so far as theabove aspect of the case is concerned.

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61. Withdrawal of Harimohan Debnath.—In paragraph 7(A) (vii),the petitioner alleges that one Hari Mohan Dev Nath (R.W. 9), anindependent candidate standing for election to Tripura Assembly fromthe Mohanpur Assembly Constituency was prevailed upon by Shri S. L.Singh to withdraw his candidature as consideration for his appoint-ment as the Chairman of Mohanpur Block Development Committee,so that R. W. 9 (Hari Mohan Dev Nath) might use his office toinfluence the voters to cast their votes in favour of the respondent.After examining the evidence on the allegations against the respondentof corrupt practices of inducing a candidate to withdraw on promise ofhis appointment as Chairman of a Block Development Committee, andof procuring the services of Govt. officials, the judgment proceeded:

## ## *# ## ##

The learned Counsel for the respondent argued that it was thework of Shri S. R. Chakraborty to prevent cattle lifting and also toarrange the polling stations as Returning officer and that, therefore,he performed journey in connection with his duties as evidenced byExts. A-2299(a), A-2299(b) and A-2299(c) and that he did not can-vass for the congress candidates. Also he contended that section 123(7)of the Act contemplates a positive act on the part of the candidate inprocuring the assistance of a Government servant. He further con-tended that the word "obtain" in section 123(7) was not used in thesense of a mere passive receipts of assistance, without the candidatebeing even conscious of the fact that the assistance has been rendered.His contention is that Shri S. R. Chakraborty might have taken partin the election campaign on his own initiative to please the ChiefMinister. He relied on the passages at page 88 of Election Law andpractice by D. D. Chowla, 1967 edition and Rikjiab Das v. MidhichandPattiwal and others(31), Moti Lai v. Mangala Prasad and others(64)and Diresh Misra v. Ram Nath Saran and others {65) in support ofhis contention. But, when there is sufficient evidence on record to showthat Shri S. R. Chakraborty was campaigning and canvassing for thecongress candidates, the respondent should have examined Shri S. R.Chakraborty to rebut the evidence, especially as the respondent admitsthat Shri S. R. Chakraborty toured in the nights as can be seen fromthe tour diaries Exts. A-2299(a) and A-2299(b). No reason was givenby the respondent why he did not examine Shri S. R. Chakraborty.It cannot be stated that P.Ws. 11 (Dakshina Ranjan Chakraborty) and27 (Radharaman Dev Nath) are liars and that they perjured them-selves. The fact that Shri S. R. Chakraborty canvassed for the congresscandidate for about 15 days in Mohanpur Constituency as spoken to

(31) 9E.L.R. 115.(64) A.I.R. 1958 Allahabad 794. "(65) A.I.R. 1959 Assam 139. ;

E.L.R.] B. G-©UTTA V. J. K. CHOWDHURY 423

by P.Ws. 9 (Nripendra Chakraborty), 11 (Dakshina Ranjan Chakra-borty) and 27 (Radharaman Dev Nath) shows that the respondentmust have procured his assistance. So, the conduct of the respondentfalls under section 123(7) of the Act and his election is void undersection-100(1) (b) of the Act. :

69. Mike of Publicity Department of the Government of Tripura.—The petitioner then stated in the schedule that Shri S. L. Singh address-ed the,meeting in Bairagi bazar, Melaghar, Dhunpur and Sonamurathrough the Government Publicity departments mike R.Ws. 1 (BenuSen Gupta), 26 (Birendra Chandra Datta) and 30 (Samar BakshiChoudhury) are the witnesses who speak to this. P.W. 1 (Benu SenGupta) has not personal knowledge and did not see the mike. P.W.26 (Birendra Chandra Datta) had no personal knowledge and sawonly a newspaper item in Ext. A-13 to that effect. P.W. 30 (SamarBakshi Choudhury) deposed that he was present when Shri S. L. Singhaddressed the meetings and that he saw the words "Publicity Depart-ment" on the mike. But, it has to be noted that the petitioner did notmention this item in his original election petition. But, he introducedthis in the schedule. So, his allegations about the Government PublicityDepartment mike are barred by limitation and cannot be entertained.

70. Use of Government Jeeps and Vehicles.—The petitioner allegedin the same sub-para B of para 7 that Government jeeps and Vehiclesbearing TRA 448, TRA 302 and TRA 311 were placed at the disposalof all congress-candidates including the respondent. In para 7-B healleged that voters were conveyed freely to the polling stations by therespondent and his agent in trucks and jeeps bearing TRL 143, TRT 15and TRL 148. P.W. 9 (Nripedra Chakraborty) and 17 (Akul ChandDatta) are the witnesses of the petitioner who spoke to the use of theGovernment vehicles for transporting the voters, while R.W. 1 respon-dent, 11 (Bebabrata Chakraborty) and 12 Prabir Shyam) denied thesame. P.W. 9 (Nripendra Chakraborty) deposed that on 18-2-1967 whenhe went to Social Education Centre, Katimara, he found that voterswere brought in jeep and truck belonging to R.W. 11 (Shri DebabrataChakraborty) of Meglohand Tea Estate to the polling station, that helodged,a written complaint to the Presiding Officer of the polling station,that when he went to Eatola colony polling station at about 1-30 P.M.he found the same truck bringing voters to the polling station, thatR.W. 11 the owner of the truck was an active congress worker, that atabout 3-30 P.M. when he went to Vijoynagar polling station he saw thesame truck bringing voters to the polling station and that he submitteda written complaint before the Presiding officer in Mantala colonypolling station. P.W. 17 (Atul Chand Datta) deposed that on the pollingday the congress party transported votersi in eruck to Mantala pollingcentre from Braja Bododinipur, that he noted the number of the truckas 143 and that he saw a number of voters by name Manmohan Sarkar,

424 B. C- DUTTA T> J. K. CHOWDHUR* [VO£- XXXVIII

Kamini Sarkar, Aswani Debnath, Sisir Mohan Man andf others includingsome women who were brought in the truck. He further stated thatR.W. 12 Shri Prabir Shyam of Kotlamara was a congress worlker whobrought them in the truck. In the cross-examination, he deposed thathe did not tell his brother P.W. 16 (Amulya Kumar Datta) about thetransport of the voters and that he does not know English. But, heremembered the number of the truck as 143. R.W. 1 (J. K. Choudhury)denied transport of voters to any polling station. R.W. 11 (Bebabrata)Chakraborty) is the owner of Moghliband Tea Estate. He swore thathe never owned any truck of Jeep much less TRL 143. R.W. 12 (PrabirShyam) denied having transported the workers in TRL 143 or in anyother truck. So, the evidence is equally balanced and benefit of doubtgoes to the respondent.

71. Fixation of polling stations and conduct of polling officers.—Thepetitioner alleged in sub-para E of para 7 of his petition that a numberof polling stations were fixed arbitrarily and that the polling officersacted with partiality in favour of the congress candidates. But no evi-dence was let in in support of the various allegations. There is only theevidence of P.W. 9 (Nripendra Chakraborty) who deposed that pollingstations were fixed arbitrarily and that one N. Bhowmick asked thevoters in a polling station to put cross marks on the congress symbols.But, in the schedule it was mentioned that one Nirendra Bhattacharjee,,A.H.M. of U.K. Academy who asked the voters to put cross marks onthe congress election symbols. The evidence of P.W. 9 (NripendraChakraborty) is in variance with the allegations of the petitioner. R.W.2 denied having fixed the polling stations arbitrarily. The petitioner'sCounsel did not address arguments with regard to the various allegationsmade by him regarding the change of polling stations or the allegedcampaign of the polling officers.

72. Supply of supplementary voter's lists.—The next allegations ofthe petitioner in para 7-B is that the supplementary voter's lists were notsent to tihe United Front or its candidates, but that they were sent tothe Presiding officers directly when the polling had started and that thusthe petitioner's electoral rights of canvassing for votes of about 36000voters was prejudiced. A right to canvass for votes is an electoral fightwithin the meaning of section 123(2) of the Act. Vide M. A. MuthiahChetUar v. S. Ganesan and another (66). Though the petitioner allegedthat the supplementary voter's lists containing about 36 thousand voterswas not given to his party P.Ws. 1 (Benu Sen Gupta) and 6 (SarojChanda) and the petitioner P.W. 26 himself admitted that they weregiven to his party but two days prior to the election, while the congressparty was given a copy of the supplementary voters' list much earlier.Exts, A-I4 to A-19 are the supplementary voter's lists. The respondentproduced Ext. X-9 Peon's Book to show that the supplementary lists of

(66) A. I. R. 1958 Madras 553.

S.L.R.] B. C. DUTTA V. J. K. GHOWDHURY 425

voters were furnished to all the recognised parties namely, TripuraPradesh Congress Committee, CJP.I.(M) and C.P.I, on 15-2-1967. Thereis much substance in the petitioner's grievance and his attack against thethen Government regarding the supplementary voters' lists is amplyjustified. Ext. A-18 shows that the enrolment of supplementary votersmust have been over by at least 12-1-1967. Evidently R.W. 2 (N. G.Choudhury) the Chief Electoral Officer had already got informationabout the number of ballot papers which were required. He must havereceived the ballot papers for not only the voters who were already inthe lists but also for the 32 thousand and add supplementary voters(already referred to in para 45) who were subsequently enrolled prior to12-1-1967. The evidence of R.W. 2 (N. G. Choudhury) is that he reccired)

the ballot papers on 5-2-1967. So, the preparation of supplementary voters'list and other matters were all over by that day. R.W. 2 (N. G. Chou-dhury) deposed that several parties phoned to him to expedite the dis-tribution of supplementary voter's lists and that he did his best by givingthe lists to them on 15-2-1967. The elections were actually held on18-2-1967. The petitioner's counsel stated that canvassing for votes had tobe stopped by all the parties 48 hours prior to the election. So, the partieswere not allowed to canvass' for votes from 16-2-1967. As such, the peti-tioner had hardly one day to canvass for the votes of about 32 thousandand odd supplementary voters, who were living in different villages ascan be seen from Exts. A-15 to A-18. It was physically and humanlyimpossible for the petitioner's party to approach those 32 thousand andodd supplementary voters on one day in different places. But, that thecongress party got information about the names of the supplementaryvoters is clear from two circumstances. Firstly, the evidence of P.Ws. 6(Saroj Chanda) and 26 (petitioner) is that the supplementary voters,who were approached by the congress candidates and fiheir agents, hadslips with them containing their numbers in the voters' lists which weregiven to them by the congress agents. P.W. 6 (Saroj Chanda) deposedthat when he went to Abhoynagar Higher Secondary School pollingstation. His polling agent told him that the supplementary list of voterswas received by the Presiding officers at the time of the polls, thatP.W. 6's agents had no chance of verifying the correctness of the list andthat P.W. 6 (Saroj Chanda) could not supply with any slip because hedid not get the supplementary voters' lists by then. He further deposedthat the voters approached by the congress candidates and their agentshad already slips with them which were given to them by the congressagents. P.W. 26 (petitioner) deposed that in some polling stations, hesaw congress volunteers distributing lists to the supplementary voters,of whom P.W. 26 (Birendra Chandra Datta) had no knowledge priorto that, that the Pradesh Congress Committee received the lists earlierbecause it would take time to prepare the slips for all the supplementaryvoters and get them ready for distribution. He swore that he had no listin his possession, that he could not approach the supplementary voters

426 B. C. DUTTA V. J. K. CHOWDHURY [VOL. XXXVIII

for votes, that the supplementary voters were living through the entireConstituencies and that it1 was impossible for him to communicate withthem in time. So, the evidence of P.Ws. 6 (Saroj Chanda) and 26(Birendra Chandra Datta) shows that the Pradesh Congress Committeewas ready with slips on 10-2-1967. It was impossible to prepare the slipsfor 32 thousand odd voters at the time of the polls unless the PradeshCongress Committee had information about the news of the Supplemen-tary voters much earlier. Secondly, it is to be noted, as rightly pointedout by the petitioner's Counsel, that the respondent has no grievancethat the supplementary voter's lists were given to his party on 15-2-1967.The respondent does not allege that he was in any way prejudiced. R.W.1 respondent admitted in his cross-examination that it is probable thatabout 39 thousand supplementary voters might have come in Tripurabetween 1962 and 1967. The petitioners Counsel did not point out anyrule as to when the supplementary voter's list had to be furnished to theparties. But in the circumstances invidious discrimination betweenPradesh Congress Committee on one hand and the United Front on theother was made and Article 14 of the Constitution of India was thereby—contravened. The purity of election was imperilled. The election ofthe respondent was materially affected, because there were as many as 32thousand and odd supplementary voters whom the petitioner could notapproach for votes. As such that there was a margin of 33,822 votes bet-ween the petitioner and the respondent pales into insignificance and hiselection is liable to be set aside under section 100(1) (d) (iv) of the Act.

73. Coercion and undue influence.—In sub-para D. of para 7, thepetitioner alleges that coercion and undue influence were exercised bythe police and hired goondas upon the voters, who were protected by thepolice, that the said goondas beat up United Front candidates and theirworklers and terrorised the voters, that the police threatened all those whosupported United Front candidates and threatened the Muslim votersin particular that, if they voted for United Front candidates, they wouldstand the risk of being deported from Tripura and that all this was donein the interest of the congress candidates including the respondent. Thepetitioner mentioned better particulars of a number of incidents in pages23 to 27 of the schedule. Out of them the petitioner's Counsel relied ononly the following incidents, about which evidence was let in. So, theother incidents alleged in the schedule need not be considered. It wasalleged firstly that at about 8 P.M. on 21-1-1967 when P.W. 13 (BrajendraChandra Das), a United Front worker of Taranagar was returning froman election meeting through Mohanpur Bazar, he was beaten sevcrly byAmar Sarkar and other congress goondas, that a criminal case was filedagainst the accused and that subsequently, Amar Sarkar was rewardedafter election with a Government job on the recommendation of theChief Minister. P.W. 13 and 27 are the witnesses who spoke to thisincident. P.W. 13 (Brajendra Chandra Das) deposed that when he wascoming from a meeting held in Kalagachia on 20-1-1967 at about 10 P.M_

E.L.R.] B. C. DUTTA V. J. K. CHOWDHURY 427

and reached Mohanpur bazar, Amar Sarkar, gave him a hit on his lefteye, that P.W. 13 (Brajendra Chandra Das) filed a criminal case C.R. 27of 1967 in the Court of Shri S. R. Chakravorty the S.D.M., but that noaction was taken againsti the accused, as the accused was a congressworker.

After considering the allegations against the respondent ofcorrupt practices of coercion and undue influence and terrorising thevoters of the petitioner, by himself and through his agents with thehelp of the Police and Goondas at several places the judgment proceeded:

88. Thus, the incidents No. 1,2,3,9 and 10 are proved. These inci-dents interfered with the meetings convened by the United Front can-didates or workers to canvass for the votes for the petitioner. Therebythere was interference with the free exercise of the electoral rights ofthe petitioner. There was also undue influence. These acts are coveredby section 123(2) of the Act. But, these incidents were indulged in notby the respondent or his election agent but by his workers, who werehis agents. The latter indulged in them to further the prospects of theelection of the respondent and to prejudicially affect the election ofthe petitioner. The respondent's consent to the acts must be presum-ed, as he did not denounce them. So, the case falls under section100(1) (d)(ii) of the Act. In such a case the petitioner has to provethat the result of the respondent's election was materially affected. In-asmuch as a number of meetings organised by the United Fronts wereinterrupted and undue influence was brought to bear upon the votersand workers of the petitioner and the electoral rights of the petitionerwere widely interrupted with, the result of the election of the respon-dent must be deemed to have been materially affected by the aboveincidents. The learned Counsel for the respondent, however, contend-ed that they were all stray incidents, that they were bound to occurin every election and that the election was not affected unless the vio-lation was so very great that polls were interrupted. He relied on thepassages at pages 526 and 530 of Volume II of Doabia's ElectionManual 1967 edition. But, in this case the interference had been sogreat and wide spread that it can be fairly said that there was no freeelections. The incidents show that there was undue influence intothe free exercise of the petitioner's electoral rights. This is not a casewhere there were some stray cases. The respondent who had the bene-fit of such incidents cannot now state that they had taken place with-out his knowledge or consent or contrary to the instructions given byhim. He did not denounce them.

84. Leaflets & Speeches.—In paragraphs 7-C and 9-E, the peti-tioner alleges that the respondent, his election agent and the congress

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party in the interest of all the congress candidates including the res-pondent issued leaflets and made speeches, that the United Front can-didates were the enemies of the Bengalees, that they also promotedsentiments and feelings of hatred between the Bengalees and the tribals,that some of the members of the communist party were being prose-cuted in Courts on certain charges, but that though they were not yetfound guilty, yet the members of the communist party of India (M)were alleged to have committed murders and that thereby they triedto influence the voters unduly into not voting for any candidatesincluding the petitioner set up by the communist party of India(Marxist). The petitioner also alleges that the leaflets and pamphletswere printed in Agartala Sen Printing Works, Chhapaghar and Srigo-feinda Press by the Provisional Congress Committee, Tripura and thatthey were distributed among the voters of Tripura West Parlia-mentary Constituency. Better particulars were furnished at pages 17to 23 of the schedule. The petitioner's counsel concentrated his atten-tion on the pamphlets and the speeches in this case. Exts. A-2289,A-2290 and A-2291 are printed pamphlets of which printed copies weresaid to have been distributed. Ext. A-2289 was printed at Chhapagharby Shri Benode Behari Chakraborty on behalf of the Tripura PradeshCongress Committee. It is in Bengali language. It is headed by a ques-tion put to the petitioner, P.W. 9(Nripendra Chakraborty) and ShriDasartha Dev Barma and they were asked to give their answers to thequestions therein. Both the parties filed two translations of the leaflets.

"(1) Having won the election by the votes of the people of Tri-pura for the last 10/15 years have they ever made a single speech onany matter of importance to Tripura? if they have, in which news-paper, of what date has it been published ?

If not, what will they be able accomplish in the future as well, byraising their hands like dummies against the Government at the bidd-ing of party which is less than a tenth in a House of 521 Members ?

(2) China, having attacked India like traitors, is sitting upon14500 sq. miles of Indian territory after occupation. And having madean attack in N.E.F.A. they have killed thousands of our jawans(soldiers) as these latter were caught unprepared. Then, inspite oftaking big (of generosity of a unilateral withdrawal), they withdrewbecause they discovered no chance of running a Government with thehelp of the Left Communists.

What is the reason of the above mentioned gentleman for not call-ing such a China as aggressor ?

(3) China attacked us by taking advantage of our faith in "Hindi-China Bhai Bhai". And Pakistan has been born with enmity of India(in its blood). Now these two enemies of India together are making

E.L.R.] B. C. DUTTA V. J. K. CHOWDHURY 4 2 9

preparations in East Pakistan to the Foreign attack India—and—particu-larly to grab Tripura, Mr. Bhutto, the Foreign Minister of Pakistan*has said :—"As Tripura is surrounded on three sides by Pakistan, wemust have it". (Organiser, Delhi, dated 23-10-66); and those whowithout any provocation shoot at Belonia have said in a Conferenceof compromise ('cease fire') "If you surrender a part of Belonia toPakistan, we can arrive at a compromise". (Sevak, Agartala, 18rliDecember, 1966).

What is the opinion of the above mentioned gentlemen in this,matter ?

(4) China has helped Pakistan with the supply of MIG 19 planes,.Tanks, guns, ammunitions etc. and training its (Pak) soldiers. On topof this, they are taking the Mizos (Lushai), Nagas and all these Indianrebels against the Govt. of India, batch by batch, through surreptitiousways and, having given them (military) training, are sending themto Mizo and Nagaland in order to fight the Indian army-men. SriNripendra Chakraborty has openly hailed this kind of treason in onopen meeting.

Pakistan has been in occupation of a third of Kashmir. The partof that (occupied) Kashmir which we re-occupied particularly, theHaji pir path was given back by us (to Pakistan) in accordance withthe Taskent Agreement. Even so they are behaving as enemies to us.Yet those China-follower Communists are telling us "come to termswith Pakistan and China", instead of deprecating this kind of anti-Indian friendship.

Will these gentlemen tell us how much more of Indian Territoryis to be surrendered, in addition to what they have grabbed, in orderit may lead to a compromise ?

And, will this be the last compromise ? Yet they (these gentlemen)are saying why India does not save Rs. 800 crores of Defence Budgetevery year by compromising with Pakistan and China. If India did that,for how many days (after the compromise) will Tripura remain inIndia ?

(5) Pakistan is a land of autocracy. Why do they (the above-mentioned people) not call it "imperialism" (of China) to make friendswith Pakistan and equipping her with armaments to fight India? Byspending Rs. 800 crores as military expenditure every year, we aresomehow deterring them (from attacking us). Is that also a crime?

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(6) The above-mentioned gentlemen raised the cry of 'no moreland in Tripura for refugees', after only about three or four lakhs hadentered Tripura. Now there are about 10 or 12 lakhs of them. Howhas place been found for all of them?

(7) Sri Dasarath Deb Varma, Sri Biren Datta, in Parliament, andothers in Tripura Legislative Assembly submitted proposals that outof the area of 4113 sq. miles of Tripura, 1910 sq. miles, i.e., Khowai,Kamalpur, Kailashaghar, Amarpur and Sabroom should be declared as"Tribal Areas" according to the Fifth Schedule of the Indian Consti-tution. (Vide Nripen Babu's article printed in news-paper, and theproceedings of the Tripura Legislative Assembly). This will meanthat all those Bengalee refugees who have been rehabilitated in thoseplaces will have to leave those places and come away: because in "TribalAreas" none except Tribals may hold rights over land.

This will have three results:—

(a) To create conflict between Bengalees and the Tribals who willremain in the other parts (4116-1910) —2206 sq. miles (ofTripura) e.g. Sadar Sub-Division. But now we are living hereas neighbours to each other.

(b) If out of those 1910 sq. miles more than three lakhs of refugeescome evicted for a second time then in the remaining 2206 sq.miles (of which 600 sq. miles are reserved forest) the 12 lakhsof Bengalees out of the population of 15 lakhs shall have noteven standing room housing being out of the question. Yetthere is no other place to go to for Tripura has Pakistan onthree sides and the rebel Mizos on the East. Then will begina confusion (Anarchy) within this 2206 sq. miles of Tripura,taking advantage of which Pakistan will swallow Tripura.Even if she does not, this will be grave-yard of Bengalis parti-cularly of the refugees.

(c) Dharmanagar Sub-Division will be detached from the Westernregion of Tripura. For Dasarath Kabu it may be possible tobecome a lord of the Tribal Area and join with the proposedHill State Federation of the Mizos.

But being themselves Bengalis who have Nripen Babu and BirenBabu been enthused with this proposal for the ruination of theBengalis?

It is inevitable that Tripura should be divided into three parts?

(8) Has Right communist leader Mr. Dange written in the papersthat the Left Communists are receiving money from China (throughPakistan at present as Chinese Banks have been closed in India) ?

E.L.R.] B. C. DUTTA V. J. K. CHOWDHURY 431

(9)Did the Communists call Netaji Subash a quisling i. e. a traitor ?

(10) At the time of the quit India movement of Mahatma Gandhi(1942), did the Communists get some of the underground workersarrested and get them hanged?" Then follows paragraph 11 in whichthe names of 17 persons were mentioned, said to have been murderedby the communists.

85. Ext. A-2290 was got printed and published by Shri Sumanta Royby the Diamond Press on behalf of the Tripura Juba Congress Com-mittee. As stated by P.W. 9 (Nripendra Chokraborty) this pamphlet ishis "character assassination" devoted against his political and privatecharacter and life.

86. Ext. A-2291 is a printed pictorial leaflet printed and publishedby Shri Ajoy Roy on behalf of the Pradesh Congress Publicity Boardin the Sen Printing Works, Agartala. It contains photo of the deadbody of one Bhuban Dev Barua and a photo of his family members. Itwas mentioned that at one time Bhuban Dev Barun was a devotedcongress worker and that he was mercilessly murdered by the politicalterritorists of Tripura and that his family stood before the people ofTripura demanding justice. Then the pamphlet proceeds to state thatthe communists terror in Tripura is of long durations, that the commu-nists converted others to communism by force, that the—communistsevicted the Bengalee refugees, burnt to cinders their houses and buriedthose, who insisted, alive. Then it contains a photo of the deadbody of Narayan Dev Baran, said to have been traced in the interiorof a jungle. It was mentioned that the communists murdered him andburied him in the jungles, because he left the communist party afterthe attack of China on India and joined the congress and that thepolice unearthed his dead body from under the ground. Then thepamphlet contains photos of the dead bodies and refers to Communists'terrorist activities in Kerala and elsewhere. The people were asked togive their verdict whether democracy or terrorism should be the per-manent system in Tripura.

87. Though the publishers and the printers were not examined bythe petitioner (could not be as they belong to the congress party), thepetitioner adduced a huge volume of evidence to show that the pamph-lets were widely distributed in the Tripura West Parliamentary Consti-tuency by the congress workers and agents of the respondent, by R.W. 7 (Satyendra Kumar Dutta Choudhury) the respondent's elec-tion agent and in some places and in some meetings at the instance ofand on the directions of the respondent. P.W. 1 (Benu Sen Gupta),the election agent of the petitioner stated that the Press in Chhapaghar,which printed Ext. A-2289 pamphlets, was owned by Shrimati Renu

4 3 2 B. C. DUTTA V. J. K. CHOWDHURY [VOL. XXXVHI

Chakraborty, a congress worker and a nominated congress M. L. A.He stated in the cross-examination that he goc a copy of Ext. A-2289from R. W. 7 (Satyendra Kumar Dutta Choudhury) who was distri-buting the pamphlets before the election took place. P.W. 2 (KanuSen Gupta) deposed that copies of Ext. A-2289 were distributed byShri Krishnadas Bhattacharjee, a candidate for the congress and byShri Bijan Ghosh and others in the first week of February, 1967. Hefurther stated that R. W. 7 (Satyendra Chandra Dutta Choudhury)distributed a copy of Ext. A-2291 to him in the first week of February,1967 when he canvassed for votes for the respondent P.W. 2 (Kanu SenGupta) is the full brother of P.W. 1 (Benu Sen Gupta) P.W. 3 (Hemen-dra Chandra Banik) is a shop keeper in Joynagar in Agartala. He statedthat he got a copy of Ext. A-2291 from some congress workers whowere distributing the pamphlets near a banian tree at Buttala at about7 or 8 P. M. and a copy of Ext. A-2289 near the paradise Choumobiniwhen the pamphlets were distributed by the congress workers. Heattended the court at the instance of the petitioner. Though he doesnot know the persons who distributed the pamphlets, he swore thatthey were all congress workers. P.W. 4 (Khummud Ranjan Basu) isa resident of the Jirania. His evidence is that, on 16-2-1967 whichwas a shandy day in Jirania, the respondent and R. W. 16 (SuchaKumar Chakma) held a meeting, that in the meeting copies of Ext..A-2289 and A-2291 were distributed and that the respondent and R.W.16 (Sneha Kumar Chakma) make speeches in the meeting. He deniedbeing a communist party worker P. W. 5 is Sudhir Deb. His evid-ence is that about 8 or 10 days prior to the election, he saw a gather-ing in Battala and went to the gathering and that fee found an agedperson distributing pamphlets, that he took the pamphlets fronthim and that they were printed copies of Ext. A-2289 and A-2291.He is a private tutor and is not a member of the communist party.But, he was a worker of the United Front of the petitioner. P. W. 6(Saroj Chanda) was a candidate from Agartala Sadar II AssemblyConstituency set up by the United Front. His evidence is that in theelection days he came across a good number of pamphlets distributedby the congress workers and that Exts. A-2289 and A-2291 are copiesof the said pamphlets. He further deposed that about 6 or 7 daysprior to the election he saw Shri Tipu Singh, a relation of Shri S. L.Singh distributing the pamphlets in Badharghat in Agartala Sadar IIConstituency and that Shri Tipu Singh gave him copies of Exts.A-2289 and A-2291. P. W. 7 (Abhiram Dev Barma) stood for electionfrom Uttar Debendranagar Assembly—Constituency and succeeded.HiiTevidence is that he saw the respondent in Jirania 7 or 8 days priorto the election speaking through a mike and canvassing for votes forhim, Stating that if the voters voted in favour of the communists, theBengalees would not be able to stay in Tripura. He statedthat a pamphlet was given to him by Shri Khagesh Acherjeey

E.L.R.] B. C. DUTTA V. J. K. CHOWDHURY 433

a congress worker about 3 or 4 days prior to the election and that oneMani Dev Naran, a congress worker gave him a copy of Ext? A-2291one day prior to the election P. W. 8 is Karun Kumar Roy. He depos-ed that about one week prior to the election there was a meeting inBelonia Kalibari wherein the respondent gave a lecture, that Shri U. K.Roy was the President of the meeting, that Shri S. L. Singh andothers gave their lectures and that Shri Suresh Babu handed over acopy of Ext. A-2291, while R. W. 7 (Satyaendra Kumar Dutta Chou-dhury) gave him a copy of—Ext. A-2289. He worked on behalfof the communist party and also the United Front, P. W. 9 (NripendraChakraborty) also spoke to having seen the pamphlets. P. W. 10(Chandra Mohan Saha) is a resident of Sadhutila. His evidence isthat there was a meeting in Dukli Bazar on the 24th of Nagh at 2-30P. M. that Shri S. L. Singh and the respondent delivered speeches,that the respondent showed a map of Tripura and that the congressvolunteers distributed copies of Exts. A-2209 and A-2291 in the meet-ing. P. W. 11 (Dukshina Ban]an Chakraborty) is a resident ofGopalnagar colony. His evidence is that there was a meeting inMohan Bazar presided by one Shri Nafragi Deb Barma, that the res-pondent, R. W. 16 (Sucha Kumar Chekma) and Shri Promode DasGupta delivered lectures in the meeting and that copies of Exts. A2289, A-2290 and A-2291 were distributed in the meeting. P. W. 13 isBrojendra Chandra Das. He deposed that lie is a worker of theUnited Front and that copies of Ext. A-2289 and A-2291 were given tohim by one Shri Couranga Sil in the Mohanpur market. P. W. 14 isChandranath Dev Darma. He deposed that in the morning of thenext day, after a meeting in Katiandra Primary School premises wasaddressed by Shri S. L. Singh, pamphlets similar to Exts. A-2289 andA-2291 were distributed by Shri Nabhal Das Gupta, P. W. 15 (JitendraLai Das & Jhunu Das) contested from Belonia Assembly Consti-tuency on behalf of the United Front party. His evidence is that therespondent addressed a meeting in Belonia at Malibari about 7 or 8days prior to the election and exhibited two pamphlets—copies ofExts. A-2289 and A-2291 in the meeting and that he got them distri-buted. P.W. 16 is Amulya Kumar Dutta. He stated that pamphletssimilar to Exts. A-2289 to A-2291 were distributed in the Nontalacolony by Shri Usha Clioudhury and some other congress workers ofthe colony on 25th Magh, 1373 B. S. He is not a communist partyworker. P.W. 17 is Akul Chand Dutta. He stated that there " wasmeeting on 25th Magh, 1373, B. S. at 5 P. M. at Bontala colony, thatit was addressed by Shri Promode Das Gupta, that some leaflets weredistributed in the meeting and that Ext. A-2289 is a copy of the same.He attended the Court on information given by his brother P.W. 16(Amulya Kumar Dutta). He is not a United Front worker. P.W. 10is a resident of Moghlibend. His evidence is that there was meetingin Katlamara Primary School premises 4 or 5 days prior to the election

29—3Elec. Com./71

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that the meeting was addressed by Shri S. L. Singh, Shri Promode DasGupta a-nd others and that copies of Exts. A-2289 and A-2290 weredistributed in the meeting. Exts. X—1 and X—2 are the copiesreceived by him and he produced them into the Court. He swore thatthe pamphlets were distributed by one Arabinda Gupta, a congressworker, in the meeting. P. W. No. 19 (Atikul Islam) contested fromthe Agartala town Assembly Constituency on the United Front ticket.It is his evidence that a congress worker Shri Bijen Ghosh distributedpamphlets as per Exts. A-2289 and A-2291 on 5-2-1967 at KamanGhoumohani at about 6 or 7 P. M. P.W. 2) (Durga Prasad Sikdar)is the Gram Pradhan or Amtali Gao Sabha. It is his evidence that10 days prior to the election one Asutosh Naha, a congress worker ofShri Krishena Dev Barma, who was a congress candidate, distributedpamphlets similar to Exts. A-2289 and 2291. P. W. 21 (Gopal Chan-dra Chakraborty) is a resident of Arundhutinagar. His evidenceshows that he found some people including Shri Tipu Singh, who wereall congress workers—distributing the pamphlets near the congressoffice in Agartala, when he got two copies of Exts. A-2289 and A-2291.P. W. 22 (Girindra Chendra Deb) is a resident of Ishanpur. He statedthat about 2 days prior to the election he got copies of Exts. A-2289and A-2290 in Katlamara Bazar from one Gasa Chandra Paul, whowas previously a communist party worker and who is now a congressparty worker and stated further that the latter worked in the office ofShri Promode Das Gupta, a congress candidate. P.W. 23 is Naran-Chandra Choudhury. He is a resident of Nakraban. It is his evid-ence that the respondent held a meeting at Kakraben Bazar about 8days prior to the election and that one Shri Dishu Das, a congressworker distributed the pamphlets and that they were copies of Exts.A-2289 and A-2291. P.W. 24 is Narendra Chandra Deb Dey. It ishis evidence that he is working as an assistant in a sweet-meat shopwhich is about 20 cubits from the shop of Shri Govinda Majumdar inMahanpur Bazar, that the respondent came to the shop, that manypeople assembled, that one Amar Sarkar brought three pamphletssimilar to Exts. A-2289 to A-2291 and gave them to P. W. 24(Narendra Chandra Deb Dey) and that the respondent took hisseat and also distributed the pamphlets. He was asked by the peti-tioner about 20 or 25 days prior to the date of his deposition to givehis evidence and so, he attended the Court, P.W. 25 (Lalit-MohonGhosh) is a resident of Autali. It is his evidence that Shri S. L. Singhand the respondent addressed a meeting in Dihselgarh at about 3, P. M.6 or 9 days prior to the election, that in that meeting copies of Exts.A-2289 and A-2291 were distributed by Shri Nakhon Suha, a congressworker. It is also his evidence that about 10 or 11 days prior to theelection he attended a meeting in Sukli, that in that meeting also therespondent, Shri S. L. Singh and others delivered speeches and thatpamphlets similar to Exts. A-2289 and A-2291 were distributed. He

E.L.U.] B. C- DUTTAV. J. K. CHOWDHURY 435

attended the Court at the instance of the petitioner's son. P. W. 26is the petitioner who stated that he received a copy of Ext. A 2289from P. W. 5 (Sudhir Deb) along with another pamphlet which wasa copy of Ext. A-2291. He further deposed that, afterwards, R. W. 7(Satyendra Kumar Dutta Choudhury) handed ever to him copies ofExts. A-2289, A-2290 and A-2291 and Ext. X—2 near the Fire Brigadeat Agartala at about 10 P. M. prior to the election, thats R. W. (Satyen-dra Kumar Dutta Choudhury) further told P. W. 26 petitioner tojokingly that the pamphlets as per Ext. A-2290 were exhausted likehot cakes, that they had to be reprinted as per Ext. No. 2 and thatthough R. W. 7 (Satyendra Kumar Dutta Choudhury) was the friendof P.W. 26 petitioner he would tell P.W. 26 petitioner that the latterwould be defeated in the election of P. W. 27 (Radharaman DebNath) was the election agent of P. W. 9 (Nripendra Chekraborty).It is his evidence that about 15 to 16 days prior to the election therespondent went to the house of Shri Govinda Majumdar in MohanpurBazar and held a group meeting and distributed some pamphletssimilar to Exts. A2289, A-2290 and A-2291. Also it is his evidencethat there was a meeting in Mohanpur Rice market about 10 or 12days prior to the election where the respondent, P. W. 16 (Sacha KumarChakme) and Promode Das Gupta delivered speeches, that pamphletssimilar to Exts. A-2289 to A-2291 were distributed and that theywere also pasted on the shop and the trees. P. W. 28 (Phani Majum-dar) is a resident of Arelia in Sonamara. His evidence is that on10-2-1967 the congress held a meeting in Kathelia, that Shri S. L.Singh the respondent and others addressed the meeting, that he foundtwo sets of pamphlets on the table where the respondent sat. thatthe respondent asked his workers to distribute them, that one KamalDas and one Mr. Bhutta distributed them, that P. W. 28 (PhaniMajumdar) got both the pamphlets and that they were copies of Exts—2289 and A-2291. He attended the Court at the instance of the sonof the petitioner. He is a United Front supporter. P. W. 29 (Bhi-rendra Kumar Sen) was a candidate from Sonamura North AssemblyConstituency. But, he has no personal knowledge about the distribu-tion of the pamphlets, as he was told about them by one of hisvolunteers. P. W. 30 is Shri Samar Bakshi Choudhury. His evidenceis that a meeting was held by the respondent. R. W. 16 (Sacha KumarChahma) and others near the Wali temple 'in Nelaghar, that he sawa number of pamphlets on a table in front of the respondent and thatone Sukumar Saha and others distributed the pamphlets. He alsospoke to the distribution of the pamphlets in some other meeting anddeposed that they were similar to Ext. A-2291, P.W. 31 is Shri Nagen-dra Dev. It is his evidence that about 11 or 12 days prior to theelection he received two leaflets from a congress worker is NadhpurBazar of Bishalgarh area and that they were copies of Ext. A-2289 andA-2291. He further stated that the persons who distributed the leaflets

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were two congress workers Dhirendra Choudhury and Sunil Bardhan.P. W. 31 (Nagendra Dev) is now under detention under the P. D.Act. He was United Front worker. P.W. 12 (Anil Chandra Dey)is a resident of Malayanagar. It is his evidence that, about 10 or 12days prior to the election, a meeting was held in the house of NirmalDeb, a clerk of M. B. B. College in Jogendra Nagar, that the respon-dent. Tarvit Das Gupta and Kartik Bhattacherjee gave speeches, thatthe respondent distributed some pamphlets, that P. W. 32 (AnilChandra Dey) took one of them and that Ext. A-2291 is a copy of it.He is also a United Front worker.

88. As against the above evidence. R, W. 1 (J. K. Choudhury)stated that he did not know anything about the pamphlets and deniedhaving either got them distributed or having himself distributed them.He stated that the distribution of pamphlets in a meeting would dis-turb the meeting. R. W. 7 (Satyendra Kumar Dutta Choudhury) theelection agent of the respondent denied knowledge of the pamphletsand having distributed them to P. Ws 1 (Benu Sen Gupta) 2 (KanuSen Gupta) and 26 petitioners. He denied having told P. W. 26(Birendra Chandra Dutta) that the pamphlets as per Ex A- 2290)were exhausted like hot cakes. R. W. 10 (Govinda Chandra Majum-dar) denied distribution of the pamphlets. He is associated withthe congress. R. W. 12 (Prubir Shyam) denied having seen anypamphlet similar to Exts. A-2289 to A-2291. He is a member of thecongress of the Meharpur area and canvassed for votes for the congresscandidates including Promode Das Gupta. R.W. 16 (Sneha KumarChakma) denied having seen pamphlets similar to Exts. A-2289 toA-2291 in the election time and deposed that he saw them for the firsttime in the Court.

89. In view of the overwhelming and voluminous evidence let inby fihe petitioner about the distribution of the pamphlets, it is notpossible to believe the evidence of R. Ws. 1 respondent, 7 (SatyendraKumar Dutta Choudhury), 10 (Govind Chandra Majumdar), 12(Prabir Shyam) and 10 (Sneha Kumar Chakma) that they know noth-ing of the pamphlets. It is not necessary to prove the authorship ofthe pamphlets. As distribution of the pamphlets by the respondent,his election agent and his workers is proved, he is responsible for thestatements, contained in the pamphlets. Vide Nani Gopal Swami Vs.Abdul Masid Choudhury and another (45) and Maganlal Radha-kj'ishan Nandi Vs. Hari Vishnu Kapatha (46). Before considering thelegal effect of these pamphlets, it has to be noted that the petitionerreferred to only three Presses in paragraph 70 of his petition whichprinted the pamphlets. They are Agartala Sen Printing Works, Chha-paghar and Sri Govinda Press. Ext. A-2289 pamphlet was printed in

(45) A.I.R. 1959 Assam 200, 19E.L.R. 175.c A.I.R. 1S6C M.P. 362.

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Chhapaghar, Agartala Press. But, Ext. A-2290 was printed in theDiamond Press. So, it is a new item and has to be ignored. Ext.A-2291 was: printed in the Sen Printing Works. As such, the effectof Exts. A-2289 and A-2291 has to be considered. Before dealing withthem a poster marked as Ext. A-2834 may be also referred to in thisconnection. In that poster the voters were asked to vote in favour of"Principal }. K. Choudhury". The contention of the petitioner is thatthe respondent retired as Principal several years back and that heappended the word "Principal" to his name in the election propagandato attract the attention of the students. The evidence of R. W. 1respondent is that he applied to the Electoral authorities to score outthe word "Principal" in his nomination paper. Yet, the word was notscored out from the posters. According to R. W. 1 respondent it wasonly a honorific term. The respondent's Counsel relied on ChunilalSen v. Sudhckzran Sharma and others(67) where a leaflet waspublished by the congress party with the photo of an ex-Maharajaappealing by him to his subjects to vote for the congress party. Theex-Maharaja was described as "Maharaja" and his photo contained hisregal robes. It was held that his appeal could not amount to undueinfluence and fraudulent device interfering with the free exercise ofthe rights, of the voters. So, Ext. A-2234 poster also may be ignored.Though it is seen from the evidence, of P. W. 6 (Saroj Chandra),19 (Atikul Islam) and 26 petitioner that the communist party had alsoits own organs called Deshv.dhar people's Democracy and TripuraKatha and though Shri Sukhomony Sen Gupta run Ganaraj, the com-munist party did not print counter leaflets in answer to Ext. A-2289and A-2291. But, P. W. 9 (Nripendra Chakraborty) and 26 petitionerstated that they denounced the propaganda of the congress party intheir speeches. I do not think that omissions of the petitioner to printand publish counter pamphlets and to wage war against this pam-phlets detracts against the contentions raised by him in the petition.

90. The petitioner mentioned in detail the speeches delivered bythe respondent and others on various dates. Most of them were inaccordance with the pamphlets and the themes as were the same. Evid-ence was let in about those speeches. Firstly, it was alleged thaton 31-1-1967 there was a public meeting in Katlamara in MohanpurConstituency, where Shri S. L. Singh stated that the communistsmurdered Kiran Bhattacherjee and Ban Behari and spread feelings ofhatred. P.W. 14 (Khandranath Dev Barma) and 18 (DehendraChandra Deb) are the witnesses who speak to this speech. Ext. A-2294 is the news item published in Budura Dina dated 3-2-1967.Secondly, there is the evidence of P. W. 1 (Benu Sen Gupta), 2 (KanuSen Gupta), 10 (Chandra Mohan Saha), 25 (Lalit Mohan Gosh) and26 petitioner about a meeting held in kukil on 7-2-1967 wherein Shri

(67) 21. E.L.R. 320.

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S. L. Singh and others delivered lectures alleging that the commu-nists murdered Govinda Gosh and Anasta Bhattacherjee. P. Ws. 1(Benu Sen Gupta), 2 (Kanu Sen Gupta), 10 (Chandra Mohan Saha),25 (Lalit Mohan Ghosh) and 26 (petitioner) are the witnesses whospoke to that speech. This was published in Ext. A-2296 Jagaranpaper. Thirdly, on 9-2-1967 there was a meeting in Bishalgarh inwhich sfpeeches were delivered creating feelings of hatred and in whichit was alleged that the communists murdered Dukhi Goala andMangal Deb Barma. P. Ws 2 (Banu Sen Gupta) and 26 petitionerare the witness who speak to the speeches as reported in Ext. A-2367news item in daily Jagaran paper. Fourthly, it was alleged that therewas a meeting on 9-2-1967 in Bishalgarh were Shri S. L. Singh spokecreating feelings of hatred between the different communities callingthe people of scheduled caste community as insects of drain. Thiswas published in in the Ext. A-2295 Ganaraj paper dated 12-2-1967 P. Ws.(Benu Sen Gupta), 2 (Kanu Sen Gupta), 25 (Lalit Mohan Ghosh)and 31 (Nagendra Dey) Speak to it. Fifthly, it was alleged that on9-2-1967 Shri S. L. Singh and the respondent made speeches in Dishal-garh spreading feelings of hatred between the Bengalees and thetribals. P. Ws. 1 (Benu Sen Gupta), 2 (Kanu Sen Gupta), 25 (LalitMohan Ghosh) and petitioner are the witnesses who were examined tospeak to their speeches. Ext. A-2293 contains this news item, inDainith Gana Abhijan dated 10-2-1967. Sixflhly, it was alleged thaton 12-2-1967 the respondent addressed a public gathering in Kakrabanspreading communal hatred. P.W. 1 (Benu Sen Gupta) (Kanu SenGupta), 23 (Haren Chandra Choudhury) and 26 (petitioner) are thewitnesses who speak to this Ext. A-2392 is the news item publishedin Jagarun. As pointed out in Brisk Misra Vs. Ram Nath Skarma(6S)to prove a corrupt practice it is necessary to establish as to what wasactually stated in a meeting oral evidence should be viewed with care& caution. Without the entire content of the speech being placedbefore the Court, isolated works cannot give a true import of thespeech and no corrupt practice can be said to have been proved onthe basis of that. Out of all the speeches R. W. 1 (J. K. Choudhury )-admitted that Ext. A-2292 is substantially correct. It is a short oneand the translated speech is reproduced as hereunder.

"Principal Shri Jogendra Kumar Choudhury, congress candidatefor the General Parliamentary Seat, in connection with his lecturedelivered yesterday in a large public meeting held at Makraban underUdaipur Sub-division, said that the communist party of Tripura people.As an outcome of their resolution to bifrucate Tripura in the name ofdevelopment of the tribals, at least more than five li\hs of uprootedrefugees would again be turned into refugees. This situation in thecritical life of the Bengalees is undesirable.

(68) 17 E.L.R. 243.

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Shri Choudhury added that the communist party has becomecornered to-day. So they are trying to take shelter in a narrowerTripura rather than the wider Tripura. They have taken the recourseof communalism to infuse new life to the decaying Party. On theother hand, the basic principle of the National Congress is the forma-tion of non-communal State. He appealed to the people to make theNational Congress Victorious by casting their votes in its favour inthe ensuing election in the interest of up\eeping the integrity andcommunal harmony of Tripura". (under lining is mine).

91. Now the intention of the respondent in distributing and gettingdistributed Ext. A-2289 and A-2291 and in making a speech as perExt. A-2292 has to be gathered. The main item contained therein canbe classified into three categories. The first category is that relatingto the attitude of the communist party of India or C.P.I. (M) towardsChina and Pakistan. This is contained in paragraphs 2 to 5 of Ext.A-2289. They show that China is in possession of 14,500 sq. miles ofIndian territory after having attacked India, that China helps Pakistan,that Pakistan is in occupation of one-third of Kashmir including Baji-pur Path and that yet, the C.P.I. does not denounce China and Pakis-tan as aggressors. Even in the evidence P.Ws. 6 (Soraj Chanda),9 (Nripendra Chakraberty) and 26 (Petitioner) were reluctant to admitthat China and Pakistan were the aggressors. As against this, it waspointed out that though America was favourably disposed towardsPakistan by supplying Patton tanks to it, India did not criticiseAmerica, but that, on the other hand, it is getting food under PL 480programme. These are all matters relating to party politics and poli-cies with which the Court is not concerned. So, there is nothing wrongin the statements contained in paragraphs 2 to 5 of Ext. A-2289. TheBhuban Dev Baran, Narayan Dev Baran and others, because they belon-ged to the congress party. It is in the evidence of P.W. 1 (Benu SenGupta) that the accused, who were communist party members inBhuban Dev Baran's case, were discharged even by the committingmagistrate. It is said that some case against some persons is pendingin connection with the death of Narayan Dev Barma. P.W. 9 (Nri-pendra Chakraberty) stated that the photos of the dead persons, whichwere published in ext. A-2291, must have been made available to ShriS. L. Singh by the police as the case was sub-judice and as nobody elsecould get at the photos of the dead bodies. Though P.W. 1 (Respon-dent) denied that he or Shri S. L. Singh spoke in the meetings statingthat the communist party members murdered, Bhuban Dev Baran andothers, he admitted in his cross-examination that one of the localspeakers who gave a lecture on the same platform stated that the com-munist party members committed the murders. Thus it is correct tostate that the congress party of which the respondent is member, was notjustified in publishing news that the above mentioned Bhuban Dev

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Barma and Narayan Dev Barma were murdered by the communistparty members. Perhaps, it would also amount to contempt ofCourt because the case regarding Narayan Dev Barma is Sub-judice.It has to be noted in this connection that P.W. 9 (Nirendra Chakra-borty) alleged that the congress party members murdered some stu-dents in 1966 in Agartala as published in Ext. B 21 news item in DesherDak. This is now sub-judice and is being enquired into by one ShriBakshi, a retired Judge of the Saurashtra High Court. Thus, therewere allegations and counter allegations about the murders. In anumber of cases it was held that matters of opinion pressed againsta party do not come under corrupt practice within the meaning ofsection 123 of the Act. A statement that "not to vote for the congress"would be like committing betrayal, was held to be a mere expressionBrisk Misra Vs. Ram Natk Sharma (68). In a case voters were askednot to vote for the congress candidates, as the congress was responsiblefor firing and killing Maharaslitriyan leaders, for demanding a separateState and photos of the martyrs were attached to the appeal. It wasalso stated in the pamphlets that the ballot boxes of the congressparty were filled with the blood of those matryrs, This was held to benot a corrupt practice. Vide Kataria Tahurdas Vs. Pinto FredericMichael (69) statement against political parties and appeal on theground of that mis-deeds or their supposed mis-deeds were held notto be corrupt practices. Vide the rulings mentioned at pages 530. 533,544, and 545 of Doabia's Election Manual, Volume II, 1967 Edition.Severe criticism of a party was held to be not corrupt practice. Vide pages78 and 79 of Volume II of Digest of the Election Law Report from1958-60. So, the allegations made in Ext. A-2291 and the speeches thatthe communist party members murdered the congress party membersor workers cannot also be said to be a corrupt practice.

92. The third item is material for the purpose of this case and inthe context of the atmosphere and circumstances prevailing in Tripura.This was mentioned in paragraph 7 and further stressed by the res-pondent in his speech as per Ext. A-2292. Tripura is surrounded byEast Pakistan on three sides and by Nine Hills on the fourth. Tripurawas ruled by the Maharaja who was a tribal. In 1951, the populationin Tripura was 6,45,700 and the tribals were 2,37,953 and their per-centage was 36:39. In 1961 according to the Census, population was11,41,764, of which the scheduled tribes' population was 3,61,751, i.e.,31:60%. The area of Tripura is 4414 sq. miles. The members of thescheduled tribes belong to 15 different tribes. Tripura, Nanng, Nattia,Helam. Joastia and Chumba are the major tribes. Vide Ext. A-2364(a).

(68) 17 E.L.R. 243.(69) 18 E.L.R. 403.

E.L.R.] B. C DUTTA V. J. K. CHOWDHURY 441

On account of the influx of the refugees from East Pakistan in 1967,the total population in Tripura inflated to about 15 or 16 lakhs. So,at the time of the election about 20% of the population 'was of sche-duled tribes and 80% was Bengalee refugees, who migrated from EastPakistan. The communist party of Tripura had been agitating forthe introduction of Schedule V of the Constitution of India in Tri-pura. The system of administration provided for the Scheduledareas and Tribes as pfovided in Parts A and B of the fifth schedulemay be summarised thus : The executive power of the Union shallextend to giving directives to the States regarding the administrationof the Scheduled Areas. Tribes Advisory Councils are to be consti-tuted to give advise on such matters as welfare and advancement ofthe Scheduled Tribes in the States as may be referred to them bythe Governor or Ruler. The Governor or Ruler is authorised to directthat any particular Act of Parliament or of the Legislature of theState shall not apply to a Scheduled Area or shall apply, only subieetto exceptions or modifications. The Governor or Ruler is alsoauthorised to make regulations to prohibit or restrict the transfer ofland by, or among members of, the Scheduled Tribes, regulate the allot-ment of land, and regulate the business of moneylending. All suchregulations made by the Governor or Ruler must have assent of thePresident. (Vide page 670 of Basu's shorter constitution of India. 1960edition). Shri Dhebar's Commission was appointed to investigate andreport on the problems of the Scheduled Tribes. The Commissionsubmitted a report Ext. A-2364 to the President. Ext, A-2364(a)refers to Tripura, wherein the Commission stated that at the time ofthe enquiry by the Commission no Scheduled area in Tripura wasnotified, that the then Chief Commissioner of Tripura (Shri Patnaik)suggested that the areas of Kanchasupar, Chaumanu, Amarpur andTeliamura Blocks and some of the areas under Saclar, Belania andSabroom Sub-divisions, which are contiguous to Amarpur and Teli-amara Blocks and have a preponderance of tribal population, mightbe declared as Scheduled Areas." The Commission suggested, alter-natively, that the tribal areas stated above should be grouped underTribal Development Blocks, as that the bulk of the tribal populationis brought under intensive development programme. The Commissionalso stated that the influx of displaced persons from Pakistan to Tri-pura has been enormous and has upset local economy, that it hasgreatly affected the tribals and has made the land problem acute, thatthe rights of the tribals to land should be safeguarded and that thoughsection 187 of the Tripura Land Revenue and Land Reforms Act(introduced by them) prohibits transfer of land from tribals to non-tribal s unless the written permission of the Collector is obtained, thismay check alienation of. land by the tribals, but that in many cases,the land changes hands without any deed of registration. As can be•seen from Ext. A2364(h) the Commission suggested that Jhuming

442 , B. C. DUTTA V. J. K. CHOWDHURY [VOL. XXXVIII

should be permitted whereever possible, that Jhum cultivation on sci-entific basis should be introduced, that on account of influx of refugees,the pressure on land in Tripura had increased considerably, that it isbecoming more and more difficult to find new paddy land for settingJhumia tribals, that the only lands available are tillies and that groundnut crops may be raised on them. Ext. A-2364 contains a list of theScheduled areas in Part A and B States in which certain tribal areaswere declared as Scheduled areas. They include Andhra Pradesh.Bihar, Madhya Pradesh and other States, wherein, on account ofthe introduction of the fifth schedule, there was no partition. TheCommission stated in Ext. A-2364(d) that the scheme of administrationof Scheduled Areas under the Fifth Schedule visualises a division ofresponsibility between the State Governments and the Union Govern-ment, that the State Government is charged with the duty of screeninglegislation unsuitable for extension to the tribal areas, of framing re-gulations for their peace and good government with particular referenceto the protection of tribal land, allotment of waste land and protectionfrom exploitation by money-lenders, that it has also to implement specialschemes for the welfare of the Scheduled Tribes living within itsboundaries as well as schemes for their general development and thatthe Union Government's responsibility extends to proving guidance inregard to the administration of the Scheduled Areas and of additionalfunds required to raise the level of administration and the standardof life of the tribal communities. In Ext. A-2364 (j) the States in which,the Tribes Advisory Councils were formed were mentioned. In Exts.A-2364(k) and (1), the Commission gave its recommendation aboutthe composition of the Tribes Councils. In Ext. B. 18 the Commissionmentioned the criteria for determining a Scheduled Area namely, firstlyto ensure the protection to the Scheduled Tribes and secondly, to raisethe level of administration in the Scheduled Areas. In Ext, A-2364 (e)the Commission stated that no distinction should be drawn between theStates and the Union Territories in implementing the Fifth Schedule.In Ext. A-2364(i) the Commission quoted from Gandhiji:

"I do not want my house to be walled in on all sides and mywindows to be stuffed. I want the cultures of all lands to be blownabout my house as freely as possible. But, I refuse to be blown offmy feet by any."

93. So, the Commission summed up that the aim of the Indian Consti-tution to secure to the tribal people along with all the people of Indiaa social order based upon justice in all fields of lives, equality of status,opportunity and fraternity assuring the dignity of the individual andthe unity of the nation—must be achieved.

94. Thus, it is seen that by implementation of Schedule V in Tri-pura or in any other Union Territory or in any State, there is no

E.L.R.] B. C. DUTTA V. J. K. CHOWDHURY 443

partition of the Territory or State. Nor is there any dual Government.The same—Administrator who administers the Union Territory of Tri-pura namely, the Chief Commissioner remains to be the Chief Com-missioner of the entire Tripura. The Cabinet remains to be the same.The only change is that the Chief Commissioner will have a TribesAdvisory Committee, besides, to advise him with regard to the matterscovered by the Scheduled Area and the Chief Commissioner will regu-late the allotment of land and money-lending business and screen thelegislation applicable to the Scheduled Area. The Bengalee refugeeswill not be driven out of the said area. They will remain in the Sche-duled Areas as well as in non-Scheduled areas. But, protection is givento the Scheduled Tribes and the lands possessed by them. But, a wrongand intentionally incorrect interpretation was sought to be given by therespondent and other congress members that the Bengalee refugeeswould be driven out from the Scheduled Areas. The evidence of R.W. 1"is that Shri Sudhanya Dev Barma introduced a resolution in TripuraLegislative Assembly as per Ext. V-28(a) that Fifth Schedule should beimmediately introduced in Tripura and that Shri Dasarath Dev Barmaan ex-M.P. made a speech in the Lok Sabha as per Ex. B-29(a) to thesame effect. R.W. 1 the respondent further stated that the C.P.I.introduced the issue of Fifth Schedule in the election with the objectof gaining control over the tribal areas as the communists are losingground elsewhere. He further stated that the Government establishedTribal Development Blocks according to Dhebar Commission reportExt. A-2363, that West Bengal is bursting with refugees, that Assamsealed its border against the refugees, that Pakistan is trying to grabTripura with the help of China and that, therefore, he was empha-sising in the speeches that in Tripura the people must live in peace. Hefurther stated in his chief examination that there are about 8 lakhs ofacres of land already under cultivation in Tripura that about 4 lakhs ofacres of land more can also be brought under cultivation, that if thecommunists succeed they may abolish the Tripura Land Revenue andLand Reforms Act, in which case persons having no documents will losetheir title to the lands, that strategically a way will be opened to Chinathrough the southern boundary Hills, Lushai Hills, Manipur and Naga-land, that military also, the people in Tripura will have disadvantages ifthey are divided and that on these grounds he opposed the introductionof the Fifth Schedule. Accordingly, he suggested the creation of asmany tribal development blocks as possible, as suggested alternativelyby Dhebar Commission. He stated that there are 9 out of 30 seatsreserved for the Scheduled Tribes in Tripura Assembly, that out ofthem, the congress captured 6 seats and that the Maharaja of Tripurawas elected from the Tripura East Tribal Constituency on congressticket. He produced Ext. B-32, a printed Map of Tripura, Assam andManipur and denied having shown such a Map to the electors. But,in the cross-examination, he admitted that even in 1961 the only land

444 B. C. DUTTA V. J. K. CHOWDHURY [VOL. XXXVIII

that was remaining was till a land fit for ground-nut cultivation andcultivation with water lifts. So, on account of the influx of the refugeesthe Scheduled Tribes are now left with tilla lands fit for ground-nutcultivation. According to him, there are about 80 lakhs non-muslimsstill in East Pakistan and admitted that she heard that every day about30 to 35 refugees are migrating to Tripura. He does not know whetherthere will be a tribal pre-dominated area in Tripura at all, if this kind ofrehabilitation of the refugees goes on. He is not able to state whetherExt. A-2364(d) correctly interprets the law or not. He admitted thatin most of the States in India where Fifth Schedule was introduced therehas been no partition in those States. But, he insists that there will bea partition ultimately in Tripura if the Fifth Schedule is introduced.He admitted that he did not consider the example of the introductionof the Fifth Schedule in Uttar Pradesh, Madras and Andhra Pradesh butthat he took the case of Assam into consideration. His evidence thatthere will be partition of Tripura into two blocks—one for the tribalsand the other for the non-tribals and that the resident Bengalee refugeeswill be evicted from the Scheduled area is not correct. R.W. 16 (SudhaKumar Chakma), who is working as a private tutor, stated that the thenMaharajah of Tripura wanted to divide Tripura between tribals andnon-tribals, that R.W. 16, who is a tribal also endorsed his view andwanted a separate area for the tribals, into which the refugees shouldnot be allowed to further infiltrate. He further stated that the tribalpredominating area became less tribal predominant on account of theinflux of that refugees and that the tribals can be improved by a com-mon brotherhood. So, in February 1966 he joined the congress alongwith the members of his tribal union. But, it is not correct to statethat the introduction of the Fifth Schedule will bifurcate Tripura, theslogan that the refugees, who live in the Scheduled area will again be-come refugees, is a false slogan. As already pointed out, the Bengaleerefugees will live with the tribals in the Scheduled Areas. By the intro-duction of the Fifth Schedule, the tribals who are the natives of the soilviz. Tripura will be protected. It is unfair to neglect their interests inthe interest of refugees who are coming to Tripura. The problem ofrehabilitation of refugees is that of the Central Government and not ofTripura Government.

95. In the light of the above, the question of law raised by the alle-gations made in paragraph 7 of Ext. A-2299, has to be examined. Itwas stated therein that Shri Dasaroth Dev Barma and the petitionersubmitted proposals in the Parliament and Legislative Assembly thatout of the 4416 sq. miles, 1910 sq. miles comprising Khewni, Kameipur,Kailasahar, Amarpur and Sabroom should be declared as tribal areasaccording to the fifth Schedule and that then it means that all thesewho had been rehabilitated in those areas will have to leave their placeand some away. It was further stated therein that this would have

E.L.R.] B. C. DUTTA V. J. K. CHOWDHURY 445

three results. Firstly, it would create a conflict between the Bangaleesand the tribals who remain in the other part namely, 4416 square milesof Tripura. Secondly, if out of these 1910 square miles more than 3lakhs of refugees are evicted for the second time, then the 12 lakhs ofBangalees out of the population of 15 lakhs would not have even stand-ing room housing being out of the question and these Bengalees cannotgo out elsewhere. So, this state of "Anarchy", that would prevail overthe 2206 square miles area of Tripura, could provide opportunity forPakistan to grab Tripura and it would be the graveyard for the Ben-galees, particularly the Bengalees refugees. Then a question was putto the petitioner and P.W. 9 (Nripendru Chakraborty) that, why eventhough they are Bengalees, they are enthused with the proposal for theruination of the Bengalees. It was further stated in Ext. A-2289 thatShri Desarath Dev Barma might become a king in the Tribal State andmight join either the Mizos or the proposed Hill State Federation. Butwhy the petitioner and P.W. 9 (Nripendra Cha\raborty), who are Ben-galees, were out to ruin the Bengalees ? R.W. 1 RESPONDENT admit-ted that he stated in the meeting as per Ext. A-2292 that "on account ofbiturcation in the name of the development of the Tribals" at least morethan 5 lakhs of uprooted refugees would again be turned into refugeesand that this situation in the critical life of the-Bengalees was undesir-able. So, in fact the respondent canvassed for votes on the basis thatTripura would be partitioned into two portions, that in one portioncomprising 1910 sq. miles of area in Tripura there will be only tribalsand that all the 12 lakhs of Bengalees will have to be hemmed in theremaining 2206 sq. miles of area, that the Bengalee refugees would againbecome refugees. This propaganda amounted to an appeal made bythe respondent and his agents to vote in his favour and a promotion offeelings of enmity and hatred betwen the Bengalees and the tribals onthe ground of their community. It also amounted to promotion ofill-feelings and hatred between different classes of the citizens of Indianamely. Bengalees on one hand the tribals on the other, made for thefurtherance of the prospect of respondent's election and to prejudicallyaffect the election of the petitioner. There are similar cases in somerulings. In Jujhr Singh Vs. Bhairon hall (70), a poster was published bythe Congress Committee against a rival candidate, who was a Jagirdar.It contained the picture of a tenant tied up to a tree and a well dressedJagirdar asking another, who was seen waving a whip, to flog the tenantand the tenant's wife was shown lying prostrate on the ground. It washeld that the poster amounted to exercise of undue influence over thevoters, who were mostly illiterate villagers and that the case fell undersection 123(2) of the Act. In Abdul Jalil Choudhary Vs. NathindraNath Sen (44) a candidate canvassed in meetings that the election was

(70) 7 E.L.R. 457.

(44) A.I.R. 1958 Assam 51.

446 B. C. DUTTA V. J. K. CHOWDHURY [VOL. XXXVIII

then the question of Muslims versus Hindus. It was held that the can-didate asked for votes on the ground of community or religion and thatit was a corrupt practice as denned in section 123(3) of the Act. Thisdecision was followed is Nani Gopal Swami Vs. Abdul Hamid Chau-dhary and another (45). In that case there was a passage in a news-paper conducted by the party to which the candidate belonged, whichstated that if the members of the Leftist party won the election, theirplan to construct the country 'included driving out of the Muslims fromIndia and creation of hostilities with the neighbouring State. It washeld that it constituted corrupt practice, as it interfered with the freeexercise of electoral right and was a systematic appeal to intimidate andinfluence voters of the Muslim community on false grounds to supportthe candidature of the Muslim candidate. In this case also the sloganof the respondent that if the Fifth Schedule was introduced, therewould be a partition of Tripura and that the Bengalee refugees wouldbe driven out of one portion and hemmed in another portion was a falsepropaganda made with the intention of creating ill-feelings between theBengalees and the tr'ibals and gaining the votes of the Bengalees, espe-cially of Bengalees refugees. It also amounted to an appeal by the res-pondent, who is a Bengalee, to the Bengalee voters in his Constituencyto vote for him, because he is a Bengalee and not to vote to the peti-tioner, because he was anti-Bengalee. So, the case falls under both sub-sections (3) and 31 of section 123 of the Act.

96. The contention of the learned Counsel for the respondent isthat the respondent simply expressed an opinion on the ground of con-stitutional issue and that, therefore, it is not a corrupt practice. Herelied on the following rulings in support of his contention. In HultarSingh Vs. Mukjitiar Singh (71), it was held that a document must beread as a whole, that it would be unrealistic to ignore the fact thatwhen election meetings are held and appeals are made by candidatesof opposing political parties, the atmosphere is usually surcharged withpartisan feelings and emotions and the use of hyperboles or metaphorsand the—extravagance of expression in attacking one another, are all apart of the game, that when the question about the effect of speechesdelivered or pamphlets distributed at elections meetings is argued inthe cold atmosphere of a judicial chamber, some allowance must bemade and the impugned speeches or pamphlets must be construed inthat light. But, it was further held that it would be unreasonable toignore the question us to what the effect of the said speech or pamphletwould be on the mind of the ordinary voter, who attends such sectionsand reads the pamphlets or hears the speeches. In Jandev SinghSidhanti Vs. Pratap Singh Daulata und others (A.LR. 1965 S.C 183) it

(45) A.I.R. 1959 Assam 200.(71) A.I.R. 1965 S.C. 141; 24 E.L.R. 419.

B. C. DUTTA V. J. K. CHOWDHURY 44?

xwas held that section 123(3) must be read in the light of the funda-mental right which is guaranteed by Article 29(1) of the Constitutionand that in ascertaining the true meaning of the corrupt practice, thearea of the fundamental right of citizen must be steadily kept in view,In Lalsing Keshrising Rebrar Vs. Vailabhdas Shan\arlal Thekdi andothers (56), it was held that in order that an appeal of a religious leadermay come within the mischief of sub-section (2) of section 123, it mustimpunge upon the voter's freedom of the choice of a candidate, and thatthe effect of the appeal on the mind of the voter and the \ind of thevoter are relevant. In the present case 80% of the population consistsof refugees from East Pakistan. Some of them have lost their properties.Some came over to Tripura by exchanging their properties with the mus-lims, who left for East Pakistan. So, the bogey which was raised bythe respondent that the refugees would be driven away from a part ofTripura and that they would again become refugees, must have createda terror in the mind of the electorate that really there would be a parti-tion of Tripura and that they are going to become once more refugees.There is absolutely no doubt whatsoever that the propaganda of the res-pondent was not bonafide and a mere expression of opinion on theConstitutional problem. But a false propaganda was intentionally madeto gain the votes of the Bengalees, especially of the refugees. It was acolourable propaganda. There is no doubt that it was based on atheme that he is a Bengalee while the petitioner is an Anti-Bengalee andthat his propaganda promoted feelings of enmity between the Bengaleesand the Tribals and the different classes of the citizens of India in Tri-pura and that the propaganda prejudicially affected the election of thepetitioner. The Court is not bound by the opinion of P.W. 6 that para 7of Ex. A-2289 is an expression of opinion. This case falls under sub-sections (3) and (3A) of section 123 of the Act and consequently undersection 100(1) (b) of the Act.

97. There is yet another aspect of the case. In Ext. A-2289 a ques-tion was posed that, though Dasarath Dev Berma might become a lordof the tribal areas, why the petitioner and P.W. 9 (Nripendra Chakra-borty) who are themselves Bengalees enthused with the proposal of theinstruction of the Fifth Schedule for the ruination of the BengaleesThis was further made clear that the lives of the Bengalees would be-come more critical by the speech of the respondent as per Ext. A-2292This is a publication of a statement of fact, which was false to the know-ledge of the respondent. To say that the petitioner, who is himself aBengalee, was doing acts for the ruination of Bengalees, was to canvassfor votes of the Bengalees on the ground that the petitioner was anti-Bengalees. This was an attack on the personal character and conductof the petitioner. This falls under sub-section (d) of section 123 of the

(56) A.I.R. 1967 Gujarat 62.

448 B. C. DUTTA V. J. K. CHOWDHURY "" [VOL. XXXVIII

Act. The petitioner relied on two rulings of the Supreme Court in thisregard. In Inder Lai Vs. Lai Singh and others (A.I.R. 1962, S.C. 1156)it was held that section 123(4) of the Act postulates a distinction bet-ween the personal character of a candidate and his public and politicalcharacter, that the provision postulates that if a false statement is madein regard to the public or political character of the candidate, then itwould not constitute a corrupt practice even if it is likely to prejudicethe prospect of that candidate's election. But, it was further held thatcirculation of false statement about the private or personal character ofthe candidate during the period preceding elections is likely to workagainst the freedom of election itself. In that case, an allegation wasmade by the successful candidate that the other candidate purchasedthe opponents of the congress with money. It was held that it wasidle to contend that it was a false statement only against the publiccharacter of the other candidate but that fell under section 123(a) ofthe Act. In Kamare Nand Vs. Brijmokan Lai Sharma (73) it was heldwhether a statement is a statement of fact or a mere expression of opi-nion depends on the facts of each case and that it has been judged in thecircumstances in which the statement is made. In that case the oppo-nent was called the greatest of all thieves. It was held that the state-ment was undoubtedly a statement of fact. This decision has materialbearing on the facts of the present case wherein the petitioner was calledas Anti-Bengalee, in the propaganda made by the respondent. Asagainst these rulings the respondent relied on Abdul Majeed (MeeraSahib) Vs. Bharonvas (Krishnan) Member, Legislative Assembly andothers (74), where it was held that imputation against political partydoes not constitute an imputation in relation to personal character orconduct of the candidate. This ruling does not apply to this case, asthe allegation was made against the petitioner. In Mohan Singh Vs.Bhenserlal and others (7), it was held that under section 123(4) of theAct, the statement must be in relation to the personal character or con-duct of the candidate. But, it was further held that the expression "state-ment of fact" includes not only an express imputation but also an in-nuendo of one such may reasonably be raised from the language inwhich it is couched, and the manner of its publication. In the presentcase, the innuendo is that the petitioner is anti-Bengalee and that theBengalees should not vote for him. Didar Singh Cheeda Vs. SohanSingh Ram Singh and others (75), was concerned with a poster, inwhich it was emphasised that the candidate had taken part in the AkaliDal. It was held that the poster was not objectionable. In Sheomal

(73) A.I.R. 1967 S.C. 803.

(74) A.I.R. 1965 Kerala 18.

(7) A.I.R. 1964 S.C. 1366.

(75) A.I.R. 1966 Punjab 282.

E.L.R.] B. C. DUTTA V. J. K. CHOWDHURY 449

Singh Vs. Ram Pratap (76), it was held that section 123(4) of the Act"mens rea" is a necessary ingredient of the corrupt practice and that theperson, who publishes a statement, whether he is the author of it or not,does not commit a corrupt practice, unless he has the requisite know-ledge. In this case the respondent had the requisite knowledge and wasindulging in a propaganda that the petitioner was anti-Bengalee. In Dr.Jasaji Singh Vs. Giani Karten Singh and others (39), it was held thatit is not easy to lay down any general considerations which would helpthe determination of the issue as to whether an allegation is with regardto the personal character as distinguished from the public character ornot and that it is not desirable to lay down any general principle in thisbehalf. As already stated, this question is one of construction depend-ing upon the facts and circumstances of each case. In the guise of op-position to the introduction of Schedule V, the pamphlet depicted thepetitioner as anti-Bengalee and thereby made a statement of fact whichis false. It is a statement which could not be believed by the respondentto be true, which attacked the personal character of the petitioner. Thestatement was calculated to prejudice his election, because 80% of thepopulation consists of Bengalees. Thus, the charges fall under section123(4) of the Act and consequently under section 100(1)(b) of theAct.

98. Thus, to sum up, the respondent is found t6 have committed!the following corrupt practices :—

(i) He procured the services of Shri S. R. Chakraborty, the thenS.D.R., Sadar (a Gazetted Officer) for the furtherance of the prospectsof his election and committed corrupt practice within the meaning ofSub-section (7) of section 123 of the Act and his election is liable to beset aside under section 100(1) (b) of the Act. ;, .

(ii) Secondly, there was discrimination and non-compliance withArticle 14 of the Constitution of India on the part of Tripura Govern-ment in supplying the supplementary voters' list for 32,500 and oddsupplementary voters to the petitioner and his party and the petitioner'selection was materially affected thereby and it is liable to be set asideunder section 100(1)(d)(iv) of the Act.

(iii) Thirdly, there was undue influence with the free exercise ofthe petitioner's electoral rights by the petitioner's agent and otherswith his implied consent in his interests within the meaning of sub-section (2) of section 123 of the Act and the election of the respondentwas materially affected thereby and it is liable to be set aside undersection 100(1) (d) (ii) of the Act.

(76) A.I.R. 1965 S. C. 677.(39) A.I.R. 1966 S.C. 773.

30—3Elec.Com./71

4 5 0 B. C. DUTTA V. J. K. CHOWnHURY [VOL. XXXVIII

(iv) Fourthly, the respondent canvassed for votes by appealing tothe electors that he was a Bengalee, while the petitioner was anti-Bengalee, for the furtherance of tlie prospects of his own election andfor prejudicially affecting the petitioner's election and committed cor-rupt practice within the meaning of Sub-section (3) of section 123 ofthe Act and his election is liable to be set aside under secion 100(1) (b)of the Act.

(v) Fifthly, the respondent promoted feelings of enmity and hat-red between different classes of the citizen of India in Tripura andbetween Bengalees and the tribals for the furtherance of the prospectsof his elections and for prejudicially affecting the election of thepetitioner and committed corrupt practice within the meaning of sub-section (3A) of section 123 of the Act and his election is liable tobe set aside under section 100(1) (b) of the Act.

(vi) Sixthly, the respondent committed corrupt practice by publi-cation of statement of fact that the petitioner was anti-Bengalee, whichthe respondent did not believe to be true, in relation to the personalcharacter and conduct of the petitioner—being a statement reasonablycalculated to prejudice the prospects of the petitioner's election andcommitted corrupt practice within the meaning of sub-section (4) ofsection 123 of the Act and his election is liable to be set aside undersection 100(1) (b) of the Act.

99. The respondent's Counsel pointed out that immediately afterthe election results were announced, there was an editorial as per Ext.B-33 in 'Ganaraj' dated 23-2-1967 about the election results, but thatno allegation was made that the congress party nominees succeededby committing corrupt practices. Of course, there are some allegationsof corruption against the party in that editorial. The Court is notbound by the opinion of others. It has to come to its own independentfindings on the basis of evidence.

100. For the above reasons, I find on issue (viii) that the allega-tions of corrupt practices summarised in paragraph 94 above are coveredby section 123 of the Act. I find issues (xii) and (xiv) in the affirma-tive.

101. Issue (XIII).—The petitioner prays for the relief of declara-tion that he had been duly elected. But under section 101 (b) of theAct such a relief can be granted only when tihe High Court is ofopinion that, but for the votes obtained by the returned candidate bycorrupt practices, the petitioner would have obtained majority of the**valid votes. But, there is no evidence to sihow that the petitioner wouldhave obtained majority votes but for the corrupt practices committedby the respondent. No declaration can be granted. Vide also the rulings

E.L.R.] B. C. DUTTA V. J. K. CHOWDHURY 451

in Keshav Lakshman Bar\ar v. Deorao La\shman Assade (77), SudhirKumar Mondal v. Abhoy Pada Saha (78) Chadalavada Subba Rao v.Kasu Brahmananda Reddy and others (41), Settlement, Hubli v.Kasu Brahmananda Reddy and others (41), Kuttitnani ChandappaJummappana, Settlement, Hubli v. Laxntan Siddappa Nai\ and others(79) and page 497 of Doabia's Law of Elections and Election Petitions,1967 edition, relied on by the respondent's Counsel in this connection.I find issue (xiii) in the negative.

102. Issue (XV).—In the result, the election of the respondent tothe Lok Sabha from the Tripura West Parliamentary Constituencyis hereby declared void and is set aside and the petition is allowedaccordingly. Re-poll is hereby ordered. The petitioner's prayer for dec-laration that he himself was, duly elected is rejected. The petitioner isentitled to the costs of the petition. Pleader's fee Rs. 500.

Dictated to the Stenographer, transcribed by him, corrected by meand pronounced in open Court this, 14M day of June, 1968.

Petition allowed.

IN THE HIGH COURT OF ORISSA AT CUTTACK

KRISHNA KANT MISHRA

V.

BANAMALI BABU

(G. K. MISRA, J.)

June 18, 1968

Representation of the People Act, 1951, Sections 79 (b), 83(b), and 123(7)—Election petition—Corrupt practice—Requirements of Section 83(1)—"Candidate"in Section 79(b), Meaning of—"Holding out" to a person who is not an elector,V/hether amounts to "Holding out" within the meaning of Section 79(b)—Seeding the assistance of Police Officer by respondent in his forthcoming election,before he is officially declared as a candidate, whether a corrupt practice underSections 123(7).

(77) A.I.R. 1960 S.C. 131.(78) A.I.R. 1966 Calcutta 141.(41) A.I.R. 1967 A.P. 155.(79) A.I.R. 1967 Mysore 182.

452 KRISHNA KANT MISHRAV. BANAMALI BABU [VOL. XXXVIII

The petitioner, an elector, challenged the election of the respondent on thegrounds inter alia that he committed various corrupt practice and that heabused his position as a Minister by seeking the support of Police and otherofficials to canvass for and support him in his election. It was further allegedthat he held out promises to people that if they vote for him, in return hewould do certain development and welfare work for the people. It was claimedthat he attempted to influence police officials to collect information regardingpolitical activties of his opponents and also to withdraw the prosecution ofcases which were pending against his supporters and thereby committed thecorrupt practice of undue influence. .

HELD : Dismissing the petition :

The allegation that the respondent canvassed to further his election pros-pects before his nomination should form a definite pleading of the charge in thepetition in terms of Section 83(1) of the Act. The petitioner could not beallowed to adduce evidence in support of the charges which were too vagueand general.

Ghasiram Majhi v. Onkar Singh, 34 C.L.T. 328; Bhagwan Datta Shastri v.Ram Ratanji Gupta and others, A.I.R. 1960, S.C. 200; Balwant Singh v. La\shmiNarain, A.I.R. 1960, S.C. 770; Abdul Hamid Choudhary v. Nani Gopal Swamiand others, 22 E.L.R. 358 (S.C); referred to.

There was nothing objectionable in the respondent-Minister gathering infor-mation from a police officer regarding political activities of some agitators solong as he had not sought the help of the Police officer for furthering his elec-tion prospects after he became a candidate. In order to come within the mis-chief of expression "candidate" in Section 79 (b) of the Act, the respondent mustbe brought within the meaning of the deeming clause.

The respondent's discussion on the phone with the Superintendent ofPolice on 18-6-1966, declaring that he would be a candidate in the forthcomingelections and that the Superintendent of Police should officially help him indifferent ways and in furtherance of his election, would not amount to a corruptpractice within the meaning of Section 123(7), since the Superintendent ofPolice was not an elector in the constituency of the respondent. It is clear, thatthe "hodling out" must be to an elector or to the electorate; "Declaration" to aperson who is not an elector, about the prospective candidature is not "Holdingout" within the meaning of Section 79(b). Even if the version of the Superin-tendent of Police was accepted that the petitioner made an unambiguous decla-ration before him on 18-6-66 that he would be a- prospective candidate in thenext election, it did not amount of "holding out", as on that date, the respon-dent was not a candidate within the meaning of Section 79(b). Section 123(7)envisages the commission of the corrupt practice by a candidate. If by 18-6-66,the respondent was not a candidate, then he would not be hit by Section 123(7),even though he attempted to obtain the assistance of the Superintendent ofPolice to advance his election prospects in the coming election.

S. Khader v. Munnuswami, A.I.R. 1965, S.C. 775; referred to.

Election Petition No. 6 of 1967.

G. S. Misra, L. Rath, R. B. Rath, S. N. Mitra, B. K. Behura and S.Mohatnty for the petitioner. . • •

E.L.R.] KRISHNA KANT MISHRA V. BANAMALI BABU 453

D. Sahu, D. P. Mohapatra, R. N. Das, S. N. Sinha and K. C. Jagadev Rayfor the respondent.

G. Rath (for A. G. Orissa), Govt. Advocate (for I. G. of Police, Orissa).

Standing Counsel (for Under Secretary, Home Department, Orissa).

JUDGMENT

K. MISHRA, J.—The petitioner (P.W. 14) is a permanent residentof Sambalpur town, and was an elector in the Sambalpur Constituencyin the last General Election held in February, 1967. The respondent(R.W. 10) was1 one of the candidates contesting from the SambalpurAssembly constituency to the Orissa Legislative Assembly. He appliedfor Congress ticket on 29-8-1966 and got it in the last week of Decem-ber, 1966. On 20-1-1967, he filed his nomination. The 21st of February,1967 was the date of Poll. Results were announced on 23-2-1967 beforemidnight and the respondent was declared elected.

The respondent became Minister of Law on 2nd October, 1963when Sri Biren Mitra was the Chief Minister. Sri Sadasiv Tripathybecame Chief Minister in February, 1965, when the respondent got theadditional portfolio of Urban Development. In October, 1966 the res-pondent again got the additional portfolios of Industry and PublicHealth Engineering of the Works Department and continued asMinister till 7-3-1967.

In the election petition under Section 81 of the Representation ofthe People Act, 1951 (hereinafter referred to as the Act) variouscorrupt practices were pleaded. At the time of argument, Mr. SrikantaMohanty, the leading counsel for the petitioner pressed only the fol-lowing items of corrupt practice and abandoned the rest. It is, there-fore, necessary to refer only to the items on which Mr. Mohanty ulti-mately placed reliance.

Those items are as follows :

(i) Respondent engaged workers for his election work in Atta-bira area before 29-4-1966 and gave out through them to some residentsof Attabira that he was going to stand as a candidate from the Sambal-pur Assembly constituency of which Attabira was a part and that hewould come to Attabira on 29-4-1966 to discuss the matter with themand asked them to meet him at the Attabira Inspection Bungalowon 29-4-1966.

(ii) On 29-4-1966, the respondent told the S.I. of Attabira P.S.(P.W. 8) inside the I.B. that he had decided to stand as a candidate

4 5 4 KRISHNA JCANT MISHRA V. BANAMALIBABU [VOL. XXXVUI

from the Sambalpur constituency in the coming election and askedhim to collect political information having bearing on his electioncampaign.

(iii) On 29-4-1966 the respondent declared before the officials andnon-officials gathering at the Attabira I.B. that he would be a candidatefrom the Sambalpur Assembly constituency in the next election andhe asked the people to vote for him promising that in return hewould do certain development and welfare work for the people ofthe locality.

(iv) The respondent declared to the villagers of Lederpalli on29-4-1966 that he would be a candidate in the nextj election and thathe would do certain welfare work for the villagers, if in return theywould vote for him.

(v) On 30-4-1966 the respondent told the Superintendent of Police(P.W. 1) over phone that he would stand as a candidate from theSambalpur Constituency in the next election and requested P.W. 1to withdraw the criminal cases arising out of the car festival of theyear 1965 as the accused were the respondent's supporters and as hiselection prospects would be affected, unless the cases were withdrawn.

(vi) On 18-6-1966 the respondent discussed election matters withP.W. 1 on phone. He asked P.W. l's assistance for furthering hiselection prospects by withdrawal of cas.es against Sri Ramlal Agarwalla,Sri Narayan Misra and a proceeding under Section 107 Cr. P.C. bet-ween the villagers of Mahapada and by taking steps to curb the politicalactivities of Dr. Jhasketon Sahu who was respondent's politicalopponent.

(vii) The respondent declared sometime in May and June 1966at village Kud-Cunderput that he was going to be a candidate inthe next election. He promised to the villagers that a lift irrigationscheme would be introduced to relieve them from the scarcity ofwater and in exchange for the benefit to be so conferred upon, heasked them to vote for him.

2. Respondent's defence broadly is that he engaged no workers forelection purpose untill his nomination was accepted, he did not talkabout election on 29-4-1966 at Attabira or Lederpalli or in May andJune in village Kud-Cunderpur and he had no phone talks muchless regarding election on 30-4-1966 or 18-6-1966 with the S.P. (P.W. 1).Essentially the defence is one of denial.

3. The following issues were framed on 21-8-1967 :

(1) Is the respondent guilty of corrupt practices as alleged inelection petition?

E.L.R.] KRISHNA KANT MISJJRA V. BANAMALI BABU 4 5 5

(2) Is he guilty of taking the help of Government servants infurtherance of the prospects of his election?

(3) Did the respondent declare his wish to be a candidate for theOrissa Legislative Assembly from the Sambalpuf constituencyon or about April, 1966?

(4) Are the allegations of undue influence made in the electionpetition true? If so, do they constitute undue influence?

The Draft issues filed by the parties not covered by the aforesaidissues were abandoned by them.

4. Issue No. 4.—This issue was not pressed and does not arise fordiscussion. There is hardly any evdience in support of this issue

Issues Nos. 1 to 3.—All these issues are inter-connected. It wouldbe convenient to discuss them together.

Though the trial of election cases is to be done in accordance withthe provisions for Civil Procedure Code, the quantum of proof re-quired for setting aside any election would be as in a criminal case.The burden of proving that the election of a successful candidate isto be set aside for corrupt practices lies heavily upon the petitioner.The corrupt practice and the fact that the successful candidate wasresponsible for the corrupt practice must be established by cogent andreliable evidence beyond reasonable doubt. See Ghasiram Majhi v.On\ar Singh{\).

Each item of charge would be examined in the light of thisprinciple.

5. Item No. (1).—The first charge is that the respondent engagedworkers for his election work in Attabira area and gave out throughthem to some residents of Attabira that he was going to stand as acandidate and that he would come to Attabira on 29-4-1966 to discussthe matter with them and asked them to come to Attabira InspectionBungalow.

Such a charge levelled at the evidence stage is not to be foundin the election petition itself. In support of the contention Mr. Mohantyrelied upon paragraph 4 of the petition which runs thus—

"That in the month of April, 1966, the respondent gave outto the constituency his intention to contest as a candidate fromthe Sambalpur constituency to the Orissa Legislative Assemblyin the general election to be held at any time subsequent to thatday."

(1) 34 C.L.T. 328.

4 5 6 KRISHNA KANT MISHRA V. BANAMALI BABtJ (VOL. XXXVI

The averment is too general and vague. There is no reference in itto the fact that the respondent had engaged workers for furtheringhis prospects and gave out through them that he was going to be acandidate in the next election.

The respondent denied having engaged any worker to furher hiselection prospects before his nomination was accepted in January,1967. His clear stand is that he did not engage any worker in Aprilto June, 1966.

The first charge must fail on the simple ground that there wasno pleading to that effect and the petitioner cannot be allowed toadduce any evidence in support of such a plea.

Section 83(1) of the Act runs thus :

"83(1)—An election petition—

(a) shall contain a concise statement of the material facts onwhich the petitioner relies;

(b) shall set forth full particulars of any corrupt practice thatthe petitioner alleges, including as full a statement as possi-ble of the names of the parties alleged to have committedsuch corrupt practice and the date and place of the Com-mission of each such practice;

* # # ### # # #

In Ghasiram Majhi v. On\ar Singh(\) this Court examined thescope and ambit of this section and observed thus :

"A distinction must be made between "omission to statematerial facts" and "omission to give full particulars". If materialfacts are omitted, a party should not be allowed to raise a conten-tion on a particular point even if some materials are available inthe evidence. If, on the other hand, material facts have beenpleaded, but full particulars have not been given, the Court maypermit the points to be raised on the basis of evidence unlessthereby the respondent is materially prejudiced. The first relates,to a question of jurisdiction and the second to one procedure."

Reliance was placed for the aforesaid view on Bhagwan Datta Shastriv. Rant Ratanji Gupta and others (2). Balwant Singh v. ha\shmiNarain(3>) and Abdul Hamid Choudhary v. Nani Gopal Swarni($).

(1) 34 C. L. T. 328.(2) A. I. R. 1960 S.C. 200.(3) A. I. R. 1960 S.C. 7/0.(4) 22 E. L. R. 358 (S.C.)

E.L.R.] KRISHNA KANT MISHRA V. BANAMALI BABU 457

On the aforesaid test, in the absence of pleading, the first chargemust fail.

6. Even assuming that the petitioner is entitled to rely upon theevidence led on this question, it is necessary to examine whether thereis any reliable evidence in support of the charge. Reliance is placed onthe evidence of P.Ws. 3, 12 and 13 in this regard. The S.I. of PoliceSri B. N. Panigrahi (P.W. 8) in para 17 of his evidence stated thus :

"I knew about Shri Banamali Babu's proposal to stand as acandidate from the Sambalpur constituency earlier from some ofthe Congress workers. Some of them are Radheshyam andChimanlal of Attabira. Other names I do not remember."

None of these workers have been examined. P.W. 8's evidence is hear-say and inadmissible. There is no corroboration of his evidence also.

P.W. 12 Biharlal Agarwala in Para 2 of his evidence deposedthus :

"The Congress workers told that four of the Grama Pancha-yats of Attabira had come within the Sambalpur constituency andthat the respondent would be standing from Sambalpur consti-tuency and he would come to discuss about the election."

P.W. 12 is an unreliable witness. In para 6 of his deposition hestated that he did not work for Haraprasad Naik; who was a candidatefor the Communist Party during the last election. In para 11 he wasconstrained to admit that during the last general election he was can-vassing for the Communist candidate Haraprasad Naik against therespondent. None of the Congress Workers alleged to have told himthe aforesaid story has been examined and his evidence is hearsay.It is also uncorroborated. To inspire the confidence of the Court, hegave a reckless answer that to remember the date 29-4-66, he gave atick: mark in his calender of that date. No reliance can be placedon the evidence of P.W. 12.

P.W. 13 Kiran Sankar Padhi deposed thus :"When my father advised for concentrating his attention on

Attabira, Shri Babu replied by saying that he had already arrangedworkers in Attabira. (See para 9 last sentence).

## *# ## ## *#

We learnt from the workers and supporters of Shri BanamaliBabu 15 days before that he would come to Attabira on 29-4-66.The workers told me and others to meet Banamali Babu at theDak Bungalow on 29-4-66 saying that he would stand in the nextelection and he wanted to discuss the matter with us." (Para (10).

KRISHNA KANT JflSJHRA V. BANAMALIBABU [VOL. XXXVlHl

The evidence of P.W. 13 is heresay and uncorroborated. More-ever, a perusal of his evidence as a whole leaves no doubt in mindthat he is unreliable. Even while he was reading in the college, therewere number of police and criminal cases against him (See para 18).

The respondent (R.W. 10) denies that he had engaged anyworkers. In para 99 of his deposition, his statement was initiallyrecorded thus :

"I reached Attabira Inspection Bungalow on 29th near about12 noon and not at about 10 A.M. I do not remember if Iintimated my workers at Attabira or the non-officials to come tomeet me at Attabira I.B."

At the time of correction of deposition of 28-2-68, the respondentdeleted the portions "my workers at Attabira or". On 12-3-68 Mr.Mohanty took objection to the deletion to these portions. In theordersheet of that day, this Court passed an order to the effect—

"It is difficult for me to remember the exact question and theanswer after such a long time. As the dictation was given inopen court in the presence of the respondent and the learnedadvocates for the parties, the original dictation must be assumedto be correct. Let this be on record in the ordersheet for consi-deration of what it is worth at the time of argument."

If the deposition, as it stands after correction is taken into consi-deration, the statement of R.W. 10 does not support the petitioner'scase. Even if the deposition, as it stood before correction, is taken intoconsideration, it does not advance the petitioner's case. There is noadmission in that statement that the respondent had engaged workerspreviously to further his election prospects and he had made propa-ganda through them 15 days before iniviting other persons to come andmeet him. I do not attach any importance to the aforesaid statement ofthe respondent in whichever way it is construed. Moreover, it was opento the respondent to correct his deposition before he affixed hissignature.

In para 104 of his deposition the respondent stated thus :

"It is false to suggest that I had been to Attabira to selectmy workers and to chalk out those who were not suitable."

This suggestion in cross-examination is destructive of the petitionerscase that the respondent had already engaged workers 15 days before29-4-1966.

To sum up, the first charge must fail not only on the ground thatit was not pleaded but also on the ground that it has- not at all beenproved, much less beyond reasonable doubt.

B.L.R.] KRISHNA KANT MISHRA V. BANAMALI BABU 4 5 9

7. Item No. («).—The petitioner's case is that on 29-4-66 the res-pondent went to Attabira I. B. There many officials and non-officialscame to meet him. The respondent called the S. I. (P. W. 8) insidethe I. B. and told him that he had decided to stand as a candidatefrom the Sambalpur constituency in the coming election and askedhim to collect political information having bearing on his electioncampaign.

The respondent admits to have gone to Attabira I. B. on that dayin course of his tour as a Minister. His plea, however, is that he hadno separate and exclusive talk with P. W. 8 inside the I. B. He admitsto have discussion with officials including P. W. 8 and non-officials ondifferent aspects of administrative and development matters. The res-pondent's case appears to be true as admitted in para 10 of the petitionitself. It runs thus:

"That during the months of May and June, 1966 while therespondent was camping at Attabira, he sent for the local policeSub Inspector, and gave out to him in the presence of others thathe would be contesting to the Orissa Legislative Assembly fromthe Sambalpur constituency."

Apart from the fact that the date of talk has been shifted fromMay and June, 1966 to 29-4-66 showing that the petitioner was notsure of any date when the election petition was filed, the underlinedexpression is a clear admission that the talk of the respondent withP. W. 8 was in the presence of others and not alone. The respondent'sversion that the talk with P. W. 8 on the verandah of the I. B. inthe presence of other officials and non-officials rings in the real truth.The version of P. W. 8 appears in para 4 of his deposition. He deposedthus:

"On 29th, the Law Minister asked me whether I know thathe was standing as a candidate from the Sambalpur constituency.I replied by saying that I knew it. He askjed me about the con-duct of Congress workers of Attabira and asked me who wouldbe reliable workers for Congress. He asked me about the activitiesofi the members of the Socialist party including that of Sri KisanPatnaik and Sri Gananath Pradhan. He also asked me regardingthe activities of the Congress Workers and as to who would besuitable workers of the Congress for election work, x x x x x I saidthat I had no knowledge about the Congress workers or about theirprivate affair."

In para 10 he further deposed :—"I do not know what talk the Minister had with the officers

and other public men. x x x x As an officer-in-cbarge it is my dutyto keep all information including political matters."

4 6 0 KRISHNA KANT MISHRA V. BANAMALI BABtT [VOL. XXXVIII

In para 12, he stated thus :

"Except my talk on 29th of April with the Law Ministerregarding the activities of Gananath and Kisan Patnaik, I had notalk with him either before or after."

The respondent admits that he asked certain queries from theS. I. regarding law and order situation. Admittedly by then KisanPatnaik and Gananath Pradhan, who are members of the Socialistparty, were having political agitation against water-tax imposed by theGovernment for taking water from Hirakud project. There is nothingobjectionable for a Minister to gather information from the S. I. re-garding political activities of the aforesaid two members on whichP. W. 8 admits that it is his duty to kjeep information. Any sensibleGovernment must be interested in seeing that there is no unnecessaryagitation, or, if there is reasonable basis for agitation, to resort to reme-dies to give adequate relief to the agitators.

Reliance is placed on Exts. 2 and 3 as corroborating the versionof P. W. 8. It appears that the S. P. (P. W. 1) made a surprise visitto Attabira P. S. on 29-4-66. Finding P. W. 8 absent from the station,he asked for an explanation, vide Station Diary Entry No. 648 dated29-4 ,1966 [(Ext. 2(20)]. P.W. 8 sent Ext. 2 on 30-4-66 by way of expla-nation. The relevant portion of this letter runs thus :

"I beg to state that on 29-4-66 at about 5 P.M. I proceededto Gudbhanja side straight from Minister's duty for collection ofconfidential information regarding anti-political activity as re-quired by Law Minister, x x x x x "

Assuming that this letter contains truth, there is nothing objec-tionable for a Minister to gather information regarding the politicalactivities of some Socialist party members starting agitation. Theletter does not tell a word regarding election or that the Ministerwanted to utilise P.W. 8 for his election purposes.

On the margin of Ext. 2, P.W. 1 asked for a detailed report byhis order [Ext. 2(a)] dated 2-5-66. Ext. 3 dated 2-5-66 in the detailedreport given by P.W. 8. P.W. 8 deposes that the date 30-4-66 in the Ext.3 is a mistake for 29-4-66. This is possibly so. Ext. 3 runs thus :

"I beg to report that on 30-4-66 (29-4-66) at 9-30 A.M. LawMinister Sri Banamali Babu—

(i) called me inside the chamber of local I.B. and asked meregarding the activity of Socialist Party (Sree Kisan Patta-nayak M.P. & Sri Gananath Pradhan, M.L.A.) at Attabirajurisdiction;

E.L.R.] KRISHNA KANT MISHRA V. BANAMALI BABU 4 6 1

(ii) Beside that he asked me regarding conduct of Congress work-ers of Attabira and also asked me to inform who will be thereliable worker for the party in Attabira P.S. jurisdiction;

(iii) At last Law Minister showed me a Congress worker whowas present at the I.B. and asked me to verify his movementsand character.

It is for favour of your kind information.

Yours faithfully,Sd. B. N. Panigrahi, S.L

2-5-66O.I.C. Attabira."

In the very letter, P.W. 8 gave the answer thus :

"Now

(i) I have told the Law Minister that Sri K. Pattanayak and SriG. Pradhan had an open meeting at Attabira since a monthwhere he raised water tax issue. Except this I know nothingregarding their activity.

(ii) I told that I have no knowledge regarding the activity ofthe worker of Congress or about their private affairs.

(iii) On the third request I remained silent as I did not knowthat worker to whom he pointed out.

Ext. 3 thus gives a vivid description of the talk between theMinister and the S.I. Exts. 2 and 3 are the previous statement of P.W.8 and do not constitute substantive evidence. To the extent theycorroborate P.W. 8, I accept the deposition of the S.I. in Court. Tothe extent they contradict him, the evidence of P.W. 8 is an ambellish-ment and after thought and must be rejected. The respondent does notdeny his discussion with P.W. 8 regarding law and order situationin presence of others and that lies within his functions as a Minister.

The S.P. (P.W. 1) brought this matter to the notice of the D.I.G.,Police, Northern Range, Sambalpur in his letter dated 12-5-66 (Ext. 4).The contents of Ext. 4 are based on Exts. 2 and 3 and on no otherindependent evidence. The relevant portion of Ext. 4 is extractedbelow :—

"During his recent visit to Attabira on 29-4-66 the Hon'bleMinister Shri Banamali Babu asked the Officer-in-charge, AttabiraP.S. to apprise him of all political developments in the area. He

4 6 2 KRISHNA KANT MISHRA V. BANAMALIBABU [VOL. XXXVIII

has also asked the Officer to specifically tell him about the acti-vities of the S.S.P. and dissident Congressmen. In addition, theHon'ble Minister wanted to know from the S.I. as to who wouldbe reliable in each of the villages in the P.S. area from the Minis-ter's point of view. In this connection the S.I. has submitted awritten report to me, a copy of which is herewith enclosed forfavour of your information. I have since instructed the S.I. thatin future he should request the Hon'ble Minister to take up anysuch matter with me and not with him."

The aforesaid passage does not show that the Minister made adeclaration that he was going to stand as a candidate during the nextelection. Nor does it so that he wanted the help of the S.I. forfurthering his election prospects. As has already been stated it lieswithin the normal function and duty of a Minister to keep himself intouch with the political activities of different parties and that therewas nothing objectionable for the Minister to know about agitationalactivities of the Socialist party members. A Minister is required togather all information so long as he does not utilise the help ofpublic servants for furthering his election prospects after he becomesa candidate. The S.P. was not justified in thinking that Ministercannot have talks on political matters with a Sub-Inspector of Police.

The respondent has examined the B.D.O.(R.W. 3) and DinanathPande (R.W. 6) in support of his version that his talk with the S.I.on the varandah was regarding law and order situation and the S.I.informed him about the activities of the Socialist party members. R.W.3's evidence is reliable. R.W. 6 also supports the version of the respon-dent and nothing substantial has been elicited to discredit hisevidence.

To sum up this part of the case, I reject the version of P.W. 8that the respondent talked with him that he would be a candidate inthe next election and wanted his assistance to further his electionprospects.

Even if P.W. 8's version that the respondent talked with himall alone regarding his candidature and sought his assistance for ad-vancing his election prospects is believed, it would not amount to acorrupt practice within the meaning of Section 123(7) as P.W. 8 wasnot an elector and declaration before him would not make the res-pondent a candidate within the purview of Section 79 (b). The legalposition would be discussed later on. Charge no, (ii) fails.

8. Item no. (Hi).—Petitioner's case is that on 29-4-66 the respon-dent declared before the officials and non-officials gathered at theAttabira I.B. that he would be a candidate from the Sambalpur Cons-tituency in the next election and told the people that if they would votefor him he would in return do certain development and welfare workin the locality.

.fc.R,] KRISHNA KANT MISJHRA V. BANAMALI BABU 4 6 3

Respondent admits that he had talk with the officials and non-of&cials, but denies any talk regarding election. The petitioner placesreliance on the evidence of P.Ws 6 and 12 and does not examine anyof the responsible officers like the Medical Officer and the CooperativeExtension Officer present there P.W. 6 (Dhaneswar Pradhan) was thedriver of the jeep of the B.D.O. (R.W. 3). He drove the B.D.O. tothe I.B. and was sitting in the jeep. He claimed to have heard the talk ofthe respondent with the officials and non-officials gathered there. Hedeposed thus :

"1 have heard him talking to the people about the electiononly once at Attabira Dak Bungalow. I have heard him sayingthat he would be a candidate in the coming election and thepeople should vote for him. He stated that the Attabira area hadbeen amalgamated in the Sambalpur constituency. On that occa-sion Shri Babu was also saying that he should make arrangementsfor the supply of water to inaccessible area." (Para 2)

He, however, relied from the aforesaid statement in cross-examina-tion and stated thus:

"All that I have heard Sri Banamali Babu saying on thethe particular occasion was that Attabira had been tacked with theSambalpur constituency and regarding availability of water etc.I heard nothing else." (Para 8)

In re-examination by Sri Mohanty, the following question andanswer were recorded :

Q. (By Sri Mohanty).—You had made a statement in examina-tion in chief as well as in cross-examination that you heardSri Banamali Babu saying that he would stand as a candidatefrom the Sambalpur constituency in the coming election.Again in further cross-examination you have stated that youdid not hear such a statement from the mouth of Sri BanamaliBabu. Which of the two statement is correct?

Ans. The witness at first said that he did not hear Sri BanamaliBabu so saying. On further question he said that Sri Bana-mali Babu made such a statement.

Ultimately, the Court put a question—

The witness was asked as to why he was making prevari-cating statements and which of the versions was true?

Ans. I have come as a witness for the first time to the Court. Iam getting confounded. My answer that I heard Sri Bana-

464 KRISHAN KANT MlSHARA V. BANAMALIBABU [VOL, XXXVIII

mali Babu making such a statement is correct. The subse-quent answer that I have not heard him making such a state-ment was the result of my confusion. (Para 10)

The witness is not sure about what he says and changes versionfrom time to time. It is difficult to place reliance on his evidence.He was sitting in the jeep which was kept outside the compound ofthe Inspection Bungalow. Obviously he was not likely to have toclear impression of the talk.

I have already said that P.W. 12 is unreliable. His evidence isuncorroborated. None of the large many other persons exceptingP.Ws. 6 and 12 alleged to have been present at the Dak Bungalowduring the talk had been examined.

The B. D. O. (R. W. 3) and Dinanath Panda (R. W. 6) werepresent at the Inspection Bungalow. The B. D. O. and R.W. 6 clearelystate that there was no talk regarding election. There is no reasonwhy their evidence is to be disbelieved.

There is no satisfactory evidence in support of this charge. Itaccordingly fails.

9. Item No. (zV).—Petitioner's case is that the respondent wentto the village Lederpally on 29-4-66 and declared there that he wouldbe a candidate in the next election. He promised doing certain wel-fare work for the villagers if they promised in exchange to vote forthe respondent.

Reliance is placed on the evidence of the solitary witness KamalLochan Pradhan (P.W. 7). His evidence runs thus :

"He told them that our village had been brought into Sambal-pur constituency that as we were known to him we should vote forhim. He said that the propaganda made by Sri Pradhan andSri Kisan Patnaik of Socialist party about water rate wasundesirable and they had no power and they cannot do anything;and we should not hear them, and he would see that we get allfacilities. We gave Haribol and promised to give vote to SriBanamali Babu. A month before the election Sri Banamali Babucame with the B. D. O. He said that he was always promisinghelp and the B. D.O. would look to our difficulty. He requestedus to vote for him." (Para 1).

He admitted in para 15 of his deposition that many persons werepresent when the respondent requested the villagers of Lederpallito cast their votes in his favour. None of them had been examined.

E.L R.] KRISHNA KANT MISJHRA V. BANAMALI BABU 465

It is difficult to place reliance on this uncorroborated evidence. About5 or 6 candidates contested from this constituency for the OrissaLegislative Assembly seat. In para 6 of his deposition he admits thatother candidates did not declare earlier whether they would all standfrom that constituency. According to him, other candidates wentto the village a month before the polling. It is difficult to accept hisevidence that of all candidates only Sri B. Babu asked for votes10 months before polling and others remained silent and asked forvotes a month before the polling.

The respondent (R.W. 10) denies to have any talk with P.W. 7or any of the villagers of Lederpalli regarding election prospects inbetween April to June 1966 though he does not deny to have visitedthe village during that period.

There is no satisfactory evidence in support of this charge.

9. Item No. (v)—Petitioner's case is that on 30-4-1966, the res-pondent told the S.P. (P.W. 1) over phone that he would stand asa candidate from Sambalpur constituency in the next election andrequested P.W. 1 to withdraw the criminal cases arising out of carfestival of the year 1965. As the accused were respondent's supporters,his election prospects would be affected, unless the cases werewithdrawn.

The respondent denies to have any such phone talk with P.W. 1.He also denies having talk with P.W. 1 regarding his electionprospects.

It is to be noted that this item of charge is not at all pleaded inthe election petition. In the absence of pleading, no evidence is admis-sible in proof of this charge and on this simple ground the chargemust fail. Law on the point has already been discussed. The evidenceled on the point may now be critically examined.

P.W. l's version is to be found in paragraph 8 and 9 of his depo-sition. He stated thus:

"On 30-4-1966 Shri Banamali Babu asked me on phone fromhis Sambalpur residence regarding withdrawal of those cases. Iexplained to him that the power of withdrawal vested in theDistrict Magistrate and not with the S.P. I expressed my un-willingness to withdraw my adverse report sent to the Addl.District Magistrate which the Law Minister wanted me to with-draw. The Law Minister further persuaded me to withdrawthe case on the ground of political importance. I expressed tohim that I was more concerned with the administrative prestige

31—3Elec.Com./71

4 6 6 KRISHNA KANT M1SHRA V. BANAMALI BABU [VOL. XXXVHI

and imporance of the case. The Law Minister was of opinionthat in any case administration had no prestige. The main aspectof the discussions are noted in my letter to the D.I.G. in Ext. 4."(Para 8).

"Of his own accord the Law Minister told me in course ofdiscussion that he would be a candidate from the SambalpurConstituency and the persons against whom cases had beenlaunched were his supporters. He said that the election washardly 10 months ahead and unless the cases were withdrawn hewould not get the support of those persons during the electionand his election prospects would be effected. With all my disagree-ment, the Minister asked me last of all that the cases should bewithdrawn. I told him that at best I could bring all these mattersto the notice of the District Maigstrate." (Para 9)

In Ext. 4, P.W. 1 referred to this aspect of the matter thus :"On the night of 30-4-66 the Hon'ble Minister asked me over

phone regarding the withdrawal of certain prosecutions submittedagainst some persons of Sambalpur town in connection withviolation of the provisions of Section 30 Police Act during theRatha Jatra of 1965. I informed the Hon'ble Minister that thepowers of withdrawal are with the District Magistrate and not,with the S.P. He thereupon told me that since I have given"adverse report" when the matter was referred to me by theDistrict Magistrate I should withdraw the cases. I explained tothe Hon'ble Minister the facts contained in my reply to the DistrictMagistrate and further stated that it may not be possible to with-draw the letter that has already been issued. Thereafter, the Hon'bleMinister asked of me to consider the political aspect of the pro-blems and withdraw the cases. I informed him that apart fromthe political considerations it had some administrative importancebecause the people against whom prosecutions have been sub-mitted were specifically requested by me and the District Magis-trate to take out licences which they refused. In my view, in orderthat the prestige of administration may be kept up, the prosecu-tions were considered necessary. The Law Minister, however,informed me that in any case the administration had no prestige.I simply told him he was in a better position to judge the matter.When he once again insisted on my withdrawing the cases, Iinformed him that at best I could inform the District Magistrateof his desire. The Hon'ble Minister, however, said that I shouldtake suitable steps to get the cases withdrawn."

In the letter Ext. 4 P.W. 1 does not at all make any reference tothe Minister's talking with him regarding his candidature for the com-ing election and his election prospects. His statement in para 9 of hisdeposition is clearly an embellishment over the contents of Ext. 4.

E..L.R.] KRISHNA KANT MISHRA V. BANAMALI BABU 467

The question for consideration is whether the version of P.W. 1that the Minister had talked with him on phone on 30-4-66 regardingwithdrawal of cases is true or false. The respondent denies to haveany such talk.

To appreciate this aspect of the case it would be necessary to pointout the history of the matter. Certain prosecutions were pendingagainst Sri S. K. Pujari, Ex. A.D.M. Sambalpur, and others for nothaving taken out licences or for infringing the conditions of thelicence during the Ratha Jatra held in the month of June, 1965. On26-1-66 the respondent passed an order at Sambalpur asking the Addi-tional District Magistrate to withdraw those cases. The order runsthus :

"I remember to have suggested to you about a case institutedat the instance of the Police against Shri S. K. Pujari, Ex. Addl.District Magistrate and others presumably arising out of an inci-dent during the last Ratha Jatra. The case in the meantimehas been charge-sheeted and is pending for trial before a Courtof Law. The case may be immediately withdrawn so that itshould not proceed further. Steps may, therefore, be taken bytomorrow to instruct the Public Prosecutor to withdraw the case."(Ext. 1/b)

A copy of this order (Ext. l (c)) was forwarded to P.W. 1 forinformation. The Additional District Magistrate requested the S.P.(P.W. 1) to offer his views on the question of withdrawal (Ext. l (a) ).By his letter (Ext. 1) dated 1-2-1966, P.W. 1 gave an adverse view.

P.W. 1 in para 5 of his deposition stated that the respondent, afterthe inspection of the parade was over on 26-1-1966, asked him towithdraw the case against Sri S. K. Pujari and he avoided giving adefinite answer at that time. The respondent denies this fact. It isalso not likely that at such a point of time the Minister would broachsuch a topic to the S.P. At any rate, this version does not get any sup-port in Ext. 1 which was written five days after on 1-2-1966. In theabsence of corroboration and in view of the denial of the respondent, Ido not place reliance on the evidence of P.W. 1 that the respondentbroached the topic of withdrawal to him on 26-1-1966 while they werereturning to the dias after inspection of parade was over.

The respondent's stand is that he gave an open order to theAdditional District Magistrate as per Ext. 1/b for withdrawal of thecases. T'here was nothing secret and clandestine about ic and a copyof the same was also sent to the S.P. (P.W. 1) as per Ext. l (c) . Itwas not necessary for the Minister to solicit the favour of the S.P.and to canvass for favourable order from him. According to the

468 KRISHNA KANT MISHRA V. BANAMALI BABU [VOL. XXXVIII

respondent, the S.P. (P.W. 1) was controlled by Home Departmentof which Sri Nilmani Routroy, the then Deputy Chief Minister, wasthe head and with whom the respondent was not pulling on well.There is' evidence (See R. Ws. 10 and 11) that the respondent wastrying for the transfer of P.W. 1. For reasons either good or bad,which is not very pertinent to this matter, he was not satisfied withthe S.P.'s work. It is accordingly contended on behalf of the respon-dent that the S.P. was trying to feed fat his grudge and deposed to thetalk regarding respondent's candidature in the coming election and forfurthering his election prospects only to unseat the respondent. Whileit is difficult to reject the respondent's criticisms as wholly frivoloushaving made a careful consideration of the matter I am inclined tothink that the S.P. is giving a true version in saying that he had aphone talk with the Minister on 30-4-1966. The phone talk related towithdrawal of Ratha Jatra cases and there is nothing wrong for aMinister to discuss such matters with the S.P. But I am not inclinedto accept the testimony of P.W. 1 that the Minister had talk with himregarding his candidature for the next election and regarding with-drawing the cases so as to advance his election prospects. If really therewas any such talk pertaining to election, that must have found placein Ext. 4 written by the S.P. to the D.I.G.

By his answer in para 38, P.W. 1 admitted that on 30-4-1966,there was no talk regarding election. His statement may be quotedin his words. ,

"Excepting my telephonic talk with him (Law Minister) onthe 18th I do not recollect whether on any other date I had dis-cussion with the Law Minister on matter of political developmentand election prospects."

Charge No. (v) must fail both on the ground of absence ofpleadings and want of satisfactory proof beyond reasonable doubt.

10. Item No. (vi).—Petitioner's case is that on 18-6-1966 respon-dent discussed with P.W. 1 on phone regarding election matters. Heasked P.W. l's assistance for furthering his election prospects by with-drawal of cases against Ramlal Agarwalla, Narayan Misra and a pro-ceeding under Section 107 Cr. P.C. between the villagers of Mana-pada and by taking steps to curb the political activities of Dr.Jhasaketan Sahu who was respondent's political opponent.

The respondent denies to have any talk with P.W. 1 on phoneand denies to have requested P.W. 1 for withdrawal of the aforesaidcases.

It is to be noted that this aspect of the petitioner's case waspleaded in paragraph 9 of the petition. The date of the phone talk

B.L.R.] KRISHNA KANT MISHRA V. BAKAMALI BABU 469

was mentioned to be in April, 1966 and at the evidence stage it hasbeen shifted to 18-6-1966.

In paragraph 12 of his deposition, the substantive evidence ofP.W. 1 runs thus :

"On 18-6-1966 the Law Minister discussed with me on thefollowing matter which I have referred to in a D.O. to the D.I.G.Shri N. Chand dated 24-4-66 marked Ext. 7. In that letter I hadstated that the Law Minister wanted that the proceeding u/s.107 Cr. P. C. started against the villagers of Manapada should notbe further continued. I did not agree for reasons given in thatletter.

He told me that the election was only 8 months aheadand that Manapada in Attabira P.S. was included in his cons-tituency and that he was diffident of getting votes from thatarea if that case continued. I said that the case was pendingbefore the Magistrate and it would not be possible for me towithdraw it. He told me that the Executive Magistrate wasadverse to the party in which he (Shri Banamali Babu) wasinterested and that unless the case was dropped, his electionprospects would be affected. He told me that he was inte-rested in the party which constituted the majority of thevillage. The Law Minister suggested to me that they (thevillagers) undertook to execute a bond in favour of the S.P.I replied that if they were willing to execute a bond in myfavour, it would be better for them to execute the bond infavour of the Magistrate.

He told me that the Maharaja of Kalahandi was likely tobe a candidate for the Parliament seat from the Sambalpurconstituency and for this reason there would be all themore difficulty for him (the Law Minister) to get vote fromAttabira. He asked me whether as S.P. I had any definiteinformation about the candidature of the Maharaja of Kala-handi for the Parliament seat from the Sambalpur consti-tuency. I told him that I had no definite information.

Thereafter the Law Minister told me about the withdrawalof a case against! Ramlal Agarwalla who was involved in amotor car accident case. By mistake, I mentioned in the letterthe name as Ramprasad Agarwala. The Minister told methat he would much depend upon Ramlal Agarwalla for hiselection and the case against him should be withdrawn. Idid not agree. The Minister told me that all his supportersin the election were getting into troubles in various cases,andwould not help him in the election. I told him that I wouldlook into the case impartially and each case should be judgedon its own merits.

4 7 0 KRISHNA KANT MISHRA V. BANAMALI BABU [VOL. XXXVIII

Two cases had been started against Narayan Misra ofRengali, who was a dealer in controlled commodities. * # ** **The Law Minister wanted me not to further proceed withthe cases. I did not agree as the matter was the occasion ofa long drawn out adjournment motion in the Orissa Assemblyand there was heated discussion about the matter in theAssembly.

Again spoke to me about Dr. Jhas Ketan Sahu who wascontemplating to be a candidate from the Sambalpur consti-tuency. He asked me to control his activities. I said I wouldlook into the matter."

The question for consideration is whether die evidence of P.W. 1regarding phone talk on 18-6-1966 is acceptable. There is no disputethat the aforesaid cases were in fact pending by this date, thoughthe charge sheet against Kailash Prasad Agarwalla., nephew of RamlalAgarwalla had not been submitted till 14-8-66. Ramlal Agarwalla wasadmittedly the counting agent of the respondent during the lastelection. P.W. 5's version is corroborated by the letter Ext. 6 dated23-64966 of Sri N. Chand (P.W. 5) D.I.G., Sambalpur to P.W. 1. Theletter runs thus :

"My dear Anantachari,

Please refer to our discussion in my office on 19-6-66 regardingyour discussion with the Law Minister at his residence at Sambal-pur centering round the political developments and the electionprospects and let me have a detailed report as early as possible.

! Yours sincerely,

Sd./ N. Chand

23-6"

This letter generally corroborates the evidence of P.W. 5 in Courtexcepting the slight mistake that the discussion of P.W. 1 with theLaw Minister was not at his residence but on phone as has beenclarified by Ext. 7. Serious attack has been levelled against the veracityand reliability of P.W. 5. It was argued that he is a resident of Ex-State of Kalahandi and was educated by the Maharaja of Kalahandiat some stage and due to his loyalty to the Maharaja, who is one ofthe leaders of the Swatantra Party and due to the fact that the respon-dent was also moving for the transfer of P.W. 5 on account of hisunsatisfactory work, he has come forward to depose falsely. P.W. 5docs not make any secret that Maharaja of Kalahandi had subscribed tohis education. I am not inclined to accept the criticisms levelled againstP.W. 5 as being enough to brand him as a liar. He is a man of high

E.L.R.] KRISHNA KANT MISHRA V. BANAMALI BABU 471

position. I am not also inclined to believe that under the influenceof Sri Nilamoni Routroy, the then Deputy Chief Minister, the letter(Ext. 6) was prepared to create evidence against the respondent inanticipation of the election case.

In Ext. 7 dated 24-6-1966, P.W. 1 submitted a detailed note, withregard to which he deposed in Court (para 12 of his deposition). Itis not necessary to extract the whole of this long letter. Portions ofit where there is reference to election are quoted hereunder:

" * * * * * Thereupon he tried to persuade me by sayingthat since there were only 8 more montjhs left for the GeneralElections and that he was diffident about getting many votes fromAttabira Area, it was necessary for him to get this done.

*#* * * * * * #

According to the Minister if Sri P. K. Deo would contest$ie Election jfrctfn Sambalpur Parliamentary Constituency, SriKisan Patnaik may be accommodated with a seat in the Kalahandidistrict.

# * # # # # # • #

The Minister, however, insisted, that apart from the questionof fairplay, the more important question from his point of viewwas his interestedness in view of the forthcoming elections.

* * # * * * * # *

In the end the Minister told me that in view of the forth-coming general elections and also die difficulties he may face ingetting the votes from all areas particularly from Attabira, Ishould help him out in the above matters.

* * * * * * ##*

The aforesaid extracts from Ext. 7 clearly corroborate the evidenceof P.W. 1 in Court that in course of the talk, on phone on 18-6-1966,the Minister gave out to P.W. 1 that he was going to stand from theSambalpur constituency and that P.W. 1 should officially help him indifferent ways for being successful in the election. There is nothingin the evidence of the District Magistrate (P.W. 9) on this point.The reference to election campaign in his letter Ext. 43, dated 26-6-1966has no connection with the phone talk of 18/6. It relates to the viewof the District Magistrate.

11. Mr. Sahu advanced trenchant criticism against P.W. 1 assailinghis character and asked the Court to discard his evidence. To appre-ciate his criticism as a whole, a slight chronology of events may begiven. The respondent is alleged to have a phone talk with P.W. 1on 18-6-1966 for withdrawal of casesi against Ramlal Agarwala, NarayanMisra and a 107 proceeding. The S.P. (P.W. 1) had insisted upon thetrustees of the cars to take out licences for pulling the cars on RathJatra day which fell on 20th June, 1966. The trustees had not taken

472 KRISHNA KANT MlSHRA V. BANAMALI BABU [VOL. XXXVIII

licences. The District Magistrate, however, permitted the cars to bepulled even without licences. Accordingly, some cars were pulled butnot others. On the 20th of June, 1966, the Law Minister was absentfrom Sambalpur and had gone out to the mofiusil area in connectionwith drought relief. On the 21st of June, 1966, there was a meetingamongst the respondent, the S.P. (P.W. 1), D.I.G. (P.W. 5), DistrictMagistrate (P.W. 9) and some members of Che public to resolve theimpasse. The evidence of the S.P. is that on the 19th of June, 1966,he had a verbal talk with the D.I.G. regarding the telephonic talkbetween himself and the respondent on 18-6-1966. The S.P. did notaddress any letter to the D.I.G. regarding this telephonic call untilthe D.I.G. asked by his,' letter (Ext. 6) dated 23rd June 1966 to givedetails of the talk. The details were supplied by a letter of the S.P.(Ext. 7) dated 24th June, 1966. Mr. Sahu argues that the S.P., D.I.G.and the District Magistrate were irritated over the remarks of therespondent on 21st June, 1966 that he had no trust in the S.P. as aprivate individual. He argues that the S.P. is unreliable and power-conscious and out of vindictiveness and in conspiracy with the D.I.G.,Ext. 6 and 7 have been prepared to create evidence against the respon-dent! to defect him in election case if he was returned successful.

It is to be noted that the date 18-6-1966 was not pleaded, thoughfacts relating to phone talk were averred in paragraph 9 of the petition.The date was given as sometime in April 1966. Mr. Sahu contends thaton this simple ground, the story of the telephonic talk on 18-6-1966must be discarded. He further contends that on the S.P.'s own evi-dence, that he did not oblige the Minister by acceeding to his requests on26-1-1966 and 30-4-1966, it would be difficult to accept the version thatthe Minister would be brazen-faced again to make a further request tothe S.P. on 18-6-1966. Criticism is also levelled against the conduct ofthe S.P. that he did not write to the D.I.G. on that very day or on 19thregarding this telephonic talk relating to election. It is urged that itis only when the S.P. was offended by the Minister on 21st of June, 1966,that a plot was hatched between the S.P. and the D.I.G. and lest thisversion would appear belated, the D.I.G. set the matter in motion byasking for details under Ext. 6 on 23rd of June, 1966. It is also com-mented that though the D.I.G. wrote Ext. 5 on 22-6-1966, he did not atall refer to the phone talk of 18-6-1966 discussed between the respon-dent and P.W. 1 on 19-6-1966.

P.W. l's story is that when the Minister was talking with him onphone, he scribeled out the different items of talk on a chit [Ext. l (d ) ]which contains no date. It, however, contains some other items whichwere admittedly not the subject matter of the talk and the S.P. couldnot explain why those matters were noted in that chit. It is furthersaid that there was no case against Ramprasad Agarwalla and the caseagainst Kailas Prasad! Agarwalla, nephew of Ramprasad Agarwallawas charge-sheeted as late as 14-8-1966 (P.W. 8's evidence para 1) and

E.L.R.] KRISHNA KANT MlSHRA V. BANAMALI BABU 473

as such there was no question of withdrawal of case against Ramlal orRamprasad Agarwalla two months earlier. It is said that NarayanMisra belongs to Rengali which was outside the Sambalpur AssemblyConstituency. He is a man of Bijoy Pani with whom the respondentwas not in good terms. Dr. Jhasaketan Sahu was inciting agitation byviolence for which he should have been arrested either under the De-fence of India Rules or detained under the Preventive Detention Act.There was no necessity for the Minister for requesting the S.P. to con-trol his activities. It is contended that the judgment in Section 107Cr. P.C. proceedings [Ext. Z(40)] shows that there was nothing in thecase and that there was no reason for Banamali Babu to make an un-usual request to the S.P. It is also in evidence (See R.W. ll's) thatthe Minister was trying by then to get the S.V., District Magistrate andthe D.I.G. transferred. It is for all these reasons, Mr. Sahu very seriouslycontended that the evidence of the S.P. and the D.I.G. should be dis-carded and reference to election prospects in Exts. 6 and 7 must beheld to have been introduced to feed fat the grudge against the Ministerand to create evidence to unseat him.

12. After having examined with anxious considerations, the criti-cisms levelled against the S.P. and the D.I.G. that they were out tocreate documents against the respondent to unseat him in the electiondue to the pressure of Sri Nilamoni Routroy, the then Deputy ChiefMinister, Maharaja of Kalahandi and from the knowledge that therespondent was trying for their transfers, I am inclined to accept theevidence of P.W. 1 as reliable with regard to the phone talk on18-6-1966. Each of P.Ws. 1, 5 and 9 were subjected to searching cross-examination for a number of days. I was impressed with their answersand am of opinion that they are bold and straight forward officers.Wherever I have discarded the evidence of P.W. 1, it was for otherreasons as discussed at different places and not due to his unreliability.

The petitioner has established beyond reasonable doubt that therespondent gave out to P.W. 1 on 18-6-1966 that he was going to be acandidate in the next election and he also sought the assistance ofP.W. 1 for advancing his election prospects.

Question is whether it is a corrupt practice under Section 123(7).

13. Section 123(7) deals with one of the corrupt practices and runsthus :

"The obtaining or procuring or abetting or attempting to ob-tain or procure by a candidate or his agent or, by any other personswith the consent of a candidate or his election agent, any assistanceother than the giving of vote for the furtherence of the prospectsof that candidate's election, from any person in the service of theGovernment and belonging to any of the following clauses,namely :—

474 KRISHNA KANT MISHRA V. BANAMALI BABU [VOL. XXXVIII

(d) members of the police forces ;"The Superintendent of Police is a member of the Police force and ifthere was an attempt to obtain his assistances for the furtherance ofthe election prospects of the respondent, the corrupt practice would becommitted provided the respondent was a candidate by 18-6-1966.

This takes us to an examination of the meaning of the expression"candidate" defined in Section 79(b) of the Act. "Candidate" meansa person who has been or claims to have been duly nominated as acandidate at any election, and any such person shall be deemed to havebeen a candidate as from the time when, with the election in prospect,he began to hold himself out as a prospective candidate.

Indisputably, the respondent had been duly nominated as a can-didate at the election. But the corrupt practice alleged against himwas not committed on or after his nomination, but long before it, thatis, on 18-6-1966. In order to come within the mischief of the expres-sion "candidate", the respondent must be brought within the meaningof the deeming clause. It is, therefore, necessary to see whether by18-6-1966, the election was in prospect and whether the respondent heldhimself out as a prospective candidate.

There are abundant materials on record that the election was inprospect by then. Ths mid-term election for the Orissa Assembly tookplace in June, 1961. The general elections throughout the country andthe Parliamentary elections in Orissa took place in 1962. The nextgeneral elections throughout the country must accordingly fall in 1967.On 27th of September, 1965, the Delimitation Commission passed ordersin respect of delimitation of Parliament and Assembly constituenciesin Orissa. Attabira Police station was included in the Sambalpur con-stituency then. On the 10th of December, 1965, the Home Ministermade a statement in the Parliament declaring Government's decisionto postpone separate general election for Orissa Legislative Assemblytill the country-wide general election to be held early in 1967. Onthe 20th of December, 1965, the Election Commission despatched letterto the Chief Electoral Officer in Orissa communicating the aforesaiddecision of the Government of India.

It would be apparent from the aforesaid facts that it was wellknown that there would be no mid-term election in Orissa in 1966but that the election to the Orissa Legislative Assembly would takeplace in early 1967 along with the general election throughout the coun-try. The life of the Orissa Assembly was accordingly extended till1-3-1967 by the Orissa Legislative Assembly Extension of Duration Act,1968 passed on 29-5-1966. Thus, by 18-6-1966, the election was inprospect.

E.L.R.] KRTSHNA KANT MISHRA V. BANAMALI BABU 475

The next question for consideration is whether the respondent heldhimself out as a prospective candidate. If the version given by theSuperintendent of Police (P.W. 1) is believed, clearly, the respondentheld himself out as a prospective candidate. P.W. 1 was, however, notan elector. The question for consideration is whether 'holding out toa person' who is not an elector amounts to 'holding out' within themeaning of Section 79(b). The matter is concluded by 5. Khader v.Munnuswami (5). The construction of Section 79(b) directly cameup for consideration. In paragraph 4, their Lordships observed thus :

"The question when a person becomes a candidate must bedecided on the language of S. 79(b). Under that section, the can-didature commences when the person begins to hold himself outas a prospective candidate. The determining factor therefore isthe decision of the candidate himself, not the act of other personsor bodies adopting him as their candidate.

When, therefore, a question arises under S. 79(b) whether aperson had become a candidate at a given point of time, what hasto be seen is whether at that time he had clearly and unambigu-ously declared his intention to stand as a candidate, so that it couldbe said of him that he held himself out as a prospective candidate.That he had merely formed an intention to stand for election isnot sufficient to make him a prospective candidate, because it is ofthe essence of the matter that he should hold himself out as aprospective candidate. That can only be if he communicates thatintention to the outside world by declaration or conduct from whichit could be inferred that he intends to stand as a candidate."

If the statement of the respondent made to the S.P. is accepted, thereis clear and unambiguous declaration of the candidate's intention tostand as a candidate communicated to the S.P.

The question whether 'a declaration' other than that to the con-stituency would constitute 'holding out' was answered in paragraph 6thus :

"It may be that the holding out which is contemplated by thatsection is to the Constituency ; but if it is the Central Committeethat has to decide who shall be adopted for election from the con-cerned constituency, any declaration made to the Committee is, ineffect, addressed to the constituency through its accredited repre-sentative."

(5) A.I.R. 1965 s. c. 775,

4 7 6 KRISHNA KANT MTSHRA V. BANAMALI BABU [VOL. XXXVIII

In view of the aforesaid observation of their Lordships, it is clear thatthe 'holding out' must be to an elector or to the Electorate. 'Declara-tion' to a person who is not an elector about the prospective candida-ture is not 'holding out' whithin the meaning of Section 79(b).

Even if the version of the S. P. is accepted that the petitioner madein unambiguous declaration before him that he would be a prospectivecandidate in the next election, it does not amount to 'holding out' asby 18-6-66, the respondent was not a candidate within the meaning ofsection 79(b).

Section 123(7) envisages the commission of the corrupt practice bya candidate. If by 18-6-66, the respondent was not a candidate, then hewould not be hit by Section 123(7), even though he attempted to obtainthe assistance of the S.P. to advance his election prospects in the com-ing election. The matter being concluded by the Supreme Court deci-sion, it is unnecessary to refer to English authorities. On a pure ques-tion of law, the charge would fail.

14. Item No. (vii).—Petitioner's case is that the respondent declaredsometime in May and June 1966 at village Kud-gunderpur that he wasgoing to be a candidate in the next election. He promised to thevillagers that a lift irrigation scheme would be established in the villageto relieve them from scarcity of water and in exchange for the benefitto be so conferred he asked them to vote for him.

Respondent admits that as a Minister he visited Kud-gunderpuronce during the months of May and June 1966. He, however, deniesthe story of election talks. Chaturbhuja Purohit (P.W. 10) is the onlywitness on the point and his evidence is not corroborated by any otherevidence. During 1961 mid-term election he was the polling agent ofand was canvassing for Sri Shhadhakar Supkar, the contestant of therespondent in that election. It is not necessary to discuss his evidenceat length. He does not seem to be reliable. The petitioner has failedto establish this item beyond reasonable doubt.

15. To sum up, charges under items (i) to (v) and (vii) have notbeen factually proved beyond reasonable doubt. Though the chargeunder item No. (vi) has been established beyond reasonable doubt, itis not a corrupt practice under section 123(7) as the respondent did nothold out to an elector that he would be a prospective candidate.

16. In the result, the election petition fails and is dismissed withcosts. The hearing covered 35 days. Hearing fees assessed at Rs. 2000/-(Rupees two thousand).

Petition dismissed.

GIPM-Sl—3 Elac. co!n./71—10-1-72—1000

ELECTION LAW REPORTS

VOLUME XXXVIII

INDEX

SUBJECT PAGE NO.

Age—Rejection of nomination on ground of under-age—Evidence of age—Entry of age in Electoral Roil—Whether conclusive proof.

Mohammad Akbar v. K. H. Lassa Wani (High Court of Jammu &Kashmir at Jammu) 221

Burden of Proof—Party Organisation doing propaganda for party candi-date—issu'ng pamphlet attacking the personal character or conduct ofpetitioner—Whether implied consent to the respondent can be pre-sumed.

Bhanu Kumar Shastri v. Mohan Lai Sukhadia andOrs. (High Court ofRajasthan at Jodhpur) 119

Burden of Proof—Allegations against the respondent under s. 123(5).

DasuSinha v.Ram Lakhan Singh Yadav & Ors. High Court at Patna. 177

Burd^iof Proof—Whether Section 106 of the Evidence Act, 1872 applies

Birendra Chandra Dutta v. J. K. Chowdhury—(In the Court of the

Judicial Commissioner of Tripura, Agartala) 381

"Candidate" in s. 79(b), meaning of.

Krishna Kant Mishra v. Banamali Babu. High Court of Orissa at

Cuttack 451

Conduct of Elections Rules, 1961, Rule 2(2)

Ram Dayal v. Brij Raj Singh and Ors. High Court of Madhya

Pradesh at Indore 53

Conduct of Elections Rules, 1961, r. 73(l)(d), 83(l)(d) and 93(d).

Ram Milan v. Hari Shankar Prasad Gupta and Ors—Court ofElection Tribunal, Gorakhpur 95

Conduct of Elections Rules, 1961, r. 94-A—form 25—affidavit vague andlaconic and not in the prescribed form—whether fresh affidavit canbe filed.Birendra Chandra Dutta v. J. K. Chowdhury—In the Court of theJudicial Commissoiner of Tripura, Agartala . . . . 381

Consti tut ion (Scheduled Castes) Order, 1950 Adi Dravida converting toChristianity—Reconversion to Hinduism—If becomes a member of theoriginal caste.

S . R a j a g o p a l v . C . M . A r m u g a m & O r s . ( S . C . ) . . . . . 3 8

47733—3Elec.Com./71

478

PAGE Np.

Constitution (Scheduled Tribes), Order, 1950—Scheduled Castes andScheduled Tribes Amendment Act (63 of 1956)—Entry 12—"Gondincluding Mana"—Means Mana Community which is a substituteof Gonds.

Dina v. Narayan Singh (S.C.) 212

Constifution of India Article 84(a)—

5. L. Saraf v. M. S. Qureshi and another (J. & K. H. C.) . . . 353

Constitution of India, Article 190(3), 192(1)—

Mohammad Akbar v. K. H. Lassa Wani (J. & K. H. C.) . . . 221

Consti tut ion of India Article 173(b)—Representation of the PeopleAct, 1951—Suctions 100(l)(a) and s. 100(l)(d)(i) and 36(2)—Dis-qualification. Candidate must a t ta in the age of 25 years on the datefixed for nomination and not when election takes place.

Amrit Lai Ambalal Patel v. Himatbhai Gomanbhai Patel (S.C.) . 32

Constitution of India, Article 299(1).

Harish Chand Deogam v . B a g u n Sumbrui (Patna.H. C . ) . . . 3 0 5

C o n s t i t u t i o n o f I n d i a , A r t i c l e 3 2 4 , S u b - C l a u s e ( 1 ) , 3 2 7 .

Mam Milan Singh v. Hari Shankar Parsad Gupta and others(Election Tribunal, Gorakhpur) 95

Corrupt practice—Appeal to Muslim voters not to vote for Communistcandidates on the ground of the Ideology of that party, being op-posed to the tenets of Islam—whether appeal violates Section 123of the Act—The significance of word "His" in Section 123(3)—TheCommunist Party whether a "class" of citizens within the meaning ofSection 123(3A).

Shri Mohan Singh Oberoi v. Shri Alha.-i-ahmad (Patna H. C.) . 160

Corrupt practice—Appeal on grounds of proficiency in languages andability of candidate, whether attracts section 123(3) and 3(A).

G. VasanthaPai v. R. M. Seshadriand others (Madras H. C.) . . 267

Delimitation Commission Act, 1962, Section 10—plea of non-inclusicnin voters list and wrong delimitation of constituency—whether canbe raised in an election petition.

Birendra Chandra Dutta v. J. K- Chowdhry (Judicial Commissioner,Agartala, Tripuraj 381

Election expenditure by party organisation—whether a limit is prescribed—Whether such expenditure can be charged to the respondent.

Bhanu Kumar Shastri v. Mohan Lai Sukhadia and others (RajasthanH.C.) 1 1 9

Election petition—verification and affidavit filed on subsequent date butwithin limitation—requirement of Section 83(1).

Dasu Sinha v.Ram Lakhan Singh Yadav and Ors. (Patna H. C.) . 177

Election Petition—Dissolution of Assembly by Presidential order duringtrial of election petition—Effect of.

479

PAOB N O .

Sheodan Singh v. Mohan Lai Gautam (Allahabad H. C.) . , 343

Election Petition—amendment for amplification of particulars—Scopeof Sub-section (5) of 86,Repre.<xntatkn cf the Pccplt Act, 1951.

Birendra Chandra Dutla, v. J. K. Chowdhury (Judicial Ccnmifsicner,

Tjipura, Agarlala) 381

Election petition

Krtehm. Kant Mi;hra v.fBatu,mali'£ebu(Oihsa H.C.) . . . 451

Evidence ['Act, 1872, Secticn 35, Sccfe of.

MohammadAkbar.vJ-K- H.Lassa Wani {i: &1K.VL. C.~) . . . 2 2 1I n d i a n O a t h s A c t , 1 8 7 3 , S e c t i o n 1 3 — I r r e g u l a r i t y [ c f c a l h o f w i t n e s s —

W h e t h e r e v i d e n c e i s a d m i s s i b l e .

Birendra Chandra Dutta v. J. K- Clwwtihury (Judicial [Ccrcmis-sioner, Tripura, Agariala) . . . . . . . . . 381

Jatnmu and Kashrnh Represent at ;cn of (he Pecp'e Acs. 1957, ss. 44(5),47(7}—Non-eompHanec wish s. '44(5)—if renderf ncrr.inaticn paperliable to rejection—if provision mandatory— Quest k ru of citizen-ship and identity of candidate—if material when name appears as avoter in the constituency.

Cuhar Ahmad v. Abdul Rashid (J. & K. H. C.) . * . . . . 342

Recount—Circumstances justifying—Application for recount-—duty togive reasons while rejecting request.

Nathu RciriMircla%\. CordUn[Soni & Anr. (S.C.) I . . . 16

Representation of the People Act, 1951, Sections 9A, 36(2), 323—Consti-tution of India, Article299(1)—Corrupt practice—Appeal in (he nameof religion and threat of divine displeasure—Burden of proof—"his"in Sub-Section (3) of Section 123, Scope of—"Mandis"and ' Mundas"of Kolhan area—Whether they are Government servants——contract not executed in terms of Article 299(1) of the Consti-tution but covered by Section 9A of the Act—Whether creates dis-qualification—subsisting contract—Whether the contract should bein the course of trade or business to attract Secticn 9A—Improperacceptance of nomination—Scope of Section 36(3)—Petitioner'sobjection to the nomination of aP.S.P. candidate—objection :Tpheldby returning officer—Whether the petitioner can raise the issue ofimproper rejection of the candidate in the election petitionagainst the respondent—Rule of estoppel, whether applicable.

Harish Chandra Deogam v.| Begun Sumbrui (Patna H. C.)J . . . 305

Representation of the People Act, 1951, Ss. 22(2)10C(l)(c), 123(7), 129—Constitution of India, Article 84(a), Handbook for ReturningOfficers, 1966 (General Election, 1967)—Instructions containedtherein, whether have force of law-making and subscribing an oath,when it should be made—Assistant Returning Cfficer, whether com-petent to receive nominations—Alleyaticns of rr.alEfdef of theReturning and Assistant Returning Officers—Burden of proof.

5. L, Sanfy.M.S. Qureshiand another (J. & K. H. C) . . 353

480

Representation of the People Act (Jammu & Kashmir Act 4 of 1957)Sections 2\(d), 47(7)—Coa?titution of Jammu & Kashmir, 1956,Sections,5l(4),69,70,142(b)—Constitution of India, Articles 190(3), '"'192(1)—Election petition—Powers of the Speaker of Assembly underSections 69 and 70 under State Constitution—Reference of the Pe-tition on 1962electionby Speakertothe Election Tribunal and HighCourt—Validity of—Decision of the High Court whether operatesas resjudicata if the same i-ssusis raised again in the election petitionon 1957 election—Rijectionof nomination on ground of under-age—Evidcnceof age—Entry of age in Electoral Roll—Whether coaclusiveproof—Evidence Act, 1872, Section 35, scope of.Mohammad4kbartv.K.n.LassaWanl—Jammu & Kashmir H. C, 231

presentation of the People Act, 1950. S:ction 27(3)—Constitution ofIndia, Article 171(3)(b)—Electoral Roll of Graduates—State Govern-ment's powers under Section 27(3)—Declaration that Diplomaholders qualificationdeemedto bs equivalent to that of Graduates—Whether ultta virtsot the Constitution—Representation of the PeopleAct, 1951, Ssctions 123(3)(3A), 123(5), 130— Corrupt practice-Appeal on grounds of proficiency in languages and ability of a can-didate, whether attracts Section 123(3) and (3A)—Political partyadvocating the cause ofa non-party candidate—liability of canditatesfor actsofothers—Agency, inference of—Scope of section 123(5)—Badged volunteers of first respondent soliciting votes—Whetherattracts Section 123(5)—Section 87 read with Order XLVII of theCivil Procedure Code, scope of—Powers of High Court to reviewits own orders during pendency of appeal in Supreme Court.G.VasanthaPai v.R. M. Seshadri and Qthirs (M.idras H. C.) . 267

Representation of the People Act, 1950, Section 30.Birendra Chandra Dutta v. /• K- Chowihury—Judicial Commis-sioner Tripura Agartala . 381

Representation <jf the People Act, 1951—Ss.33(5), 35(3)—Filing of a copyof electoral Roll—Age and House number not shown in copy—Ifdefect of substantial character.S. Harcharan Singh v. S. \Mohinder Singh—<S.C.) . . . . 1

•Representation of the People Act, 1951, Sections 58, 81(1), 83(1). 86(1),100 (1) (b), 100 (d)(ii),100 (d) (iv), 123 (5)—Election Petition—Verifica-tion and affidavit filed on subsequent date but wtihin limitation—Requirements of Section 83(1)—Corrupt practice—Burden of proof,—Allegations against the respondent under Section 123(5)—Burdenof proof—Failure to maintain correct account of election expenses,whather readers election void—Non-inclusion of a person in elec-toral roll, whather can be raised in election petition.Dasu Siaha v. Ram Lakhan Singh Yadav andOrs. (Patna H. C.) . . 177

Representation of the People Act, 1951, Sections 77, 123—Corruptpractice—Undue influence—Use of National Flag—Appeal tovoters oa grounds of religion and that of divine displeasure—Burdenof proof—Dissolution of Assembly by Presidential Order during trialof election petition—Effect of—Allegations of offence underSection 123(4)—Failure of Respondent to disprove the issue ofimpugaed pamphlets, whether adverse inference could be drawnagainst respondent—Allegations on grounds of suspicion of expendi-ture in exssss of the prescribed limit—whether attracts section 77.Sheodan Singh v. MohanLal Gautam—(AllahabadH. C.) . . 242

Representation of the People Act, 1951, Sections 77, 100(l)(c),123(2XcX4)(5)—Conductof Elections Rules, 1961, Rule2(2)—Corrupt Practice—Burden of proof—Rejection of nomination paper of one of thecandidates—Thumb impression of proposer not attested underRule 2(2)—whether fatal—whether such rejection could renderthe election of the returned candidate void—False statement byanother candidate uader Section 123(4}—Consent or knowledge of thereturned candidate not proved—effect of—Expenditure incurred bypolitical party which t naidentally supported the returned candidate—whether tbiat e*ps<iditure could be debited to the returned candidate.

481PAOIJ No.

Ram Dayalv.Birj Raj Singh and Others—(Madhya Pradesh H. C.) . 53

"Representation of the Peopie Act, 1951, Ss. 79 (b), and 123 (7)—Electionpetition—Corrupt practice—Requirements of Section 83(1)—"Candi-date" in Section 79(b), Meaning of—"Holding out" to a person•••*"> is not an elector, whether amounts to "holding out" ujithinthe meaning of Section 79(b)—Seeking the assistance of PoliceOfficer by respondent in his forthcoming election, before he is offici-ally a candidate, whether a corrupt practice under Section 123(7).

KrishnaKantr Mishra v. B.vtvmU B.ihu— (Orissa H.C.) . . . 451.

Representation of the People Act, 1951, Sections 81(3), 82(b), 86(5),109(l)(b)(d)(iv), 106, 123(2), 13), (3A), (4) and (7)—"Any. othercandidate" in section 82(b)—meaning of—Copy of petition torespondent not endorsed as"truecopy"—Whether infringes Section81(3)—Election Petition—Amendment for amplification of particulars—Scope of Sub-section(5) ofs.86—Conduct of Elections Rules, 1961,Rule 94—A, form 25—Affidavit vague and laconic and not in theprescribed form—whether fresh affidavit can be filed—discrepancy inthe account of billot papsrs—Difference in design of reprinted ballotpapers—Whether tha" result of election materially affected underSection 100(1) (d)(iv) and Rule 30 of Conduct of Elections Rules, 1961,corrupt practice—Burden of proof—whether Section 106 of the Evi-denceAct, 1872,applies—"Agent"inClause(7)of Section !23—Scopeof—Representation of the People Act, 1950, Section 30,— Delimita-tion Commission Act, 1962. Section 10—Plea of non-inclusion invoters list and wrong delimitation of constituency—Whether can beraised in an election petition—Indian Oaths Act, 1873, Section 13—irregularity of oaths of witness—whether evidence is admissible.

Birendra Chandra Duttav. J. K.Choudhury—Jniicia} Commissioner,Tripura, Agartala 381

Representation of the People Act. 1951, Sections 83 <1) fa), 92, 97H), 101(a), 169—Conduct of Elections Rules, 1961, Rules 73(l)(d), 83(l)(d)—Constitution of India, Article 324, Sub-Clause (l), 327—"Re-jected" ballot papers not endorsed by the Returning Officer underRule73(l)(d)—whether illegal—Plea of petitioner for inspection ofballot boxes—Rejection of Plea by Returning Officer againsi the Rules—Requirements of Section 83a)la)—Whether suchpleais sustainablebefore Tribunal—Recrimination under Section 97(1)—failure byrJturiJi ci ill lit;: to tile—.vhsther the returned candidate isentitled to amend his written statement for recounting ofvotes—Power of inspection given to Election Commission byamendment of Rule 93(d), whether ultra vires of the constitution.

Ram Milan Singh v. H.ui Shvikar Parasad Gupta'Sc Ors.—(ElectionTribunal, Gorakhpur) » . . . . " . . . 95

Representation of the People Act, 1951, Sections83 (l)(b), 100, 123 (1)and (2)—Corrupt Practice;— Undue influence—Respondent wasChief Minister on relevant date—Execution of Public Works forbenefit of voters and grants of concessions in respondent consti-tuency on eve of election—Allegations that these benefits were madeas inducement and birgaining for votes for the respondent—Whetherrespondent can be charged with corrupt practice—Party organisationdoing propaganda for party candidates—Publication of pamphletsissued by party organisation—Attack on the personal conduct andcharacter of the petitioner—Burden of proof—Whether implied 'consent of the respondent can be presumsd—Election petition,requirements of—Election expenditure by party organisation—whither a limit is prascribii—-whether such expenditure can becharged to the respondent.

Bhanu Kumar Shastri v. Mohan Lai Siikhadia & Ors.—(RajasthanJH. C.) 119

Representation of the Pioile A:t, 1951—S>. 103! l)(a) and s. 100fl)(d)(i)and 36(a).

482

PAOBNO.

Amritlal Ambalal JPattl v. Himatbhai Gomanbhai Palel— SupremeCourt of India . . . . . . . . . . 32

Representation of the People Act, 1951—s. 123t.3)(3A) and 4—Corruptpractice—Appeal to muslim voters noi io vote i'oi communist can-didate on tnc ground of ihe ideology of ihat party, being opposedto the tenates of Islam— whether appeal violates, s. 123 of the Act—The significance ofwoid "his" i t s . 123(.3) The Ccn-n,unis,i partywhether a "class" of citizens within the meaning of s. 123(3A).

Mohan Singh Oberoi v. Alhaj-i-ahmad— (High Court [of Patna) . 160

Representation of the People Act, 195 l,s-l 22 (1)& (2)— Corrupt practices—Bribery and undue influence—Corrupt practice cf b i i tay in thenature of quasi-criminal charge.

Jagpati Singh v .Ramanand Singh—(Supreme Court of India) . 25

Representation ofthe People Act, 1951, SS.123(.3)(3A), 123(5), 130.

G.VasanthaPaiv.R.M.Seshadriand others—High Court at Madras. 2€7

Rex-Judicata—Election Petition— rcv.ers, of the Spcgkei of Assemblyunder Section 69 and 70 under Kashmir State Constitution—Reference ofthe Petition on 1962election by Speaker to the ElectionTribunal and High Court— validity of—Decision of the Hi^h Courtwhether operates as res-judicala if the same issue is raised againon 1967 election.

Mohammad Akbarv. K.H.Lassa Wani—(High Court of Jammu andKashmir at Jammu) 221

Returning Officers, 1966 (General Election Hard i c c k for—1J67)—Instructionscontainedtherein,whether havefcrce of law-rr^kirt Endsubscribing an oath, when it should be made—Assistant Returningofficer whether competent to receive nominations.

S.L.Saraf y.M.S. Qureshiandanother—(High Court of Jitninu andKashmir, Srinagar) 353

Review—Powers of High Court to review its own orders during pendencyof appeal in the Supreme Court.

C. Vasantha Pai v. R. M. Seshadri and others—(High Court at Madras) 2<57

Scheduled Caste Reserved Constituency—elected candidate shewn to havebeen converted to Budhism—ceased to be a member of the Schedu-led Castes.

lanardhan Yadhav Sakhare v. Mukund Vithoba Alone and another—(Suijreme Court of India) - 8

Undue influence—respondent was Chief Minister on relevant date—execution of public works for benefit of voters and grants of conces-sion in respondent's constituency, on eve of election—if corruptpractice.

Bhanu Kumar Shastri v. Mohan Lai Sukhadia and or*.—(Rajasthan** * } • • • • • • • » • ; • • ' * .> •

\

GIPN-S1—3 Elec. Com. (ND)/71—2^^-^1,000. ^ '