© GOVT. OF INDIA1971

ELECTION LAW REPORTS

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

Commission

Vol. XXXIV

Editor

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

Advocate, Supreme Court

34 E.L.R.

2EC/71—1.

CONTENT S

P A G E S

I T a b l e of Cases R - n o r t e d . . . . . (i)

I I T r i b e of Cases Ci ted . . . . . (ii)—(v'y

I I I R e p o r t of Cases . . . . . 1—391

IV I N D E X . . . . . 393—397

The mode of Citation of the thirty-fourth volume of the Election Law Reports isas follows :

34 E.L.R.

TABLE OF CASES REPORTED

1. Amarnath v. Sardar Lachman Singh and ors. (Punjab andHaryana High Court) 103

2. Amarnath Verman and anr. v. Dev Raj Anand and others(Punjab and Haryana High Court) 359

3. Bhailabhai Narottamdas Patel v. Mangaldas Pola and anr.(Gujarat High Court) ' 269

4. Durga Singh v. Jawar Hussain (Patna High Court) . . . 281

5. Harbhajan Singh v. Sagar Singh Sisodiya (Madhya PradeshHigh Court) 221

6. Jai Singh v. Ram Kishen and ors. (Punjab and Haryana HighCourt) 103

7. Kacho Mohammad Ali Khan v. Kushak Bakula (Jammu andKashmir High Court) . . . . . . . 323

8. Kolaka Nilakantham v. Ananta Ram Majhi (Orissa HighCourt) 212

9. Laxman Prasad Vaidya v. Gangadhar Ya'daorao and others(Madhya Pradesh High Court) 292

10. Purshottamdas Ranchoddas Patel v. Kantiprasad JayashankarYagnik and ors. (Gujarat High Court) . . . . 160

11. Ram Bharose v. Jagannath Singh and others (Madhya PradeshHigh Court) 135

12. Shafquat Rai v. Phuman Singh and ors. (Punjab and HaryanaHigh Court) 187

13. Shantabai Talpalikar v. D. Gopalareddy and ors. (AndhraPradesh High Court) 195

14. Shivamurthiswamy Siddappayaswamy Inamdar v. Agadi San-ganna Andanappa (Mysore High Court) . . . . I

15. Tirlochan Singh v. Karnail Singh and anr. (Punjab and HaryanHigh Court) 234

TABLE OF CASES CITED

Abdul Majeed v. Bhargavan (A.I.R. 1963 Kerala 18) .

Abnash Chand i\ Om Prabha Jain [E.P.No.' 19/67 decided on16-11-67 (Punjab)] - " .

Aga Jan Khan Rahim Khan and anr. v. Keshavrao NathuramMaratha, (A.T.R. 1940 Nagpur 217)

Amritsar & Sialkot (General) Rural constituency 1937 (Sen andPodar Indian Election Cases 21)

Ariadi Mohon Ghose v. Rabindra Nath Dutta and others (A.I.R.1962 Cal. 265)

Anjaneya Reddy i». Gangi Reddy and others (21 E.L.R. 246)

Dr. Anup Singh v. Shri Abdul Ghani and others (A.I.R. 1965 S.C.815) '. . . .

Balwant Rai Taya! v. Bishan Saroop and another (17 E.L.R. 101)

Bankabehari Das Chittaranjan Naik (A.I.R. 1963 Orissa 83) .

S. N. Banerjee r. Sri Krishna Agarwal (A.I.R. 1960 S.C. 368)

Bani Madhub Mitter v. Matungini Dassi (13 Calcutta 104) .

Baru Ram v.Smt.Prassani (A.I.R. 1966 S.C. 93) . . . .

Bhagat Singh v. Jaswant Singh (A.I.R. 1966 S.C. 1861) .

Bhagwan Datta Shastri v. Ram Ratanji Gupta (A.I.R. 1960, S.C. 2C0& E.L.R. IX 448) . .

Brij Sunder v. Shri Ram Dull (A.I.R. 1944 Raj. 99)

Brijendra Lai Gupta and another v. Jwala Prasad and others (22E.L.R. 366 S.C.) 136,145

Buckingham & Carnatic Co. Ltd. v. The Workers of the Company-fed 952 Lahore A.C. 490)

Champa Devi v. Jammuna Prasad (15 E.L.R. 443)

Chand Singh v. Shankarlal (XX E.L.R. 63)

Chandrika Prasad Tripathi v. Shiv Prasad Chanpuria (21 E.L.R.172) . . .

Pt. Chiranjit Lai Ram Sarup v. Lahiri Singh Ram Narain (A.I.R.1958 S.C. 520) . . .

136, 146,

235,

235;

136, 148,

105,

294,

293, :

136,

136

1A

293,

238,

,239,

, 150,

222,

293,

129,

311,

306,365

360

,144

235

, 44

1,96

320

249

244

324

338

225

305

340

318

294,

293,

293,

136,

318

309

222

320

148

Ill

Davidas and others v. Shri Shailappa and others.

Deo Bhary K.C. v. Raghunath Misra (A.I.R. 1959 S.C. 589)

Devasharan Sinha v. Sheo Mahadev Prasad and Ors. (10 E.L.R.461.)

Didar Singh Chhada v. Sohan Singh (A.I.R. 1966 Punjab 282)

DurgaShankar Mehta v. Raghuraj Singh and others (A.I.R. 1954S.C. 520)

Dwigendra Lai Sen Gupta v. Har Krishna Konar, (A.I.R. 1963Cal. 218)

Emperor v. Edward William Smither (I.L.R. 26 Madras 1)

Emperor v, Maniben Kara (I.L.R. 57 Bombay 253)

Elaya Pillai v. K. Parthasarathy and Ors. (VIII E.L.R. 20) .

Gangadhar Maithani v. Narendra Singh Bhandari (18 E.L.R.124)

Gangi Reddy v. Anjaneys Reddy (22 E.L.R. 261)

Gaya Prasad v. Jamna Prasad (1959 M. P. L. J. notes of cases No.143)

Gaya Prasad v. Jaswant Rai (A.I.R. 1930 All. 550)

Ghayar Ali Khan v. Kesliav Gupta (16 E.L.R. 154) .

Gobinda Basu v. Sankri Prasad (A.I.R. 1964 S.C. 254) .

Govindram v. Gulab Rao (A.I.R. 1949 Nag. 394)

Gurmsj Singh v. Pratap Singh (A.I.R. 1960 S.C. 122) .

Guru Govinda Basu v. Shankari Prasad Ghosal and Ors. (23 E.L.R.356)

Gurunath Reddy v. Seshaiah (A.I.R. 1966 A. P. 331) .

Har Swarup and another v. Brij Bhushan Saran and others, A.LR.1967 S.C. 836

Hansa Jeevraj Mehta v. Indubhai Amin, (E.L.R. 1971) . • .

Hariram Singh v. Kamtaprasad Sharma (A.I.R. 1966 M. P. 253) .

Harish Chandra Bajpai and another v. Triloki Singh and another(A.I.R. 1957 S.C. 444) 235,241,293,304

Hrishikesh Banerjee and Ors. v. Sushil Chandra Moulik (A.I.R.

1957, Calcutta 211) 136,144

Hukam Singh v. Banwarilal Bipra (A.I.R. 1965 All. 552) . . 294,310

Inderlal v. Lai Singh and others (A.I.R. 1963 S.C. 1156) . . 104, 113, 114, 161,168

Inayatullah v. Diwanchand (A.I.R. 1959 M. P. 58) . . . 294, 310

2

148

, 14

324

293,

136, 148, 150,

294,

341,

235, 239,,

74, 97, 340,

136,

360,

3

293,

2

340,

196,

294,

•

305

324

322

245

357

14

,241

351

144

3

369

i, 55

305

, 14

351

209

323

i, 57

282

2,39,241,

104,293,

196,293,

112,304,

136,

209,306,

293,

113,305,

144

14

235,360370

304

324

114,311,317

IV

Nagadananda v. Rabindra Na'th (A.I.R. 1958 Calcutta 533) .

Jadumani Mangaraj v. Dinabandhu Sahu and others, (8 E.L.R. 480)

Jagdev Singh v. Pratap Singh (A.I.R. 1964 S.C. 133)

Jagannath v. Jaswant Singh (9 E.L.R. 231) . . . .

Jagdish Singh v. Rudra Dcolal and Ors. (8 E.L.R. 311)

Dr. Jagjit Singh v. Giani Kartar Singh (A.I.R. 1966 S.C. 773)

Jnanendra Nath Ghose v. The State of West Bengal (A.I.R. 1959S.C. 1199) 235,264

Jonalagadda Ramalingayya and others v. Emperor (A.I.R. 1936Mad. 835)

Kagubai Apmal v. B. Sharma Rao and Ors. (1956 S.V. 533) .

B. Kala Ram S. Bhag Singh v. Royal Bari Khan and others (A.I.R.1941 Peshawar 38)

Kamaraja Nadar v. Kunju Thevar and Ors. (14 E.L.R. 270) . .

Kandaswamy v. S. B. Adityan (19 E.L.R. 260) . . .

Karan Singh v. Jamuna Singh (15 E.L.R. 370) . . .

Kartaria Takandas Hemraj v. Pinto Frederick Michael, (XVIIE.L.R. 403) 235, 254

Khader Sheriff v. Munnuswamy Gounder and 11 others (G.L.R.208, A.I.R. 1955 S.C. 775)

Kishen Singh v. Bhanwarlal (1966 E.P.L.J. 563) . . . .

Krishna Rao Maharu Patil v. Onkar Narayan Wagh (14E.L.R. 386) .

Krishna Naicker and anr. (In re. I.L.R. 54 Madras 678)

Kultar Singh v. Mukhtiar Singh (A.I.R. 1965 S.C. 141)

Kumara Nand v. Brij Mohan Lai Sharma [1967 2 S.C.R. 127; ILR15 Raj. 322, 2 E.L.R. 126(128) S.C. 808] . . . .

Lakhan Lai Mishra v. Tribeni Kumar and others (3 E.L.R. 423)

Lai Shyam Shah v. B. N. Swami (16 E.L.R. 74) .

Lai Singh v. Vallabhdas (A.I.R. 1967 Gujarat 62)

Liladhar Bania v. M. Abibi and others (A.I.R. 1934, Nag. 44)

235,

136,

293,

340,

360,

341

267

144

321

351

371

104,

161, 183,

74, 95,112,

161,

133,360,

293,

161,

340,360,

104,161,

324,

180,

134,385

305

191

175

351,371

105,167,184

324

336

293

136

V

W.C. Macdonal v. Fred Latiner (A.I.R. 1929 P.C. 15) . . . 235,244

Magan Lai Bagdi v. Hari Vishnu Kamath (15 E.L.R. 205) . . 235, 239, 253

Mahadev v. Babu Udaya Pratap Singh (A.I.R. 1966 S.C. 824) . 213, 220, 222, 233324

Mohan Singh v. Bhanwarlal and others (1964 S.C. 1366) . . 74, 97, 135, 237,249, 340, 351

Manikchaiid i>. Krishnan (A.I.R. 1932 Nag. 117) . . . 136,144

Mahabir Singh v. Rohin Ramaniadhwaj Prasad Singh, (A.I.R.

1961 S.S. 1277) 136

Martin Burn Ltd. v. B.N. Bannerjee (A.I.R. 1958, S.C. 79) . . 294,318

Masalti v. State of Uttar Pradesh (A.I.R. 1965 S.C. 202) . . 161

S. Meher Singh v. Umrao Singh (A.I.R. 1962 Punjab 244) . . 1 0 5 , 1 2 7 , 2 3 5 , 2 3 8 ,249

Dr. Narayan Bhaskar Khare v. Election Commission of

of India (13 E.L.R. 112) 324,337

Narayan Vasudev Phadke v. Emperor (A.I.R. 1940 Bombay 379) 341

Narasimhan v. Natesan Chettiar (20 E.L.R. 1) . . . . 3, 49

Pratap Singh v. The Crown (I.L.R. 7 Lahore 91) . . . 175

Queen v. The Inhabitants of Menilworth (125 E.R. 631) . . 3

Raghunath Singh v. Kampta Prasad (8 E.L.R. 424) . . . 3, 49

Ragunath Misra v. Kishore Chandra Deo Bhanj and ors. (3. E.L.R.

321) 324, 336

Rhedoy v. Koyash [13 W.R. (F. 13)3] 324

Raja Harinder Singh v. S. Karnail Singh and others (12 E.L.R. 321) 105, 126

Raja Janki Na th Roy and ors. v. Jyotish Chandra Acharya (A.I.R.

1941 Cal. 41) . . . . . . . . . • . • 136,147

Raja Raj Dev. v. Gangadhar Mohapttra (A.I.R. 1964, Orissa) . 196, 209

Ram Sewak v. Hussain Kamil Kidwai (A.I.R. 1964 S.C. 1249) . 294, 311

Rameshwar v. The State of Rajasthan (A.I.R. 1965 S.C. 183) . 235, 243, 244, 264

Ram Dayal v. Dant Lai (A.I.R. 1959 S.C. 855) . . . . 161,179

Ramappa v. Sangappa (A.I.R. 1958 S.C. 937) . . . . 3, 55

Ramanbhai v. Dabhi Ajit Kumar (A.I.R. 1965 S.C. 669) . . 2, 38, 340, 335, 370

Ranjit Singh v. Pritam Singh and ors. (A.I.R. 1966 S.C. 1626) . 222, 225, 232

Rattan Amol Singh v. Atma Ram (A.I.R. 1954 S.C. 510) . . 282

Rai Kokilabhai v. Keshavlal Mangaldas and Co. (A.I.R. 1963Madhya Pradesh 316) . . 104

VI

Rattan Singh v. Davinder Singh (7 E.L.R. 234) . . . . 360, 370

Sangappa v. Shivaramamurthy (A.I.R. 1961 Mysore 106) 2, 35

Salig Ram Jaiswa! v. Sheo Kumar and others (9 E.L.R. 67) . . 104, 134

Sarla Devi v. Birender Singh (A.I.R. 1961 M. P. 127) . . 293,304

Satya Prakash v. Bashir Ahmed Qureshi (A.l.R. 1963 MadhyaPradesh 316) 104

Shankar Gowda v. Sirur Veerabhadrappa (A.l.R. 1963 Mys. 18) . 2, 35, 41, 254, 360,

385

Sheopat Singh v. Ram Partap, (A.l.R. 1965 S.C. 677) . . . 104,113

Sheopat Singh v. Harish Chandra and others (A.l.R. 1960 S.C. 1217;

16 E.L.R. 103) 74, 93, 105. 125

Shankar Gowda v. Marylappa and anr. (IX E.L.R. 101) . . 254

Sivaram v. Shivcharan Singh (1964 Doabia's Election Cases 80) . 147

Shiv Shankar Kanodia v. Kapildeo Narain Singh (Election Appeal

No. 4/1965) 282

Shubnath Deogram v. Ram Narain Prasad (A.l.R. 1960 S.C. 148) . 370

Soowalal v. P.K. Chaudhury and ors. (21 E.L.R. 137) . . . 324

Siddik Mohammad Shah v. Mt. Saran (A.l.R. 1930 P.C. 57) . 235, 266, 267

Subba Rao v. Venkataramarao (A.l.R. 1964 A.P. 53) . . . 136, 144

Subba Rao v. Member Election Tribunal Hyderabad and others(A.l.R. 1964 S.C. 1027) 293,320

M/s. Tata Iron and Stee! Co. Ltd. v. Abdul Watar (A.l.R. 1966Patna 458) 136

Union of India v. Pandurang Kashinath More (A.l.R. 1962

S.C. 630) . 293, 305

Udainath Singh v. Jagat Bahadur Singh and others (5 E.L.R. 199) . 324, 336

Venkataramanuja v. Appalacharyulu (A.l.R. 1926 Madras 1003) . 3

N.T. Veluswami Theavar v. Raja Nainar and ors. (A.l.R. 1959S.C. 422) 136,149

Vidyacharan Shukla v. G.P. Tiwari, Dist. Judge, Member Electiontribunal and ors. (1963 M.P.L.J. 688) 294, 323

The Vigan Case. (Reports of Election Petitions in Great Britain andIreland Vol. IV 11) 340

Yugal Kishore Sinha v. Nagendra Prasad Yadow, (1965 Dabia's

Election Cases No. 30/236) 104,119

K.G. Zahidi v. State (1964 Allahabad Law Journal Vol. 62, 545) . 340

Zamindar Newspaper Lahore, (In re. A.l.R. 1934 Lahore 219) . 341

IN THE HIGH COURT OF MYSORE

SHIVAMURTHISWAMY SIDDAPPAYASWAMY 1NAMDARv.

AGADI SANGANNA ANDANAPPA

(NARAYANA PAI, J.)

December 1, 4, 5, 6, 1967

Election Petitions Nos. 3 and 6 of 1967Representation of the People Act, 1951—Corrupt Practice—Section

123(1 )(3>)(1)—Office of Profit—Patwaris—If excluded from the opera-lion of section 123(7)—Mysore Village Offices Abolition Act, 1961—Watandar if office of profit—Evidence—Persons alleged to have com-mitted corrupt practice—If can be compelled to give evidence—ReligiousSymbol—'OM' if religious symbol—Section 123(3)—"his religion"meaning of—Evidence Act s. 65(a)—"Person legally bound," mean-ing of—"Post under the government," meaning of— Contract enteredinto by Cooperative Society and if could be deemed to be contractfor member of society.

The petitioner challenged the election of the respondents S an d P enthe grounds (/) they incurred disqualifications under section 9A of the Re-presentation of the People Act by reason of their occupying certain positionswhich were offices of profit or by reason of certain subsisting contractsbetween them and the appropriate government and (ii) they were guilty ofcorrupt practices under section 123(1)(3) and (7) of the Act. S was said tobe disqualified under Article 102 of the Constitution by reason of his havingbeen, inter alia, a member of the Mysore State Khadi and Village IndustriesBoard and Chairman of the Taluk Agricultural Produce Marketing Co-operative Society; a certain contract said to have been subsisting on therelevant date between the said society arid the Central government was alsosaid to operate to disqualify him for being chosen, as a member of the LokSabha, under s. 9A of the Act. P was said to have been on the relevant datea Watandar Police Pa til and therefore disqualified under Article 191 of theConstitution for being chosen as a member of the Mysore LegislativeAssembly. In regard to the corrupt practice under subs. (7) of s. 123,the allegation was that S obtained or procured the assistance of not merelyP who was a Watandar Police Patil but also of certain others and that Palso obtained or procured such assistance. Dismissing the petitions,

HELD:

(0 Patwaris are revenue officers excluded from the operation of section123(7) of the Representation of the People Act. The ultimate policy adoptedby Parliament through two amendments to the section is to declare that theVillage Officers who should not be permitted to influence elections shouldbe those who discharge police functions. The language employed in the

2 S. S. INAMDAR V. AGADI SANGANNA ANDANAPPA [VOL. XXXIV

clause also takes into account the possibility of same officer discharging boththe police functions and the revenue functions. If he discharges functionsof both the categories then he comes within the mischief of the section :if however he discharges revenue functions but does not discharge anypolice functions he will be excluded from the prohibition of the sectionwhether or not he does any other type of work, so long as such other type ofwork does not in any manner come within the scope of the expression policefunctions.

K. C. Deo Bhary v. Raghunath Misra A.I.R. 1959 S.C. 589; GurmerjSingh v. Pratap Singh, A.I.R. 1960 S.C. 122; referred to.

By operation of the Mysore Village Officers Abolition Act, 1961, what-ever be the right P might have had as a member of the family to eitherMulki Patilki or the Police Patilki of Halkeri village and whatever may bethe incidents or the nature of the title under which the properties cameinto his possession, all those rights and liabilities in respect of the officestood abolished on the coming into force of the Mysore Village OfficesAbolition Act, 1961 and the land ceased to be watan land on the same date.P is therefore neither a person in the service of the government within themeaning of section 123(7) of the Representation of the People Act, nordoes he hold any office of profit under the government for the purpose ofArticle 191 of the Constitution.

State ofOrissa v. Ramachandra A.I.R. 1964 S.C. 685; Collector of SouthSatara v. Laxman Mahadev Deshpande A.I.R. 1964 S.C. 326; referred to.

(ii) Whereas the respondents in an election petition or other personscharged with the commission of corrupt 'practice have the normal libertyof all persons so charged of giving evidence on oath to exculpate themselves,they cannot be compelled to give evidence by the petitioners themselvesciting them as witnesses.

(Hi) The picture on the cover of the pamphlet indicating that the earthitself is represented as the Linga of Siva, emanating from the sacred letter'OM' cannot be regarded a religious symbol.

Jagdev Singh v. Par tap Singh A . I . R . 1965 SC 183; Ramanbhai v.Dabhi Ajit Kumar A. I. R. 1965 SC 669; Sangppa v. ShivarammurthyA.I.R. 1961 Mys. 106; Samkara Gouda v. Sirur Veerabadrappa A.I.R.1963 Mys 18; referred to.

(iv) While it is true that the corrupt practice of religious appeal being aspecies of undue influence is necessarily an attempt to move a roter ongrounds of religion and that such moving of the voter is possible only ifhis feelings are moved, and that therefore the religion or the religious feelingsof the voter is an essential feature or factor in the corrupt practice, it is notpossible to accept the suggestion that the religion or the religious descriptionwhich can be given to the conduct and practice of a candidate is an irrelevantfact. Because the appeal is for casting of votes in favour of the candidate,one has to take into account both sides of the appeal.

E.L.R.] S. S. 1NAMDAR V. AGADI SANGANNA ANDANAPPA 3

(v) A witness summoned to produce a document is not a person legallybound to produce it within the meaning of clause (a) of s. 65 of the Evi-dence Act. Regarding the party himself tendering evidence referred to inclause (c) the document in question need not necessarily be a documentin his custody. It may either be in the custody of somebody else andwithin his power, or not within power, to produce without the assistance ofthe Court. When the existence of an original is made out but the partytendering evidence is not in a position to produce the same it need not beinsisted upon that the proof of the circumstances entitling him to producesecondary evidence should be absolutely strict or on the basis of strictlylegal evidence,

Gaya Prasad v. Jaswant Rai A.I.R. 1930 All. 550; Venkataramanuja\.AppaJacharyidu A.I.R. 1926 Mad. 1003; Queen v. The Inhabitants of MendWorth 125 E.R. 631; referred to.

(vi) Before a person can be held to an admission the* whole of the admis-sion as well as the circumstances which might explain its meaning shouldalso be taken into account, especially when on the strength of such admissionhe is proposed to be held guilty of a corrupt practice.

20 E.L.R. 1; Raghunath Singh v. Rampta Prasad 8 E.L.R. 424; Nara-simhan v. Watesan Chettiar 20 E.L.R.; referred to.

(vii) An appointment by the government is an essential condition for apost said to be under the government. The word "under" need not neces-sarily indicate or give the idea of total subordination as in the case of personsin actual service of the government. The word, therefore, in the contextof the election law and the objects or the purpose with which the disqualifi-cation is declared by the Constitution itself, must be held to indicate that thegood grace of the executive government is the thing that is considered todisqualify the person from being a member of the legislative body. Theprofits of the office are a subsequent consideration or a consequential benefit.

Raxanna Subanna v. Kaggeemppa A.I.R. 1954 S.C. 653; Abdul Shakurv. Rikhat Chand A.I.R. 1958 S.C. 52; Ramappa v. Sangappa A.I.R. 1958S.C. 937; Gobinda Basu v. Sankri Prasad A.I.R. 1964 S.C 254; Hansa Jee-vraj Mehta v. Indubhai Amin 1 E.L.R. 171.

The position of the Chairman of a Cooperative Society, under the MysoreCooperative Societies Act. is not a post under the government.

(v/7/) A contract to which a Cooperative Society is a party cannot beregarded as a contract to which any member thereof is individually a party.A Cooperative Society is an incorporated body with a legal personalityquite different from that of the members holding shares therein. The factthat an office-bearer of a Corporation becomes entitled to a payment byway of remuneration or otherwise by virtue of a provision contained in thearticles or the bye-laws governing the administration of the corporationdoes not bring about a contract between him and every one of the membersor shareholders of that corporation.

4 S. S. INAMDAR V. AGADI SANGANNA ANDANAPPA [VOL. XXXIV

In the present case no contract which would bring about a disqualificationunder section 9A of the Act had been proved to exist or subsist on the rele-vant date.

(ix) Though by virtue of appointment control and the right of removalvesting in the government, the membership of the Mysore Khadi and VillageIndustries Board would be a post under the government and also a post ofprofit because allowances are attached thereto, the disqualification conse-quent upon holding such post is prevented from operating by ParliamentPrevention of Disqualifications Act, 1959.

Election Petitions Nos. 3 & 6 of 1967.

B. S. Patil and Smt. Pramila, Advocates for the Petitioner.

D. Venugopala Chad, K. A. Swamy and S. Shivaswamy. Advocates forthe Respondent.

ORDER

NARAYANA PAI, J.—Both these Election Petitions arise out ofthe General Elections held in January-February 1967. Election Petition3 of 1967 relates to the election to the Lok Sabha from the Koppal Parlia-mentary Constituency. That constituency comprises eight Mysore As-sembly constituencies, viz., Yelburga, Koppal, Kushtagi, Gangavathi andSindhanoor of Raichur District, Hospet and Hadagali of Bellary District,and Mundargi of Dharwar District. Election Petition 6 of 1967 relatesto the election to the Mysore Legislative Assembly from the YelburgaConstituency.

2. In the Koppal Parliamentary Constituency, the contesting candidat-es were Shivamurthy Swami and Agadi Sanganna, the petitioner and therespondent respectively, in Election Petition 3 of 1967. In the YelburgaAssembly Constituency the contesting candidates were Sirur Veerabha-drappa, the petitioner and Chanbasangouda Hanmanthagouda Patil andArifuddin Khaji, respondents 1 and 2 respectively, in Election Petition 6of 1967.

3. The notification calling for election was published on 13th January,1967; 19th January, 1967 was the last date for presentation of nominations,and the 21st January, 1967 the date fixed for scrutiny of the nominations.Poll was held on 19th February 1967.

4. In the Koppal Parliamentary Constituency, Agadi Sanganna waselected by a majority of 24,602 votes. In the Yelburga Constituency,C.H. Patil was elected by a majority of 10,130 votes over the votes securedby his next immediate rival Sirur Veerabhadrappa, the 2nd respondent,Arifuddin Khaji securing only 742 votes.

5. The petitioners, Sirur Veerabhadrappa and Shivamurtty Swami,belong to a political party called the Lok Seva Sangha, hereinafter referredas the L. S. S. The respondents, Agadi Sanganna and C. H. Patil, belong

E. L. X.] S. S. INAMDAR V. AGADI SANGANNA ANDANAPPA 5

to another political party called the Indian National Congress, hereinafterreferred to as the Congress. They were the official candidates on behalfof their respective parties at these elections.

6. The petitioners assail the election of the respondents Sanganna andPatil on several grounds. The 2nd respondent in Election Petition 6 of1967, though he is represented by counsel and filed a short written state-ment, did not take any active part in the trial. The brief written state-ment filed by him is generally in support of the case of the 1st respondentC. H. Patil. It will not, therefore, be necessary to make any further re-ference to him in this order.

7. I shall refer to the parties either as petitioners or as respondents orby their names. The 1st respondent in Election Petition 6 of 1967 is some-times called Chanbasangouda and sometimes called C. H. Patil in the courseof evidence. Throughout this judgement, I shall refer to him as C. H.Patil.

8. The election of Sanganna and C. H. Patil is attacked by the peti-tioners on similar grounds in these two petitions. Trie persons, whoseactivities are said to affect the validity of the election, are the same in boththe cases with very small exceptions. Most of these persons belong toYelburga Constituency. Bulk of the evidence, therefore, relates to thehappenings in the Yelburga Constituency. Some evidence there is, whichrefers to certain events in Kushtagi and Koppal Constituencies, but thatalso has a bearing on the election of Patil from the Yelburga Constituency.

9. Having regard to these considerations the parties as well as theirlearned counsel agreed that I may record common evidence in ElectionPetition 3 of 1967 and hear common agruments in both the Petitions. Thesame considerations make it convenient to dispose of both these petitionsby the same order. I proceed to do so.

10. The attacks on the election of the respondents fall into two cate-gories, viz.—

(1) disqualifications which the respondents are said to suffer fromby reason of their occupying certain positions said to be officesof profit or by reason of contracts between them and the appro-priate government said to be subsisting on the relevant date; and

(2) certain corrput practices said to have been committed either by therespondents themselves or by other persons with their' consent,in circumstances sufficient to invalidate the election.

11. Agadi Sanganna is said to be disqualified under Article 102 ofthe Constitution for being chosen as a member of the Lok Sabha by rea-sqn of his having been a member of the Mysore State Khadi and VillageIndustries Board, of an Advisory Board of the Thungabhadra IrrigatoinSystem, of the District Development Counsel of Raichur and of the TalukDevelopment Board of the Koppal Taluk, and the Chairman of the KoppalTaluk Agricultural Produce Marketing Co-operative Society. ' A certaincontract said to have been subsisting on the relevant date between the said

6 S. S. INAMDAR )'. AGADI SANGANNA ANDANAPPA [VOL. XXXIV

Society and the Central Government is also said to operate to disqualifyhim for being chosen as a member of the Lok Sabha under Section 9-Aof the Representation of the People Act.

12. C. H. Patil is said to have been on the relevant date a WatandarPolice Patil and Mulki Patil of Halkeri village in Ron Taluk and there-fore disqualified under Article 191 of the Constitution for being chosenas a member of the Mysore Legislative Assembly. It is also said that therewas subsisting on the relevant date a particular contract between himand the State Government of Mysore in relation to the construction of aroad between Yerehanchinahal and Mudhol in Yelburga Taluk whichis said to operate to disqualify him for being chosen as a member of theMysore legislative Assembly under Section 9-A of the Representationof the People Act.

13. The corrupt practices alleged against both of them are those undersub-sections (3) and (7) of Section 123 of the Representation of the PeopleAct. In addition, C. H. Patil is also said to have been guilty of the corruptpractice of bribery under sub-section (1) of the said section.

14. The corrupt practice under sub-section (3) of Section 123 of theRepresentation of the People Act of securing or attempting to secure votesby appeal to religion or religious symbols is said to have been committedby one Channappagouda Master of Yelburga by composing some songs,printing and publishing them in a booklet called the Congress Tatva Pra-chara Padyavali (string of songs for propagating the principles of the Con-gress), distributing the same in Yelburga Constituency, singing and explain-ing the songs contained therein and explaining the religious significanceof the picture printed on its cover, either in the course of house-to-housecanvassing in Yelburga town or in the course of speeches said to have beendelivered by him in the propaganda meetings held for the benefit of therespondents in Yelburga town and also in certain villages of Yelburga Con-stituency. The publication itself is said to have been made with the con-sent of both Agadi Sanganna and C.H. Patil. By publication is meant notmerely publishing or distributing the book but also oral publication likesinging, speaking about it, etc. One Gadigeppa Desai of Mudhol in Yel-burga Taluk, whose name is printed as publisher on the cover of the Pad-yavali, is described as a person who has lent active support to the respon-dents by canvassing votes for them. Channappagouda Master himselfis said to have been in the position of an agent for purposes of election ofboth Agadi Sanganna and C. H. Patil.

15. In regard to the corrupt practice under sub-section (7) of section123 of the Representation of the People Act, the allegation briefly is thatSanganna obtained or procured the assistance of not merely C. H. Patilwho is himself a Watandar Police Patil of Halkeri but also certain otherpersons, viz., Deshpande said to be the Block Development Officer, Kush-tagi, Devappa of Rampur said to be a Police Patil of Rampur, GururaoDesai of Malekop said to be the pattedar Patwari of several villages in Yel-burga Taluk/ Sekharagouda said to be the pattedar Patwari of Bochena-halli in Kbppal, Kishenrao Vakil said to be the pattedar Police Patil ofKudrikotgi in Yelburga Taluk, Channappagouda of Mannapur said to be

E. L. * . ] S. S. INAMDAR 1>. AGADI SANGANNA ANDANAPPA 7

the Gumsta Patwari of Anagondanakop in Yelburga Taluk and Pun-danagouda said to be the Police Patil of Halkeri village in Ron Taluk,Dharwar District. As against C. H. Patil, the case under this sub-sectionis that he took the assistance of four out of the seven persons mentionedabove, within Yelburga Constituency, viz., Gururao Desai, Kishenrao,Channappagouda and Pundanagouda of Halkeri.

16. Now, C. H. Patil himself is a native of Halkeri village. Thoughhe had been some time in Gadag while attending school, he ultimatelywent over and started residing continuously in Yelburga from the year1959. The aforesaid Pundanagouda and another person called Basan-gouda are his Biradars or agnatic relations. It is the said two persons(Pundanagouda and Basangouda) who are said to have committed thecorrupt practice of bribery. This case of bribery is connected with thecase of disqualification by virtue of the road contract of Yerehanchinahaland Mudhol. It is said that Patil had kept in arrears large amounts ofwages due to road-workers which was a circumstance, according to thepetitioners operating to the prejudice of his prospects at the election in thevillages of Tondihal and Bandihihal to which the road-workers are saidto belong. The case of bribery is that Basangouda and Pundangouda offer-ed to pay or settle the arrears of wages in dispute on the condition thatthe villagers of those two villages agreed to cast their votes in favour ofC. H. Patil.

17. The respondents in their written statements generally deny the fact-ual statements relied upon by the petitioners in their respective petitions.They also raise a legal contention that the songs contained in the Padyavaliof Channappagouda Master do not or may not clearly amount to the cor-rupt practice described under sub-section (3) of Section 123 of the Representa-tion of the People Act. In regard to the case of corrupt practice undersub-section (7) of Section 123, they also raise the legal contention that mostof the persons described as persons in the service of the Government maynot or do not come within the said description for purposes of the saidsub-section.

18. What I have stated above is a complete statement of the essentialpoints in controversy between the parties. As the nature of the contro-versies and the matters in respect of which the said controversies arise areclearly indicated by the issues framed in the cases. I do not consider itnecessary to summarise the pleadings at this stage. The more convenientmethod would be to refer to the details of the pleadings wherever necessaryin the course of the discussion of the evidence and arguments.

19. The issues in Election Petition 3 of 1967 which were amended twiceto rectify certain obvious omissions and mistakes are the following:—

" 1 . Does the petitioner prove that respondent is disqualified underArticle 102 of the Constitution for being chosen as a member ofthe House of the People by reason of his having been at the timeof the election—•

(a) a member of the Mysore State Khadi and Village IndustriesBoard,

2 EC/71—2.

S. S. INAMDAR V. AGADI SANGANNA ANDANAPPA [VOL. XXXIV

(b) the Chairman of the Koppal Taluk Agricultural Produce Co-operative Marketing Society,

(c) a member of an Advisory Board for Thungabhadra IrrigationDevelopment Board, Bangalore,

(d) a member of the District Development Council, Raichur,and

(e) a member of the Taluk Development Board, Koppal.

2. (a) Does the petitioner prove that there was subsisting on thedate relevant for the election a contract between the KoppalTaluka Agricultural Produce Co-operative Marketing SocietyLimited on the one hand and the Central Government on theother ?

(b} If the answer to (a) is in the affirmative, does the subsistenceof the said contract operate as a disqualification under Sec-tion 9-A of the Representation of the People Act disqualify-ing the respondent for being chosen as a member of the Houseof the People ?

3. Whether on the basis of the particulars set out in the petition inrelation to corrupt practices, the respondent is entitled to claimthat no prima facie case has been made out against him and thattherefore no issue on the question of any of the corrput practicescan be even framed in the case ?

Subject to a finding on issue No. 3, the following are theissues framed :

4. (a) Does the petitioner prove that Channappagouda Master ofYelburga printed and published in Yelburga Constituency,a booklet called 'Congress Tatva Prachara Padyavali', andif so, does he further prove that he published the same withthe consent of the respondent or his election agent ?

(b) Does the petitioner prove that the said ChannappagoudaMaster acted as an agent of the respondent for the purposeof election ?

5. Do the facts proved by the petitioner under issue 4 establish thecommission of corrupt practice under section 123(3) of theRepresentation of the People Act invalidating the election ofthe respondent ?

6. Does the petitioner prove that the following persons enumerated inthe petition are persons in the service of Government within themeaning of Section 123 of the Representation of the People Act ?

(1) Deshpande said to be a Block Development Officer, Kush-tagi;

E. L. R.] S. S. INAMDAR V. AGADI SANGANNA ANDANAPPA 9

(2) Channabasangouda Hanmangouda Patil ;

(3) Devappa of Rampur said to be the Police Patil of Rampur inKushtagi Taluka ;

(4) Gururayagouda alias Gururaogouda Desai of Malekop,Yelburga taluk, said to be the pattedar Patwari of Yerehan-chinahal and other villages;

(5) Sekharagouda said to be the pattedarp atwari of Bochenahalli ;

(6) Kishenrao Vakil said to be the Police Patil of Kudrikotgi ;

(7) Channappagouda of Mannapur said to be the Gumasta Patwariof Anagondankop; and

(8) Pundangouda, said to be the Police Patil of Halikeri in RonTaluka.

7. (a) Does the petitioner prove that the persons mentioned in issue6 canvassed votes for the respondent at the election ?

(b) Does the petitioner further prove that Sekharagouda also act-ed as a counting agent of the respondent ?

8. Do the facts proved by the petitioner under issue 7 establish thecommission of corrupt practice under Section 123(7) of theRepresentation of the People Act invalidating the election of therespondent ?

9. Is the petitioner entitled to an order declaring the election of therespondent void ?

10. Is the petitioner entitled to a declaration that he has been validlyelected at the election ?"

20. The issues in Election Petition 6 of 1967 are the following :

"1 . Does the petitioner prove that the respondent was on the date re-levant to the election a Watandar Police Patil and Mulki Patil ofHalkeri village, Ron Taluka ?

2. If the answer to issue No. 1 is in the affirmative, is the respondentfor the said reason disqualified under Article 191 of the Constitu-tion for being chosen as a member of the Mysore LegislativeAssembly ?

3. Does the petitioner prove that there was subsisting on the date re-levant to the election a contract between the respondent and theState Government of Mysore in relation to Yerehanchinal MudholRoad?

4. If the answer to issue No. 3 is in the affirmative, is the respondentdisqualified under Section 9-A of the Representation of the People

10 S. S. INAMDAR V. AGADI SANGANNA ANDANAPPA [VOL. XXXIV

Act for being chosen as a member of the Mysore LegislativeAssembly ?

5. Whether on the basis of the particulars set out in the petition in re-lation to corrupt practices, the respondent is entitled to claim thatno prima facie case has been made out against him and that there-fore no issue on the question of any of the corrupt practices allegedcan be even framed in the case ?

6. (a) Does the petitioner prove that the following persons were onthe date relevant to the election persons in the service of theState Government of Mysore ?

(1) Gururayogouda alias Gururaogouda Desai of Malekopsaid to be the pattedar Patwari of Yerehanchinal, Binnal,Malekop, etc.

(2) Kishenrao Vakil of Yelburga said to be the Police Patilof Kudrikotgi ;

(3) Channappagouda of Mannapur said to be the GumastaPatwari of Anagondanakop; and

(4) Pundanagouda said to be the Police Patil of Halkeri vil-lage in Ron Taluka ?

(b) Does he prove that the persons named above canvasse votefor the respondent at the election ?

(c) Does he further prove that they did so with the consent ofeither the respondent or his election agent ?

7. Do the facts proved by the petitioner under issue 6 establishthe commission of corrupt practice under Section 123(7) of theRepresentation of the People Act invalidating the election of therespondent ?

8. (a) Does the petitioner prove that Channappagouda Master ofYelburga printed and published in the Yelburga Constituencyof booklet called 'Congress Tatva Prachara Padyavali' andif so, does he further prove that he published the same withthe consent of the respondent or his election agent ?

(b) Does the petitioner prove that the said Channappagouda Mas-ter acted as an agent of the respondent for the purpose of elec-tion ?

9. Do the facts proved by the petitioner under issue 8 establish thecommission of corrupt practice under section 123 (3) of the Re-presentation the People Act invalidating the election of the re-spondent ?

10. Does the petitioner prove the circumstances set out in paragraphIII (D) of the petition and that therefore in the said circumstances

E. L. R.] S. S. INAMDAR V. AGADI SANGANNA ANDANAPPA 11

the respondent had been guilty of the corrupt practice of briberywithin the meaning of section 123(1) of the Representation of thePeople Act ?

11. Is the petitioner entitled to an order declaring that the election of therespondent is void ?"

21. Issue No. 3 in election petition 3 of 1967 and issue No. 5 in ElectionPetition 6 of 1967 were taken up for consideration as preliminary issues.By my orders dated 29th June, 1967, these issues were disposed of. Theorder in Election Petition 3 of 1967 is exhaustive of all the arguments ad-dressed on these issues on behalf of the parties before me. It is not there-fore necessary once again to discuss these issues now. The findings record-ed by me are against the respondents could not claim that no prima faciecase at all arose and that no issues at all could be framed on the meritsof the case of corrupt practices.

22. So for as the case of disqualification is concerned, particularly thedisqualification relating to or arising out of the holding of positions saidto be offices of profit by the respondents, most of the facts are beyond con-troversy. They are either admitted or are disclosed by indisputable documentsas well as statutory rules. The evidence therefore in relation to issues onthat point is merely in the nature of formal evidence intended apparentlyto place on record or bring on record all relevant facts.

•man

23. Bulk of the evidence relates to the corrupt practices of religiousappeal, obtaining the assistance of certain officers in the service of Govern-ment and of bribery. As already stated, the majority of persons, to whoseactivities the said evidence relates, belong to Yelburga Constituency. Bulkof the evidence is directed towards establishing the connection betweenthe activities of certain persons and the respondents—successful candidateswith a view to make out a case for invalidating their elections.

24. On the corrupt practice of religious appeal, the central figure is Chan-nappagouda Master of Yelburga. The case, so far as the other corruptpractice of securing the assistance of officers in the service of Governmentis concerned, is generally that they canvassed for votes. Both Channa-ppagouda Master and those officers are sought to be connected with therespondents largely by evidence of several propaganda meetings in whichthey are said to have participated. Bulk of evidence relates to these meet-ings and that evidence is common to the case of both the corrupt practices.In addition, C. H. Patil is sought to be connected with ChannappagoudaMaster by connecting him directly with the printing and publication ofPadyavali. A similar attempt to connect him with Pundangouda is throughthe evidence relating to the case of bribery. So far as Sanganna himselfis concerned, the connection between him and the happenings or eventsin the Yelburga Constituency is sought to be established on the basis ofthe propaganda methods pursued by the Congress as a party in consequencewhereof C. H. Patil conducted his propaganda .not only for his benefitbut for the benefit of Sanganna also.

25. Having regard to the above features of the petitioners' case andthe evidence adduced by them, and the obvious manner in which their case

12 S. S. INAMDAR V. AGADI SANGANNA ANDANAPPA [VOL. XXXIV

is sought to be developed by such evidence, it appears to me that th e mostconvenient way to discuss the evidence and the arguments would be todiscuss the topics in the following order :—

(I) The status of certain persons for purposes of sub-section (7)of Section 123 of the Representation of the People Act,—coveredby issue No, 6 in Election Petition 3 of 1967 and issue No. 6 (a)and issues 1 and 2 in Election Petition 6 of 1967;

(II) The Yarehanchinahal-Mudhol Road contract of C. H. Pati! andthe case of bribery,—covered by issues 3 and 4 and 10 in ElectionPetition 6 of 1967;

(III) Activities of Channappagouda Master covered by ssues 4 and5 in Election Petition 3 of 1967 and issues 8 and 9 in ElectionPetition 6 of 1967. This topic will cover bulk of the evidencerelating to the Padyavali, propaganda meetings, propagandapamphlets, theory of agency, etc.

(IV) The corrupt practice of obtaining the assistance of the personsin the service of Government,—covered by issues 7 and 8 in Elec-tion Petition 3 of 1967 and issues 6(h), 6(r) and 7 in ElectionPetition 6 of 1967.

(V) Disqualifications of Sanganna by reason of his holding officessaid to be offices of profits and by reason of a contract alleg ed tobe subsisting with the Central Government,—covered by issues1 and 2 in Election Petition 3 of 1967.

26. Taking up the first' topic, we may at once exclude from considerationtwo persons named in issue No. 6, viz,, Deshpande, Block DevelopmentOfficer of Kushtagi and Devappa of Rampur said to be the Police Patilof Rampur. There is no evidence either about the status or activities ofthese two persons.

27. The question whether the rest of the persons or which of them wouldcome within the purview of sub-section (7) of Section 123 has to be decid-ed on an interpretation of the said provision.

28. The provisions of law relating to this topic has undergone twoamendments,—one in 1956 and the other in 1958. In the Act as originallyenacted in Section 123(8) which read as follows :—

"(8) The obtaining or procuring or abetting or attempting to obtainor procure by a candidate or his agent or, by any other personwith the connivance of a candidate or his agent, any assistance forthe furtherance of the prospects of the candidate's election fromany person serving under the Government of India or the Govern-ment of any State other than the giving of vote by such person.

Explanation.—For the purposes of this clause—

(a) a person serving under the Government of India shall notinclude any person who has been declared by the

E. L. R.] S. S. INAMDAR V. AGADI SANGANNA ANDANAPPA 13

Central Government to be a person to whom the provisions ofthis clause shall not apply ;

(b) a person serving under the Government of any State shallinclude a patwari, chaukidar, dafedar, ziledar, shanbagh, kar-nam, talati talari, patil, village munsiff, village headmanor any other village officer, by whatever name he is called,employed in that State, whether the office he holds is a whole-time office or not, but shall not include any person (other thanany such village officer as aforesaid) who has been declaredby the State Government to be a person to whom the provi-sions of this clause shall not apply."

29. In the course of the amendment of 1956, the topic got shifted tosub-section (7). The sub-section as re-enacted read as follows:—

"(7) The obtaining or procuring or abetting or attempting to obtainor procure by a candidate or his agent or, by any other person,any assistance (other than the giving of vote) for the furtheranceof the prospects of that candidate's election, from any person inthe service of the Government and belonging to any of the follow-ing classes, namely:—

(g\ * * # *

(/,) * * * *

(C\ * * * *

(d) * * * . *(g\ * * * *

(/) revenue officers including village accountants, such as, patwaries,Iekhpals, talatis, karnams and the like but excluding othervillage officers;

(g) * * * *

The rest of the sub-section is not material for our present purpose.

30. The said sub-section (7) was further amended in 1958. The sub-section so amended is the section which applies to the present cases. Therelevant portion thereof reads as follows :—

"(7) The obtaining or procuring or abetting to obtain or procure by acandidate or his agent or, by any other person, with the consentof a candidate or his election agent, any assistance (other than thegiving of vote) for the furtherence of the prospects of that candi-date's election, from any person in the service of the Governmentand belonging to any of the following classes, namely:—(a) * * •* *

(*)

toid)

to

****

****

***

14 S. S. INAMDAR V. AGADI SANGANNA ANDANAPPA [VOL. XXXIV

(/) revenue officers other than village revenue officers known aslambardars, malguzars, patels1, deshmukhs or by any othername, whose duty is to collect land revenue and who are remu-nerated by a share of, or commission on, the amount of landrevenue collected by them but who do not discharge any policefunctions;

(g) * * * *

31. In interpreting this provision of law and in examining the questionwhether and if so, which of the persons named in issue 6 in Election Peti-tion 3 of 1967 will come within the purview of the said sub-section, con-siderable assistance is available in two rulings of the Supreme Court re-ported in K. C. DEO BHANJ v. RAGHVNATH MISRA A.I.R. 1959 S.C. 589, and S. GURMEJ SINGH v. PRATAP SINGH A. I. R. 1960 S. C.122. The first case pointed out the difference between the old-sub-section (8)and new sub-section (7) of Section 123 of the Representation of the PeopleAct. The second case contains a detailed discussion of the said sub-sec-tion (7) as it stood after the 1956 amendment. There is also a brief referenceto the sub-section as amended in 1958.

32. It will be seen that Parliament has from time to time changed itspolicy as to the question whether and if so, which of the village revenue offi-cers should be brought within the scope of persons who should be pro-hibited from influencing elections. Throughout in the clause with whichwe are now concerned, the officers taken up for consideration are revenueofficers of a village. In the case reported in A. I. R. 1960 S. C. 122, it ispointed out that the genus considered or dealt with in clause (f) is the largeclass of revenue officers and that the village officers included within thatclass as well as those excluded therefrom are both revenue officers. It is alsopointed out that a revenue officer is one who is employed in the businessof revenue and that the term is comprehensive enough to take in all suchrevenue officers in the chain of heirarchy in the revenue administration ofa State. The sub-section as it stood after the amendment of 1956 took within the mischief of the law a species of village officers called the village acc-ountants and gave by way of illustrations several names by whichsuch village accountant was known in different parts of the country. Pat-wari is one of them. The clear effect of the decision of the Supreme Courtis that the patwari is a revenue officer. After a reference to Baden-Powell'sbook "Land Systems of British India", it is pointed out that throughoutthe different parts of India, a patwari or an officer of that category generallymaintains certain village accounts relating to lands or population of thevillage.

33. In the sub-section as it now stands, the position is stated more bya description of the duties and remuneration than by an enumeration ofnames. Under the sub-section as it now stands, all village revenue officers,by whatever name called, will stand excluded from the operation of the clauseif their duty is to collect land revenue and if they are remunerated by a shareof or commission on the amount of land revenue collected by them, and ifthey do not discharge any police functions.

34. Now among the persons named in issue 6 in Election Petition3 of 1967, three persons are patwaris, Gururao Desai of Malekop, Sekhara-

E. L. R.] S. S. INAMDAR V. AGADI SANGANNA ANDANAPPA 15

gouda of Bochenalli, both of whom are paltedar patwaris, and Channapp-agouda of Mannapur who is the gumasta patwari of Anagondanakop.

35. That patwaris are revenue officers admits of no doubt for the rea-sons already explained. The question is whether they come within theexcluded category of village revenue officers under clause (/) of Section123(7). This has to be examined from two points of view,—(1) from thenature of duties performed by them and (2) the manner is which they areremunerated therefor.

36. On the first question, there is no doubt that collection of land re-venue is part of their duty. They also maintain certain village records.The argument on behalf of the petitioners addressed by Mr. B. S. Patil isthat the bulk of their work is of a nature other than or different from thework of collecting the land revenue. He does not, of course, say that actualphysical collection of land revenue is what is meant by the section. It isalso correct to say that the wording of the section cannot be limited to act-ual physical collection of land revenue. But Mr. Patil's argument is thatif we have regard for some of the names actually given in the clause, viz.,lambardars, mulguzars, patels and deshmukhs, the idea suggested is thatthe duty or at any rate major portion of the duty of the officers should re-late to the actual collection of land revenue. It appears to me that thiswould be too narrow an interpretation to place on the language employedin the section. The statute is dealing with a class of village officers wellknown for generations in India. It is also well known that the main orprincipal purposes of the Government served by the village officers are landrevenue collection and law and order. The organization of the village hasalways centered round two categories of officers those performing or dis-charging revenue duties and those performing police duties. For the pur-pose of security or better exercise of local control, Kings and Governmentsof various generations had chosen to select men from local families of con-siderable influence which in the course of time tended to create the systemof hereditary village offices. According to the history of each village, suchoffices might be limited to same family or two offices might be held by twodifferent families.

37. From what is stated above, it appears to me that the ultimate policyadopted by Parliament through two amendments is to declare that the vill-age officers who should not be permitted to influence elections should bethose who discharge police functions. The language employed " in theclause also takes into account the possibility of same officer dischargingboth the police functions and the revenue functions. If he dischargesfunctions of both the categories, then he comes within the mischief of thesection; if, however, he discharges revenue functions but does not dischargeany police functions, he will be excluded from the prohibition of the sec-tion, whether or not he does any other type of work, so long as such othertype of work does not in any manner come within the scope of the expres-sion 'police functions'.

38. I am therefore of the opinion that a patwari is and can rightly bedescribed as a village revenue officer whose duty is collecting land revenue.

16 S. S. INAMDAR V. AGADI SANGANNA ANDANAPPA [VOL. XXXIV

39. The next question is whether the three patwaris, with whom we arenot Concerned, are remunerated in any manner other than or in additionto payment of a share of the land revenue collected.

40. On this point, a difference in the approach was made by Mr. Patilbetween pattedar patwaris and non-pattedar patwaris. He originallysuggested that a pattedar who is a holder of hereditary office in Hyderabadarea was generally a person to whom land was invariably assigned by wayof remuneration or part payment of remuneration. After further investiga-tion into the legal position, he stated that such may not be the invariablelegal position but that it would be a question of fact in each case whethera pattedar village officer in Hyderabad area has or has not any land assign-ed by way of remuneration of his office. We have a rule in Dastur-e-Delhito the effect that whichever village officer has land assigned to him by wayof remuneration is not entitled to receive a share of land revenue or per-centage of land revenue technically called scale. Hence, if it be shown thata particular officer receives a scales we might infer that he does not haveany land assigned to him.

41. In the case of Gururao Desai, we have Potgi Taktas produces orproved by R. W. 1 Ramachandra, Tahsildar of Yelburga. They aremarked Exs. P-79 to P-86. These Taktas show that Gururao Desai receiv-es a scale. He has a gumasta patwari in various villages in respect ofwhich he is pattedar; and according to one of the circulars of Nizam's Govern-ment, the gumasta gets two thirds and the pattedar retains one-third. Thereis therefore sufficient basis in the case of Gururao Desai for a firm inferencethat he has land assigned to him.

42. In the case of Sekharagouda, we have no such clear evidence; butbecause of the probability that such officers are generally remunerated bya scale and also because the burden of proving whether he is a person inthe service of Government within the meaning of Section 123 (7) of the Re-presentation of the, People Act is on the petitioners, it has to be held thatSekharagouda is not shown to be such an officer.

43. Regarding Channappagouda of Mannapur, he is admittedly agumasta. There is not therefore a case for even a suggestion that someland might have been assigned to him. Gumasta is undoubtedly a sub-stitute selected by the pattedar for performing his functions.

• • •

44. For these reasons, it has to be held that the three patwaris namely,Gururao Desai of Malekop, Sekharagouda of Mannapur, are revenueofficers excluded from the operation of Section 123(7) of the Represen-tation of the People Act.

45. Of the remaining persons, Pundangouda is admittedly a policepatel. C. H. Patil has deposed that from about the year 1952-53, afterthe death of Venkangouda, Pundangouda has been and continues to bethe Police Patel of Halkeri village in Ron Taluk, Dharwar District.

46. There ramain two persons for consideration, Kishnrao Vakilof Yelburga and C. H. Patil himself.

E. L. R.I S. S. INAMDAR V. AGADI SANGANNA ANDANAPPA 17

47. Kishanrao Vaki! is said to be the pattedar Police Patel of Kudri-kotgi in Yelburga. A document purporting to be a copy of a certificatesaid to have been issued by the Tahsildar of Yelburga to Shirur Veerabha-drappa, was produced and has been marked as Ex. P.-75. That docu-ment is however a statement of fact either within the knowledge of certify-ing Tahsildar or gathered by him from official records available to him.The certifying Tahsildar himself being a living person and as he has notgiven evidence, I do not think that the certificate, by itself, can be regardedas having any evidentiary value.

48. There is however acceptable oral evidence going to prove thatKishanrao Vakil was at one time and probably still is in the eye of the lawa Pattedar Police Patel. The first witness for the respondent, the presentTahsildar of Yelburga himself deposes that kishanrao Vakil is such a Patte-dar Police Patel. Kishanrao's son Venkatrao examined as R. W. No. 2also deposes that hereditary Police Patilki of Kudrikotgi had been withtheir family for some generations. According to him, it was also a sub-ject of partition between Krishanrao and his brothers.

49. We can, therefore, proceed safely on the footing that the familyof Kishanrao did have the hereditary Police Patilki right in Kudrikotgiand that, if the evidence of Venkatrao can be accepted and there is no rea-son why I should not do so, the said Police Patilki came to the share ofKishanrao himself at a partition between him and his brothers Muraharraoand Jagannathrao.

50. The respondents, however, have an altern ativa theory in regard tothis Kishanrao's rights in relation to Kudrikotgi village. They say thathe held Maqta or royal grant or Inam in respect of Kudrikotgi and thataccording to the law governing village administration in Hyderabad State,a Maqtedar of the type of Kishanrao had the right of appointing villageofficers to the village in respect of which he was Maqtedar. The furthercase of the respondents is that in exercise of the said power, as Maqtedar,Kishanrao had appointed his son Venkatrao R. W. No. 2 as Police Patelof Kudrikotgi as long ago as in 1948.

51. Apparently with a view to establish this part of their case, repondentsgot summoned through court the production by Tahsildar of Yelburgaof documents evidencing appointment of Venkatarao as Police Patel. Inthe first instance, the Tahsildar of Yelburga sent up to court a paperpurporting to be a certified copy of a Sanad of appointment under whichKishanrao had appointed his son Venkatrao as Police Patel of Kudrikotgi.That is Ex. R-16. Subsequently and in answer to another summons issued tohim, the Tahsildar appeared as a witness in this court and produced a bookcalled a register for noting of Sanads from the records of the Tahsil office.That book is Ex. R.—21. The Tahsildar examined as R. W. 1 deposed thatEx. R. 16 is true copy of a page in the book Ex. R. 21 separately marked asEx. R. 21 (a). Ex. R. 21 (a) itself discloses that what was written thereon wasitself a copy of some original because at the foot of it, there is a cetificationin Urdu "Nakal Durasti Hai".

18 S. S. INAMDAR V. AGADI SANGANNA ANDANAPPA [VOL. XXXIV

52. From what is stated above, it is clear that Ex. R-16 is a copy of acopy and should therefore be kept out of the record. The question whe-ther Ex. R. 21 (a) can be accepted by way of secondary evidence dependsupon whether the party producing it has satisfactorily established the loss ofthe original. Regarding the original, the evidence of Venkatrao, R. W. No. 2is that there was only one original Sanad which was handed over to him byhis father and which he produced before the Tahsil office to be copied inEx. R. 21. His further evidence is that in the course of heavy rains about4-5 years ago, a portion of his residential house wherein his original Sanadwas kept collapsed and that the original was therefore lost. The Tahsildarof Yelburga, R.W. No. 1, speaking on the strength of his experienceabout the Official practice stated that in cases of this type, there wouldordinarily be two originals: One given to the appointee himself and the othersent to the office of the Talukdar, the Tahsil office merely maintaining acopy in a book of the type of Ex. R. 21. Now, during the days of Nizam'sGovernment, Yelburga and Koppal were within the jurisdiction of oneofficer called Talukdar with headquarters at Koppal. Hence, in the lightof evidence of R. W. No. 1, one of the originals of the Sanad of appoint-ment may reasonably be expected to be among the papers of the said Taluk-dar. Upon the assumption that the papers of the said office were madeover to the custody of an officer now called Assistant Commissioner,Koppal, R. W. No. 1 says that he wrote to him for papers included ina file bearing No. 10 of 1356 Pasli which number he obtained from Ex. R.21 (a). R. W. No. 1 deposes that in reply, the Assistant Commissionertold him that the file was not traceable.

53. The question is whether the above correspondence between theTahsildar and the Assistant Commissioner, Koppal, which the Tahsildarsays he felt obliged to enter into in view of the summons received from thiscourt and the deposition of Venkatrao to the effect that the original in hispossession was washed off in the heavy rains, furnish sufficient ground tothe respondent to claim the benefit of producing secondary evidence ofthe original.

54. I do. not think that I need go into this matter at any length or evenexamine the several arguments as to the legal effect of the language em-ployed in the Sanad because the matter can be more satisfactorily disposedof on other facts appearing from the evidence.

55. Now the case of the respondent is that the appointment of Ven-katrao as Police Patel was made by Kishanrao in exercise of his powers asMaqtedar. Now, the relevant provisions of Dastur-e-Delhi indicate thatsuch powers are ordinarily attached to maqtas following upon a Kowl grant-ed for the purpose of converting Becharak villages into fertile and popu-lous villages. In olden days, Nizam's Government used to grant kowlsor long term leases or leases of specified terms to persons who undertookto bring under cultivation and population forest areas or Becharakwith the stipulation that they should within a particular period bring cer-tain amount of land under cultivation and see to it that at least 40 housesare constructed. If, at the end of such a period of the Kowl, the Kowla-dar succeeded in satisfying these conditions, the Nizam's Governmentgranted the village by way of Maqta, or royal grant (Maqta means a portioncut out of the royal estate and granted to the subject of the Government).

E. L. R.] S. S. INAMDAR V. AGADI SANGANNA ANDANAPPA 19

Upto the time the village has about 40 houses, the responsibility of main-taining law and order was mainly that of the Maqtedar and even the Taluk-dar had no right to interfere. When a Maqta is actually granted, the Nizam'sGovernment either confer upon the Maqtedar himself the right of Patelki(right of village officer) or give him the power to appoint village officersto th; village. Maqta being a grant, it would clearly b; in the nature ofa heritable estate.

56. The evidence of Venkatrao, R. W. No. 2 is to the effect that inthe partition between his father Kishanrao and his brothers, the hereditaryMulki and Police Patilki of the village was the subject of partition and thatMulki Patilki was allotted to the branch of Muraharrao and the PolicePatilki to the branch of Kishanrao. The further evidence of Ven-katrao is that the Maqta in the purported exercise of the rights attachingto which he was appointed as Police Patel by his father, as a Maqta grant-ed for the first time to Muraharro, the elder brother of Kishanrao, Ven-katrao states that Muraharrao, died about 30 years ago and that becausehis son at the time was an infant of 2 years, the Government appointedhis father as Maqtedar.

57. If as Venkatrao states the Pattedari of the Police Patel was thesubject of partition between Kishanrao and his brothers, there can be nodoubt that the Police Patilki was with the family during the life time ofKishanrao's father, because it is only in cases where the property comesdown from the father that the sons can claim the right of partition. TheMaqta, according to Venkatrao, was granted for the first time to Mura-harrao. If so, it should have in the ordinary course descended to his soneven though he was an infant. How and under what circumstances, theinfant could be deprived of that right and how and under what provisionof law Kishanrao could be appointed a Maqtedar are questions to whichno answers are possible on the evidence. Assuming but without decidingthat at some point of time Kishanrao became Maqtedar of Kudrikotgi,it is obvious that the Police Patilki could not possibly be attached to it,because the said Patilki was already in the family.

58. On the evidence now before me, it is not possible to agree with thecontention of the respondents that the appointment of Venkatrao as PolicePatel by Kishanrao can be clearly related to any rights as Maqtedar.

59. If the Police Patilki was hereditary, it would descend from genera-tion to generaion and being a public office, it cannot be transferred duringthe life time of an officer by him to another person. The only possibility isthat the law governing village administration permits the Pattedar withthe consent of the Sarkar to appoint an agent or a Gumasta to perform hisduties.

60. la this view, it appsars to m: to be safer to proceed on the basisthat although there was or there might have been some sort of Maqta grant-ed to Muraharrao, which under circumstances not quite clearly made out,came to the enjoyment of Kishanrao, the Police Patilki right was somethingindependent of it.

2 0 S. S. INAMDAR V. AGADI SANGANNA ANDANAPPA [VOL. XXXIV

61. In this view, it is difficult to resist the legal interpretation pressedon behalf of the petitioners that even though the actual service is renderedby Venkatrao as Police Patel, he must be regarded as occupying the posi-tion of a Gumasta and that the hereditary Patilki vests or continues to vestin Kishanrao.

62. That Venkatrao has been actually performing and is still perform-ing duties of Police Patel can be taken as proved by the evidence. ThoughP. W. 13 Ajjiah Swami denied that he was doing such duties, there is clearevidence of the Tahsildar, R. W. No. 1 that Venkatrao is actually perform-ing the duties. There is also the admission by another witness for the peti-tioner, namely, Tippanna, P. W. 5 that Venkatrao is performing the dutiesof Police Patel of Kudrikotgi.

63. On this basis, the further agrument of Mr. B. S. Patil is that eventhough'Pattedar may not be performing or actually discharging duties of theoffice, he must still be held to be holder of the office in view of the decisionsreported at 20 and 480 of 8 Election Law Reports (ELAYA PILLAI V.K. PARTHASARATHY AND OTHERS & JADUMANI MANGARAJv. DINABANDHU SAHU AND OTHERS). They show that a villageofficer continues to be an officer even though he gets the duties of the officeperformed through a Gumasta and that a Government Officer continuesto be a Government Officer even though he is on leave. There can beno doubt about the soundness of the principle and the same will have tobe applied to the situation in this case.

64. Even so, the argument of the respondent's learned counsel is thatthe matter is not at an end. According to him, all hereditary offices havegot abolished under Mysore Village Offices Abolition Act, 1961, which comeinto force on the first of February 1963. The operative section of that Actthe extent now relevant is section 4 (1) and (2), according to which, notwith-standing anything in any usage, custom, settlement, grant, agreement, sanad,or in any decree or order of a Court, or in an existing law relating to villageoffices with effect from the coming into force of the Act, all village officesstand abolished and all incidents appertaining to such office standextinguished. A village office is defined in clause (n) of Section 2 of the Actas meaning every Village office to which emoluments have been attached andwhich was held hereditarily before the commencement of the Constitution.

65. The hereditary village office held by Kishanrao undoubtedly comeswithin the definition and any virtue of Section 4 it stood abolished and allits incidents stood extinguished. The evidence shows that the paymentwas by way of share in the revenue of Kudrikotgi. There is no watan landor Inam land attached to that office. A question was put to Venkatraoto ascertain whether there was such land and his categorical reply was thatthere was no watan land attached to the Police Patilki and that afterthe coming into force of the Hyderabad Abolition of Jagirs Regulation1949, an Order was issued to him by the Tahsildar directing him to continueas Police Patel consequent on the abolition of the Maqta.

66. Venkatrao has not produced the said order by the Tahsildar appoint-ing him as Police Patel or directing him to continue as Police Patel. Butwe are not concerned with the title in which or the order on the strengthof which Venakatrao works as Police Patel. That he is working and that

E. L. R.] S. S. INAMDAR V. AGADI SANGANNA ANDANAPPA 2 1

hisx father Kishanrao is not actually working as Police Patel is proved bythe evidence.

67. Hence, what remained with Kishanrao was merely a hereditaryright of working as Police Patel. If the answers given by his son Venkat-rao can be accepted, the entire sum of Rs. 66-4-0 paid to him or receivedby him as remuneration for the office was appropriated by himself and nopart of it was given to Kishanrao. Hence, Kishanrao can rightly be des-cribed as a person holding the bare right of performing the duties of officewith neither any property attached to the office by way of remunerationnor the right to receive any cash remuneration before actually taking upthe duties.

68. The only incident attached to the office which therefore can be saidto have vested in or to continue to vest in Kishanrao was the bare right ofactually taking up the office.

69. The result of Section 4 of the Mysore Village Offices Abolition Actis to abolish first the hereditary village office held by Kishanrao and secondlyto extinguish the only incidents still vesting in the hands of Kishanrao ofactually taking up the duties of the office.

70. I, hold, therefore, that on the date of relevant to this election Kishan-rao did not hold any village office.

71. There is another argument of Mr. B. S. Patil in relation to operation ofMysore Village Offices Abolition Act which has a special reference toWatan property and holding of Watan property. That I shall consider inconnection with the case of alleged office held by C. H. Patil.

72. Although much oral evidence has been adduced about the agnatic re-lationship of C. H. Patil several extracts of village records have also beenproduced, the controversy on this point appears to me to fall within anarrow compass.

73. That the family of C. H. Patil did have the hereditary Patilki bothMulki and Police of Halkeri village is not denied by anybody. That wherewas some watan property assigned to the family or the Watandar fromwhom the family is descended is also not denied. That the land S. Nos.21 and 195 of Halkeri village were among the Watan property is also amatter of admission. The evidence of C. H. Patil is to the effect that by virtueof a partition which took place between his grandfather Venkangoudaand the widow of Pundangouda's grandfather, Bassangouda, the wholeof S. No. 21 and a portion of S. No. 195 was allotted to the share of hisgrandfather Venkangouda, Ever since the death of his father, the saiditem s are in his possession and continue to be in his possession even now.

74. He has further deposed that by virtue of some earlier arrangementin the family, the Police Patelki is exercised by the branch descended fromone Bharamangouda to which branch Kundangouda belongs and thatthe Mulki Patilki is enjoyed by the branch to which Bassangouda belongs.He adds that his is the youngest branch and it has given up the right of

22 S. S. INAMDAR 4'. AGADI SANGANNA ANDANAPPA [VOL. XXXIV

exercising these offices. He has further deposed that during the suspen-sion of Venkangouda the father of Pundangouda from the office, he C. H.Patil himself had been appointed by the Assistant Commissioner of Gadagto officiate as Police Patel. This was some time between 1950—52. There-after, he says that Venkangouda was reinstated in the office and after thedeath of Venkangouda some time in 1953, Pundangouda was appointedto the office and that he continues to hold the office.

75. Whatever may be legal arguments addressed on behalf of the peti-tioner, one thing that is admitted by every one is that on the date relevantto this election, that is 21st January 1967, C. H. Patil was not actually work-ing as Police Patel of Halkeri village. On that date, the said office washeld and was being exercised by Pundangouda.

76.- The argument of Mr. Venugopalachari on behalf of C. H. Patil isthat as a matter of fact his client is not exercising that office and that what-ever might be the incidents attached, to S. Nos. 21 and 195 as originalwatan property, those incidents have got extinguished by virtue of MysoreVillage Offices Abolition Act, 1961 and that therefore his client neitherholds the office nor any property assigned as remuneration of that office.

77. The contention pressed on behalf of the petitioner by Mr. B. S.Patil, learned counsel, on the other hand is that the Watan Character ofthe items of property admittedly in possession of C. H. Patil has continuedunaffected by the Village Offices Abolition Act and has in effect been keptalive by virtue of some of the provisions thereof and of the rules made there-under and that so long as C. H. Patil holds in his possession Watan property,he is liable to under service as Mulki Patel or Police Patel as the case maybe, whenever called upon by the grant or the Government and that solong as such liability continues, he must be held to hold that office andalso to hold the said property as profits of that office.

78. Before examining the effect of the Mysore Village Offices AbolitionAct, I may briefly refer to the provisions of the Bombay Hereditary VillageOffices Act, called "Watan Act" to test the correctness of the propositionthat in the circumstances stated, C. H. Patil is a person who may be calledupon to render service either as Police Patel or Mulki Patel.

79. Section 4 of the Watan Act contains definitions. Watan propertyis defined as moveable or immoveable property held, acquired, or assignedfor providing remuneration for the performance of the duties appertainingto an hereditary office. The Watan property and the hereditary officeand the rights and incidents attaching to them together constitute what iscalled a "Watan". A Watandar is a person having a hereditary interestin the Watan.

80. Watan Property is subject to certain conditions in regard to itsenjoyment, etc. The alienation, etc., of Watan property outside the familyis prohibited but Watan property becomes ancestral property in the handsof the successors of a watandar and in due course the joint family propertyliable to partition.

E. L. R.] S. S. INAMDAR V. AGADI SANGANNA ANDANAPPA 23

81. Section 24 of the Act states that the duties appertaining to any here-ditary office shall be performed by the representative Watandars or by de-puties or substitutes selected as provided under the procedure prescribedin the statute and by no other person. Section 25 enjoins upon the Col-lector the duty of determining, in the manner prescribed, the custom of aWatan as to the service and what person shall be recognised as represen-tative Watandars for the purpose of the Watan and to register their names.The representative Watandar is ordinarily the head of the family. Familyis denned under Section 4 as inclusive of the branches of the family des-cended from the original Watandar. When there are several families,one point the Collector has to determine is whether the office is to beexercised by only one family or several families. In the former case, heis required to register only the names of the head of such family and noother person as representative Watandar. In cases where are severalbranches and it is proved that by some custom or understanding betweenthe several branches, the office is to be exercised in turn by the several fa-milies in successive periods, the Collector is required to recognise the headsof such families as representative Watandars and no other person and also .to decide the order in which the representative Watandars shall officiate.

82. From the above summary of the relevant provisions of the WatanAct, it appears to me that it is a clear position in law that whoever maybe the member of the family in actual possession of the whole or any por-tion of the original Watan property, the only person who can claim tofunction as officer or called upon to function as officer are the persons whoanswer the description of representative Watandars.

83. I have no evidence before me to show that C. H. Patil is or has been,at any time, appointed as representative Watandar. Regarding his ap-pointment during the suspension from service of Venkangouda, the ques-tions that were put to him were, whether before appointing him as such,the Assistant Commissioner of Gadag had or had not made an enquiryabout his relationship and also whether at that time he was not next in theorder of relation with Honnappagouda excluding, of course, the suspendedofficer, Venkangouda.

84. That he was such relation was admitted by C. H. Patil but thefact that the Assistant Commissioner may have taken that circumstanceinto consideration cannot, in my opinion, be regarded as conclusive onthe question whether C. H. Patil was or has at any time been registered asrepresentative Watandar or that the title in which he worked as PolicePatil during the suspension of Venkangouda was the title of a representa-tive Watandar.

85. Coming now to the Mysore Village Offices Abolition Act, 1961,it is necessary to set out the entire section 4 to discuss the arguments ad-dressed by Mr. B. S. Patil. That section reads as follows:—

"Notwithstanding anything in any usage, custom, settlement, grant,agreement, sanad, or in any decree or order of a Court, or in anexisting law relating to village offices, with effect on and from theappointed date,—

(1) all village offices shall be and are hereby abolished;2EC/71—3

24 S. S. INAMDAR V. AGADI SANGANNA ANDANAPPA [VOL. XXXIV

(2) all incidents (including the right to hold office and the emo-luments attached thereto, ~ the right to levy customary feesor perquisites in money or in kind and the liability to renderservice) appertaining to the said village offices shall be andare hereby extinguished;

(3) subject to the provisions of Section 5, Section 6 and Section 7all land granted or continued in respect of or annexed to avillage office by the State shall be and is hereby resumed, andshall be subject to the payment of land revenue under the pro-visions of the Code and the rules and orders made thereunderas if it were an unalienated land or ryot-wari land".

As it stands, there can be no doubt that it operates to put an end to here-ditary offices, all incidents thereof as well as the character of land as landassigned as remuneration for such office. The first sub-section puts anend to the office. Second sub-section extinguishes all its incidents and thethird resumes all lands assigned as remuneration by the Government andconverts it into ordinary ryot-wari land liable to full assessment.

86. The resumption under sub-section 3 is expressly stated to be subjectto the provisions of sections 5, 6 and 7. The said Sections 5, 6 and 7 dealwith the topic of regrant of the land and the acquisition by the erstwhilevillage officer of the full title thereto on payment of what is called occupancyprice which is a multiple of the full assessment. Section 9 of the Act givescertain relief to the erstwhile Officer consequent upon the abolition of theoffice. That relief is by way of payment of compensation calculated inthe manner provided by the statute. The other sections of the Act confercertain powers of adjudication and enquiry upon certain officers and emp-powers the State Government to make the necessary rules.

87. Now the argument of Mr. Patil is that although Section 4 purportsto abolish offices, incidents and also the Watan character of land if any as-signed as remuneration for such office, other sections really keep all theseconsequences in abeyance. His agrument is that although Section 4 saysthat the office is abolished and the land is immediately resumed by theGovernment, in actual event, the officers have not been dispossessed. In anyevent so far as C.H. Patil is concerned, it may be taken as admitted thathe is still in possession of the land. Though he has stated that occupancyprice payable by him for obtaining the land resumed by the Governmentby way of regrant has been paid, his evidence is criticised as either unaccept-able or ill-informed as to details. It is argued that he has not done all thathe is required by the rules to do before obtaining full title to the land.On this footing, it is argued, until that stage of completion is reached, theland in possession of C.H. Patil continues to retain its original Watancharacter.

88. The answer on behalf of C.H. Patil is that provisions of section 4by the very force of the language come into operation immediately onthe commencement of the statute, that is, 1st February 1963, and that sub-sequent provisions are merely in the nature of provisions made to ascer-tain and adjust rights arising consequential upon the abolition of the officeand the Watan character of the property.

E. L. R.] S. S. INAMDAR V. AGADI SANGANNA ANDANAPPA 25

89. Mr. Patil further advanced several arguments on the basis of theruling of the Supreme Court reported in A.I.R. 1964 Supreme Court P.685 (STATE OF ORISSA vs. RAMCHANDRA), particularly the followingpassage occurring at page 687 of the report.

"The distinction between grants of land burdened with service, and grantsof land made by way of remuneration attaching to the office createdby them is well known. In the first category of cases, the grantmay not be resumable, while in the second category of cases, withthe abolition of the office the land can be resumed."

90. His argument is that the Watan land in possession of C.H. Patilis land burdened with service and that therefore it was not resumable andthat therefore what could be done by the Government is only to acquire itcompulsorily by paying certain compensation and that such acquisitionand the consequential extinction of the Watan character is or could becomplete only after all provisions of law pertaining to the payment of com-pensation are finalised.

91. I do not think that the principle is at all applicable in this case. Thecase decided by the Supreme Court in STATE OF ORISSA Vs. RAM-CHANDRA, A.I.R. 1964 Supreme Court, P. 685, is a case which dealswith the rights of Zamindars acquired under the permanent settlement pur-suant to the provisions of the Madras Regulation XXV of 1802. Thequestion was whether pursuant to the said settlement, the Zamindars hador had not acquired a right to the land in a manner making it possible forthem to retain possession thereof in spite or notwithstanding the passingof the Estate Abolition Act by the Madras Legislature. The questionswhich arose in relation to the said Regulation and Act in force in Madras,do not arise in this case.

92. It is beyond dispute that both the village offices of Halkeri andthe land in possession of C.H. Patil were governed by the Bombay WatanAct. It is equally indisputable that by virtue of Sections 15 and 22 of thesaid Act, not only were the services subject to commutation but the land it-self was liable to be resumed in exercise of the original sovereign power ofthe State had granted the land. Any discussion on principle and the legaleffect of these two sections is rendered unnecessary by reason of the decla-ration of law made by the Supreme Court in the case reported in A.I.R.1964 Supreme Court P. 326 (COLLECTOR OF SOUTH SATARA Vs.LAXMAN MAHADEV DESHPANDE), dealing with the provisionsof the Bombay Paragana and Kulkarni Watans (Abolition) Act, which is,in many respects, parimateria with the Mysore Village Officers AbolitionAct, 1961. The Watans abolished by the said Act were Watans in respectof which a commutation had been given effect to under what was called"GORDON SETTLEMENT". The operative Section 3 thereof is pari-materia with Section 4 of the Mysore Village Offices Abolition Act, 1961.It also abolished in terms Paragana and Kulkarni Watans, extinguished allrights to hold those offices and liabilities to render service in respect ofthem and subject to the conditions as to regrant upon payment ofoccupancy price, resumed all lands granted by way of remuneration, inthe same manner as the Mysore Act has done. After pointing out thatthe statute did no more than resume the land which could have been done

26 S. S. INAMDAR V. AGADI SANGANNA ANDANAPPA [VOL. XXXIV

in exercise of executive power under section 22 of the Watan Act, the Sup-reme Court states as follows:—•

"Section 3 in terms provides for abolition of the Watan, extinctionof the office and modification of the right in which the landis held. The abolition, extinction and modification arises by theoperation of Section 3 of the Act, and not from the exercise of theexecutive power of confiscation or resumption, by the State. Un-doubtedly the power of resumption of a Watan may be exercisedunder section 22 of the Watan Act and such resumption maydestroy the right of the holder both to the office and the Watanland, and in the absence of any provision in that behalf no rightto compensation may arise. But where the abolition of the watanis not by executive action, but by the legislative decree, itsconsequences must be sought in the statute which effectuatesthat abolition."

Thereafter, their Lordships point out that not only the payment of compen-sation in cash for or in respect of the abolition of the rights of the officebut also the provisions for obtaining regrant by payment of occupancyprice, are both in the nature of compensation granted by the Statute byway of grace in respect of the abolition of the office, extinction of the rightsand the destruction of the original watan character of the land. It isclear therefore that even the provisions in regard to the resumption of theland and the procedure prescribed for payment of the occupancy price,the concession by way ,of instalments, extension of time, etc., are allprovisions dealing with consequences of abolition. They cannot be readas to any extent modifying the clear effect of the operative section whichabolished the offices and modified the rights in respect of the land.

93. I hold, therefore, that by operation of the Mysore Village OfficesAbolition Act, 1961, whatever be the right C. H. Patil might have had asa member of the family to either Mulki-Patilki or the Police Patilki of Hal-keri village and whatever may be the incidents or the nature of the titleunder which S. Nos. 21 and 195/2 of Halkeri came into his possession, allthose rights and liabilities in respect of the office stood abolished^on thecoming into force of the Mysore village offices abolition Act, 1961 andthe land ceased to be Watan land on the same date.

94. He is therefore neither a person in the service of the Governmentwithin the meaning of Section 123(7) of the Representation of the PeopleAct, nor does he hold any office of profit under the Government for thepurpose of Article 191 of Constitution.

95. My findings on Issues so far considered, therefore, are thefollowing:

Issue No. 6 in E.P. No. 3 of 1967.—There is no evidence about the statusor the activities of Deshpande—Block Development Officer, Kustagi, orDevappa said to be the Police Patel of • Rampur. Gururayagouda aliasGururaogouda Desai of Malekop, Shekaragouda of Bochenahalli andChannappagouda of Mannapur, are revenue officers who are excludedfrom the operation of Sub-section (7) of Section 123 of the R.P. Act. C. PL

E. L. R.] S. S. INAMDAR V. AGADI SANGANNA ANDANAPPA 27

Patil and Kishenrao Vakil were not, on the date relevant to this Election,officers in the service of the State Government within the meaning ofSection 123(7). Pundangouda of Halkeri was on the relevant date policepatil of Halkeri village in Ron Taluka.

Issue No. 6(a) in E.P. 6 of 1967.—Gururaogouda of Malekop and Chan-nappagouda of Mannapur are excluded from the operation of Section123(7). Kishenrao Vakil was not an officer of the Government on therelevant date. Pundangouda was the police patel of Halkeri village inRon taluka.

Issue No. 1 in E.P. No. 6 of 1967.—The respondent C. H. Patil was notwatandar police patel or mulki patel of Halkeri village on the date relevantto the Election.

Issue No. 2 in E.P. No. 6 of 1967.—In view of the finding on Issue No.1, the respondent was not disqualified under Article 191 of the Constitutionfor being chosen as a member of the Mysore Legislative Assembly.

96. The next topic that I will take up for consideration is C. H. Patil'scontract with the State Government in respect of Yerehanchinal-Mudholroad and the corrupt practice of bribery.

97. Regarding the contract, there is no documentary evidence of anyvalue. The respondent—C. H. Patil produced what he calls completioncertificates issued to him by the Executive Engineers of Raichur Divisionand Koppal Division, Exhibits R. 34 and R. 36. They are not of any evi-dentiary value for the same reason as Exhibit P. 75 is not of any such value.

98. The matter, therefore, has to be decided only on oral evidenceavailable. C. H. Patil in as R.W. 8 deposes to the following effect in para-graphs 21, 22, 23 and 24 of his deposition:—

99. The Yerehanchinal-Mudhol road work of total length of 11 mileswas taken up by the Government in the year 1960 as a measure of faminerelief. Out of the total length he took up the contract in respect of onlythe first five miles of the road from Yerehanchinal. He completed thework, according to him, within three months of taking it up in 1960 itself.The work was not of any elaborate character, but consisted merely in for-ming the road and surfacing it with earthwork.

100. As against the evidence, there is no evidence on behalf of the pe-titioners to prove that the said contract did subsist as partly performedeven during January 1967. The evidence of both Ajjaiah P. W. 13 as wellas P. W. 24 Sirur Veerabhadrappa consists of mere assertions not basedon any personal knowledge. To series of questions put to him in cross-examination, Sirur Veerabhadrappa pleaded ignorance of every relevantfact. He did not know whether the work was divided between three per-sons and C. H. Patil took up work only in respect of the first five miles.-he did not know whether the work was completed in November 1960 asstated by Patil; and he admitted that he had not looked into or inspectedany papers or Government records to ascertain whether and if so the con-tract had been performed or left unperformed at any particular stage.

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101. In view of this evidence and because the burden is undoubtedlyupon the petitioner, I do not see any reason why I should not accept thestatement on oath made by C. H. Patil.

102. My findings, therefore, on Issues Nos. 3 and 4 is that there wasnot subsisting, on the date relevant to the Election, any contract betweenthe State Government of Mysore and C. H. Patil, and that the petitionerhas failed to prove that C. H. Patil was disqualified for being chosen asa member of the Mysore Legislative Assembly under Section 9-A of theR.P. Act.

103. The Issue of bribery, namely, No. lOinE.P. No. 6 of 1967, asks,whether the petitioner proves the circumstances set out in pragraph III-Dof the petition, and whether in those circumstances, if established, thecorrupt practice of bribery is made out.

[After considering the detailed evidence, the Judgement proceeded:]

139. For all these reasons, I am not satisfied that the petitioner hasmade case even of suspicion so far as corrupt practice of bribery is con-cerned.

140. My finding on Issue No. 10 in Election Petition 6 c/1967, thereforeis that the petitioner has failed to prove the circumstances set out in paraIII (D) of the petition or that the respondent C. H. Patil had been guiltyof the corrupt practice of bribery defined in sub-section (1) of Section123 of the Representation of the People Act.

141. The next topic, namely, corrupt practice under sub-section (3) ofSection 123 of the Representation of the People Act, is a topic on whichthe petitioners have adduced considerable body of evidence and have madestrenuous efforts to make out their case against the respondents. Althoughthe bulk of the evidence is oral, there are a few documents available fortesting the value of the oral evidence. The petitioners have also examinedChannappagouda Master himself as a witness on their side,—a step fraughtwith some danger to the case of both the sides.

142. As the volume of evidence is considerable, it is better to ascertainat the very commencement the exact nature of the case sought to be provedby the petitioners and the nature of the pleas raised by the respondents.As already stated, the petitioners' case is stated in identical terms in boththe petitions. It will be sufficient, therefore, to refer to the avermentscontained in Election Petition 3 of 1967. They are contained in para-graph III (C) of the petition. The petitioners start by saying that Chan-nappagouda Master was canvassing agent of both Sanganna andC. H. Patil. They next state that one Gadigeppa Desai of Mudholas well as his son Basavaraj Were among the canvassing agents ofthe respondents. Then follows the case:—

"A booklet entitled, "Congress Tattva Prachara Padyavali" composedby the said Channappagouda Master was got printed at the Hom-bali Brothers, Printers, Gadag, in January 1967 and the songs orpoems in the said booklet were sung by the said Channappagouda

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Master all over the Yelburga Constituency in the propagandameetings of the respondent and of the said ChannabasangoudaPatil, both of these candidates also acting as each other's canvas-sing agent. Hundreds of the said booklets were printed and dis-tributed all over the constituency during the entire period avail-able for election campaigneering for both of the said CongressCandidates."

Thereafter a description of the picture printed on the cover of the bookletis set out followed by a reference to some of the songs contained in thepadyavali, which according to the petitioners' case amount to an appealin the name of religion. The statement of the case thereafter continuesin the following terms:—

"What has therefore been laid down as corrupt practice in this behalfhas thus been widely indulged in by the respondent and his can-vassing agents with the necessary consent both of the respondentand his election agent Sri C. S. Hiremath. The booklets havebeen distributed and the songs in it have been sung in practicallyevery small and big village in the constituency. They were sungby the said Channappagouda Master who moved about in the consti-tuency in conveyances provided in common by the respondentand the said Congress candidate for the Assembly Constituency.Besides, the said Channappagouda Master is also a supporterand canvassing agent having canvassed votes for the respondentand his running mate, by going from house to house at Yelburgaand having delivered speeches also all over the constituency inwhich he asked voters to vote for the respondent and his runningmate and also by subscribing to very many appeals for voting forthe said Congress candidates by way of printed pamphlets".

143. The answer of Sanganna in paragraph 8 of his written statementis, briefly, as follows:—•

144. He denies categorically that Channappagouda Master was can-vassing agent of his or of Channabasanagouda Patil. He asserts that atno time was he canvassing agent of either of them during the election. Re-ferring to the booklet he complains that the booklet has not been producedby the petitioner and that therefore he is handicapped in the matter ofstating his defence. He asserts that he has not seen the booklet anywherein the constituency at any time during the election period. He also statesthat he has not published or caused the publication of the booklet at anytime during the period of the election. He denies the statement that com-mon conveyance was furnished to Channappagouda Master by himselfand C. H. Patil. He also denied the consent by either himself or his electionagent C. S. Hiremath, as alleged in the petition.

145. C.H. Patil's answer is contained in paragraph 10 of his writtenstatement. The stand taken by him is more or less the same as that ofSanganna. He states, for example that neither of them had enlisted thesupport of Channappagouda Master or of Gadigeppa Desai of Mudholor of his son Basavaraj. He denies that any one of them was his canvassingagent. He states that no conveyance was provided by him and Sanganna

30 S. S. INAMDAR V. AGADI SANGANNA ANDANAPPA [VOL, XXXIV

to Channappagouda Master. Referring to the booklet and its nonpro-duction with the petition, he states that no such booklet was printed, pub-lished, circulated or its contents sung or recited by Channappagouda Masterin all or any of his meetings. The. allegation that hundreds of such book-lets were distributed all over the constituency is also denied as false. Hereiterates towards the end of the paragraph that Channappagouda Masterwas not provided with any conveyance by him nor was he a supporter orcanvassing agent of his nor did he go from house to house in Yelburga ordeliver speeches in any part of the constituency either with his knowledgeor with his consent.

146. It will be seen from this summary of the pleadings that the cent-ral feature of the case is that the religious appeal was contained insome of the songs of the padyavali, that they were sung or explainedby Channappagouda Master and nobody else, that the actual commissionof the corrupt practice was by Channappagouda Master and nobody elseand that the respondents are sought to be made responsible for the conse-quences of the corrupt practice on the ground that they had consented tothe commission of the said corrupt practice by Channappagouda Master.Although Channappagouda Master is described as an agent, the petitionersdo not stop short of that case, because if he was only agent of the respon-dents, the petitioners cannot successfully get an order invalidating theelection of the respondents without further proof of the fact that the commis-sion of the corrupt practice has materially affected the result of the electionso far as the respondents are concerned. The petitioners have been takenupon themselves the burden of proving consent, their case being that theconsent by the successful candidates-respondents to the commission of thecorrupt practice by Channappagouda Master was sufficient per se to in-validate their election.

147. There are certain other considerations flowing from the natureof the pleadings and their relation with the nature of the evidence adducedto which it is not necessary to make a reference at this stage.

148. As already stated by me, the petitioners rely upon certain docu-ments. They are some propaganda pamphlets published either by theCongress or in the interest of their candidates by their workers and sym-pathisers. These pamphlets are utilised by the petitioners to make outa case of agency or at any rate to make out that Channappagouda Masterwas not in all respects in the position of a mere volunteer, but a personwhose activities have some larger significance from the point of view ofCongress election campaign. It would be convenient to deal with thesepamphlets in the first instance in order to avoid break in the continuity ofdiscussion or repetition of some matter

[After considering some detailed evidence, the Judgment proceeded :]

190. There is no doubt in my mind that in citing these witnesses in thefirst instance, Channappagouda Master, Pundangouda and Bassangouda,the petitoner was taking a serious risk. Human nature being what it is,he could not expect any one of these witnesses to come to court and admitthat he had committed any corrupt practice, if, therefore, with some do-cuments in his hand, which could be proved by other evindence, the peti-

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tioner cites a witness of this type, there can be little doubt that he is takingthe chance of the witness making certain answers in favour of his case inview of the documents produced in court and otherwise provable. If so, asI have pointed out, he should also take the consequence of the witnessmaking other answer adverses to his case. He has to take the consequ-ences not only because it is a necessary consequence of taking a risk of thistype but also because he cannot possibly say that he was a unaware of orunmindful of the possibility of the witness making such answers adverseto his case. If with this consequence clearly in his mind, the petitionerputs the witness in the box, elicits some answers in his favour upon matterson which the witness has no alternative but to make an answer in his fa-vour (in view of the documents) and then seeks permission of the Courtto cross-examine him the moment he feels himself free from the documentsto make any answers he wishes, the resultant position would be one whichcannot but bring about a situation unfair to the respondents. I advisedlyused the word "unfair" because from the point of view of accusation,the respondent and these witnesses are placed on a par, both of them be-ing charged with corrupt practice. But whereas a person in the positionof a witness may go scotfree avoiding the witness box or simply giving ne-gative answers making it difficult for the court to accept one or the other,the respondents cannot escape the responsibility or consequences of theirlosing the election in the event of the petitioner making out a case of cor-rupt practice.

191. Although it cannot be a complete analogy or analogy true in allrespects, I think there is something in the rule of burden of proof placedupon the petitioner in the matters of this nature which has some relationto the principles of a criminal trial. For testing most of the propositionsof law of evidence in relation to trials of this nature and testing the valueof the evidence itself from the point of view of probative effect, the approachis invariably the same as the normal approach made by courts to the evi-dence in a criminal trial. The strictness of the rules as to burden of proofin criminal trials was till quite recently so severe that an accused couldthroughout a trial be completely silent and wait until the prosecutor wasable to make out a prima facie case against him. It is only in the courseof the amendments of the Criminal Procedure Code, effected in the year1955 following upon the experience of English Courts that a provision wasfor the first time made enabling the accused himself to give evidence onoath. Till then even the administering of an oath to an accused for anexamination was discountenanced by law. Even under the present law,in section 342-A of the Criminal Procedure Code, although an accused isdeclared to be a competent witness for the defence and may give evidenceon oath, he shall not be called as a witness except on his own request inwriting and his failure to give evidence is not to be made the subjectof any comment by any of the parties or the court or give rise to any pre-sumption against him, or any person charged together with him at thesame trial.

192. I had this in mind when I observed earlier that whereas it wasto the respondent in this case to cite and examine Pundangouda orBassangouda and elicit from them denials on oath of facts alleged againstthem, the petitioner would have no right to insist upon the respondents exa-mining the said Pundangouda and Bassangouda. The principle, in my opinion,

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is that whereas the respondents in an election petition or other persons charg-ed with the commission of corrupt practice, have the normal liberty of allpersons so charged of giving evidence on oath to exculpate themselves,they cannot be compelled to give evidence by the petitioners themselvesciting them as witness. The reason why I make this categorical statementof principle is that to hold otherwise would make it possible to say thatit is fair under our jurisprudence or administration of justice for one personto charge another person with the commission of an offence or conductprohibited or discountenanced by law and then compel him to depose onoath whether or not the facts alleged or the charges made against himare true. I cannot think of a more difficult situation which a mai\ may becalled upon to meet or deal with in a court of law. I do not think that itis open for a litigant to place his opponent in that situation without des-troying or seriously jeopardising the principles of a fair or completely fairtrial of disputes.

193. Nevertheless, Channappagouda Master having been cited and exa-mined as a witness, it becomes my duty to examine whether and if so howmuch of this evidence can be accepted.

194. There are, in my opinion three matters in respect of which therecould not be possibly any dispute. They are:—

(i) He himself is the author of the songs as well as the test of the pam-phlets Exhibits P-49 and P-50.

(») He himself had and got them printed.

(Hi) His idea or object in writing or composing the songs and writingsthese pamphlets was to make them available as election propa-ganda literature to Congress Candidates.

195. On these three matters, in my opinion, there cannot be any doubtwhatever. He no doubt states that his idea in writing this Padyavali was tomake known to the public the high principles of the Congress so that thecountry may be benefited. There can be little doubt that he is a humanand as much inspired by self-interest as anybody interested in an election.It is not very easy to believe him when he says that he was no imbued withor was completely immersed in the ideas of the Congress as to be whollyunmindful of the candidate or who the candidate was.

196. The question whether Thenginakai of Gadag extended any en-couragement to him or made any payment for the printing of 500 copiesin his name, is, in my opinion, not relevant to this case. Thenginakai is,according to the evidence, an important person in the civic life of Gadag.I have no evidence before me to hold whether and if so how he may besaid to have any interest in the election in the Yelburga constituency.

197. Gadigeppa Desai's name appealing as a publisher on ExhibitsP-28 and P-48, is, however, a matter, which cannot be left out of account,in the same as Thenginakai's name may be.

198. Gadigeppa Desai is admittedly a friend of Agadi Sanganna, orat any rate, a person who is well-disposed towards him. The question is

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whether and if so, what value there is to the case of the petitioner inassociating the name of Gadigeppa Pesai with the Padyavali. As appearsfrom the extract from the petition, which I have given, the petitioner des-cribes both Channappagouda Master as well as Gadigeppa Desai as can-vassing agents of the respondents. The petition itself does not make men-tion of the fact that Gadigeppa Desai was shown as the publisher of thisPadyavali. At the time the petition was presented, it was not accompaniedby the Padyavali and the written statement was filed before the samewas produced. Nevertheless, Sanganna in the Course of his evidence hasstated that he became aware of the fact that Gadigeppa Desai was shownas the publisher of this Padyavali after reading the petition and that hehad occasion to see Gadigeppa Desai sometime after the filing of the pe-tition. It may be that he was making a mistake in giving that answer asMr. Venugopalachari suggested at the end of the cross-examinationbefore commencing the re-examination or it may be that Sangannawas aware of the same or had looked into this Padyavali and the idea at theback of his mind was that his friend Gadigeppa Desai had been shownas the publisher of this book. As either of these positions is not whollyfree from doubt, I declined to give permission to Mr. Venugopalachari to .put any clarificatory questions in re-examination.

199. Another difficulty created in this regard is that throughout theexamination of all the witnesses for the petitioner, definite position wastaken up by Sanganna that Gadigeppa Desai was not in Yelburga at allbut at Ghataprabha attending on his sick nephew for a period of about 3months, covering part of December and whole of January and Februaryor beyond. The witnesses for the petitioner could not, of course, of theirown knowledge, say "Yes or no" to the suggestion that Gadigeppa Desai'snephew was seriously ill or was being treated at Ghataprabha. Theirassertion in cross-examination that they have seen Gadigeppa Desai atcertain meeting, however, adds nothing to the value of the chief-examina-tion itself, because the same has to be tested on an examination of othercircumstances. But some difficulty is created for Sanganna by the evidenceof Tirumalarao, R.W.3. He deposed that after original contacts bet-ween them which arose in the way of his profession he has been a friend ofGadigeppa Desai for a number of years now and that they are on visitingterms. He gave further details and said that he is in the habit of visitingGadigeppa Desai's house in Mudhol almost every Sunday if not every Sun-day. He deposed that when he had gone to Mudhol in December 1966,one Basvanthrao told him that Gadigeppa Desai had gone to Ghata-prabha to attend upon his nephew and that he was expected to return inabout 15 days. He went further and said that during January 1967 andFebruary 1967, he had visited Gadigeppa Desai's place at least 3 times eachmonths.

200. On the other hand, the evidence of Sanganna is that he hadmet Gadigeppa Desai at Ghataprabha during the third week of Januaryand that at that time a surgical operation of his nephew was in contemp-lation and was expected to be performed towards the end of January orearly in February.

201. In the light of these answers in the evidence, it may not be possibleto accept the position that Gadigeppa Desai was throughout absent from

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Yelburga for so long a period as 3 months. The printing of Padyavaliwas sometime about the middle of January and the possibility of Gadi-geppa Desai having been in Mudhol, at that time, cannot be ruled out.

202. The evidence of Channappagouda Master that Gangadharayyaand some persons in Mudhol, whose names he does not remember collectedmoney enough for printing the book in the name of Gadigeppa Desai istoo weak to inspire any confidence. That he is withholding some informa-tion is obvious from the fact that though he professes such high respectfrom Congress principles as to be inspired to write poetry on it, hesays that he is not a member of the Congress at all and that collection ofsubscription as primary member was discontinued about 2 years ago andthat he as described himself as a Congress worker without any authorityfrom it. That it cannot be true is obvious from the fact that SiddappaKarandi has included his name in Exhibit P-30.

203. But my difficulty in this case is whether all these matters aroseonly suspicion or there is material in evidence to proceed from suspicionto at least an early stage of proof.

204. It is also not sufficient from the point of view of the case of peti-tioner to prove that Gadigeppa Desai might have with previous knowledgepermitted his name to be used by Channappagouda Master for publishinghis Padyavali. It is necessary for him to prove that Sanganna had con-sented to the publication. Whether this matter can be said to have beenproved is a question which is not capable of an answer without examiningother parts of the evidence in the case.

205. Before doing so, it will be convenient to dispose of at present thelegal question whether there is any religious appeal in this booklet.

206. The petition alleges not merely what may be briefly described asreligious appeal, but also appeal to religious symbols. The symbol is thepicture on the first page of the cover. The religious significance of it is des-cribed in the following terms in the relevant paragraph of the petition :

"On the front page a religious symbol has been printed in which theglobe of the earth has been shown as Linga with the Panabattala inthe middle of the Tripundra at the top, in the middle portion of whichthe third eye of God Siva has been shown with the sun and themoon as the other two eyes. The Linga has been shown as emanat-ing from or resting on the sacred 'OM'. Immediately below theTripundra, Goddess 'Shakti' has been shown. In short, everythingthat is necessary for a sculptural or pictorial or theophanic represen-tation of "Shiva" has been included in this symbol which is the high-est and the most sacred deity for the Shaivas and Veerashaivas whoform the majority of the population in the Yelburga Constituency."

Now it appears from the evidence that this picture has been in use withChannappagouda Master for a considerable length of time. Exhibit R-15is a letter written by him while sending the documents to the Court. It is onhis letter-head which contains the same picture on the top left-hand corner.It was elicited from him that the Kannada figures '195' were printed at the

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end of the dotted line for entering the date, and that therefore the letter-headmust have been printed very early in the decade commencing 1951. Hesaid that he was using this picture even for a couple of years prior to it.This circumstance shows that the picture is associated more personally withChannappagouda Master than with either the Congress or the membersof the Congress. If, as he has deposed, this picture had been prepared byhim even prior to 1947-48, it cannot be suggested that it was. If, as he hasdeposed, this picture had been prepared by him even prior to 1947-48, itcannot be suggested that it was thought of as a piece of propaganda materialfor any election. One need not necessarily doubt his answer because inregard to the actual composition of the poems in the Padyavali, he hascandidly said that he did intend the same to be used for election propagandaby any candidate of the Congress.

207. We have also the evidence that this picture is the same as the pic-ture printed on the first page of Exhibits R. 12 and R. 17, namely, CongressLavani and Congress Mahatme, two of the publications said to have beenmade use of for election purpose during the General Elections of 1957.In relation to that picture, a similar contention as the one. now raised wasput forward by the petitioners Shivamurthy Swami and Sirur Veerabhadrappain the Election Petitions against Sanganna and Alavandi Shankaregoudawhich come to this Court in appeal, the former in Miscellaneous AppealNo. 162 of 1959 and the latter in Miscellaneous appeal No. 163 of 1959.The Gazette copy of the judgment in M.A. No. 162 of 1959 is produced asExhibit R-l in this case for reference, which is also reported in A.I.R. 1961Mysore 106 (Sangappa vs. Shivamurthi Swamy). The judgment of thisCourt in M.A. No. 163 of 1959 is reported in A.I.R. 1963 Mysore at page81, (Shankara Gouda vs. Sirur Veerabhadrappa). In those proceedings,the interpretation placed on the picture by the petitioner was slightly differ-ent. The picture of a lady within the outline of India was then said torefer to Bharatha Mata. In the present petition, it is described as Adishaki.The sun and the moon are today described as the two eyes of Lord Shiva.In the earlier proceedings, the crescent moon and the star were describedas constituting a religious symbol of Muslims. In those proceedings, thedescription of Gandhi, Nehru and Patel as Brahma, Vishnu and Rudrawere pressed as clear material of religious symbolisation of these nationalleaders,—apparently—because there was also a song in the last lavanior mahatme referring to the said fact.

208. In the present petition, the central point of the attack on thisquestion of religious symbol is that this picture is intended to rouse thereligious sentiments or feelings of Lingayats by indicating or suggesting thatthe earth itself is represented as the Linga of Shiva emanating from thesacred letter 'OM'. The burden of the case or religious appeal also is thatthe section of the voters sought to be moved by appeal to religions was thesection consisting of Lingayats who are said to constitute a majority of theelectorate in Yelburga Constituency.

209. In both the appeals, 162 and 163 of 1959, this Court rejected theargument that the picture in question constituted a religious symbol. Mr.Justice Sadasivayya, J. dealing with the question at page 87 of A.I.R. 1963Mysore, made the following observations :

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"It was pointed out that a Crescent and a Star were visible in this pictureand that the Crescent and Star are the symbols of the Muslim religion.But, it has to be pointed out that the Crescent and the Star are notshown separately, by themselves; they are shown in a particular sett-ing. The Crescent and the Star as seen in the picture, have gotto be taken together with the other items which form their back-ground in the picture. When the Tripundra' and the 'Urigannu'also form part of the background, it cannot be said that the Cres-cent and the Star, in that setting, could properly represent the religi-ous symbols of the Muslims. Similarly, the 'Urigannu' whichis shown not as being in the fore-head of Eswara but in an entirelydifferent setting, cannot be said to represent any religious symbol ofthe Hindus. It has not been shown that the picture of the 'BharataMata' is the symbol of any religion."

210. The principle indicated by Sadashivayya J. in this case is that onelias to look at the entire picture and examine whether it is to any extentrecognizable as religious symbol and that it is not open to pick out portionsof it and call them symbols appealing to this section or that section of Hindu•community.

211. The position was put more emphatically by the decision of thisCourt in M.A. No. 163 of 1959 wherein it was pointed out that so manyideas and details have been introduced into or suggested by this picture thatit is impossible to identify it as any religious symbol or symbol of any religionat all. The Court observed :

"It appears to us to be a preposterous patch-work of unintelligible andfantastic concepts."

I was a party to the Bench which made that observation and I am still of theopinion that whatever may be ideas with which Channappagouda Master,who calls himself a poet, drew this picture, nobody who has any idea of Hindureligion will look upon this as a symbol even remotely related to any ideas ofHindu religion. The fact that he has his own ideas as any one may haveabout the relation between the Congress principles and those of Buddha,Basava, etc., and whatever may be his notions of geographical distributionof political conceptions, I have no doubt in my mind that this picture is farfrom anything religious from the point of view of Hindu Religion.

212. I may also cite the observations of the Supreme Court in A.I.R.1965 Supreme Court 669, (Ramanbhai vs. Dabhi Ajitkumar) wherein it ispointed out that the Hindus venerate various forms of nature, men, animals,trees, or even stones, according to the ideas with which the particularrepresentation is for the time being invested and that it would therefore bequite inaccurate to regard any one of these, a tree or an animal or a stone, asa symbol of Hinduism. In another case reported on page 183 of the samevolume A.I.R. 1965 Supreme Court, (Jagdev Singh vs. Pratap Singh), theirLordships point out that even the sacred and mystic letter 'OM' which isregarded as of highest mystical or spiritual value by all sections of the Hindus,cannot be regarded as having been used as a religious symbol if it is printedor painted on pennants or flags used by candidates at Elections as they werein the said case.

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213. I, therefore, hold that the picture on the cover page of the padya-vali cannot for the above reasons be regarded as a religious symbol.

214. Regarding the text of the songs themselves, the portions that areobjected to as constituting religious appeal are 4 stanzas at page 12, 1 stanzaat the top of page 13, and 1 stanza at page 16. Five stanzas on pages 12 and13 go together. [After setting out the stanzas in Kannada, the Judgementproceeded:]

These 5 stanzas call upon people to join the Congress for the reasons stat-ed in those stanzas. Those reasons are that the Congress follows or acts uponthe great message of Lord Buddha, the religious teachings or Upadeshascontained in the Vachanas of Basaweshwara and the Neethy or ethicsof Jesus Christ, that it attempts to disseminate throughout the World thelight of Shanthi or peace shown by Mohammed, the principles of truthand non-violence preached by Mahatma Gandhi, and the great compassionof Maha Veera, that it observes or follows Karmayoga preached by Loka-manya Tilak, Anasakthiyoga preached by Mahatma Gandhi and Arpanayogafollowed by Sharanas or followers of Basaweshwara. It also exhorts peopleto offer or dedicate their body, mind and money to self-realisation as if itwere Guru, to the Linga as if it were Guru, to the Linga as if it were Shivahimself, and to the Jangamas (Priestly caste of the Lingayats) respectively.Fifth stanza states that life itself will get purified by the Thathwas or princi-ples of the Congress, that the said principles will bring about the visionof God—Devadarshna, and that the Congress embodies the principles of allDharmas.

215. It is quite true and quite correct to contend that the mere mentionof the names of religious leaders may not in all circumstances constitute oramount to religious appeal. The question whether a given documentdoes or does not amount to such an appeal has to be answered upon a fairconstruction of the entire document taken as a whole. Now the appealin the above 5 stanzas is to join the Congress and the reason stated thereforas summarised in the 5th stanza is that it embodies the main principles of allDharmas; the Kannada expression is 'Sarva Dharma Sara'. 'Dharma' isa well known expression. According to the context it may mean eitherreligion or duty. The present context, having regard to the enumerationof what the poet regards as the essence of all the preaching of the variousreligious leaders leaves no room for doubt that he meant by the term religionand not mere duty. The use of such terms as 'Sandesha' in connectionwith preaching of Buddha, 'Upadesha' in connection with the Vachanas ofBasava, is clearly indicative of religious merit or value of their teachingsrather than mere good conduct.

216. It may be that a reference to peace in connection with Mohammedand truth and non-violence in connection with Mahatma Gandhi may havea purely political or social and not religious significance. It is a perfectlyjustifiable suggestion that the necessity for absolute rectitude in the conductof men in charge of public affairs and the eschewing of all violence as a meansfor the solution of political or social problems are social and political virtuesin the context. That appears to be the doctrine of "spiritualisation ofpolitics" preached by Gokhale and also Mahatma Gandhi. To this extent,I do not think that any particular religious significance can be attached tothe stanza.

38 S. S. INAMDAR V. AGADI SANGANNA ANDANAPPA [VO1- XXXIV

217. But the reference to Karmayoga of Lokamanya Tilak, Anasak-thiyoga of Mahatma Gandhi and Arpanayoga of Sharnas, cannot but bereligious. The treatise on Karmayoga of Lokamanya Tilak is "GeetaRahasya" which is a commentary on one of the highly venerated religiousbooks of the Hindus, Anasakthiyoga of Mahatma Gandhi is the name of aGujarati article of his on the same topic and Arpanayoga of Sharmas isclearly the religious ideal of self-surrender to God.

218. The reference to Guru, Shiva and Jangama is without doubtreference to the three great principles'venerated by the Lingayats.

112

219. The general impression created by these 5 stanzas is that Congressis more a religious body than a mere political organisation. I asked Chan-nappa Master when he was in the witness box why he should bring in thenames of these religious teachers and their principles in a book of songswritten on his own showing, for election propaganda on behalf of the Con-gress candidates at the Election. He told me that he was greatly impressedby Mahatma Gandhi's preaching of truth and non-violence and in the courseof his further studies he discovered that those principles and the other idealspreached by Mahatma Gandhi were in no sense different from the principlestaught by and implicit in the religious teachings of these great men, Buddha,Basava, Jesus Christ, Mohammed and Mahaveera. Only in regard toMahaveera, he admitted that he had not made any deep study of Jain reli-gion, but in regard to other persons, he has no doubt in his mind that theywere great men who have founded separate religious sects.

220. Even so Mr. Venugopalachari argues that the corrupt practiceunder Section 123(3) cannot be said to have been committed or capable ofbeing committed by the composition and publication of these stanzas. Herelies particularly on the language of the sub-section as it now stands. Therelevant portion of it is:

"(3) The appeal by a candidate or his agent or by any other personwith the consent of a candidate or his election agent to vote orrefrain from voting for any person on the ground of his religion,race, caste, community or language "

He points out that the pronoun 'his'.in this extract refers clearly to the candi-date for election either the one that commits the corrupt practice or the otherwhose religion or religious conduct is made the basis of the appeal. By wayof direct authority on this proposition, he relies upon the ruling of theGujarat High Court, reported in A.I.R. 1967 Gujarat page 62, {Lalsinghvs. Vallabhdas) particularly on the discussion contained in paragraph 9 ofthe judgment at page 70 of the report. The Gujarat High Court says thatan earlier decision of the Division Bench had already decided that the pro-noun 'his' in the sub-section is referable to the candidate and not to thevoter. That earlier decision is reported in A.I.R. 1963 Gujarat 315, (Raman-bhai vs. Ajitkumar). The text of the judgment as reported does not containthe particular discussion. Certain portions of the judgment are omitted bythe reporter on the ground that those portions deal with discussion of theevidence. It is not clear whether the omitted portions contain this obser-vation. However, it is clear that the Gujarat High Court does observe inthe case reported in A.I.R. 1967 Gujarat 62, that ,the corrupt practice of

E. L. R.] S. S. INAMDAR V. AGADI SANGANNA ANDANAPPA 39

appeal in the name of religion was committed by an agent of the candidateand not by the candidate and the appeal appears to have had relation to thereligion of the agent and not of the candidate. On that ground, the HighCourt held that the provisions of the Section had not been attracted by thefacts of the case.

221. He also relied upon the fact that the Supreme Court in JagdevSingh vs. Pratap Singh, 1964 (6) Supreme Court Reports, 750, has while des-cribing the corrupt practice underlined the pronoun 'his' in the followingsentence occurring at the foot of page 769 of the report :

"It is the appeal to the electorate on a ground personal to the candidaterelating to his language which attracts the ban of Section 100 readwith Section 123(3)."

222. The argument of Mr. B.S. Patil on behalf of the petitioners in ans-wer to this is that the corrupt practice itself is an appeal for votes, that theappeal is necessary to voters, and that therefore what is of importance is thevoters' religion or religious feelings.

223. While it is true that the corrupt practice of religious appeal beinga species of undue influence is necessarily an attempt to move a voter ongrounds of religion and that such moving of the voter is possible only if hisfeelings are moved, and that therefore the religion or the religious feeling ofthe voter is an essential feature or factor in the corrupt practice, it is notpossible to accept the suggestion that the religion or the religious descriptionwhich can be given to the conduct and practice of a candidate is an irrele-vant fact. Because the appeal is for casting of votes in favour of the can-didate, one has to take into account both sides of the appeal. It was arguedthat an appeal to the effect that the opposing candidate is not an orthodoxsikh or as a member of the communist party wholly opposed to religion orreligious practices, may amount to corrupt practice of religious appeal, andthat therefore even the absence of religion or negation of religion by a candi-date may in certain circumstances operate to move the religious feelings ofvoter, and therefore, constitute the corrupt practice of religious appeal.

224. The answer to this controversy, in my opinion, is contained inthe very line or argument pursued by both the learned counsel. The matterrelates to the casting of vote. The casting of vote is by one individual infavour of another individual, first being the voter and the second the candi-date. Although in actual political life of the country people have organisedthemselves into political parties subscribing to different policies or ideals forgood government of the country, the Representation of the People Art it-self deals with individuals as candidates and not the political party. Thereis also no regular or formal statutory recognition of a political party in meRepresentation of the People Act, except that in the matter of allotment ofsymbols under the rules, the allotment may be partywise. Even when apolitical party puts up a candidate, the party is not seeking election, but thecandidate. The organisation of the party or the background furnished to thecandidate of the party's organisation and reputation may be of considerablevalue to him.2EC/71—4

4 0 S. S. INAMDAR V. AGADI SANGANNA ANDANAPPA [VOL. XXXIV

225. Secondly, when candidates of political party carry on propa-ganda, they ordinarily rely not merely on their private or personal merits,but also on the merits of the policies and principles of the party to whichthey belong. When, therefore, a candidate of a political party appeals tothe electorate on the ground that the policies pursued by his party are soundpolices and are likely to result in public good, in actual effect what he saysis that the policies of his party are good, that the party is committed toimplementation of those policies, that as a member of that party and subjectto its organisational discipline, he himself as an individual subscribes tothose policies and undertakes to implement those policies along with othermembers of his political party, and that therefore, the electorate may votein his favour.

226. Now this padyavali is, on the admission of its author, propagandaliterature written specially for election purposes. In the course of his cross-examination by Mr. Venugopalachari, he said that this was written by hima few weeks before it was printed and that except the few stanzas on thecover, all the stanzas in the text itself were composed by him only this year.He has also stated the reason why the entire pamphlet may be regarded asliterature for use in elections and the same is that there is a stanza in it onpage 16 actually seeking votes in favour of the Congress.

227. On these considerations, it seems to me reasonable to hold thatthe vote sought in the said stanza is a vote in favour of an individual candi-date or different individual candidates on behalf of the Congress and thatany praise of the Congress or its policies is a reason stated in support of thatappeal. Further, just as in the case of ordinary political policies, an eulogyof those policies is an undertaking by the candidate to work for those poli-cies, so also the description of the Congress as a highly religious body maywell be read as amounting to a statement that Congress is good, because itworks for the principles followed by religious teachers, that therefore it worksfor those principles, and that every member thereof subscribes to those prin-ciples and will work for those principles, and that for the said reason votesmay be cast in favour of those members standing as candidates at the elec-tion.

228. This is reinforced by the stanza on page 16 which is said to cons-titute a religious appeal by the petitioner. [After setting out the stanza, theJudgment proceeded:]

A free translation of that is, "having got up very early in the morningand purifying yourself with a bath, and having worshipped the 'Jodethu'(a pair of bullocks) with Arasina, Kvmkuma and Basitha, come and votefor the pair of bullocks."

229. This stanza was expressly referred to by Channapagouda Masteras the stanza asking for votes. In answer to a question on behalf of the peti-tioner, he said that worshipping the bullocks is not one of the Tathwasof the Congress. There is no doubt that 'Jodethu' or a pair of bullocks refer-red to is the election symbol of the Congress. It is this symbol that is referredto in the stanza as the one which should be worshipped. That the worshipreferred to is not mere veneration which an agriculturist has for the bullockswhich are of great value in agricultural economy ,ps clear from the fact that theworship is asked to be done with Arasina, Kumkuma and Basitha, i.e., theholy turmeric powder, kumkum and holy ashes.

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230. It has been held by this Court in a previous case between theseparties, Shankaragowda vs. Sirur Veerabhadrappa, A.I.R. 1963 Mysore 81,and Sangappa vs. Shivamurthiswamy, A.I.R. 1961 Mysore, 106, that thoughthe reference to the pair of bullocks itself or even a very poetic descriptionthereof may not constitute religious appeal, any attempt to equate it withNandi—the vahana of Lord Shiva would amount to the corrupt practice ofreligious appeal. In the present case, they are not referred to as Nandi andon that ground Mr. Vengopalachari argued that the worship or pooja refer-red to in the above stanza must be regarded as merely typifying the naturalrespect which as agriculturist has for the bullocks and should not be equatedto worship thereof as a representative or a representation of Nandi. Theargument is not without force. But, in the case on hand, it is difficult togive full effect to it and hold that the stanza does not amount to a religiousappeal, for two reasons,—one is that the pooja or the worship is required tobe done with Arasina, Kumkuma and Basitha, and secondly it is to bs theimmediately preceding step to voting. The voters are asked to worshipthe two bullocks and immediately to vote for the said bullocks. Thesuggestion clearly is that the bullocks in the Congress symbol are objects ofreligious worship.

231. The next questions for consideration would be the questions relat-ing to the alleged consent by the respondents to the publication of thisPadyavali.

232. The publication, as I have said, is regarded as consisting of twoparts—(1) actual printing and publishing of the book and (2) the distributionof it in the constituency and the oral publication by singing those songs, etc.

233. As is well-established, consent by a candidate sufficient to invalidatehis election must be consent to the commission of the corrupt practice. Suchconsent may be either anterior in point of time or subsequent. In the secondcase, it is more or less in the nature of ratification or adoption, to provewhich the petitioners have to establish first that the perpetration of the cor-rupt practice came to the knowledge of the successful candidates and thatwith that knowledge he accepted or condoned the same.

234. By way of previous consent, there is little attempt made to involveSanganna by that theory except to the extent the petitioners may prove suchprevious consent by reason of the fact that his friend Cadigeppa Desaihappens to be the publisher. One part of that question I have already dis-cussed; the latter has to be postponed to a subsequent stage of the judg-ment.

235. So far as C. H. Patil is concerned, there is a distinct attemptmade by the petitioners to connect him directly with the printing and publi-cation of the Padyavali. [After considering some detailed evidence, theJudgment proceeded:]

248. I have little hesitation in rejecting the evidence of both thesewitnesses as completely valueless. The anxiety of P.W. 1 to depose that theorder was placed by C. H. Patil and point to a signature in Exhibit P-25 asthat of C. H. Patil even without looking at it, shows that the entire case thatC. H. Patil placed the order is without any foundation.

42 S. S. INAMDAB V. AGADI SANGANNA ANDANAPPA [VOL XXXIV

249. The first attempt therefore by the petitioner to establish directconnection between C. H. Patil and the printing and publication of thePadyavali, has failed, and the impact of that failure on the other evidenceis that the rest of the evidence calls for greater scrutiny than in ordinarycircumstances it would have been necessarily subjected to.

250. While on this point, I may also deal with another portion of theevidence of Channappagouda Master. He said that having given the orderto Hombali Brothers to print the Padyavali, he went home leaving it to Tengi-nakai and somebody from Mudhol to go and take delivery of the books.Tenginakai taking delivery of the books may be of some probability, be-cause he is a local gentleman, well known in Gadag, and the Printers arealso in Gadag. But, to say that he told P.W. 15 that he could deliver theprinted copies in the name of Gadigeppa Desai to any one from Mudholwho may come and claim them is to assume that anything would be believedif stated in a witness box. Assuming that some people from Mudhol mighthave contributed to the expenses thereof, it is difficult for me to believe thathaving gone all the way to Gadag to get those booklets printed, Channappa-gowda Master would cease to take any further interest and instruct P.W.15 to deliver them to a person whose name even is not known or rememberedby Channappagowda Master himself. Apparently, there is some truth inone part of the evidence of Sreenivasacharya that Channappagowda Masterwas in Gadag until the printing was completed. In all probability his state-ment in chief examination that the printed copies were delivered to Channa-ppagowda Master himself is a piece of truth which slipped out from his lipswithout his being aware of it.

251. For proving subsequent adoption or consent by C. H. Patil andalso Sanganna, the evidence of the petitioners is almost exclusively evidenceof several propaganda meetings said to have been held in Yelburga Consti-tuency. There were four meetings, according to the evidence, in Yelburgatown itself, one in Kuknoor, one each in other outlying villages, viz., Yere-hanchinahal, Sanganahal, Rajoor and Balootgi. At all these meetings,Channappagowda Master is said to have been present singing songs ordelivering speeches.

252. In the course of his cross-examination by Mr. Venugopalacharl,Channappagowda Master has categorically denied the case of the petitionersthat lie had sung songs or delivered speeches at any one of those places.He has also denied the allegation that he had gone round in a jeep or doneany house-to-house canvassing in Yelburga town.

253. Having regard to the circumstances in which he was examined asa witness, whether or not his denial can be straightaway accepted as trueon the merits of his own deposition, one1 legal effect of this denial, in myopinion, is that the burden of proof lying on the petitioners has become heavi-er. As already stated, they have taken the risk of citing ChannappagoudaMaster and examining him in the hope that on the strength of certain docu-ments like the Padyavali and other documents, he would be obliged to makesome answers in their favour. If so, they must take the consequences of thanswers made by him which are adverse to their case. Of course, it is nonecessary, straightaway to hold on these denials of Channappagouda Master

E. L. R.] S. S. INAMDAR V. AGADI SANGANNA ANDANAPPA 43

that the entire case of the petitioners regarding the meetings is false. Never-theless it makes it necessary to scrutinise the evidence relating to meetingswith greater suspicion than otherwise.

[While considering evidence relating to the meetings the Judgment conti-nued:]

291. Exhibit P-29 purports to be a report of the proceedings of thismeeting by a person describing himself as a wanderer without giving hisname. It contains two pages of printed matter. But the name of the print-ter is not found on it. There is no proof, even formally, of the printing ofthis pamphlet.

292. The original of the pamphlet is not before the Court. Argumentpressed by Mr. Patil before me is that having regard to certain facts or cer-tain steps taken up by the petitioners to get the original produced, there isa case for receiving Ex. P. 29 as secondary evidence.

293. The legal position can be briefly disposed of before going into thefacts. Reliance is placed by Mr. Patil on Section 65 of the Evidence Act,particularly clauses (a) and (c) thereof. The relevant portion of section reliedupon by Mr. Patil is the following :

"(65) Secondary evidence may be given of the existence, condition,or contents of a document in the following cases:—

(a) When the original is shown or appears to be in the posses-sion or power of any person legally bound toproduce it.

(c) When the original has been destroyed or lost, of when theparty offering evidence of its contents cannot, for any otherreason not arising from his own fault or neglect, produce itin reasonable time "

His argument is that a witness summoned to produce a document comeswithin the description of a person legally bound to produce a document andsecondly that the petitioners having taken all steps they could, to get the docu-ment produced or not, for any reason arising out of their default or neglectin a position to produce the original within reasonable time.

294. I do not doubt that a witness would come within the descrip-tion of a person legally bound to produce a document. Regarding the partyhimself tendering evidence referred to in clause (c), the document in ques-tion need not necessarily be a document in his custody. It may be either inthe custody of somebody else and within his power or not within his power toproduce without the assistance of the Court. The position in law is founddiscussed in GAYA PRASAD v. JASWANT RAI, (A.I.R. 1930 AllahabadP. 550) and in VENKATARAMANUJA CHARYULU v. APPLACHAR-YULU (A.I.R. 1926 Madras P. 1003). The English case of THE QUEENagainst THE INHABITANTS OF KENILWORTH (125 English Reports631) has also been relied upon.

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295. The general proposition made in these cases is that when the exis-tence of an original is made out but the party tendering evidence is not in aposition to produce the same, it need not be insisted upon that the proof ofthe circumstances entitling him to produce secondary evidence should beabsolutely strict or on the basis of strictly legal evidence. The position isstated by COLERIDGE, J: In the case of KENILWORTH mentioned abovein the following terms:

"If the precise rules of evidence were applicable, the objections mightperhaps be well-founded (objections to receiving secondary evidence).But that is not so. The preliminary proof is given to enable a judi-cial tribunal to determine whether secondary evidence can be sub-mitted to them. In such a case, a looser rule of evidence may pre-vail."

His Lordship Demman, CJ . in the same case points out :—

"The question in every case is, whether there has been evidence enoughto satisfy the Court before which the trial is had that a bona fideand diligent search was made for the instrument where it was likelyto be found."

296. The first question of fact in the case is whether the petitionersprove that there is an original document and if so, who has the custody ofit. The second question is whether he has made every bona fide attempt tohave the original produced before court. [After considering further detailedevidence, the judgment proceeded:]

345. The overall picture created by all this evidence and considera-tions arising out of it, is in my opinion, that in all probability Channappa-gouda Master must have done some house to house canvassing and streetsinging in Yelburga town, that some meetings, though not so numerousas spoken to by the petitioners' witnesses, might have been held by theCongress party or Congress workers, that it is not wholly improbable thatat some of these meetings he might have sung, but that the evidence of thepetitioners is not sufficient to lead to a definite conclusion that at the meetingsat which Channappagouda Master might have sung either Sanganna or C.H.Patil was definitely present, and that the said evidence is quite insufficient toshow that he must have gone about in a jeep touring the villages outsideYelburga town.

346. If the evidence is insufficient to hold that Sanganna or C.H. Patilor both of them was or were present at any meeting at which Channappa-gouda Master might have sung his songs, then the one important link onwhich the petitioners depend to prove that the corrupt practice committedby Channappagouda Master had their consent, snaps.

347. So far as actual street singing is concerned, there is no case nor dothe witnesses who speak to it P.Ws. 3 and 16 make any mention of the factthat the same was done in the presence of either Sanganna or C.H. Patil.

348. The petitioners are, therefore, obliged to prove consent on othermaterial, if any, available. It is here that Mr. B. S. Patil made strenuous

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attempt to prove that the documents that are proved and such of the evi-dence as is clearly acceptable is sufficient to suggest that there must have beenconsent, at any rate, conduct amounting to subsequent adoption or ratifi-cation on the part of at least C.H. Patil.

349. The argument is through or on the strength of the pamphlets Exhi-bits P-49, P-50 and P-30 and the printing of the name of C.H. Patil at the footof page 16 of the Padyavali Exhibits P. 28 and P. 48.

350. So far as Exhibits P. 49 and P-50 are concerned, there is the evi-dence of Channappagouda Master himself that he is the author of the entiretext in both and in the printed text there are no errors or departures from hisoriginal composition. These two pamphlets are admittedly election litera-ture seeking votes in favour of the Congress candidates named therein.Channappagouda Master has actually composed one or two couplets inwhich he has included the names of Agadi Sanganna and Virupakshagoudathe Congress candidate for the Koppal Assembly Constituency. He hasalso added a foot-note or set of instructions to the effect that in other Cons-tituencies, the names of the respective Congress candidates may be substitut-ed and the couplets sung. One of the names mentioned by him is Channa-basavagouda, i.e., the respondent C. H. Patil. There is no doubt that heknew that C. H. Patil was the Congress candidate in Yelburga Constituency.He has described himself in these pamphlets as 'Congress Karyakartha',that is to say Congress worker. Although he denied the suggestion thatsuch description indicated any official connection between him and theCongress, the denial is not readily acceptable for two reasons. In the firstplace he has exhibited great attachment to what he calls the ideals of theCongress and utilised the talent that he possesses for composing songs onthem. Secondly, his name is printed among the 102 residents of Yelburgaappealing for votes in favour of the Congress Candidates in Exhibit P-30.C. H. Patil has admitted that Exhibit P-30 was got printed and publishedby Siddappa Karandi, who is the President of Yelburga Mandal CongressCommittee. He has also admitted that the secretary of that Mandal who hasincluded himself as one of the persons seeking votes under Exhibit P-30is Basappa Ladi, The said Basappa Ladi was the person who was workingfor C. H. Patil in Yelburga town. C. H. Patil has also candidly admittedthat he depended upon both Siddappa Karandi and Basappa Ladi for assis-tance in election propaganda and accepted their assistance. Channappa-gouda Master having admitted that the Padyavali was a piece of electionliterature specially written or composed for the General Elections of 1967,the printing of the name of C. H. Patil on the 16th page thereof is, accordingto Mr B. S. Patil, the clearest indication of the fact that C. H. Patil musthave had something to do with the printing of the same.

351. That Exhibit P-30 may be depended upon to hold that Channa-ppagouda Master was a member of the Congress or a Congress workerappears to be fairly clear from the events. But the attempt to prove that hewas a regular member of what is called the 'Prachara Samithi' on the partof P.W. 3 Ajjaiah could not succeed because he had to admit that the onlypiece of information he could state on his personal knowledge was thatSiddappa Karandi was the Chairman of it. The evidence of the printerMudbasappa, P.W. 20, was that Siddappa Karnadi, who personally gavehim the original of Exhibit P-30 in manuscript, viz., Exhibit P. 63 had toldhim that the several names appearing on the said manuscript document

46 S. S. INAMDAR V. AGADI SANGANNA ANDANAPPA [VOL. XXXItf

Exhibit P. 63 were not signatures of those persons. Karandi himself nothaving given evidence, this statement by Mudbasappa may be regaded ashearsay. But his evidence that the said document does not contain the writ-ing of Siddappa Karandi, is direct evidence. What emerges from this is thatExhibit P. 63 which is proved to have been signed by Siddappa Karandi wasprobably not written by himself and there is no evidence to show eitherthat the names appearing on that document are signatures of the personsbearing those names or to show that Siddappa Karandi or anybody else onhis behalf and sought and obtained the permission of these several persons tohave their names printed. All that one could say on the evidence of C. H.Patil that Siddappa Karandi is not a person to publish what he knows to befalse, is that the persons named therein were sympathisers of the Congress,and were willing to ask people to vote for the Congress; technically theymay be canvassers. To say that out of these 102 persons, the most impor-tant person is Channappagouda Master, is, I think, an exaggeration. Fromthe mere fact that the President of the Congress Mandal at Yelburga isresponsible for the publication, there is no reason to think that any one per-son is more important than the other in the said list. I asked Mr. Patila specific question whether so far as the printing of the name of C. H. Patilat page 16 of the Padyavali is concerned, he was suggesting that any respon-sibility is traceable to Siddappa Karandi. Mr. Patil told me frankly thathe is not making any such suggestion nor is there any evidence to support it.His argument was that he was depending upon Exhibit P. 30 only to show thatChannappagouda Master was a man of some status in the propagandamachine of the Congress, and that so far as the printing of the name ofC. H. Patil on the Padyavali is concerned, he wanted me to infer that Chan-nappagouda Master was undoubtedly interested in C. H. Patil as a candidate,that such interest cannot be one-sided, but could only be mutual, and thattherefore it is possible to infer that the printing of his name was within theknowledge of C. H. Patil, if not the result of actual consent by him.

352. I can accept the argument that Channappagouda Master was per-haps himself responsible for printing that name and may, therefore, be takenas interested in C. H. Patil as a Congress candidate for election. His denialthat this was printed without his knowledge did not impress me. Inanswer to my questions, he has expressly stated that though he was of theopinion that the election symbol was more important than the name of thecandidate, he had no objection whatever to himself using the names of thecandidates in the songs composed by him or permitting others to include thenames of Congress candidates in the songs composed by him. He alsostated that if only he had been asked by somebody to put the name of C. H.Patil in the Padyavali, he would have had no objection. If his evidence thatGangadharaiah and others of Mudhol gave encouragement to print thecopies of Padyavali showing Gadigeppa Desai as publisher can be accepted,then it would mean that whoever they were, who made such a request werepersons interested in Congress election propaganda and might have or maybe reasonably expected to have requested him to print the name of C. H.Patil in the same way as his un-named friends of Koppal got him to composesongs with the names of Agadi Sanganna and Virupakshagouda included inthem.

353. But the next step in the argument that C. H. Patil must necessarilybe held to have consented to it, is a more difficult step to take on the evidense

E. L. R.] S. S. INAMDAR V. AGAD1 SANGANNA ANDANAPPA 47

and the probabilities suggested by the evidence. The difficulty is createdby the fact that Channappagouda Master having been cited by the petitionerswhile admitting his authorship of the Padyavali and the pamphlets ExhibitsP. 49 and P. 50, has expressly denied the truth of every one of the other itemsof activity attributed to him in the petition. He has denied his presence atmeetings. He has denied street walking. He has denied any contact withany of the Congrss candidates. As already stated by me, the denial may bea matter for scrutiny before one could accept it as absolutely true. I havealready come to the conclusion that this total denial is not clearly acceptableand that he must have done some street walking and singing and house tohouse canvassing. But his denial in the witness box, having been cited by thepetitioner himself, has certainly made the burden of proof heavier so far asthe petitioner is concerned. If he wants to take the benefit of the answersmade by him admitting his authorship of these pieces of election literature,he cannot get rid of the adverse replies given by him without leading strongevidence to the contrary. Tf the entire evidence of Channappagouda Masteris to be kept out of account as that of a person who in the circumstancescannot be trusted to speak the truth or speak the whole truth before the Court,the case of the petitioner becomes weaker by depriving him of the benefitof the favourable answers given by Channappagouda Master.

354. In those circumstances, the only proper view that I can takewithout being apprehensive of being unjust or unfair to either of the partiesor to the witnesses is that he must be taken to have admitted facts which aretrue to his knowledge and denied facts which are not true to his knowledge,but with this difference, viz., that he might be credited with a desire toexculpate himself from adverse criticism or from a charge of actual corruptpractice.

355. Considering all these aspects of the matter, it appears to me thatthe petitioners cannot, on the basis of the above documents—ExhibitsP-30, P-49 and P-50 alone or on the basis of the said documents and suchother suggestions as may be available to them on other evidence, contendthat there is any foundation for the suggestion that C.H. Patil himself musthave consented to the printing of his name on the sixteenth page of thePadyavali. The further difficulty in the way of the petitioners to make anysuch suggestion is the total unreliability of the evidence of P.Ws. 1 and 15,Seshagiri Hombali and Sreenivasacharya Hombali.

356. My opinion is that the petitioners have failed to prove any sortof consent on the part of C. H. Patil to any of the activities of Channappa-gouda Master.

357. On tnis aspect of the case, there remains only one further pointfor examination, and that is, whether any such consent may be traced toSanganna through Gadigeppa Desai.

358. As I have earlier stated, it may not be possible to accept the caseas completely true that Gadigeppa Desai was absent or away from the Yel-burga Constituency throughout the election. He might have been presentduring some portions of the said period. There is the evidence of Channa-ppagouda Master to the effect that he had not sought either the previousconsent or subsequent approval of Gadigeppa Desai for printing his nams as

48 S. S. INAMDAR V. AGADI SANGANNA ANDANAPPA [VOL. XXXIV

publisher. It is not possible to accept this position at its face value. Hisreference to Gangadhariah and the statement that he asked Hombali Brothersto deliver all the printed copies to whoever may come from Mudhol to claimthem, as I have already held, are not readily acceptable. The probabilitiesare that he himself must have taken delivery of all the copies and broughtthem to Yelburga.

359. In the petition, Gadigeppa Desai is expressly referred to in the veryparagraph in which the corrupt practice of religious appeal is mentionedwithout, however, indicating that he was the publisher or that his name hasbeen printed as the publisher of the Padyavali. The respondents couldnot therefore clearly traverse this aspect of the case. While calling forpapers from the Printers Hombali Brothers and from ChannappagoudaMaster himself, the petitioners have called from the former the order placedby Channappagouda Master to print the Padyavali and from the later a copyof the Padyavali showing Gadigeppa Desai as the publisher. The copyproduced by the printers Exhibit P-24 shows one K. C. Tenginakai as thepublisher. There is no case associating the said Tenginakai with the allega-tion with which we are concerned in these petitions.

360. While referring to meetings at which Channappagouda Masteris said to have sung his songs, no reference was made to the presence ofeither the respondents or of Gadigeppa Desai at any one of those meetings.But the evidence throughout makes an attempt to speak to the presence ofGadigeppa Desai at three or four meetings at least.

361. Even in the evidence, there is no case of any direct knowledgeon the part of Sanganna of the fact that his friend Gadigeppa Desai's namehas been printed as publisher of the Padyavali. Channappagouda Masterhaving stated that he had never contacted Gadigeppa Desai, the onlyattempt is to connect the three—Channappagouda, Gadigeppa Desai andSanganna,—through the evidence relating to meetings. The said evidence Ihave found insufficient to come to a definite conclusion as to the truth orotherwise of the various statements regarding the presence of different per-sons at those meetings.

362. In view of this, I have no alternative but to hold that the evidenceadduced by the petitioners is insufficient to suggest, much less infer, thatChannappagouda took the permission of Gadigeppa Desai to print hisname as publisher and that Sanganna had knowledge of it or joined withGadigeppa Desai to get Channappagouda Master to print this Padyavali foruse as a propaganda literature.

363. Lastly, there is one argument strongly pressed by Mr. Patil on thestrength of an answer given by C. H. Patil.

364. In paragraph 58 of his deposition, while speaking to his tour inHirivankalakunte, Manglur, etc., in a jeep equipped with loud-speaker,he stated:

"The recorded cinema songs were broadcast and wherever people assembl-ed, 1 sought votes in favour of "Jodettu" or "Basavanna".

F. L. R.] S. S. INAMDAR V. AGADI SANGANNA ANDANAPPA 4 9

Immediately, I asked him the question :

"What do you mean by Basavanna?"

His answer was:

"The bull is called Basavanna

365. On the basis of the above answer, the argument strongly pressedby Mr. B. S. Patil is that there is an admission of a corrupt practice by therespondent himself and that even though there is no allegation or statementof particulars in the petition charging C. H. Patil himself with having com-mitted the corrupt practice of religious appeal, the admission is sufficient tohold him guilty of a corrupt practice and that in the interest of purity of elec-tion, the Court should take notice of it and deal with the matter in accor-dance with the law.

366. Two cases have been cited in support of this proposition, viz.,(1) RABHUNATH SINGH v. KAMPTA PRASAD SAXENA 8 E.L.R.424, and (2) NARASIMHAN v. NATESAN CHETTIAR 20 E.L.R. 1.In the latter case, the admission of the respondent which was the subjectof discussion was not an admission of corrupt practice but admission ofcertain facts having a bearing on the corrupt practice of incurring electionexpenses in excess of the prescribed maximum. The proposition of law laiddown by the Madras High Court was that assuming that the Election Tribunalcould come to a finding that a corrupt practice had been committedon facts not alleged in the petition but admitted by the respondent, itis well settled that the admission of kthe respondent must be taken as a whole.

367. The case of Raghunath Singh (8 E.L.R. 424) was decided by anElection Tribunal and the admission made by the respondent in that casewas of his having engaged a species of Government Servants called Zamin-dars as his polling agents. The Tribunal held that although corrupt practicesmust generally be pleaded and proved by the petitioner, if a corrupt practicecomes to the notice of the Tribunal from the admission of the respondent,the Tribunal is bound in the interest of justice to take notice of it.

368. The first question for consideration therefore is whether the answersgiven above amount to an admission of a corrupt practice. The argument isthat to use the word "Basavanna" to refer to the election symbol of theCongress is to suggest to the voters that the pair of bullocks in the said symbolrepresented Basaveshwara the Great Veerasaiva Reformer. The answer isthat it need not necessarily be so. It is argued that not only C. H. Patil'sanswer to my question but also answers given by some of the petitioners'witnesses go to show that the Kannada expression "Basavanna" is also com-monly used to refer to an ordinary bullock and that the said expression neednot necessarily be regarded as amounting to a suggestion that the Congresselection symbol represents Basavanna or Basaveshwara of Kalyana.

369. One of the witnesses for the petitioners is Thippanna ParasappaP.W. 5 who stated in the course of his cross-examination in para 14 asfollows :—

"I have two bullocks at home. They are of great importance or value

50 S.S. INAMDAR V. AGADI SANGANNA ANDANAPPA [VOL. XXXIV

from the point of view of cultivation and agriculture. The bullocksare called Basavanna."

Another witness Murtuza P.W. 17 who is a Muslim stated in his examinationin chief in para 10 as follows:—

"I am a Muslim. Muslims also join Hindus in some poojas and processionsof bullocks or Basavanna on such occasions as Kar-Hunnime, BasavaJayanthi, etc."

370. There is therefore evidence to show that the expression Basavannamay also have an innocent meaning, that is to say, meaning other than theone the use or employment of which may imply a reference to Basaveshwaraof Kalyana.

371. Before a person can be held to an admission, the whole of the ad-mission as well as the circumstances which might explain its meaning shouldalso be taken into account, especially when on the strength of such admissionhe is proposed to be held guilty of a corrupt practice. In the case reported in20 E.L.R. 1, the admission was quite clear in terms, viz., that certain Zamin-dars had been employed by the successful candidate as his polling agents.That Zamindars were persons in the service of Government procuring or ob-taining whose assistance is a corrupt practice was a point of law which hadalready been decided by the Tribunal as appears from its judgement. Hence,the simple admission by the respondent of having employed such persons ashis polling agents was itself sufficient to complete the case of corrupt practice.In the present case, however, the admission may be described as equivocalor at any rate not quite so clear as in itself to amount to a corrupt practicewith nothing more remaining to be proved to complete the case of corruptpractice.

372. I do not think, therefore, that on the facts of this case, it is possibleto apply the principle of law relied upon by Mr. Patil.

373. My findings, therefore, on issues 4 and 5 in Election Petition 3 of1967 and issues 8 and 9 in Election Petition 6 of 1967 which are in identicalterms are the following ;—

"It is proved that Channappagouda Master of Yelburga had printedand published in the Yelburga Constituency during the electionperiod a book-let called the Congress Tatva Prachara Padyavali.The petitioners, however, have failed to prove that the publicationwas made with the consent of either Agadi Sanganna or C.H. Patilor of the election agent of either of them. The petitioners have failedto prove that the said Channappagouda Master acted as an agentof either Agadi Sanganna or C.H. Patil for the purpose of election.The facts proved by the petitioners establish that some of the stan-zas in the Padyavali amount to a corrupt practice within the meaningof sub-section (3) of Section 123, but do not establish that the corruptpractice was committed either by Agadi Sanganna or C.H. Patil,or by Channapagouda Master with the consent of either Sangannaor C.H. Patil or of the election agent of either of them so as to in-validate the election of either Sanganna or C.H. Patil."

H. L. R.] S. S. INAMDAR V. AGADI SANGANNA ANDANAPPA 51

374. The next topic is the corrupt practice of obtaining or procuring theassistance of persons in the service of the Government, covered by issueNos. 7 and 8 in Election Petition 3 of 1967 and issues Nos. 6 (b) and (c)and 7 in Election Petition 6 of 1967.

375. In view of my findings already recorded on issue No. 6 in ElectionPetition 3 of 1967 and issue No. 6 (a) in Election Petition 6 of 1967, theonly person who comes within the ambit of clause (f) of sub section (7) ofSection 123 of the Representation of the People Act is Pundangouda, thepolice patel of Halkeri.

376. The allegations in regard to him in the petition in Election Petition6 of 1967 are contained in paragraph III (F) (4). They are:—

"Pundangouda, Police Patel of Halkeri abovenamed is the officiatingPolice Patel of Halkeri village in the Taluka of Ron. He went roundin the company of Respondent No. 1 and Bassangouda, Mulki Patilof Halkeri and canvassed votes for Respondent No. 1. He has alsomoved round in the Constituency of Yelburga, with the consentof respondent No. 1 and canvassed votes for him throughout theperiod available for canvassing votes in the village of Rajur, Sanga-nal, Thondihal, Bhandihal, Kuknoor, Yelburga, etc. Thus the assis-tance of Pundangouda has been taken by Respondent No. 1 for theprospects of Respondent No. l's election in the matter of canvassingvotes for him. This assistance was taken for canvassing votes forShri Agadi Sanganna also.

The said Respondent i.e., the Congress candidate for the YelburgaConstituency and Agadi Sanganna, the Congress candidate for theHouse of the People, from the Koppal Parliamentary Constituencymade common cause with each other and have acted as each other'sagent, as well as in the matter of these canvassing agents, besidesthemselves available to each other."

377. The allegations in the petition in Election Petition 3 of 1967 aresimilar and to the same effect. The only difference is, whereas in the case ofC.H. Patil, it stated that Pundangouda moved about the Constituency inhis company, in the case of Sanganna the express statement made is thatPundangouda had canvassed with the consent of Sanganna and his electionagent. The averment as to both Sanganna and C. H. Patil having madecommon cause and helped each other in the election is made in ElectionPetition 3 of 1967 also.

378. The case, it will be seen, is that of direct contact between Pundan-gouda and C.H. Patil, whereas Sanganna is sought to be made responsibleon the ground that having regard to the line of propaganda pursued by theCongress and his candidates, Sanganna actually entrusted the responsibilityof propaganda for him into the hands of C.H. Patil so far as Yelburga Consti-tuency is concerned.

379. There are two distinct attempts in the evidence for establishing directcontact between Pundangouda on the one hand and C. H. Patil on theother.

SI S. S. INAMDAK. V. AGADI SANGANNA ANDANAPPA [VOL. XXXIV

380. The first of them is the case of corrupt practice of bribery, the detailsof the evidence relating to which I have examined and expressed the viewthat the case of bribery is not satisfactorily made out.

381. The second attempt is the one made through the evidence of Kotra-ppa Kallappa Hosamani, P.W. 9.

382. The said Hosamani is a resident of Adur village but owning consi-derable agricultural land both in Adur as well as in the neighbouring villageof Rajur. He deposed that about eight or ten days before polling he was sentfor by Dattappa Desai, the Gumasta Patwari of Rajur village, through aWalikar of Rajur village. When he went to the house of Dattappa Desai,he says, he found sitting there Gururao Desai, Pundangouda, Agadi Sangan-na, Channabasannagouda, Channappagouda and others. Pundangoudathen told him that the villagers should vote for Agadi Sanganna and C.H.Paul. Gururao Desai (who is the Pattedar Patwari of Rajur and who hadappointed Dattappa Desai as his gumasta) told the witness that because heGururao Desai was the Shanbogue of the villa ;e. all the villagers shouldvote for Agadi Sanganna and Patil. He was then given some copies of thepadyavali and of pamphlets Exhibits P-29, P-30 and P-31 and requestedto distribute them in Adur village.

383. The witness adds that both his wife as wf'i as his son's wife belongto Halkeri; that he visits Halkeri fairly frequency and that he and Pundan-gouda are friends. He also says that they are on visiting terms.

384. The main question for consideration about the evidence of this wit-ness is whether it is at ail probable that he would have been selected byCongress candidates or Congress workers for distribution of their electionliterature. Rajur and Adur are neighbouring villages, the distance betweenthem is only about one and a half mile; they are included in the same villagepanchayat with its office at Rajur. At Rajur, the Congress had its own wor-kers, one of whom Devareddiyappa has given evidence as R.W. 9. P.W.7 Neelappa Lingappa of Rajur village has also said that in his villageDevareddy, Mannapur Sangappa, Gurukar Sharnappa and Kuberappa hadworked for Sanganna. R.W\ 9 Devareddiappa also gives the names of theabove persons, as persons who were working with him for the Congress.

385. The greater probability of this work or work of this character beentrusted by Congress candidates to their own workers is not rejected ortaken as non-existent by Mr. Patil. learned counsel for the petitioners'. Buthe says that the special reason why P.W. 9 Hosamani was sent for was thefact that he was a friend of Pundangouda and Pundangouda himself hadcome to Rajur as spoken to by him. With respect, it appears to me, that thiswould be reversing the process of reasoning. The question at issue iswhether Pundangouda was there to work for C. H. Patil or AgadiSanganna or both of them and the evidence adduced to prove that factis that of P. W. 9 Hosamani. For testing the acceptability of the saidevidence, the fact sought to be proved by it cannot be assumed to be true.

386. I am, therefore, not satisfied that there was any special or compel-lin reason why in spite of the fact of there being as many as four persons

E. L. K.] S. S. INAMDAR V. AGADI SANGANNA ANDANAPPA 53

working for the Congress in this village, P.W. 9 Hosamani's service shouldhave been indented upon. Probabilities in my view are all against the sugges-tion of the petitioners that this witness was actually selected for distribut-ing election literature by the Congress.

387. It is no doubt true that he appears to be a substantial agriculturistowning extensive lands both in Adur and Rajur and may, therefore, not beopen to the criticism that he is a mere worker of the L.S.S. Nevertheless theprobabilities discussed above make it difficult to act on his evidence to proveor even probablise the case of the petitioners that Pundangouda had actuallycome to Rajur to secure the assistance of this witness.

388. There is no other evidence of this character showing or tending toshow any direct connection between Pundangouda and C.H. Patil in the matterof the conduct of election propaganda.

389. For the rest, the evidence is entirely that of the propaganda meetingwhich I have discussed in detail under the topic of the corrupt practice onreligious appeal.

[After considering some further detailed evidence, the judgement pro-ceeded.]

411. My findings on these issues, therefore, are the following:—•

Issue No. 7 in Election Petition 3 of 1967 :

(a) The petitioner has failed to prove that any of the persons mentionedin issue No. 6 canvassed votes for the respondent at the electionexcept C.H. Patil, who was the Congress candidate of YelburgaConstituency.

(b) It is proved that Shekargouda had not acted as counting agent of therespondent.

Issue No. 8 in Election Petition 3 of 1967 :

The facts proved under issue No. 7 do not establish the commission ofcorrupt practice under Section 123 (7) of the Representation of the PeopleAct, invalidating the election of the respondent. C.H. Patil having canvassedsupport for the respondent does not have that effect, because he is not a per-son in th e service of the Government.Issue No. 6(b) in Election Petition 6 of 1967 :

The petitioner has failed to prove that the persons named in issue No.6(a) canvassed votes for the respondent during the election.Issue No. 6(c) in Election Petition 6 of 1967 :

It does not arise in view of the findings on issue No. 6(b).Issue No. 7 in Election Petition 6 of 1967 :

The facts proved under issue No. 6 do not establish the commission ofthe corrupt practice under Section 123(7) of the Representation of the PeopleAct, invalidating the election of the respondent.

54 S. S. INAMDAR V. AGADI SANGANNA ANDANAPPA [VOL. XXXIV

412. The next issues for consideration are issues Nos. 1 and 2 in E.P.No. 3/67 raising the question whether Sanganna is disqualified by reason ofhis holding certain posts said to be posts of profits or by reason of the subsis-tence of a contract with the Central Government. The positions which aresaid to be posts of profits are those set out in issue No. 1 Sanganna admitsthat he held those positions but contends that they are not posts of profitunder the Government so as to disqualify him under Article 102 of theConstitution. The contract which is said to disqualify him under section9-A of the Representation of People Act is said to be a contract between theKoppal Agricultural Produce Marketing Co-operative Society and the CentralGovernment. Sanganna denies the existence of a contract and also raisesthe question that contract of the character mentioned above is not a contractwithin the scope of or purview of section 9-A of the Representation ofPeople Act.

413. The relevant portion of Article 102 is as follows:—

"102(1) A person shall be disqualified for being chosen as, and for being,a member of either House of Parliament—

(a) if he holds any office of profit under the Government of India or theGovernment of any State other than an office declared by Parlia-ment by law not to disqualify its holder x x x x x "

The questions of law which arise, therefore, will be:—-

1. Whether the positions held by Agadi Sanganna are posts under theGovernment;

2. Whether they are posts of profits;

3. If the answer to 1 and 2 is in the affirmative, whether they are byany parliamentary legislation declared not to disqualify him.

414. Such Parliamentary legislation is the Parliament (Prevention of Dis-qualification) Act, 1959. (Central Act X of 1959).

415. On the question what is a post of profit, there is the following state-ment of the legal position by the Supreme Court in Revanna Subana vs.G.S. Kaggeerappa, (A.I.R. 1954 Supreme Court P. 653), at page 656 of thereport:—

"The plain meaning of the expression seems to be that an office mustbe held under Government to which any pay, salary, emolumentsor allowance is attached. The word "profit" connotes the idea ofpecuniary gain. If there is really a gain, its quantum or amount wouldnot be material; but the amount of money receivable by aperson in connection with the office he holds may be materialin deciding whether the office really carries any profit."

416. The question whether and if so, in what circumstances, a personmay be said to hold an office under the Government was considered by theSupreme Court in several cases of which the following three cases are ofimportance.

E. I . R.J S. S. INAMDAR V. AGADI SANGANNA ANDANAPPA 55

1. Abdul Shakur Vs. Rikhab Chand, A.I.R. 1958 Supreme Court, P. 52.

2. Ramappa Vs. Sangappa, A.I.R. 1958 Supreme Court P. 937, and

3. Gobinda Basu Vs. Sankari Prasad, A.I.R. 1964 S.C.P. 254.

The last of the cases refers to and discusses the position under the earliertwo cases.

417. One position that is made quite clear is that to hold a post underthe Government it is not quite essential that the holding of the post is inthe service of the Government.

418. In the case of Abdul Shakur, the post under consideration by Courtwas that of a Manager of a school appointed by a Committee ofManagement of a Durga. The school was one run by the said Committee.The appointment was by an Administrator of the Durga. Under a Statutecalled Durga Khaja Saheb Act, 1955, the Government of India had the powerof appointing and removing the members of the Committee as also the powerto appoint an Administrator in consultation with the Committee. The argu-ment was that in view of all these statutory provisions, the position of theManager of this school must be held to be a post under the Government.The opinion of the Court was that it was not such a post of profit.

419. In Ramappa vs. Sangappa, the question arose in relation to here-ditary village officers governed by the Mysore Hereditary Village OfficesAct. The arguments pressed in the case on behalf of the village officers whohad succeeded in the election were that the right to hold the office was theprinciple of hereditary succession and that having regard to the history ofvillage administration and Jaw applicable thereto in the erstwhile State ofMysore, hereditary village officer must be held or taken to hold the saidoffice not under the Government but under the village community. Botharguments were rejected by the Supreme Court, which pointed out that al-though the right to appointment might be said to have been acquired by virtueof or by the operation of the law of succession, the actual right to holdthe office is traceable to an appointment by the Government, notwithstandingthe fact that by reason of the rule of hereditary succession, the Governmentmight be, in most cases, obliged to appoint the heir next in order of successionto a deceased officer.

420. In the case of Gobinda Basu, the question arose in respect o theposition of an Auditor of a Public Sector undertaking. The facts were thatthe candidate in question was appointed Auditor by the Central Government,that he was removable by the Central Government and the Comptroller andAuditor General of India exercised full control over him. His remunerationwas fixed by the Central Government under a certain statute though paidby the company or the undertaking. It was held the post was a post underthe Central Government.

421. In the third case, the argument was advanced that before a postcan be identified as a post under the Government, several circumstance^should co-exist and at least five tests should be applied and satisfied beforedoing so. The tests suggested were :—

1. Whether the Government makes the appointment;2EC/71—5

56 S. S. INAMT3AR V. AdAD! SANGANNA ANDANAPPA [VOL. XXXIV

2. Whether the Government has the right to remove or dismiss the holder;

3. Whether the Government pays the remuneration;

4. What are the functions of the holder? Does he perform them for theGovernment?

5. Does the Government exercise any control over the performance ofthose functions?

Their Lordships of the Supreme Court declined to accept the propositionthat all the above tests should be satisfied or all those conditions should exist,but observed that should they all co-exist, the inevitable conclusion wouldbe that it is a post of profit under the Government.

422. While discussing the previous decisions of the Court, they indicatewhat appears to me to be their opinion as to an essential or very necessarytest.

423. While discussing the case of Abdul Shakur, they cite a passage fromthe judgment in which there occurs the following sentence :—

"The power of the Government to appoint a person to an office of profitor. to continue him in that office or revoke his appointment at theirdiscretion and payment from out of Government revenues areimportant factors in determining whether that person is holdingan office of profit under the Government though payment from asource other than Government revenue is not always a decisivefactor."

424. Referring to the case of Ramappa Vs. Sangappa, their Lordshipscategorically stated :

"There again, the decisive test was held to be the test of appointment."

425. As I read the discussion and the declaration of the law by theirLordships of the Supreme Court it appears to me that an appointment bythe Government is an essential condition for a post said to be under the Go-vernment. It should be remembered that the word "under" need not necessa-rily indicate or give the idea of total subordination as in the case of personsin actual service of the Government. The said word, therefore, in the contextof election law and the objects or the purpose with which the disqualificationsis declared by the Constitution itself, must, in my opinion, be held to indicatethat the good grace of the Executive Government is the thing that is consi-dered to disqualify the person from being a member of the Legislative body.The idea is that if a person by reason of his holding a particular position isbeholder to the Executive Government, he may not bring to bear on the dis-charge of his duties as a member of the Legislature that type of independentand fearless criticism of the Executive Government as is expected of responsi-ble members of a Legislature. If, therefore, a person could enter into orhold a position or a post without any need for either actual appointment orat least necessary previous approval by the Government, then he is notand cannot be said to be in any manner be holder to the Government, sofar as the holding of the said office is concerned. The profits of the office are

X. ft.] S. S. INAMDAR V. AGAD1 SANGANNA ANDANAPPA 57

a subsequent consideration or a consequential benefit. Before profits areacquired or received, a person must hold an office to which those profits areattached. If, therefore, before getting into that office, it is necessary for himto seek the assistance of the Government either by way of actual appointmentOr by way of previous approval as an essential pre-requisite for appoint-ment, it can be said that the person has to secure the good grace of the Exe-cutive Government and therefore be beholden to the Government and there-fore the post would be a post under the Government within the meaning ofand subserving the object of Article 102 of the Constitution.

426. In almost all cases, a power of appointment necessarily involvesthe power of removal or dismissal also. Although there may possibly be apower of appointment with no power of dismissal, the matter of dismissalbeing governed by separate or distinct provisions of law, it is not generallypossible to postulate the power of dismissal unaccompanied by or unrelatedto power of appointment. The two generally co-exist.

427. Mr. Patil, the learned counsel for the petitioner has stated that whatis of greater importance is the power of dismissal and that there is at leastone case in which it has been held that a power of dismissal alone in thehands of a State Government was itself sufficient to hold that the post in que-stion is a post under the said State Government. The reference is to the caseof the Vice-Chancellor of the Baroda University reported in, Election LawReports, P. 171. (Hansa Jivraj Mehta Vs. Indubhai B. Amiri). The Vice-Chance-llor in question had originally been appointed by the State of Baroda. Sub-sequently, the University came under the jurisdiction of the State Govern-ment of Bombay. The finding was that it was a position under the BombayGovernment. The reason stated therefor was that at the relevant time thepower to remove or dismiss a Vice-Chancellor vested in the State Govern-ment of Bombay. Although the factual position was such, I find that thedecision proceeds on the principle already stated by me, namely, that thepower of dismissal is related to the power of appointment, as is clear fromthe following passage appearing from the judgrr.ent at page 177 of theReport :—

"This brings us to the next question which is a very important one andthat is who has appointed the petitioner to the office of Vice-Chance-llor and (or) who can remove her from that office. As has alreadybeen indicated in paragraph No. 7 above, the petitioner was appoin-ted Vice-Chancellor by the Government of the State of Barodaacting under the provisions of section 63 of the University of BarodaAct. The University of Baroda had nothing to do with this appoint-ment. By reason of the amendment of Section 2(e) of the latterAct to which reference has been made hereinbefore, the Governmentof Bombay has stepped into the shoes of the Government of Baroda,and has now got the power of removing the petitioner from theoffice of Vice-Chancellor. The University of Baroda Act containsno specific provision on this point. But it is a recognised principleof law that a party having the power to make an appointment hasalso in the absence of a provision to the contrary the power to re-voke it. This principle is specifically embodied in section 16 of theBombay General Clauses Act. It may therefore be presumed that ifthe occasion arose to remove the petitioner from her office the Bom-bay Government had the power to do it."

58 S. S. INAMDAR V. AGADI SANGANNA ANDANAPPA [VOL. XXXIV

428. The operative section in the Parliament (Prevention of Disqualifica-tion) Act, 1959, is section 3 which reads:—

"It is hereby declared that none of the following offices, in so far as itis an office of profit under the Government of India or the Govern-ment of any State, shall disqualify the holder thereof for being chosenas or for being, a member of Parliament."

Then the section sets out certain specified posts by name and description.The particular clause which is relevant for our present discussion is clause(i) of the said section which reads as follows:—

"the office of chairman, director or member of any statutory or non-statutory body other than any such body as is referred to in clause(h) if the holder of such office is not entitled to any remunerationother than compensatory allowance..."

The rest of the clause is not relevant for our present purpose. A non-statutorybody is a body other than a statutory body. The statutory body is defined inclause (b) of section 2 as follows:—

" 'statutory body' means any corporation, committee, commission, coun-cil, board or other body of persons whether incorporated or not,established by or under any law for the time being in force."

Clause (a) of the same section defines compensatory allowance:—

"compensatory allowance" means any sum of money payable to theholder of an office by way of daily allowance [such allowance notexceeding the amount of daily allowance to which a member ofParliament is entitled under the Salaries and Allowances of Membersof Parliament Act, 1954 (30 of 1954)], any conveyance allowance,house rent allowance or travelling allowance for the purpose ofenabling him to recoup any expenditure incurred by him in perform-ing the functions of that office;"

429. The resultant position, therefore, is that if any one of the postsheld by Sanganna cannot be said to be posts either under the Governmentor the posts of profits, no occasion arises for invoking the provisions ofPrevention of Disqualification Act. If, however, any of those posts comeswithin the meaning of a post of profit under the Government, then a questionwill arise, whether the consequent disqualification is removed or preventedto operate by the Prevention of Disqualification Act.

430. In May, 1964, Sanganna was elected as a member of the MysoreLegislative Council. By virtue of such membership, he became an ex-officiomember of the Koppal Taluk Development Board under sub-section 2 ofsection 96 of the Mysore Village Panchayats and Local Boards Act, 1959and a Member of the District Development Council of Raichur under Section187 of the same Act. Because he was a member of the State Legislature, theState Government appears to have appointed him as a member of advisoryBoard for Irrigation Development under the Tungabhadra Project (Raich urside) and Rajolibanda Diversion Scheme. The appointment was notified

'tii L. R.] S. S. INAMDAR V. AGADI &ANGANNA ANBANAPPA 59

under an order No. DPC 67, DTD 65 (A), dated 30th October, 1965, a copywhereof is produced as Exhibit P-9.

431. Now, so far as the membership of the Taluk Development Boardand District Development Council is concerned, there is no appointment bythe State Government at all. He becomes a member of these two bodiesby force of the relevant provisions of the Mysore Village Panchayats andLocal Boards Act cited above. It has, however, been argued that at least inthe case of a member of the Taluk Board, there is power in the Governmentto remove him under section 111 of the Act. That section states :—

"111. On the passing of a resolution by a Taluk Board by a majority ofnot less than-two thirds of the toal number of members of the Board,recommending the removal of a member of the Taluk Board. TheGovernment, after giving such member an opportunity of beingheard and after such enquiry as the Government deems necessary,may, by order, remove such member if, in the opinion of the Go-vernment, such member has been guilty of misconduct in the dis-charge of his duties, or of any disgraceful conduct, or has been in-capable of performing his duties as a member of the Board."

There is no such power so far as members of the District DevelopmentCouncil are concerned. Even the power under section 111, appears to me notso much a direct power of removal but a sort of veto over the majority opi-nion of the members of the Board expressed in a resolution to removethe member. Section 196 of the Act, which declares that the Commissionershall subject to the control and orders of the Government, be the chiefcontrolling authority in respect of matters relating to the administration ofthe Act, need not, in my opinion, mean any direct personal control over theacts or functions of individual members of a Board or body constituted underthe Act.

432. The membership of he Taluk Development Board and DistrictDevelopment Council is net, therefore, in my opinion, post under the StateGovernment.

433. The payments to members of Boards or bodies constituted underthe above Act are governed by a set of rules notified by the Governmentunder notification No. LLH 30 RPA 60, dated Bangalore, the 23rd Septem-ber, 1960 (Asvina I, Saka Era 1882), in exercise of powers conferred by section210 read with section 166(1) clause (a) of the Act. Those rules are for calcula-tion and payment of Travelling and Daily Allowances to President and mem-bers of the Taluk Development Board or the District Development Council.Under the rules, the Travelling Allowance in the case of Railway accommo-dation is first class fare together with a payment described as incidentalcharges for railway journeys at the rate of 4 paise per mile. In the case ofother modes of travel, road mileage is paid at 30 paise per mile. Daily allow-ance is also provided at the rate of Rs. 5.50 per day for halts at places withinthe State and Rs. 8 per day for halts at places outside the State. For busjourneys, where the distance travelled is not less than 20 miles, the travellingallowance is one and half time the actual bus fare plus the daily allowancearid in the case of journeys of less than 20 miles one and half times the actualbus fare or daily allowance.in lieu; thereof..

6 0 S. S. INAMDAR V. AGADI SANGANNA ANPANAPPA [VOL. XXXIV

434. These payments prima facie fall within the definition of compensatory allowance, because payments are intended for meeting expenses of jour-ney and halts away from a person's place of residence.

435. The only argument of Mr. Patil which should be noticed in this con-nection is that whatever may be position in regard to daily allowance orfares for railway journeys or bus journeys, etc, the payment described asincidental charges for railway journey is a payment which falls outside thescope of the definition. It could so fall beyond the scope of the definitiononly if we apply the test of the use of identical words to describe the natureof a payment. If, however, by the expression "travelling allowance", wemean, as ordinarily everybody does a payment to meet reasonable expensesof a journey it would include not merely a fare paid for the transport takenadvantage of but also other expenses like cost of food en route fare or freightcharges, if any, paid in respect of necessary travelling baggage. Hence, inall cases, rules providing for payment of travelling allowance, there is alwaysone item relating excusively to the fare for the transport by train, steameror bus, and another which is a fraction thereof, intended to meet the otheritems of expenditure mentioned above. In my opinion, the item describedas incidental charges in the rules is an item intended to meet reasonableexpenses of journey in addition to or other than the fare of the transport.I do not, therefore, accept Mr. Patil's interpretation of the same.

436. Hence, even if it should at all be possible to hold that the member-ship of either the Taluk Development Board or District Development Councilis a post of profit under the Government, any possible disqualification inconsequence of Sanganna getting those positions, is prevented from affectinghim by reason of the fact that the payments or profits receivable by virtue ofsuch membership are only in the nature of compensatory allowance withinthe meaning of the Prevention of Disqualification Act.

437. So far as Tungabhadra Board is concerned, only evidence that wehave is that furnished by Exhibit P-9. The order after appointing several per-sons including Sanganna as non-official member of the Advisory Board,proceeds to make the following provisions:—

"The non-official members shall draw T.A. and D.A., at the rates givenin list "A" of Annexure to Rule 4(a) of the New Mysore TravellingRules, 1957".

438. Those rules were promulgated under a Notification No. COD1168-57, dated 23rd August, 1957. The operative rule is 4 which refers one tothe Annexure for ascertaining travelling allowance and daily allowancepermissible for non-official members of Advisory Boards, etc. Annexurehas three lists A, B and C. We are concerned only with list A. Annexurewith the said List reads:—

"Rates of Travelling Allowance to non-official members attending variouscommittees:—

List A

I. Railway Accommodation „ . „ . , . . . First ClassII. Incidental charges for Railway Journey * „ , 6 nP.

E.L.R.] S. S. INAMDAR V. AGADI SANGANNA ANDANAPPA 61

III. Road Mileage . . . . . . . 50nP.IV. Daily Allowance (within the State) (Sitting fees wher-

ever permissible will be allowed in lieu of DailyAllowance) . . Rs. 10

439. Regarding incidental charges, I have already dealt with the argu-ment. We have no evidence whatever either oral or by way of statutory rulesor otherwise, on the question whether any sitting fee is at all payable to anymember of this Board.

440. It follows, therefore, that the membership of this Board, thougha ppst under the Government, as the power of appointment thereto is ex-clusively by the Government and it may have attached to it some allowances,such allowances are within the definition of "Compensatory allowance".The disqualification, if any, therefore, is prevented from coming into opera-tion.

441. The Koppal Taluk Agricultural Produce Marketing Co-operativeSociety (hereinafter referred to as the Society) is a Co-operative Societyincorporated under the Mysore Co-operative Societies Act. Sanganna hasbeen the Chairman of its Board of Directors from about 1963. It is governedby a set of bye-laws which are produced and marked Exhibit R-3. The Bye-laws had been amended even before Sanganna became a Chairman.The relevant copy of the amendments is produced and markedExhibit R-4. The bye-law No. 48(B)(1) as amended provides for payment tothe Chairman an honorarium of 10 per cent of the profit or Rs. 2,000 which-ever is lower. There is the oral evidence of Sanganna himself to the effectthat every Director including the Chairman gets a sitting fee of Rs. 3 andthat as a Chairman he is entitled to Travelling Allowance at first class railwayfare or actual bus fare plus daily allowance of about Rs. 5 within the Districtand Rs. 8 outside the District.

442. He has also actually received the honorarium right up to 1966-67.Exhibit P-10(a), dated 30th June, 1966 is a receipt for Rs. 1,092-60 beinghis honorarium for the year 1963-64. Exhibit P-ll(a) is a receipt dated 23rdJanuary, 1967 for honorarium of Rs. 1,227-10 for the year 1964-65. ExhibitP-5 the Annual Report of the Society for the year 1965-66 shows that a sumof Rs. 2,000 was paid as honorarium for the year 1965-66. Exhibit P-87 theAnnual Report for the year 1966-67 shows that honorarium of Rs. 1,227-10was paid; it is not clear from the report to which year the payment relates.But from the fact that it is set out in the expenditure column of the Incomeand Expenditure Account for the year 1966-67, it may be that it relates to thesame accounting year.

443. Now, the evidence of Sanganna supported by the bye-laws is thatdirectors of the Society are elected by the members, and the Chairman iselected by the directors. Hence there is no appointment by the Government.Section 30 of the Co-operative Societies Act is relied upon to show that atleast the power of removal vests with the Government. But that section dealswith the supersession of the entire committee and not with theremoval of any individual member. There is also no provision any-where in the Act vesting the power in the Government to remove any indivi-dual member of the Board of Directors of a Co-operative Society. The Report

62 S. S. INAMDAR V. AGADI SANGANNA ANADANAPPA [VOL. XXKIV

Exhibit P-5 shows that the total value of the share holding of 63 primary and700 individual members was Rs. 14,194-29 as against which the Government'sshare-holding was of the value of Rs. 1,16,150-00 plus the share capitalcontributed by the Government for rice mill Rs. 2,25,000.

444. It is also in the evidence of Sanganna that in respect of the grainscompulsorily levied and purchased by the Government pursuant to certainControl Orders, the Society was functioning as the principal purchasing agentof the State Government at all levels of procurement and levy. For the pur-pose of paying the price of the grains so compulsorily levied, the Governmentused to put the.Society in funds and the Society used to make payment t©agriculturists. A small amount of commission or remuneration payableto Village officers like the Patels whose services were utilised for the purposeof procurement was also being paid by the Society with the money providedby the Government.

445. It has also been elicited from him that the Society was also dealingin such articles as steel, cement, etc., which are controlled articles, that is tosay, articles whose purchase, possession, sale, distribution, etc., are controlledby special statutory orders issued by the Government either under the De-fence of India Rules or under the power conferred by the Essential Commo-dities Control Act by means of a system of licenses, permits, allotmentof quotas, etc.

446. The Society being a co-operative society under the Mysore Cooper-ative Societies Act, its activities, administration, disposition of its funds,finances, budget, etc., are all matters controlled or governed by several pro-visions of the said Act.

447. On these facts, the arguments on behalf of the petitioners arc, firstly,that the position of the Chairman of the Society held by Sanganna mastbe regarded as a post of profit under the Government and secondly, that thesitting fee and honorarium receivable by him as such chairman being clearlybeyond the scope of the definition of "compensatory allowance" in CentralAct of 1959, the disqualification consequent upon the holding of the saMposition cannot be said to have been prevented from operating by the provi-sions of the said Central Act.

448. As I have already observed, neither a Director nor a Chairman ofthe Society is either appointed or removable by the Government. The powersunder the Co-operative Societies Act for the supersession of the BoanJ ofDirectors and the appointment of an administrator to manage the affairss ofa Society, are not even on a par with the power of removing any individualfrom a post or position occupied by him. The control which is exercisedunder the Co-operative Societies Act is, in my opinion, not different in princi-ple from controls exercised under other Acts such as the Companies Act-It is no doubt true that in certain respects the financial control of Co-operativeSocieties is more extensive and more detailed than in the case of companiesgoverned by the Companies Act. But that is a result of the policy of the (go-vernment to encourage co-operative effort for the betterment of the countryby providing co-operative societies with considerable financial assistancefrom out of the public revenues. A provision is made, for example,' in Chap-ter VI of the Act for extensive State aid being made available to co-operative

E. t . R.] S. S. INAMDAR V. AOADI SANGANNA ANDANAPFA 63

societies to encourage and promote the co-operative movement includingencouragement of co-operative farming in the State. Such assistance by theGovernment from out of Public revenues is described in the statute as part-nership, direct partnership, when the State Government itself, directly sub-scribes to the share capital of a co-operative society with limited liabilityand indirect when the State Government provides moneys to a co-operativesociety called an apex society for the purchase of shares in other co-operativesocieties with limited liability. But when the Government funds actuallyreach a co-operative society, they become funds of the said society, becauseit is a separate statutorily incorporated body. It is in view of this legalconsequence that most stringent control over the disposition of funds ofa. co-operative society is provided in and exercised under the Co-operativeSocieties Act.

449. In view of the foregoing, I am unable to accept the argument thatthe position of either a director or a chairman of the co-operative societyis the same as a post under the Government.

450. It would follow therefore that no further question arises as to whe-ther it is necessary for Sanganna to depend upon the provisions of the CentralAct X of 1959.

451. Although the issue is limited to the position of a chairman amount-ing to a post of profit under Article 102 of the Constitution, some argumentwas addressed on the footing that in any event, the said position may operateas a disqualifying factor under Section 10 of the Representation of the PeopleAct which reads as follows:—

"A person shall be disqualified if, and for so long as, he is a managingagent, manager or secretary of any company or corporation (otherthan a co-operative society) in the capital of which the appropriateGovernment has not less than twenty-five per cent share."

452. As it is quite apparent, this Section is an additional disqualificationprescribed by Parliamentary statute pursuant to Article 102 1 (e) of the Cons-titution. The posts which are said to disqualify a person are those of manag-ing agent, manager or the secretary of a company or corporation in whichthe Government holds more than 25 per cent share. But a co-operative societyis excluded from the description of corporation contained in the section. Itwould follow therefore that a co-operative society or any office-bearer thereinis completely outside the purview of this section. That was the view I expres-ed in my order framing the issues in this case which furnishes reason formy not mentioning this section in the relevant issue. I may also record thatin the course of his cross examination Sanganna deposed that as Chairmanhe exercises control over the management of the society, that the expression' management' includes control over business, control over staff, control ofcommittee, control of funds and in short, every type of control. He gav&thceffect of his answers as follows:

'It will be correct to say that I as Chairman would have complete cont-rol over the affairs of the Society."

If s o, he would certainly answer the description of a manager.

64 S. S. INAMADAR V. AGADI SANGANNA ANDANAPPA I VOL. XXXIV

453. The contract, which is said to operate as a disqualification undersection 9-A of the Representation of the People Act, is described as a contractbetween the Society on the one hand and the Central Government on theother. Even at the time when the issues were framed," it was admitted onbehalf of the petitioners, nor was it at any time subsequently disputed,—thatthe contract was not one between the Government on the one hand and therespondent personally on the other, but was only between the Governmentand the Society. The disqualification under Section 9-A is of a person if,and so long as, there subsists a contract entered into by him with the appro-priate Government of the nature described in that section. The appropriateGovernment as defined by Section 7(a) is the Central Govenment in the caseof disqualification for being chosen as a member of either House of Parlia-ment. Among the definitions contained in Section 2 of the Representation ofthe People Act, 1950 (Central Act 43 of 1950), which are lifted into the Actof 1951 is the one contained in clause (g) thereof which reads—

"Person' does not include a body of persons."

454. Hence a contract, to which the Co-operative Society is a party,cannot be regarded as a contract to which any member thereof is individuallya party. For one thing, Co-operative Society is a body of persons; secondly,co -operative society is an incorporated body with a legal personality quitedifferent from that of the members holding shares therein.

455. Nevertheless, Mr. Patil has made an attempt to spell out a contractsufficient to disqualify Sanganna on the basis of two lines of interpretationof the legal provisions. In the first place, he says that payment of honora-rium under the provisions of one of the bye-laws of the Society spells out acontract. The argument is that bye-laws are binding on the society and allits members on the legal basis that it is a contract of agreement betweenthe society on the one hand and its members on the other and also as betweenthe members inter-se. The State Government, he says as a share-holder ofthe Society and Sanganna who is a similar share-holder are individuallyparties to that contract. It was suggested to Sanganna and not seriously dis-puted by him that payment of honorarium covered all the work done by himas the person in charge of the management of the affairs of the Society andthat the same would mean attention to details of the work done on behalfof the Government in respect of the procurement of grains, as well as inrespect of purchase, distribution and sale of controlled articles. In regard tocontrolled articles the position taken up in the course of the argumentsis that the ultimate power of exercising control is that of the Central Govern-ment either under the Defence of India Rules or under the Essential Com-modities Control Act, and that the control which the State Government mayexercise within the territories of the state is a control exercised by virtue ofdelegation by the Central Government to it of its (Central Government's)statutory powers of control. He therefore says that in the matter of exercis-ing such control, the State Government must be regarded to be or to havebeen, or to have occupied the position of, an agent of the Central Govern-ment. The ultimate result of all these positions or the operation of theselegal principles is, according to Mr. B. S. Patil, to bring into existence acontract at least in the eye of law to which Sanganna was one of the partiesand the Central Government the other or another party. Hence even if thesociety may be one of the parties to the said contract, the same does noteliminate the position that Sanganna was also a party thereto.

E. t . R.] S. S. INAMDAR V. AGADI SANGANNA ANPANAPPA 6 5

456. This theory, in my opinion, is a little far-fetched. The fact that anoffice-bearer of a corporation becomes entitled to a payment by way of re-muneration or otherwise by virtue of a provision contained in the Articlesor the bye-laws governing the administration of the corporation does not,in my opinion, bring about a contract between him and every one of themembers or share-holders of that corporation. The articles or the bye-lawsare said to be in the nature of an agreement binding both on the corporationas well as on its members, because or with a view to indicate that the sourceof its enforceability is the original acceptance thereof by all members whovoluntarily became or agreed to become members of that corporation. When anumber of persons toluntarily combine to form an association either for tradepurpose or for other purposes, they have necessarily to agree upon a clear defi-nition of their rights and liabilities acquired by or imposed on them for thesmooth working of the entire assoiation to make it possible to achieve the objectwith which the said association is formed. In the case of ordinary partnerhship,the agreement between them would be contained ordinarily in a documentcalled the deed of partnership while entering into a partnership which is go-verned by the Contract Act and the Partnership Act. The separate legal per-sonality capable of bearing rights and liabilities, which each partner as aliving person has, is not destroyed. Where, however, that association is in-vested by the law with a separate legal existence as a legal personality initself and separately capable of bearing rights and liabilities, the separatepersonality of the individual members constituting it disappears so far asthe working of the corporation is concerned. Thereafter, he has only gotsuch rights and liabilities as are fixed by or ascertainable from the articlesor the bye-laws or the constitution of that corporation by whatever namecalled. It is not possible therefore, in my opinion, to agree with the argumentthat when there is a bye-law providing for payment of a certain sum of moneyby way of honorarium or otherwise to any one of the office-bearers of thecorporation, there necessarily arises any contract between the said office-bearer and every one of the members of the corporation.

457. It is also not possible to accept the suggestion that in exercising thepowers of control under different Control Orders promulgated by it, theState Government must be regarded as an agent of the Central Govern-ment,—an agent that is to say of the character known to the Law of Contract.The powers of control which the Executive Government exercises, whether itbe Central Government or State Government, are powers conferred by thestatutory law. The rules or orders which the Executive Government may inexercise of the powers conferred upon it promulgate, are a species of subordi-nate or facultative legislation. In making and promulgating rules, the Exe-cutive Government is exercising the power delegated to it by Legislature andnot by another Executive Government like the Central Government. Theremay be in the Constitution positions or situations in which the CentralGovernment may indent upon the services of a State Govern-ment for the exercise of the Central Government's executivepower,—executive power quite apart and distinct from the power ofcontrol or rule making power conferred upon it by a statute alreadyenacted by Parliament. In the matter of exercise of executivepower in a field not till then occupied and controlled by legislation, theConstitution provides that the State Government shall not exercise its exe-cutive powers so as to obstruct the exercise of the executive power by theCentral Government. The entire matter is therefore governed either by the

66 S. S. INAMDAR V. AGADI SANGANNA ANDANAPPA [VOL. XXXIV

principles of constitutional law or in the light of the statutes actually enactedby Parliament.

458. I therefore hold that no contract, which would bring about a dis-qualification under Section 9-A of the Representation of the People Act,has been proved to exist or subsist on the relevant date.

459. The last post or position held by Sanganna which remains to beconsidered is the membership of the Mysore State Khadi and Village Indus-tries Board. That is a Board constituted under the Mysore Khadi and VillageIndustries Act, 1956, for the purpose of organising, developing and regulat-ing the Khadi and Village Industries in the State of Mysore.

460. Under Section 3, the Government is required to constitute theBoard. Sub-section (2) thereof declares that the Board shall be a body-corporate having perpetual succession and a common seal with competenceto acquire property, enter into contracts, etc. Section 4 provides that the Boardshall consist of such number of members, not exceeding fifteen, as the StateGovernment may appoint. One of the members may be appointed by theState Government as the Chairman. Although the Chairman as well as anymember may resign his position under sub-section (2) of Section 4, Section6 of the Act gives the power to the State Government, after such enquiry asmay be necessary, to remove from oflice either a chairman or any memberof the Board for any one of the reasons set out in the said section.

461. Although the Government under Section 20 may, from time totime, make subventions, grants, etc., to the Board for carrying out the pur-poses of the Act and subject them to such terms and conditions as they mayconsider necessary in each case, such subventions go into the funds of theBoard defined or described in Section 21 of the Act. Under Section 22, allproperty, funds and other assets of the Board shall be held and applied by itsubject to the provisions and for the purposes of the Act. Sections 23 and 24lay down that the budget prepared by the Board for a forthcoming financialyear is subject to sanction by the Government and the sanctioning Governmentmay make such modifications therein as it may deem proper. Under Section26, the Board is required to prepare and forward to the State Governmentan annual report within three months of the termination of a financial yeargiving a complete account of its activities during the previous financialyear. The said report is required to be laid before each House of the StateLegislature. Section 31 is the section conferring upon the Government thepower to make rules for carrying out the purposes of the Act. One of the mat-ters in respect of which the Government may make rules is the payment ofallowances to the members of the Board under Section 4. Reference is to sub-section (3) of Section 4, according to which the Chairman and other membersshall receive such allowances as may be prescribed from #out of the fundof the Board.

462. Pursuant to the above rule-making power, the State Governmentfirst issued a set of rules on the 17th of February, 1958. The rule relating topayment of allowances was Rule 4 which read as follows :—

'4. For the purposes of reimbursing the personal expenditure incurred :—

(a) In attending the meeting of the Board or of any Committeeappointed under Section 10, or

EL. R.J S. S. INAMDAR r. AGADI SANGANNA ANDANAPPA 67

(b) In travelling for the purposes of discharging and performingthe functions of the Board, the Chairman and each of the othermembers of the Board shall be entitled for journeys to andfrom the meetings where such meetings are held or functionsis performed, as the case may be, to travelling and daily allow-ances as provided in List "A" referred to in Government Noti-fication No. COD/1168/57, dated the 23rd August, 1957, "A"Class Committee."

The said rule underwent two subsequent amendments,—one by a notifica-tion dated 6th August, 1958 and the other by a notification dated 26thDecember 1960. Under the first amendment, the rule as amended stood asfollows :—

"4. (a) For the purpose of reimbursing the personal expenditure in-curred in attending the meetings of the Board or of any Com-mittee appointed under Section 10, or in travelling for the pur-poses of discharging and performing the functions of the Board,the Chairman and each of the other members of the Board shallbe entitled for journeys to and from the meetings where suchmeetings are held, or function is performed, as the case may be,to travelling and daily allowances as for first class GovernmentOfficers and sitting fees for attending the meetings of theBoard at Rs. 16 per day. The Chairman and Members, however,will not be entitled to receive for the same day both the sittingfee and Daily Allowances.

(b) The Chairman shall also be paid an allowance of Rs. 300 permonth."

Under the second of the amendments the rule as-amended stands as follows:

"4. (1) For the purpose of enabling the Chairman to recoup the ex-penditure incurred by him in attending the meetings of theBoard, or of any Committee thereof, or performing other func-tions as Chairman of the Board, the Chairman shall be entitledto the payment of compensatory allowance by way of houserent allowance, conveyance allowance, travelling allowance,daily allowance and sitting fees, at the rates and upon the con-ditions specified in this sub-rule."

We are not concerned with this sub-rule. Sub rule (2) which relates to ordi-nary members like Sanganna is as follows :—

"(2) For purposes of enabling a member of the Board to recoupthe expenditure incurred by him in attending the meetings ofthe Board, or a committtee thereof, or performing any functionas a member of the Board, every member other than the Chair-man shall be entitled for journeys to and from the places atwhich the meetings of the Board or of any committee thereofare held, or the function is performed, as the case may be, totravelling and daily allowances as are payable under the MysoreCivil Services Rules, 1958, to officers of the State Government

68 S. S. INAMDAR V. AGADI SANGANNA ANDANAPPA [VOL. XXXIV

whose actual pay is one thousand and two hundred rupees permensem or more, and sitting fees for attending the meetingsof the Board or a Committee thereof at sixteen rupees per day:

Provided that no Member shall be entitled to receive for the same dayboth the sitting fee and the daily allowance."

That rule continues to govern the position at present.

463. It will be seen that in the first notification the Government simplyapplied to the Khadi Board the New Mysore Travelling AllowancesRules, 1957, already referred to by me, containing provisions for calculationof travelling and daily allowances to non-officials of various Boards includ-ing Advisory Boards or committees constituted under the authority of theGovernment. The first and the second amendments applied the provisionsof the Mysore Civil Services Rules, 1958, so far as the travelling and dailyallowances are concerned and provided for a sitting fee of Rs. 16 per day,with the proviso that sitting fee and daily allowance shall not be drawnin respect of the same day. The second of the amendments does not makeany difference in substance; instead of referring to the class of the Govern-ment Servants the rules applicable to whose travelling allowance are appliedto the members of the Khadi Board, the said Government servants are des-cribed as Government servants drawing actual pay of not less than Rs. 1,200per mensem. That language is copied from the Travelling Allowance Rulescontained in .the Mysore Civil Services Rules (hereinafter referred to asMCSR).

464. So far as the Travelling Allowance Rules contained in the MCSRare concerned, no particular difficulty arises, because they furnish thepattern for the New Mysore Travelling Allowance Rules, 1957, which arealready discussed. They provide for the payment of a fare and anotherpayment called in the Rules 'incidental fare' and daily allowance ofRs. 10, and they also contained the same provisions regarding journeys by busfor distances of less than or more than 20 miles. The argument regarding theincidental fare is the same as the argument regarding incidental chargesunder the New Mysore Travelling Allowances Rules, 1957. For the reasonsalready stated, I have no doubt that though the expression 'incidental fare'is used, the amount payable as such is really an item of expenditure coveredby the expression travelling allowance. Hence, all these payments under anyone of the rules of the MCSR applicable to travelling allowances would comeclearly within the scope of the definition of 'compensatory allowances' inCentral Act X of 1959.

465. The only matter that has to be considered is whether the paymentdescribed as sitting fee is within or beyond the scope of the said definitionof compensatory allowances.

466. The argument on behalf of the petitioners is that the same is anitem of payment distinct and different from any payment, which might tobrought within the scope of the expression 'travelling allowance', 'dailyallowance', etc. The later alone, according to the argument, answers the pur-pose of the definition of compensatory allowance in the Central Act X of

E. L. R.] S. S. INAMDAR V. AGADI SANGANNA ANDANAPPA 69

1959. The purpose, according to the argument, is enabling a person to reco-up any expenditure incurred by him in performing the functions of an office.The only payments which will answer or subserve that purpose, accordingto the argument, are those expressly described in the definition, viz. dailyallowance, conveyance allowance, house rent allowance and travelling allo-wance, and no other.

467. The argument on behalf of the respondents accepts the first partof this argument, viz., that compensatory allowances are allowances inten-ded to enable a person to recoup the expenditure incurred by him. The otherpart of this argument is, however, not accepted. On the contrary, it is arguedthat compensatory allowances, as the expression itself indicates, are allowan-ces in the nature of compensation, that is to say, allowances intended toneutralise any pecuniary disadvantage a person may suffer by or in the courseof discharging the functions of an office held by him, and that the expressions'daily allowance, conveyance allowance, house rent allowance, travellingallowance are only illustrative in character and not exhaustive.

468. Proceeding on that footing, the further argument on behalf of therespondents is that a payment described as sitting fee in the rules just copiedis not really a payment by way of remuneration or a profit in the sense ofreceipt of a pecuniary benefit without any expenditure having been incurred,but in actual event another name for daily allowance. It is pointed out thatthe New Mysore Travelling Allowance Rules, 1957, which were uniformlyapplied to all non-official members of committees or bodies themselvesmake it clear that such non-official members are to get only allowances tomeet expenditure. Because the rules may apply to several committees andthere may be some committees which have their own rules providing forpayment of sitting fee, the Annexure to Rule 4 states that any such sittingfee shall be allowed in lieu of daily allowance, i.e., in the place of daily allow-ance. The present position, according to the argument, despite the amend-ment, does not bring about any change in the said situation. The sittingfee of Rs. 16 in the rule as it stands now is described as a payment per day,and not per meeting. The evidence of Sanganna is also to the effect,—andthat seems to be the true interpretation of the rule,—that although there maybe several meetings attended by a person on the same day, he can get onlyone payment of Rs. 16 for that day, not daily allowance.

469. By way of general support to this interpretation, Mr. Venugopala-chari says that from the commencement and even after the two amendments,the general setting of the rule has not changed. Throughout it says that thepayments mentioned therein shall be made—

"for purposes of enabling a member1 of the Board to recoup the expendi-ture incurred by him in attending the meetings of the Board, or aCommittee thereof, or performing any function as a Member of theBoard."

470. Mr. Patil's answer to this line of argument is that the sitting fee isa well-known expression. It is a fee paid for discharging a particular function,and not an allowance paid for meeting a particular expenditure. Althoughit may be described as a payment per day, it may nevertheless be described asa payment for attending a meeting. He also says that in the case on hand,

7 0 S. S. INAMDAR f. AGADI SANGANNA ANDANAPPA [VOL. XXXIV

whereas the daily allowance is Rs. 10, the sitting fee is Rs. 16 and that if therules take it for granted or proceed upon the assumption that a payment ofRs. 10 is sufficient to meet the ordinary expenses of a person per day, the addi-tional payment of Rs. 6 in excess of Rs. 10 must be a fee in its original senseand not an allowance for meeting the expenditure.

471. The fact that the expression 'sitting fee' has that meaning as explainedby Mr. Patil can admit of no doubt. The only question is whether the use ofthe said expression is alone sufficient to prevent any further investigationinto the real nature and purpose of the payment.

472. I am not satisfied that the mere use of the expression 'sitting fee'will disentitle a party from asking the Court, or disable the Court from go-ing into the question, whether the payment is or is not intended by the rulesto meet expenditure.

473. In determining whether a set of rules providing for travelling, dailyor other allowances intended to meet expenditure is intended to enable per-sons to recoup the expenditure incurred by them unlessja clear case of positivedishonest intention on the part of the rule making authority or body is madeout, I think it is reasonable to proceed on the footing that the rules assumeor hold or declare that the amounts prescribed by them are considered suffi-cient to meet the expenses for which they are provided. Both the learned coun-sel have also agreed that any saving made by a parsimonious person fromout of travelling and daily allowances, or the possibility of anyone doing so,cannot be relied upon as a test to hold that the rules themselves are a cloakfor payment of profit and not an allowance for neutralising a disadvantage.

474. If that much can be accepted as correct,—and I see no reason whyI should not,—all allowances prescribed under the Travelling and DailyAllowances Rules will and must beheld to fall within the ambit of the defi-nition of 'compensatory allowance'. While discussing Mr. Paul's argumentregarding the incidental charges or incidental fare, 1 have already expressedthe view that so long as it is clear from the rules that the said payment is in-tended to meet the expenditure reasonably incidental to a journey in additionto or apart from the fare for the transport, the mere use of expression 'inci-dental charges' or 'incidental fare* will not take the payment beyond thescope of 'travelling allowances'.

475. If so, there is some meaning or some purpose why the rules havethroughout made the consistent provision that wherever sitting fees are paid,daily allowance shall not be paid. In the Rules of 1957, the payment is directlyunder the heading "'Daily Allowances". The words within the bracketswritten under the said heading show that sitting fee wherever permissiblewill be or must be received in lieu of daily allowance. In other words, theamount directed to be paid by the rules of a particular committee as and forsitting fee shall be received by the person governed by the Travelling Allowan-ces Rules as and for daily allowance under the Travelling Allowances Rules.It is in the nature of an alternative statement of the position by way of whatmay be described as legislation' by reference.

476. The present rules of the Khadi Board though drafted in a slightlydifferent way are not different in effect from the corresponding provisions

E. L. R.] S. S. INAMDAR V. AGADI SANGANNA ANDANAPPA 71

of the New Mysore Travelling Allowances Rules of 1957. They prescri betravelling allowances as provided for by the MCSR and daily allowance ofRs. 10, and then prescribe a sitting fee for a day with the provision that onthe same day, sitting fee and daily allowance shall not be drawn. The resultis that one gets substituted for the other.

477. If so, the payment going by the name of the sitting fee in circums-tances mentioned above will be a payment in lieu of daily allowance or inthe place of daily allowance and therefore, the sitting fee is only anothername for daily allowance. If this position can be accepted, then, the pay-ment going by the name of sitting fee but actually of the nature of dailyallowance will fall within that expression 'daily allowance' enumerated inthe definition of 'compensatory allowances' in the Central Act X of 1959.If it is not so clearly relatable to it, the argument of Mr. Venugopalachariis to treat all those expressions as merely illustrative and rivet attention onthe purpose of the rules, viz., that 'compensatory allowance' is a paymentto meet the expenditure.

478. Mr. Patil's contention is that the effect of the rule is not to substi-tute the sitting fee for daily allowance but that on a day when there is ameeting in respect of which a member gets the sitting fee, the payment ofdaily allowance is actually disallowed by the rules. In other words,on aday when a person gets a sitting fee, the rules consider it unnecessary toprovide him with a daily allowance. Therefore, there is no daily allowanceat all on that day and therefore the payment called the sitting fee is sittingfee and something quite different from daily allowance.

479. The argument is very attractive. But there is one snag in it. If therules provide for payment of a daily allowance, and if it is accepted that thatpayment is a payment for meeting expenditure, then, if the rules withdrawthat payment, they must be regarded to proceed on the footing that theperson sought to be provided for is provided with another source for meetinghis expenditure; otherwise, a disallowance of daily allowance would meanthat even in cases where the rules contemplate that a person may haveto incur expenditure, no payment shall be made to him, which means thatthe rules do not mind even if the person sought to be provided for incursa loss. Such an intention cannot be attributed to the authority which madethe rules for the express purpose of providing certain persons with a pay-ment to meet their expenses incurred, not for their private use, but in thedischarge of public duties as a number of some committee or body. If theinference that the rules point to another source available to a person for re-couping his expenditure is possible, then, there could be no doubt that thatother source which is the sitting fee is regarded by the rule-making authorityas a payment for meeting his expenditure.

480. It appears to me that the view contended for on behalf of the res-pondents should be accepted as a fair interpretation of the relevant statutoryprovisions.

481. One possible reason why the rules in the Mysore State use this ex-pression is or may be that the definition of compensatory allowance in theMysore Prevention of Disqualification Act enumerates the sitting fee amongits items without disturbing the general purpose of making provision for2EC/71—6.

72 S. S. INAMDAR V. AGADI SANGANNA ANDANAPPA [VOL. XXXIV

enabling a person to recoup expenditure incurred by him. It may also benoted that whereas the Central Act uses the general expression 'statutorybody' or 'non-statutory body', the Mysore Act uses the expression 'commit-tee' and defines it separately. It may be that the introduction or use of theexpression 'committee' has inevitably led to the use of the expression 'sit-ting fee' as a measure of drafting necessity.

482. Whatever that be, if the purpose and the effect of the rules is asstated above, there can be no doubt that the sitting fee payable to a memberof the Khadi and Village Industries Board in Mysore is not a fee or remunera-tion for any function discharged but in the nature of a payment to enablehim to recoup expenditure incurred by him.

483. I therefore hold that though by virtue of appointment, control andthe right of removal vesting in the Government, the' membership of theMysore Khadi and Village Industries Board would be a post under theGovernment and also a post of profit because allowances are attached there-to the disqualification consequent upon holding such post is prevented fromoperating by Parliament Prevention of Disqualifications Act (X of 1959).

484. My findings therefore on issues 1 and 2 in E.P.3. of 1967 are thefollowing :—

Issue 1—The respondent is not disqualified under Article 102 of the Con-stitution for being chosen as a member of the House of Peopleby reason of his having been at the time relevant for the elec-tion a member of the Mysore State Khadi and Village IndustriesBoard, the Chairman of the Koppal Taluk Agricultural ProduceCo-operative Marketing Society, a member of the AdvisoryBoard of the Tungabhadra Irrigation system, a member of theKoppal Taluk Development Board or a member of the RaichurDistrict Development Council.

Issue 2—(a):—The petitioner had failed to prove that there was subsist-ing on the date relevant for the election a contract between theKoppal Taluk agricultural Produce Co-operative Marketing So-ciety Limited on the one hand and the Central Government onthe other.

Issue 2—(b):—This issue does not arise, nor is it proved that the res-pondent is disqualified under Section 9A of the Representationof the People Act for being chosen as a member of the Houseof the People.

485. In the light of the findings above recorded, Issue No. 9 in ElectionPetition 3 of 1967 and Issue No. 11 in Election Petition 6 of 1967 have to befound against the respective petitioner. I hold that neither petitioner is entitledto[a declaration that the election of the respondent in his Petition is void.j

486. Consequently, issue No. 10 in Election Petition 3 of 1967 does notarise. The formal finding thereon would be that the petitioner is not entitledto a declaration that he has been validly elected at the election.

E.L.R.] JAI SINGH V. RAM KISHAN AND OTHERS 73

487. In the result, both the Election Petitions 3 and 6 of 1967 are dis-missed.

488. The Petitioner in Election Petition 3 of 1967 will bear his own costsand pay the costs of the respondent. Advocate's fee Rs. 2,000. The Peti-tioner in Election Petition 6 of 1967 will bear his own costs and pay the costsof the 1st respondent. Advocates' fee Rs. 2,000. The 2nd respondent will bearhis own costs.

489. There are one or two matters in the course of recording of evidencewhich I reserved for consideration at the time of the arguments. Rest ofthe objections raised have been dealt with. Those that were postponed wereobjections relating to whether a particular answer was or was not within thescope of relevancy. As no occasion has arisen for me to depend upon any ofthose answers in the course of the discussion of the evidence, I do not thinkit is necessary now for me to decide those objections. If necessary, my answeris that the objections are overruled.

490. I record my gratitude for counsel on both the sides for assistancerendered to me by careful analysis of the details of the evidence and instruc-tive arguments on points of law.

Petitions Dismissed.

IN THE HIGH COURT OF PUNJAB AND HARYANA ATCHANDIGARH

JAI SINGH

RAM KISHAN & OTHERS(D. K. MAHAJAN, J.)

December 4, 1967.

Representation of the People Act, 1951, SS. 77(7), 78, 80, 80.4, 83(7),123—Conduct of Elections Rules, 1961, Rule 86—Plea for scrutinyof ballot papers—material facts, requirements of—Corrupt practices—Posters attacking the personal character of the Petitioner—Poster, howit is different from a single publication—letters by Respondent seekingassistance of Government servants—Return of Election expenses—inclusion of items of printing, expenditure of impugned posters andletters—whether consent implied—Implication of word "authorised"in Section 77(7)—Inaction by Respondent to disassociate himself fromthe posters—whether inference of tacit consent of the candidate estab-lished.

The petitioner, a defeated candidate, challenged the election of the firstRespondent from a Parliamentary Constituency, alleging inter alia that thecounting of votes was done arbitrarily without care for the rules and law,and that the first Respondent had committed various corrupt practices ofissuing and publishing posters against the petitioner attacking his personalcharacter and alleging that the petitioner, who was a retired Major-Generalof the Indian Army, proved a traitor during the attacks by China and Pakis-tan against India. It was further alleged that the first Respondent attemptedto obtain assistance of Government servants for furtherance of his electionprospects.

74 JAI SINGH V. RAM KISHAN AND OTHERS [VOL. XXXIV

HELD : Allowing the Petition,

(/) The expense of printing the impugned poster containing allegationsagainst the personal character of the petitioner, which were included in thereturn of the election expenses of the first Respondent, established that itwas published with the consent of the first Respondent and that the expensefor it was either incurred by him or authorised by him. The legislature hasbeen careful enough not to use the word 'ratified' instead of "authorised"in Section 77(1) of the Actr Authorisation precedes the incurring of expensewhereas ratification is a subsequent event which validates an unauthorisedexpense. In view of the provisions of Section 77 read along with the provi-sions of Section 78 and Rule 86, the only conclusion possible was that theposter was published with the consent of the first Respondent and hecannot escape the consequence that follows from the same.

When the first Respondent had knowledge of the poster, it was his dutyto countermand it, particularly when the allegations in it were false and seri-ous. His inaction in not disassociating himself from the poster proved hisconsent to it.

The publication of a poster stands on a different footing than other singlepublication. If the poster is pasted in prominent places with the objectthat the public to go through its contents and each day the poster is open topublic view, there will be publication of the poster each day. The exhibitionof the impugned poster in the election office of the first respondent, afterknowledge of its publication, amounted to his consent to its subsequentpublication.

Sheopat Singh v. Harish Chandra and others, A.I.R. 1960, S.C. 1217;referred to.

Once it is proved that the allegations in the posters published on behalfof the first Respondent, are false to the hilt and there is no basis for thesame, the inference would be obvious that the first Respondent believedthem to be false and did not believe them to be true; therefore, the chargeunder Section 123(4) had been brought home to the first Respondent thatthe impugned poster was published with the implied or tacit consent of theRespondent.

Kumara Nand v. Brij Mohan Lai Sharma, (1967) 2 S.C.R. 127; AnjaneyaReddy v. Gangi Reddy and others. 21 E.L.R. 246; T. K. Gangi Reddy v.M. C. Anjaneya Reddy and others, 22 E.L.R. 261; Mohan Singh v. Bhanwar-lal and others, 1964 S.C. 1366;

07) On the facts it was established that letters were sent on behalf of thefirst Respondent with his consent, to government servants, attempting to ob-tain their assistance for the furtherance of the prospects of the candidate'selection and thus Section 123(7) of the Act was contravened.

(in) In the absence of a concise statement of material facts as requiredby Section 83(1) of the Act, there would be no justification for an order forscrutiny of the ballot papers.

E.L.R.] JAI SINGH V. RAM KISHAN AND OTHERS 75

Election Petition No. 37 of 1967

Rajinder Sachar with Malook Singh for the petitioner.

J. N. Kaushal with D. S. Nehra, Ashok Bhan and M. R. Agnihotri forthe Respondents.

JUGDMENT

MAHAJAN, J.—In this election petition, under section 81 of the Repre-sentation of the People Act, 1951 (hereinafter referred to as the Act), thecontest is between Major General Jai Singh (retired) and Comrade RamKishan, the former Chief Minister of United Punjab. Major General JaiSingh (hereinafter referred to as the petitioner) and Comrade Ram Kishan(hereinafter referred to as the respondent) were candidates for the parlia-ment along with five others from the Hoshiarpur parliamentary constituency(hereinafter referred to as the constituency). The petitioner contested theelection seemingly as an independent candidate; but in fact he was a candi-date sponsored by the Jan Sangh. The respondent contested on the Con-gress ticket. The Hoshiarpur parliamentary constituency consists of thefollowing assembly constituencies:—

1. Hoshiarpur2. Garhshankar3. Balachaur4. Sham Chaurasi5. Tanda6. Dasuya7. Nangal and8. Anandpur or Anandpur Sahib,

The Deputy Commissioner, Hoshiarpur was the Returning Officer for theconstituency.

The parliamentary constituency went to the poll on the 19th of February,1967. There were four counting centres for this constituency :—

1. Hoshiarpur including Tanda at Hoshiarpur,2. Dasuya,3. Garhshankar including Balachaur, and4. Anandpur or Anandpur Sahib.

The counting took place on the 21st and 22nd of February, 1967. The finalcounting of this constituency was to be done at the Zila Parishad Hall atHoshiarpur. The result-sheets of the counting done on the 21st and 22ndof February, 1967, were to be tabulated; the postal ballots had to be count-ed and after dealing with any application for recount after the preparationof form 20, the final result had to be declared. After form 20 had been filledin, two applications were presented to the Returning Officer by the petition-er, namely. Exhibits PW. 52/2 and PW. 35/1. In the first application (Exhibit

76 JAI SINGH V. RAM KISHAN AND OTHERS [VOL. XXXIV

PW 52/2), only recount of the ballot papers pertaining to Garhshankar andBalachaur constituencies was demanded. In the second application (ExhibitPW. 35/1), the prayer was that the re-counting of votes be done by theReturning Officer himself with regard to Tanda, Balachaur, Garhshankarand Anandpur Sahib constituencies.

The following reasons for the recount in the first and second applicationswere stated:—

Reasons, as given in the firstApplication (Exhibit PW. 52/2)

Reasons, as given in the secondApplication (Exhibit PW. 35/1)

2. That -the Assistant ReturningOfficer of Garhshankar was not im-partial and he had counted the votesarbitrarily without caring the leastfor the rules and the Election Law.

3. That the Assistant ReturningOfficer had committed the followingglaring violations of the rules and dueto that the petitioner is justified ingetting the recount in Garhshankrconstituency—

(a) That the Assistant ReturningOfficer had given decision of

the doubtful votes orbitrarilywithout asking any objection

2. That the Assistant ReturningOfficer of Garhshankar was notimpartial and he had counted thevotes arbitrarily without caring forthe rules and law on the point.

The doubtful votes had been arbi-trarily rejected against the petition-er. Even bundles of votes were notchecked by the Assistant ReturningOfficer while finalising the counting.The votes actually polled in favourof the petitioner were placed in thebundles of other candidates and thuscounted against the petitioner. Thepolling agents of the petitioner lodg-ed objection before the AssistantReturning Officer who refused toentertain any such objection. Thispartial and illegal attitude of theAssistant Returning Officer hasmaterially affected the votes actuallypolled in favour of the petitioner.Even the counting agents of the peti-tioner were not allowed to inspectthe doubtful votes. Thus the provi-sions of Rule 56-A(3) have beenviolated.

3. These very irregularities (asmedtioned in para 2 above) wererepeated in the counting of Bala-chaur votes where the AssistantReturning Officer happened to bethe same man who was AssistantReturning Officer for Garhshankar.The petitioner has bona fide andgenuine apprehension that the saidofficer is not impartial and he appearsto be bised against the petitioner

E.L.R.] JAI SINGH V. RAM KISHAN AND OTHERS 77

from the candidate, electionagent, or the counting agents,although Rule 56-A(3) imposedduty on the Assistant Return-ing Officer to allow thecounting agents reasonableopportunity to inspect the bal-lot papers before decision (affi-davit of the counting agent isattached herewith).

(b) That the two counting agentsof the petitioner were turnedout for two hours by theAssistant Returning Officerwithout assigning any reasons.

and openly shows favour by his con-duct to Comrade Ram Kishanwho appears to have obliged himwhen he was the Chief Minister.

(c) That the Assistant ReturningOfficer did not try to inspectthe bundles of votes cast in fa-vour of each candidate al-though he was requested by thecounting agent that he shouldinspect the bundles because thebundles of votes polled infavour of the petitioner weretied in the bundle of the othercandidates and the total voteshad been illegally shown moreagainst the petitioner. Thecounting agents of the petition-er did lodge objections in thisrespect before the AssistantReturning Officer but the latterrefused point blank to enter-tain the objections in writing.

4. As for the Balachaur constitu-ency is concerned, the Assistant Re-turning Officer had illegally rejecteda large number of petitioner's voteswithout affording an opportunity ofinspection to the petitioner's countingagents or giving them any facility toinspect the same.

4. That in Balachaur there werethree ballot papers which bore theimpression of another parliamentaryconstituency. The ballot papers didnot relate to Hoshiarpur parlia-metary constituency. The issuanceof these ballot papers was against.Rule and Law. Such spuriousballot papers have given rise to agenuine apprehension that many suchother ballots were also issued in theconstituency. The spurious ballotpapers bear number 058448 and058678.

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5. That the Assistant Returning 5. In Tanda constituency one ballotOfficer Balachaur had illegally rejected paper not relating to Hoshiarpurthe legal ballots without assigning any Parliamentary Constituency wasreasons although on the very face of issued. This fact also has the samethe ballot the same could not be re- legal repercussions as mentioned injected. para 4 above.

6. That the Assistant Returning 6. The Assistant Returning Officer,Officer of Balachaur constituency and Tanda has wrongly and illegallyGarhshankar constituency is the same rejected as doubtful many ballotman and the petitioner has bona fide papers which were actually in favourand genuine apprehension that the of the petitioner. On the othersaid officer is not impartial and he hand, many doubtful ballot papersappears to be biased against the peti- have been given in favour of thetioner and openly shows favour by Congress candidate which were fithis conduct to Comrade Ram Kishan to be rejected on the very face ofwho appears to have obliged him these.when he was the Chief Minister.

The applications were disposed of by the Returning Officer by the follow-ing order, Exhibit PW. 1/2 :—

"Shri Jai Singh, the Jan Sangh candidate from the 6-Hoshiarpur Parlia-mentary Constituency, presented an application, after the announcement oftotal number of votes polled by each candidate, requesting for a recountof the votes relating to Garhshankar, Balachaur, Tanda and AnandpurSahib assembly constituencies which form part of the Hoshiarpur Parlia-mentary Constituency. The grounds for the recount of votes, as stated in theapplication, were the illegal and irregular rejection of votes, violation ofrules and election law in the matter of counting of votes, denial of opportunityof inspection to his counting agents, non checking of bundles by the Return-ing Officers of these assembly constituencies, and the inclusion of the votesof Shri Jai Singh in the bundles of Shri Ram Kishan, the Congress candidate.

2. No specific/particular polling station in respect of which theseirregularities had been alleged could,Jhowever, be cited by Shri Jai Singh.The allegations made were in general and not for a particular polling station.It was brought to my notice by the Returning Officers for these assemblyconstituencies who were responsible for the counting of parliamentary votesalso, as the Assistant Returning Officers for the 6-Hoshiarpur ParliamentaryConstituency, that no objection, in writing, was lodged with them at the timeof counting of votes. Since Shri Jai Singh could not indicate any specific/particular polling stations in these constituencies for the purpose of recountof votes, I decided that a substantial number of rejected votes and thosecounted for Shri Ram Kishan, the Congress candidate, may be recounted/rechecked to ascertain the truth in his allegation. Shri Jai Singh agreed andleft the counting hall, leaving Shri B. D. Kalia and Shri Parkash Dev Sharmato watch, his interests. Shri Bhagat Singh Mehgowalia and Shri RamKishan, the candidates from this constituency, along with Dr. Bal Kishan,a counting "agent ef Shri Ram Kishan, remained present throughout thechecking.

E.L.R.] JAI SINGH V. RAM KISHAN AND OTHERS 79

3. In the first instance, the rejected votes of ten polling stations each inthe Tanda, Anandpur Sahib, Balachaur and Garhshankar constituencies, weretaken out for being rechecked/recounted. On recounting these rejected votesit was found that the rejection in all cases was quite in order and the count-ing was also correct. At this stage Shri B. D. Kalia stated that furtherrechecking/recounting of rejected votes was not necessary as they were satis-fied in this regard.

4. Since a general allegation was made that the votes cast in favour ofShri Jai Singh had been included in the bundles of Shri Ram Kishan, theCongress candidate, and since no specific/particular polling station wascited in respect of this irregularity/illegality, I decided that in the first instancebundles of the votes, counted for Shri Ram Kishan in ten polling stationseach of the aforesaid four constituencies, may be rechecked/recounted.On rechecking/recounting of the bundles pertaining to 10 polling stationseach in Balachaur, Garhshankar and Tanda assembly constituencies andtaken out at random, it was found that no vote of Shri Jai Singh or for thatmatter any other candidate had been included in the bundle of Shri RamKishan, the Congress candidate. In the rechecking/recounting of bundlespertaining to 10 polling stations of the Anandpur Sahib constituencyand taken out at random, it was, however, found that five votes, out of whichthree should have been rejected and two belonging to other candidates, hadbeen included in the bundles of Shri Ram Kishan, the congress candidate.Bundles of 10 other polling stations pertaining to the Anandpur Sahib cons-tituency were then taken out and on their rechecking and recounting no suchother case was found out. In view of the negligible number of such votesin the bundles of 20 polling stations it was obvious that their mixing up inthe bundles of Shri Ram Kishan, the congress candidate, was because of in-advertence and not because of any deliberate or intentional design on the partof the counting officers. Moreover, no such case was brought to the noticeof the Returning Officer, Anandpur Sahib assembly constituency by thecounting agents of Shri Jai Singh or any other candidate at the time of coun-ting and hence it was apparent that this wrong inclusion was the result ofinadvertence. In view of the negligible number of such votes found out fromthe bundles of twenty polling stations, Shri B. D. Kalia stated that furtherrecounting/rechecking was not necessary even on this account as he wasfully satisfied that such stray cases were because of inadvertence and of nomaterial or consequential effect on the election. On his satisfaction furtherrechecking/recount of the votes cast in favour of Shri Ram Kishan in theAnandpur Sahib constituency was stopped. Shri Jai Singh also arrived inthe counting hall at this stage and expressed his satisfaction.

5. It was also alleged that spurious ballot papers, which did not relateto the 6-Hoshiarpur parliamentary constituency, were issued in the Balachaurassembly constituency, and two ballot papers bearing numbers 058448 and058678 were cited in this regard in the application of Shri Jai Singh. On ascrutiny of the rejected votes pertaining to the Balachaur constituency, theseballot papers were found out. It was discovered that "Hoshiarpur wasprinted on these ballot papers, but on the upper half of the ballot papers thenames and symbols of the candidates in the 6-Hoshiarpur parliamentaryconstituency were printed whereas on the lower half the names and symbolsof the candidates in the Jullundur parliamentary constituency were printed.Clearly it was a case of printing error and only two such ballot papers were

80 JAI SINGH V. RAM KISHAN AND OTHERS [VOL. XXXIV

found out from the bundles of about fifty polling stations pertaining to theAnandpur Sahib. Tanda, Garhshankar and Balachaur assembly constitu-encies. These votes had rightly been rejected by the concerned ReturningOfficer. Shri B. D. Kalia at this stage stated that further rechecking re-counting was not necessary in this regard as these votes had been rejectedrightly and only two such votes were found out from the bundles of fiftypolling stations recounted/rechecked till then. Hence the rechecking/recounting was stopped at this stage.

6. Thereafter the result sheet, already prepared, was amended to theextent of five votes, found to have been wrongly included in the bundlespertaining to Shri Ram Kishan, the congress candidate. After making thenecessary amendment in the result sheet the final result was announced andShri Ram Kishan, the congress candidate, was declared elected in the pre-sence of Shri Jai Singh, Shri Bhagat Singh Mahgowalia and Shri Ram Kishan,the candidates, and Shri B. D. Kalia and Shri P. D. Sharma, the countingagents of Shri Jai Singh and Dr. Bal Kishan, the counting agent of Shri RamKishan."

There is a serious conflict as to the stage at which this order was passed;and this matter will be discussed later on at its proper place. In short, thegrievance of the petitioner is that the recounting of these four constituencieswas permitted by the Returning Officer; but was not taken to its logical con-clusions, whereas according to the respondent and the Returning Officerthe petitioner, after a partial recount, was satisfied that his grievances onthe applications for recount could not be substantiated and, therefore, hedid not insist upon complete recount of these constituencies. The final re-sult was declared, according to the petitioner, between 5.30 p.m. and 6.00p.m.; and according to the respondent and the Returning Officer, between7.00 p.m. and 8.00 p.m. The total votes polled by the respondent are95,877; and by the petitioner, 94,366; and the difference between the votespolled by the respondent and the petitioner is 1,511. Before the recount inform 20, the difference was 1,517. As a result of the partial and incompleterecount, the difference dropped to 1,511 from 1,517.

The present petition was filed on the 10th of April, 1967. After serviceof notice, the respondent filed his written statement on the 3 2th of May,1967. Certain objections were raised to the petition under section 83 of theAct. Those objections were decided in favour of the respondent and ultimate-ly, the amended petition was filed on the 2nd June, 1967. The respondentfiled his additional reply to the allegations that had been brought in theamended petition. On the pleadings of the parties, the following issues wereframed:—

" 1 . Whether the petitioner is entitled to a recounting of votes andscrutiny on the basis of the allegations made in the petition?

2. Whether the respondent No. 1 himself or through his agent or withthe help of other persons, with his consent, committed corrupt prac-tices within the meaning of sections 123(4), 123(2), 123(3), 123(7)and 123(1) of the Representation of the People Act, as alleged in para-graphs 16, 17, 19, 20 and 21?

E.L.R.] JAI SINGH V. RAM KISHAN AND OTHERS 8 1

3. In case the election is set aside, is the'petitioner entitled to be declar-ed elected?

and 4. Whether the result of the election has been materially affected in sofar as it concerns the respondent?"

Voluminous oral evidence has been led in the case and most of the evi-dence is of highly partisan character and unconvincing. I have been notingdown my observations on the oral evidence recorded at the close of the dayso that at the time of appraisal of the same, I may have a complete picture asto the demeanour of the witnesses and as to the veracity of their testimony.

The learned counsel for the petitioner has confined himself now in argu-ments to the following three contentions. The other contentions raised inthe petition have not been argued and, therefore, they must be taken to havebeen dropped.

I. That the returning officer having accepted the prayer for the partialrecount was in error in not pursuing to its logical conclusion. Heabruptly stopped the recount because of the extraneous pressurebrought to bear upon him. That neither the petitioner nor hiscounting agents stated to the Returning Officer, after recountinghad proceeded for a while, that they were satisfied and that theapplication for recount had no merit. It is, therefore, prayed thatthe recount of the four constituencies, which was prayed for beforethe Returning Officer, should be ordered. The grounds, on whichrecount is claimed and which, according to the counsel, are establish-ed, are—

1. that the ballot papers had been rejected against the rules,namely, that a ballot paper, which bore a mark with the officialstamp and also had a smudge, had been rejected whereas itcould not be rejected.

2. that the order of rejection of the ballot papers had been writtenby a person other than the Assistant Returning Officer.

3. that a number of ballot papers, the grounds for rejection ofthe ballot papers have not been mentioned.

4. that spurious ballot papers were found in the ballot boxes ofTanda (one in number ) and Balachaur (two in number), and

5. that the partial recount disclosed that five ballot papers, whichhad not been polled in favour of the respondent, had beentied in bundles belonging to him and counted in his favour.One of such ballot papers had been clearly polled in favourof the petitioner. Two of them were invalid. One was polledin favour of Bhagat Singh, another candidate; and one in favourof Kartar Singh, again another candidate.

II. That the -following false statements were made against the petitionerin the posters,

Exhibits P W 10/6 and P W 18/It—

82 JAI SINGH V. RAM KISHAN AND OTHERS [VOL. XXXIV

Poster Exhibit PW 10/6(Relevant Portion)

Official English Translation

DESH SE GADDARIKARTA HAI?

KAUN Who betrays the country?

DESH MAIN ZINDA INSANON Who burnt the people alive in theKO KIS NEN JALAYA? country?

HAMEN DESH KE GADDARJARNAIL KI ZAROORATNAHIN : JOKE HAR LARRAIKE MAIDANE-JANG KA BHA-GORRA HAI.

We do not require a traitor-General,who betrayed the country in everybattle-field.

Poster Exhibit PW. 18/1(Relevant Portion)

Official English Translation

CHANDARMAN :—MAIDANE-JANG SE BHAGNA, AMAN KEJARNAIL LACHAR, TAQRIRONSE GUMRAH KARNA HOGA.

MOON :—To flee from the battle-field. The general of the peace.To mislead (public?) with lecherspeeches.

According to the learned counsel for the petitioner, these allegationsare in relation to the personal character of the petitioner; and arefalse and amount to corrupt practice within the meaning of section123(4) of the Act; and

III.—That the respondent attempted to obtain assistance of Governmentservants for furtherance of his prospects in the election; and, there-fore, is guilty of a corrupt practice within the meaning of section123(7) of the Act.

I now proceed to examine the above contentions in the order in whichthey have been set out :—

Contention No. I

It is not necessary to discuss the various arguments advanced by thelearned counsel for the petitioner regarding this contention because thelearned counsel fairly and frankly conceded that he will have no case, so faras this contention is concerned, in case the statement of R.W. 1, Shri S. P.Bagta, the Returning Officer is accepted in its entirety. After consideringall the facts and circumstances of this case, I have no reason to doubt thatShri S. P. Bagla made a truthful, fair and frank statement. I have no reasonwhatever to doubt the veracity of any part of his statement. I am notunmindful of the fact that on certain matters deposed by him, there arediscrepancies when his statement is considered with reference to other oralevidence. But most of that evidence is of a worthless type; and the dis-crepancies created by that evidence warrant no justification to hold that

E.L.R.] JAI SINGH V. RAM KISHAN AND OTHERS 83

Shri Bagla has not made a true and correct statement. On the other hand,there is intrinsic evidence in the case which supports my conclusion, besidesthe demeanour of the witness in the witness-box, that Shri Bagla made atrue statement and there is no reason to discard it or to doubt its veracity.

The counting of the parliamentary ballot papers took place along withthe counting of the Vidhan Sabha ballot papers. This counting took placeon two dates, 21st and 22nd of February, 1967. Only postal ballots, whichare less than a thousand, had to be scrutinised on the 23rd February, 1967,at the time of the final counting. At the time of the counting on the 21stand 22nd February, 1967, there is no cogent and convincing evidence thatany complaint was made by the petitioner or his counting agents regardingany defect in that counting. It is conceded that no written complaint wasmade to the Assistant Returning Officers in this behalf. It is for the first timethat complaints were made to the Returning Officer regarding the countingheld on 21st and 22nd, after the picture had emerged that the petitioner hadlost the election. The respondent had a clear lead over the petitioner as aresult of that counting. If one refers back to the two applications presentedto the Returning Officer on the 23rd of February, 1967, it will be clear thatthey do not contain any facts leading to the conclusion that the counting onthe 21st and 22nd February was not properly done. As observed by theReturning Officer, the allegations were of a general character; and inspite of the allegations being of a general character, the Returning Officer,in order to satisfy the petitioner, proceeded to examine the ballot papers atrandom to see whether the grievance of the petitioner was justified. Afterhaving examined fairly large number of ballot papers and when the errorsdiscovered were of a very minor nature and at the behest of the countingagents of the petitioner and the petitioner himself, further checking of theballot papers was stopped. The petitioner's case is that he was not agreeableto this course and he wanted the checking to be done of all the remainingballot papers regarding which the prayer had been made in the two applica-tions. I am unable to accept this assertion on the part of the petitionerbecause if what the petitioner says is correct, he would have immediatelymade an application to the Returning Officer making this grievance. In anycase, a complaint would have been made to the higher authorities. It isadmitted by the petitioner that no such complaint was made either to theReturning Officer or to the higher authorities. The matter is put beyondthe pale of controversy by the fact that in the present petition, there is noallegation by the petitioner that whatever is recorded in the order of theReturning Officer was incorrectly recorded. There is no allegation in thepetition that Shri Kalia, the counting agent of the petitioner did not statebefore the Returning Officer that he was satisfied with the rechecking of theballot papers and did not wish the Returning Officer to proceed further inthe matter of limited recount. P.W. 35, Shri Parkash Dev, a countingagent of the petitioner, who was present in the counting hall, had admittedthat the order of the Returning Officer, Exhibit P.W. 1/2, was dictated by himin the presence of the parties. Moreover, in the petition, there is no concisestatement of material FACTS, as required by section 83(1) of the Act, whichwould justify an order for scrutiny of the ballot papers. In view of thesefacts, I see no reason to doubt the veracity of R.W. 1, Shri S.P. Bagla. I amclearly of the view that no case has been made out, so far as the first conten-tion is concerned. I accordingly repel the first contention.

84 JAI SINGH V. RAM KISHAN AND OTHERS [VOL. XXXIV

Contention No. II

Before dealing with the merits of this contention, it will be proper to setout the pleadings and also the evidence, that had been led to prove the same.In paragraph 16 of the amended petition, so far as it is relevant for thepurpose of this contention, it is stated that :—

Pleadings in the amended petition Reply in the Written statement

Paragraph 16

The corrupt practices within themeaning of section 123(4) of theRepresentation of the People Acthave been committed by respondentNo. 1, his agents or other persons withthe consent of respondent 1, of whichthe particulars are as follows :—

(a) That respondent, his agents andother persons, with his consentbrought out posters in which theymade statements which were false andwhich they believed to be false andwhich they did not believe to be truein relation to the personal character,conduct and candidature of the peti-tioner and these statements and pos-ters were reasonably calculated toprejudice the prospects of the peti-tioner's election A poster waspublished with the consent of respon-dent 1, by Shri Krishan ParshadChopra, who was the election in-charge of the respondent No. l'selection campaign. In the said poster,the petitioner was described as"DESH KA GADDAR JARNAIL-HAR LARRAI KE MAIDANE-JANG KA BHAGAURRA"This poster was widely circulated inthe constituency by pasting it on thewalls and other places by respondentNo. 1 and his agent—Lakshmi ChandGupta son of Rajinder Nath Guptaand Sarwan Ram son of Jiwan Ram.

Paragraph 16

Paragraph No. 16 of the petitionis incorrect and denied. It iswrong to say that any corrupt prac-tices within the meaning of section123(4) of the Act were committedby respondent 1 or his agents orany other person with the consentof the answering respondent. Infact, no such agent was ever appoin-ted by the respondent except thepolling agents and the countingagents.

(a) Part (a) of para 16 of thepetition is incorrect. No posterwas ever issued in which anystatement was made which wasfalse or which respondent 1 be-lieved to be false and which he didnot believe to be true in relation tothe personal character, conduct andcandidature of the petitioner. ShriK. P. Chopra was not the agent ofthe answering respondent. Theposter, annexure A.2 (Exhibit PW1/6) was not issued with the consentof the answering respondent. Infact he had no knowledge of itwhatsoever. Even its draft was notshown to him. It is also denied thatthe poster was widely circulated inthe constituency. At any rate, theposter in question cannot be treatedmore than a routine poster in anelection and, in any event, thiscannot be taken as a statementreasonably calculated to prejudice theprospects of the petitioner's election.

It is further submitted that theanswering respondent, after the

E.L.R.] JAI SINGH V. RAM KISHAN AND OTHERS 85

(b) . . . .

(c) That similarly another hand-bill was published with the consentof respondent No. 1 by Krishan Par-shad Chopra, election incharge of res-pondent No. 1, under the heading"KALJUGI BHRIGU JI KA FAR-MAN". In this pamphlet, false state-ments were made concerning theBhartiya Jana Sangh, whose organisa-tional support and symbol, thepetitioner had taken to contest theelection.

receipt of the notice of this electionpetition contacted Mr. K. P. Choprato find out as to what was meant byhim, when the following line waswritten in the poster :—

"DESH KA GADDAR JAR-NAIL HAR LARRAI KE MAI-DAN KA BHAGORRA".

On this, Mr. Krishan Parshad toldthe answering respondent that thepetitioner did not offer his services bygoing on active duty when two lastaggressions were committed againstIndia by China and Pakistan. Inthe case of attack by Pakistan thebattle was on the borders of thePunjab itself. According to him, thisconduct on the part of the petitionerwas not worthy of a retired Major-General and it amounted to hisrunning away from the battle-field,when the country was in a distressand subject of attack by two hostilecountries. According to KrishanParshad, the information regardingthe petitioner's not offering hisservices was conveyed to him by anumber of responsible persons andhe believed it to be true.

(b)

(c) Sub-para (c) of para 16 of thepetition is denied.

NOTE :—(It is not necessary to setdown the reply because it is notthe case of the petitioner thatthis poster contained allegationsagainst the personal character ofthe respondent).

Pleading in the amended petition Reply in the written statement

18. That the petitioner has a com- 18. Para No. 18 of the petition ismendable record of service. He had denied. The petitioner is put toretired on full pension. False state- proof of the allegations made in

86 JAI SINGH V. RAM KISHAN AND OTHERS [VOL. XXXIV

ments made by respondent No. 1 and this paragraph. The circumstanceshis agents to the effect that he was a in which Shri Krishan Parshaddeserter of every battle-field and he issued poster, 'Annexure A.2', havewas a traitor General of the country been explained in reply to parahad given a bad shock in the minds 16(a) above. In view of what hasof the public. On account of these been stated it is reiterated thatstatements which were false and which Shri Krishan Parshad was not therespondent No. 1 and his agents did agent of the answering respondent.not believe to be true and these state- It is also denied that any statementments were reasonably calculated to was made which was false and whichprejudice the prospects of the peti- the answering respondent did nottioner's election. Such like false state- believe to be true nor the statementments were in relation to and cast a was calculated to prejudice thegreat smear on the personal character, prospects of the petitioner's elec-conduct and candidature of the peti- tion.tioner.

It will be clear that so far as the pamphlet, Exhibit PW 18/1 "KALJUGIBHIRGU JI KA PHARMAN", is concerned, there is no allegation by thepetitioner, that there is any false statement made in it against the personalconduct or character of the petitioner. The petitioner's case is that allega-tions were made in this pamphlet, against the Jan Sangh party which wassupporting him. Thus we are left only with the poster annexure A.2 (Ex-hibit PW 10/6). It is common ground now that the expenses for gettingthis poster printed have been shown in the Return of election expenses filedby the respondent in accordance with the provisions of section 77 of theAct. So far as the distribution of the poster, A.2 fExhibit PW 10/6) isconcerned, the matter is simplified because when the statement of PW 29was being recorded, the learned counsel for the parties made the followingstatement :—

"The learned counsellor the parties.have Agreed that,the posters alreadyreferred to regarding the Congress candidates as well as the JanSangh posters were pasted all over the constituency".

Thus there is no dispute now that the poster was pasted all over the consti-tuency after its publication. The poster must have been published beforethe 6th February, 1967, because the bill for this poster, which has beenfiled with the Election Commission, is dated the 6th February, 1967 (ExhibitPW 10/10—PW 10/3). The poll was on the 19th of February, 1967; and,thereafter, the poster will lose all its significance. Its effectiveness was fromthe date of the publication upto the date of poll. The publication was bypasting it on walls all over the constituency.

Regarding the adverse effect of the poster on the electors, PWs. 18 to29 have been examined. So far as the respondent's witnesses are concerned,R.W. 23, Shri Balwant Singh stated that :—

"It is correct that we look down up persons who run away from thebattle-field; but praise persons who die at the battle-field "

RW. 24, Shri Som Raj Joshi, stated that:—

E.L.R.] JAI SINGH V. RAM KISHAN AND OTHERS 87

"I consider the Congress posters as objectionable. 1 believe that thereshould be no mud-throwing against any one. If it is said about aGeneral that he had run away from the battle-field, whereas he hadnot actually run away from the battle-field, the imputation wouldbe improper and objectionable "

The following part of the statement of this witness is rather instructive :—

" f did not ask the Comrade or Krishan Parshad Chopra that theimputation in the poster regarding the petitioner was correct or not.

Question :—Did the imputations in the poster, Exhibit PW 10/6,adversely affect the electorate so far as the petitioner is con-cerned ?

Answer :—The general impression, which the people gathered fromthe imputation, was that as A General had not participatedin the Civil Defence matters concerning Hoshiarpur; therefore,he was not a patriot and was not helfpful to the Nation.

This was also the impression of the general public. (The witness is tryingto evade direct questions put by the counsel and is hedging all thetime.)

Regarding the falsity of the allegations made in the poster, evidence wasexamined on commission. The witnesses examined on commission are—

1. Major-General Kalyan Singh, LCW 1; and

2. Lieut. General M.S. Pathania, LCW 2.

Their testimony proves beyond any doubt that the allegations in the posterA. 2 (Exhibit PW 10/6) are completely false: and there is no justificationfor the same. The petitioner (PW 52) as his own witness, has stated that :—

"I never refused any assignment during my Army career. There wasnever a charge against me and it has never happened that 1 haveever run away from the battle-field. When I retired, I was put inthe reserve of regular officers till I attained the age of sixty. I wasnever called by the Government at any time. If ever 1 had beencalled. I would have straightaway offered my services. The questionof refusal on my part does not arise. 1 was not called for serviceeither in the war with China or war with Pakistan. I did not, how-ever, volunteer my services. The only authority which can recalla reserve officer, is the Military Secretary, Army Headquarters.The Deputy Commissioner or .any other Authority has no powerto recall such an officer and post him. The Deputy Commissionercannot depute an officer who goes and volunteers to him for service.1 do not know what will the DC do if the services are offered tohim.

1 have seen the posters marked Exhibits PW 10/6 and PW 10/7 andthe handbill Exhibit PW 18/1. 1 saw these posters pasted all over

2 EC/71—7.

88 JAI SINGH V. RAM KISHAN AND OTHERS [VOL. XXXfV

the constituency wherever I toured it. I read 'Statesman'; and acopy of the handbill was delivered to me in that paper. The state-ment in the poster, Exhibit PW 10/6 encircled in red pencil saidmarked as Exhibit PW 52/3, is incorrect and is completely false.The imputations made against me in the poster, Exhibit PW 10/7,and encircled in red pencil and marked Exhibit PW 52/4 are alsofalse. The imputations made against me in Exhibit PW 18/1.are all false. There is no basis for the imputations in the postersor in the handbill. The allegations are false and defamatory. Theseallegations are an attack on my personal character and were madeto lower me in the public eyes. The allegations in these postersand the handbills adversely affected my prospects of winning th«election. The main reason for my defeat is the allegations in theseposters.

So far as I think, the allegations made in the petition regarding corruptpractices are correct. I rely on the sources of information on th«basis of which I have made those allegations.

It is in this background that the question falls for determination, whetherthe respondent is guilty of a corrupt practice within the meaning of section123(4). In order to bring home the charge of this corrupt practice, thepetitioner has to prove :—

1. That the impugned publication was with the consent of the candi-date;

2. That if it was by an Agent or any other person, it was with the consentof the candidate or his election agent;

3. That the publication must be of a statement of fact;

4. That the statement of fact must be false and which he believes to befalse and which he believed to be false or does not believe to be true.The statement of fact must be in relation to the personal characterand conduct of the candidate; and

5. the statement must be reasonably calculated to prejudice the pros-pects of that candidate's election.

What I have stated above has to be proved in order to get a declarationfrom this Court that the election of the returned candidate is void, (videsections 123(4) and 100(l)(d)). *Thus the question arises, have all of theseingredients been proved or not? I will now take each one of the ingredientsand give my finding thereon.

INGREDIENT NO. 1

There is practically no dispute now that the impugned publication wasat the instance of Shri Krishan Parshad Chopra, who was election inchargeof the respondent and who was his trusted worker. The respondent hasadmitted in the witness box, that he appointed Shri Krishan Parshad Chopraas his election incharge. Therefore, there can be no manner of doubt that

3 JAI SINGH V. RAM KISHAN AND OTHERS 89

Shti Krishan Parshad Chopra was the agent of the respondent within themeaning of section 123(4) of the Act. The explanation to section 123 definesthe expression'agent'for the purposes of this provision. The same is repro-duced below for facility of reference :

"Explanation (1) :—In this section, the expression 'agent' includes ANELECTION AGENT, a polling agent and any person, who is heldto have acted as an agent in connection with the election with theconcent of the candidate".

The question whether the agent of the candidate published the impugnedposter with the implied consent of the candidate will be discussed whiledealing with the second ingredient because that is matter which appropriatelyfalls under that head. So far as the first ingredient is concerned, Mr.Sachar's contention is that in the present case there is no escape from theconclusion that the poster was published with the express consent of thecandidate (respondent). The learned counsel strongly relies on sections77 and 78 of the Act and rule 86 of the Conduct of Elections Rules, 1961.The relevant portion of these provisions are set out below for facility ofreference :—

SECTION 77. "ACCOUNT OF ELECTION EXPENSES AND MAXI-MUM THEREOF.

1. Every candidate at an election shall, either by himself or by hiselection agent, keep a separate and correct account of all expendi-ture in connection with the election incurred or authorised by himor 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".

SECTION 78. "LODGING OF ACC6UNT WITH THE RETURNINGOFFICER.

Every contesting candidate at an election shall... .lodge with the Dis-trict Election Officer an account of his election expenses whichshall be a true copy of the account kept by him or by his electionagent under section 77".

RULE 86. PARTICULARS OF ACCOUNT OF ELECTION EXPENSES.

1. The account of election expenses to be kept by a candidate or hiselection agent under section 77 shall contain the following particularsin respect of each item of expenditure from day to day, namely :—(a) the date on which the expenditure was incurred or autho-

rised;(b)

On the basis of these provisions the contention of the learned counsel is thatthe impunged poster was published with the consent of the respondent.The expenditure in connection with the poster was either incurred by the res-pondent himself which will clearly imply that he consented to the publicationof the poster or the expenditure was authorised by him which again clearly

90 JAI SINGH V, RAM KISHAN AND OTHERS [VOL. XXXIV

implies that the poster was published with his consent. The statutoryprovision is clear. The candidate and the election agent stand at par.Whatever the election agent does in law is taken as the doing of the candida-te himself. Under section 77 the expenditure can be incurred or autho-rised by the candidate or his election agent. In the present case, there wasno election agent appointed by the candidate. Therefore, the expenditurefor the publication of the poster could either be incurred by the candidateor it could be authorised by the candidate. In either event the candidate wouldhave full knowledge of the purpose for which the expenditure is either incurredor authorised and he cannot take shelter behind the fact that he had noknowledge of the contents of the poster for which either he incurred theexpense or he authorised the expense. It is clear from the testimony of therespondent as well as Shri Krishan Parshad Chopra that the latter was thetrusted worker of the former and the former had full confidence in the latter.In this view of the matter, it is not possible to accede to the contention of Mr.Kaushal that the respondent had no knowledge of the poster. In the cir-cumstances of this case the poster could only have been published with hisauthority. The respondent has categorically stated that he specifically for-bade Shri Krishan Parshad Chopra from publishing any matter in whichthere was any attack on the personal character or conduct of any person orany matter which was false or untrue. Tf this was so, the poster in questionwhich went contrary to the respondent's instructions could have been leftout of the election expenses; inasmuch as, the expense for it was not autho-rised or incurred by the respondent. The very fact that the expense for theposter is included in the return of the election expenses clearly establishesthat it was published with the consent of the respondent and that the expensefor it was either incurred by the respondent or authorised by him. Thelegislature has been careful enough not to use the word 'ratified' instead ofauthorised. Authorisation precedes the incurring of expenses whereasratification is a subsequent event which validates an unauthorised expense.If this aspect of the matter is kept in the forefront, there can be no mannerof doubt that in view of the provisions of section 77 read along with theprovisions of section 78 and rule 86 the only conclusion possibleis that the poster was published with the consent of the respondent andhe cannot escape the consequence that follow from the same. I, therefore,hold that the first ingredient is fully proved.

INGREDIENT No. 2

I now proceed to take up the second ingredient. Even if I am wrong inmy view as regards the first ingredient, the charge under section 123(4) hasbeen brought home to the respondent as it is established that the posterwas published" with the implied or tacit consent of the respondent. Therespondent has denied knowledge as to the printing of the poster. He hasin the pleadings tried to steer clear of it. But in the witness box he admittedthat he came to know of it 5—7 days before the poll. It will be appropriateat this stage to reproduce the relevant part of his statement (R.W. 28).

"The posters Exhibits PW. 10/6 and PW. 10/7 and the pamphlet ExhibitPW. 18/1 were published by Krishan Parshad Chopra, He was myelection incharge. These posters were published without theirdraft having been approved by me and without these having been

E.L.R.] JAI SINGH V. RAM KISHAN AND OTHERS 91

shown to me. I know Krishan Parshad Chopra well for the last30-32 years. After the independence of the country when I con-tested the elections for the Assembly in the years 1952, 1957 and 1962,Krishan Parshad Chopra was my election incharge and controlledmy election work and when I decided to contest the Parliamentaryseat in the 1967 election, I picked him up as my election incharge.I took the election office 10-15 days before I. called Krishan Par-shad Chopra and took him to Hoshiarpur. Krishan ParshadChopra has a lot of election experience and is we" versed in the same.On the 27th January, 1967, I called him and told him that, "I wasfighting the election against very, adverse circumstances and thatmy parliamentary constituency wai very large. It has about 1600villages and about 15 towns. N I will have to undertake extensivetouring and I will be away from Hoshiarpur for a considerabletime and so far as the election office was concerned, he was to takecharge of it and that it is entrusted to him." Regarding publicityfront, 1 told him to keep in view three- four things—that no obsceneliterature was to be published; that no attack was to be made on thepersonal character and personal conduct of a person; that nothingwas to be published which was either false or untrue. The firstpublic meeting that I addressed was on the 29th January. 1967,at Hoshiarpur. Thereafter, I was constantly on tour ,5-7 daysbefore the poll, these posters and the pamphlet came to my notice.I did not think it necessary to publish any contradiction regardingthe matters contained in these posters or the pamphlet because theposters were routine posters and are normally issued during elec-tions. After the election petition was filed against me, 1 had a talkwith Krishan Parshad Chopra regarding the poster Exhibit P.W.10/6. I asked him what did he mean by the phrase "Harren Desk keGhaddar Jarnail ki Zarurat Nahin Jo ke Har Larrai Ke Maidane-jang Ka Bhagorra Hai." Mr. Krishan Parshad Chopra told methat after independence, two aggressions were committed againstIndia, one by China and the other by Pakistan and that the petitionerhad not offered his services on either of these occasions. It wason the basis of this, he stated that he had written this phrase. [consider this allegation huddered per cent correct. I personallyknew that this allegation is correct."

The picture will not be complete without setting down the relevant part ofstatement of Shri Krishan Parshad Chopra, R.W. 27 :—

" In 1967 also, I was his election incharge when he contested forthe parliamentary seat. The entire control of the office was withme The propaganda work was with me. The specific instruc-tions by Comrade Ram Krishan regarding the election propagandawere :—

1. That no propaganda should be done which was against moralprinciples or against the law;

2. That no propaganda should be done which would njure the•feelings of any person; and

3. That truth should be the basis of the propaganda.

92 JAI SINGH V. RAM KISHAN AND OTHERS [VOL. XXXTV

I was given the charge of the election because I had previous ejc-perience about elections I issued the posters, Exhibits PW10/6 and PW 10/7. and the pamphlet Exhibit PW 18/1. I did notshow these posters to Comrade Ram Kishan or took his permissionfor publication. Comrade Ram Kishan had no occasion to seeany of the posters printed by meI also came to know that in 1962 attack by China on India, whereasother Generals had offered their services the petitioner had notoffered his services. Similarly, in 1965, at the time of Pakistanattack, the petitioner had not offered his services. From theselapses on the part of the petitioner, I concluded that he was aperson who had fun away from the battle field and was a traitor tothe country; and from the enquiries made by me from the people,I was convinced about this matter. Whatever I wrote in the poster,Exhibit PW 10/6, I believe to be true and published it on that basis.I still believe that whatever I have stated in the poster I statedcorrectly. For the first time, after the election, I had a talk with theComrade one or two days before the Baisakhi (13th of April. J967).He asked me why I had made the objection to allegations in the pos-ter. Then I told him'the reason why I published the poster

The entire responsibility for the Congress postersrests on me

CROSS-EXAMINATION :

I enjoyed the full confidence of the returned candidate and he was surethat 1 will not do any thing which will adversely affect the prospectsof his election. Comrade Ram Kishan had no complaint agaiastmy work in the earlier elections and in the present elections...

I asked many people including army personnel as to what was thelife of the petitioner. I was told that he had not gone to any war.I do not remember the names of the military personnel who gaveme the aforesaid information. I do not know from which villagesof the constituency they came. I did not ask any army personnelwhether the General had fought with him in any battle. I did notask any army personel whether the General had, at any time, anopportunity to serve in a war theatre and that he had run awayfrom the battle-field.

I never met the Deputy Commissioner, Hoshiarpur. I had no talk withthe Deputy Commissioner about Major General Jai Singh. Dis-trict Citizens Councils were constituted during the War days. Ihave heard that Major General Jai Singh is a member of the CitizenCouncil; but he did not attend any meeting. I did not get to knowof this fact from Deputy Commissioner's office; but from the generaltalk of the people '.

I only asked Dr. Balkrishan what was the life of the petitioner. Hedid not say that the petitioner was a runaway General. I did aotfind out from the General about this allegation.After printing, the posters were delivered at the election office at

BXJfcJ JAI SINGH V. RAM KISHAN AND OTHERS 9 3

Hojhiarpur and from the election office, various workers took theposters and the pamphlets. These were pasted on the walls; butin the morning were found torn

I know that Army officers, who retire, and are kept in the Reserve canbe recalled by the Army at any time. I do not know whether thepetitioner was a 'Reserve Officer'. I did not try to find out whetherthe petitioner was a 'Reserve Officer'.

These statements disclose the stand that has ultimately been taken by therespondent regarding the impugned poster. It will be appropriate also*ts this stage to go back to the written statement wherein the stand takenWM that Shri Krishan Parshad Chopra was not the agent of the respondent,and, that the respondent was ignorant of the poster during the elections.

It is common ground that from a single act of publication, the inference,tb«t the publication was with the consent of the respondent, will not follow.It is also now well settled that the consent has to be prior to the publication.Subsequent knowledge of the publication will not prove consent. I needonly refer to the decision of the Supreme Court in Sheopat Singh v.Harish Chandra and other, in this connection. In my opinion, the rulelaid down in the aforesaid decision fully covers the fact of the present case.I have already stated that I will proceed on the assumption that the posterw»8 published without the consent of the respondent. The question stillarises, whether there was a later publication of the same with the consentof the respondent. The respondent has admitted in the witness box thathe came to know of its publication 5-7 days before the poll. Healao stated that he did not take any steps to countermand it. Can theinference of consent be raised from these facts? So far as the publication<»f s poster is concerned, it stands on a different footing than any other singlepublication. The poster is generally pasted in prominent places either inpablic streets or public places. The object is that persons frequenting thoseplaces may go through it. There are people who would not bother to lookat it but there are equally others who do go through its contents. Therefore,stch day, the poster is open to public view, there will be publication of thepaster on each day. The respondent had knowledge of the poster 5-7days before the poll. After that knowledge, no steps were taken by therespondent to countermand the allegations made in the poster. On thecontrary, the respondent stated in the witness box that he considered theallegation "Hamen Desh ke Ghaddar Jarnail ki Zarurat Nahin Jo harlarrai ke Maidane-jang Ka Bhagorra Hai" as hundred per cent correct.Tt« reason for saying so given by the respondent is that afterindependence, two acts of aggression were committed again|tIadia—One by China and the other by Pakistan; and that thepetitioner had not offered his services on either of these occasions. Thisassertion, far from being convincing, does not furnish any justification forthe allegations made in the poster. It has come in evidence of the two wit-nesses examined on commission that the petitioner was on the 'ReserveList' of officers and could be recalled by the Army Headquarters. Thereis clear proof that he was not called by the Army Headquarters. Thepetitioner was also a member of the Citizens Council. A lame attempt has

~~~ (1) A.I.R. 1960 S.C. 1217

9 4 JAl SINGH V. RAM KISHAN AND OTHERS [VOL. XXXIV

been made on the part of the respondent to find some sort of justificationfor the poster, when faced with the consequences of its publication in theelection petition. In my opinion, after the respondent had knowledge ofthe poster, it was his duty to countermand it particularly when the allega-tions in it were false and of a serious nature. He could not treat the matterin a light hearted manner, particularly when he had earlier held the responsi-ble position of the Chief Minister, Punjab. His inaction in not disassociatingfrom the poster clearly proves his consent to it. The poster in the verynature of things was open to public scrutiny during the 5-7 days after therespondent had its knowledge. Public exhibition of such a poster would bea fresh act of publication on each such day. Mr. J. N. Katishal, on the otherhand, contended that the act of printing the poster was one act; and that acthaving not been repeated, there will be no question of the poster beingsuccessively published. I am unable to agree with this contention. Mereprinting of a poster cannot be said to be an act of publication. It is onlypublished if it is made public, either by distribution or by pasting on the walls,as was done in the represent case. It is in the statement of Krishan ParshadChopra that this poster was exhibited in the election office of the respondent.It is common case of the parties that all posters published during the courseof elections were pasted on the walls all over the constituency. Thus I haveno hesitation in holding that the exhibition of the poster, after knowledgeof its publication is tantamount to consent to its subsequent publication bythe respondent. Faced with this situation, an attempt was made to showthat these posters were torn ' after they were pasted. There is no convincingevidence on this score. It cannot be held that all the posters pasted weredestroyed before the respondent had knowledge of them. On these facts,in my opinion, a clear inference of consent arises, as was raised in SheopatSingh's case by the Rajasthan High Court and their Lordships of the SupremeCourt. The Supreme Court decision fully clinches the matter. I have,therefore, refrained from referring to a large number of cases cited at thebar on the matter of implied or tacit consent, for each case must be deter-mined on its own facts. The ratio of the decisions cited at the bar is that asingle act of publication will not give rise to the inference of consent; andthe consent n.ust be prior to the publication. In my opinion, both thesetests are satisfied in the present case. I have not the least hesitation in comingto the conclusion that on the facts and the circumstances of this case, theonly conclusion possible is that the impugned poster was published with theconsent of the respondent. Therefore, the second ingredient is fully estab-lished.

Before parting with this part of the judgment, I may briefly advert to acontention raised by Mr. Rajinder Sachar, learned counsel for the petitioner,that the respondent has been shifting his stand regarding the publication ofthe poster and his association with Krishan Parshad Chopra; and from thisfact alone, an inference does arise that the respondent had knowledge ofthe impugned poster and that it was published with his consent. In view ofmy decision on the second ingredient, it is not necessary to probe further intothis matter.

INGREDIENT NO. 3

So far as the third ingredient is concerned, it is fully satisfied. One hasmerely to read the allegations in the poster; and there can be no two opinionsthat it contains allegations of fact.

E.L.R.] JAI SINGH V. RAM KISHAN AND OTHERS 95

INGREDIENT NO. 4There can also be no doubt that the statement of fact made in

the impugned poster related to the personal character, and conduct of thepetitioner. The poster itself is the evidence of this. It is proved to the hiltthat the allegations in the poster are false. Reference need only be made tothe statement of the two witnesses examined by the Local Commissioner,that is Major General Kalyan Singh, LCW 1 and Lieut. General M. S.Pathania, LCW 2. Moreover the petitioner has categorically stated both inthe petition and in his statement as PW. 52 that the allegations made againsthim in the impugned poster are false. The relevant part of his statement hasalready been quoted at page 27 of this judgment. Faced with this situation,Mr. Jagan Nath Kaushal, the learned counsel for the petitioner, arguedthat the onus to prove that the allegations of fact made in the impugnedposter are false and the respondent either believed them to be false or didnot believe them to be true is on the petitioner. The petitioner has onlydischarged the onus which rested on him to a limited extent inasmuch ashe has only stated that the allegations are completely false and baselss buthe had not stated that the respondent believed them to be false or did notbelieve them to be true. In support of his contention, the learned counselhas placed stroirg reliance on the observations of the Supreme Court inKumara Nand v. Brijmohan Lai Sharma.1 which are quoted below :—•

"Then we come to the question of onus. In this connectionreliance is placed on Dr. Jagjit Singh v. Giani Kartar Singh. A.I.R.1966 S.C. 773. In that case it was held that the onus to prove theessential ingredients prescribed by sub-section (4) of section 123 ofthe Act is on him who alleges publication of false statements of fact.The election petitioner has to prove that the impugned statementhas been published by the candidate or his agent, or if by any otherperson, with the consent of the candidate or his election agent.He has further to show that the impugned statement of fact is falseand that the candidate either believed that statement to be falseor did not believe it to be ture. It has further to be proved interalia that the statement was in relation to the. personal character orconduct of the complaining candidate. Finally, it has to be shownthat the publication was reasonably calculated to prejudice the pros-pects of the complaining candidate's election. But though theonus is on the election petitioner to show all these things, the mainthings that the election petitioner has to prove are that such apublication was made of a statement of fact and that that statementis false and is with respect to the personal character or conduct ofthe election petitioner. The burden of proving that the candidatepublishing the statement believed it to be false or did not believeit to be true though on the complaining candidate is very light andwould be discharged by the complaining candidate swearing to thateffect. Thereafter it would be for the candidate publishing thestatement to prove otherwise. The question whether the statementwas reasonably calculated to prejudice the prospects of the electionof the candidate against whom it was made would generally be amatter of inference. So the main onus on an election petitionerunder section 123(4) is to show that a statement of fact was published

\ (1967) 2 S.C.R. 127.

9 6 JAI SINGH V. RAM KISHAN AND OTHERS [VOL. XXXIV

by a candidate or his agent or by any other person with the consentof the candidate or his election agent and also to show that thatstatement was false and related to his personal character or conduct.Once that is proved and the complaining candidate has sworn asabove indicated, the burden shifts to the candidate making the falsestatement of fact to show that his belief was. The further questionas to prejudice to the prospects of election is generally a matter ofinference to be arrived at by the tribunal on the facts and cir-cumstances of each case.

In the present case the main onus that lay on the respondent has beendischarged. He has proved that there was a publication of the natureenvisaged under section 123(4) of the Act. He has also provedthat the statement of fact was made with respect to him. He hasfurther proved that that statement was false and related topersonal character or conduct. There can be no doubt that astatement of this nature calling one candidate a thief or the greatestof all thieves is reasonably calculated to prejudice the prospectsof his election. He further swore that the statement was false to theknowledge of the appellant and the latter did not believe it to betrue. It was then for the appellant to show what his belief was.The burden having thus shifted we are of opinion that, it was for theappellant to show either that the statement was true or that hebelieved it to be true. This the appellant has failed to do. TheHigh Court therefore rightly held that the respondent had dischargedthe burden which lay on him"

To put shortly, the contention of the learned counsel is that the petitionerhas not in his statement on oath categorically stated that the respondentbelieved the impugned allegations to be false or did not believe them to betrue. In my opinion, their Lordships of the Supreme Court were not layingdown that the onus will be discharged by the petitioner by merely repeatingon oath the words of the statute. Once it is proved that the allegations arefalse to the hilt and there is no basis for the same the inference would beebvious that the respondent believed them to be false and did not believethem to be true. Mere parrot like repetition of the words of the statutewill not in any manner improve matters. I may at this stage refer to thedecision in Anjaneya Reddy v. Gangi Reddy end others (3) and to the obser-vations of Hegde 3, as he then was, at pages 277 and 279 of the report. Atpage 277, the learned Judge observed :—

"We now come to the question whether the statements of fact made inexhibits P-3 and P-4 are false and were published knowing them tobe false, at any rate not knowing them to be true. The burden ofproving these negative facts is on the petitioner. He can do it onlyby placing the relevant circumstances before the court and it is forthe court to draw the necessary inference from the proved facts.Ordinarily it may not be possible to prove these facts by evidencealiunde. The petitioner has examined himself and has denied theallegations contained in exhibits P-3 and P-4. There was oppor-tunity for the opposite side to cross-examine him and elicit facts insupport of their case. Barring some desultory cross-examination

_ _ _ _ _ _ _ _

E.L.R.J JAI SINGH V. RAM KISHAN AND OTHERS 97

and some random suggestions indicating that the petitioner had a badpast, nothing substantial has been elicited from his evidence to showthat there is any justification for the serious allegations containedin exhibits P-3 and P-4. The petitioner has fully set out his casein his election petition.

From these it is seen that the first respondent did not make bold toassert in his written statement that allegations contained in exhibits P-3and P-4 at any rate the more serious allegations therein, are true.No evidence was adduced by the first respondent to substantiateany of these serious allegations made in exhibits P-3 and P-4. Areading of the evidence of R.Ws. 39 and 41 shows with what supremeindifference these allegation were made. They do not claim toknow personally the truth of the allegations made by them. It istrue that they assert that the allegations made by them are true.But no facts are disclosed in support of this assertion. They claimto have got their facts from others who have not been examinedin the case. They could not have made these allegations with anysense of responsibility. The circumstances under which theseallegations are made, the sweeping manner in which they aremade, the serious nature of those allegations, the use to which exhi-bits P-3 and P-4 are put and the total lack of any reliable evidenceon behalf of the first respondent in support of these allegationsleave no doubt that these allegations are false and the maker ofthose statements knew them to be false or at any rate could nothave believed them to be true. It cannot be said that these state-ments are even exggerated versions of true facts. Even theproverbial mole-hill is not there. In exhibit P-3 it is suggestedthat it is usual with the petitioner to suppress his opponents byviolent means. Not one such incident is satisfactorily proved inthis case, may there is not even material to think that there is anybasis for this allegation. The story of the conspiracy to silencethe propaganda of the first respondent, the allegations of the firstrespondent, the allegation of petitioner's disciples murderingNarayanaswami, the socalled supporter of the first respondent, andthe allegation about the organised and limitless wickedness ofthe petitioner do not appear to have a semblance of truth aboutthem. No reasonable man, much less R.W. 39 and R.W. 41 orfor that matter the first respondent, all men of wordly, wisdom,could have believed them to be true."

This decision of Hedge J, was affirmed by their Lordships of theSupreme Court in T. K. Gangi Reddy v. M. C. Anjaneya Reddyand others(*) and no adverse comment was made by their Lordshipson the aforesaid observations of Hedge J. in Mohan Singh v.Bhanwarlal and others(s). Shah J, who spoke for the Court whiledealing with the corrupt practice under section 123(4) of the Actobserved as follows :—

"The imputation is undoubtedly in relation to the personal conductof Bhanwarlal and if the testimony of Bhanwarlal be accepted, theimputation must be held to be false. No attempt was made at the

T\*) 22 E.L.R. 261.5 1964 S.C. 1366.

98 JAI SINGH V. RAM KISHAN AND OTHERS [VOL. XXXIV

trial to prove the truth of the imputations. Even in the writtenstatement filed by Mohan Singh it was not his plea that the imputa-tions against Bhanwarlal were true or that he believed them to be true.From the manner in which and the time when the leaflets annexures'D' and 'E' were published, there can be no doubt that those leafletswere published as a part of a political campaign to injure the pros-pects of Bhanwarlal at the election; and if without making an enquiryabout the collection of the amount of Rs. 28,000/- and the desti-nation thereof, it was imputed against Bhanwarlal that he haddefrauded the agriculturists and mis-appropriated the amountcollected, the inference that the statement made was to the know-ledge of the maker false or was not believed by him to be true, wouldreadily be made. The imputation was on the face of it one reason-ably calculated to prejudice the prospects of the candidateBhanwarlal at the election. The High Court was, therefore, rightin holding that the corrupt practice charged against the appellantMohan Singh under section 123(4) was established.

It will be apparent that the contention of Mr. Jagan Nath Kaushal, learnedcounsel for the respondent, that there should be parrot-like repetition ofthe words of the statute is not borne out from the aforesaid two decisionsof the Supreme Court to which I have made a reference. In my opinion,"the onus, which lay on the petitioner, has been discharged in this case byhim.

INGREDIENT NO. 5

So far as this matter is concerned, I have no doubt whatever that if theallegations, as are made in the poster against the Army General, are made,it is bound to affect the result of his election. The mind of any sane personwould be adversely affected because no one looks upon with favour, so faras a traitor is concerned. Moreover, there is evidence on the file which Ihave already specified which proves this fact. I have no reasons to doubtthis part of the evidence at any rate. In my opinion, the fifth ingredient isalso proved.

In my opinion, all the ingredients of the corrupt practice under section123(4) of the Act are made out; and this will warrant an order in favour of thepetitioner for declaring the electon of the respondent void under section

(l)(b)

Contention No. in .Before dealing with this contention, it will be proper to set out the plead-

ings on this part of the case. Paragraph 19(a) of the amended petition alongwith its reply in the written statement are quoted below :—

Allegations in the amended Petition Reply in the written statement

19. That the respondent No. 1 19. Para No. 19 of the petitionhas also committed corrupt prac- is completely denied. It is submitted

E.L.R.] JAI SINGH V. RAM KlSHAN AND OTHERS 99

tices and attemtping to obtain andprocure assistance for the furtheranceof the prospects of his election frompersons in the services of the PunjabGovt. and who are Gazetted Officersand has thus committed corrupt prac-tices as defined under sub-clause (7)of section 123 the particulars are given•below :

that the answering respondent nei-ther obtained nor procured nor didhe attempt to obtain or procure theassistance from the GovernmentOfficers as alleged. Reply to the sub-paragraphs is as under :—

19(a) That with this view the res-pondent No. 1 obtained the list ofpresiding officers who were to beposted on duty in the entire consti-tuency by using his political influencebeing the ex-Chief Minister as hewanted to obtain their assistance forfurthering the prospects of his election,and addressed letters to them in whichapart from other things he wrote asfollows :

" As such 1 approach youthorugh this letter to seek your whole-hearted support and wishes."

He also wrote that :

"1 shall be thankful if you extendyour whole-hearted support and re-quest your friends and relatives also tovote enmasse in favour of Congresscandidates". This letter which waswritten by respondent No. 1, had noother purpose but to attempt toobtain the assistance for the furthe-rance of his own election from personsin the service of the Government. Onesuch letter was addressed to ShriGurdarshan Singh, Temporary Engi-neer, Directorate of Construction BeasDam, Talwara Township, who wasa Presiding Officer. Copy attached asAnnexure 'A/5'.

19(a) Sub-para (a) is incorrectand denied. The petitioner hasobviously twisted and mis-stated thefacts. It is submitted that theanswering respondent was contestinga seat for the parliamentary consti-tuency in which, it is well knownthere are lakhs of voters. Since it wasnot possible for him to personallycontact all important persons inpublic life letters (Annexure 'A/5')were printed by him with the objectof being posted to prominent personsin public life, e.g., lawyers, medicalpractitioners, Sarpanches, membersof Zila Parishad and Block Samities,

traders, Municipal Commissioners andmembers of panchayat, Ex-service-men etc. and were given in the officeby the ''answering respondent withthe specific instructions that theseshould not be posted to any Govern-ment servant. If it is found that anysuch letter was sent to any Govern-ment servant, the respondent feelsthat the same was either postedby mistake on the part of somebodyunconcerned in the office againstthe specific direction of the answer-ing respondent or the petitionersomehow got some such letter fromhis officer and got it posted in orderto cook up the false evidence againstthe answering respondent."

Reliance is placed on the last three lines of the letter. Exhibit PW 9/9.These lines are reproduced below for the sake of convenience :

•"I shall be thankful if you extend your whole-hearted support and re-quest your friends and relatives also to vote enmasse in favour ofCongress candidates."

100 JAl SINGH V. RAM KISHAN AND OTHERS [VOL. XXXIV

Only 550 copies of this letter were got printed; whereas according to thepetitioner, there were 534 Returning Officers. These letters, according to thecontention of the learned counsel for the petitioner, were printed for des-patch to the Presiding Officers. The contention in the petition, that theseletters were meant for electors like lawyers etc., is belied because the classof educated persons conversant with English and well placed is far in excessof 550. PWs 1 and 2, Sarvshri D.K. Jain and R.S. Chawla have testified tothe list of Presiding Officers and it is now not disputed that these two letters,Exhibits PW 9/9 and PW 9/10 were sent to the addresses mentioned thereop.In this connection, reference may be made to the statement of Shri KrishaaParshad Chopra, R.W. 27, at page 99, wherein he stated that :—

"The letters, Exhibits PW 9/9 and PW 9/10 were issued from our clectioaoffice."

This witness has not stated that these letters were spurious. So far as theaddressee of Exhibit PW 9/10, is concerned, that is, Shri R.S. Khanna, he isnot a gazetted Officer. Therefore, it is not necessary to consider this letteras it does not fall within the mischief of section 123(7) of the Act. So far asExhibit PW 9/9 is concerned, there is no serious dispute that it is addressedto a Gazetted Officer. The addressee of this letter is Shri Gurdarshan Singh,temporary Engineer, Directorate of Construction, Beas Dam, Talwara Town-ship. The letter Was not produced by Gurdharshan Singh; and if ShriKrishan Parshad Chopra had not admitted that this letter was issued fromthe election office of the respondent, I would not have been prepared to acceptthe contention of the petitioner that the letter was sent to Shri GurdarshanSingh. The story how the letter ultimately saw the light of the day is nar-rated by P.W. 51, Virender Kumar. The relevant part of his statement isas follows:—

"I live at Talwara. I am an Ayurvedic physician. I am Secretary ofthe Bhartiya Jan Sangh, Talwara. 9-10 days after the election,I received a letter from Kewal Krishan Bhardwaj. 1 was asked tofind out which of the Presiding Officers had received the letterswritten by Comrade Ram Kishan. I investigated this matter for5-10 days^ S. Gurdarshan Singh, a temporary Engineer, came tomy shop. He told me that he had received a letter from ComradeRam Kishan. He said, his duty was in the constituency of RamKishan. He told me that he.had such a letter. He will searchfor it and then give it to me. He did not give it to me for 2-3 days.Then I went to his house after 5-6 days. His quarter is 50 karamsfrom my shop. (Then I brought the letter from his house.) I haveseen the letter, A.5; and that is the letter which I received fromGurdarshan Singh. 4-5 days after, I got this letter. I closed myshop and went to Hoshiarpur and gave this letter to Kewal KrishanBhardwaj. After 5-7 days, I got a letter from Bhardwaj whetherGurdarshan Singh would be prepared to depose about this letter.I went to Gurdarshan Singh and he told me that he was not pre-pared to depose about it. I was asked to find out some officerswho had received similar letters. Then I discovered that one RajKumar had received similar letter; but he told me that he had lostit. He is an Electrical SDO. I asked many people; but their dutieswere in Talwara constituency.

E.L.R.] JAI SINGH V. RAM KISHAN AND OTHERS 101

P.W. 9, Charan Dass has deposed that letter, Exhibit PW 9/9, was printedby him. Shri Kewal Krishan Bhardwaj has appeared in the witnessbox as PW 39; and he had not said a word about letter Exhibit PW 9/9.So far as the letter Exhibit PW 9/10 is concerned, PW-12, Shri Ram SarupKhanna has appeared in the witness box and has stated that he gave theletter, Exhibit PW 9/10, received by him to Shri Virehder Kumar, PW 5LThis is the state of evidence on the basis of which the question, whether letter,Exhibit PW 9/9, was issued and received by Shri Gurdarshan Singh, had tobe determined. But in view of the clear statement of Shri Krishan ParshadChopra, that letters, Exhibits PW 9/9 and PW 9/10, were issued from theelection office of the respondent and his stand being not that these lettersare forged or are not genuine or that they were never posted to the addres-sees, the only conclusion possible is that these letters were issued to the ad-dressees. Talwara is not in the constituency of the respondent. Both the ad-dressees were the Presiding Officers of the polling stations in the constituencyof the respondent. The printing charges for these letters are shown in theelection expenses of the respondent. P.W. 9, Charan Dass, proves the billregarding these letters. The bill is Exhibit PW 9/5 and is dated the 11thFebruary, 1967. The statement of the respondent as R.W. 28 on thismatter is as follows :•—

The letters, Exhibits PW 9/9 and PW 9/10 were drafted by me. Theywere meant to be issued to the leading persons of my constituency..

" I had directed to office to send such letters to all the im-portant electors and not to the Govt. servants.

In cross examination, the respondent stated that:-

Talwara was not in my constituency. I do not know whether. Gurdarshan Singh was a voter in my parliamentary constituency ornot. I do not know if Ram Sarup Khanna is also not a voter in theparliamentary constituency. I did not get any list of the PresidingOfficers. No one from my'election office took the list of PresidingOfficers. Only a candidate can get such a list. I understand that thelist of the Presiding Officers cannot be made available to any oneelse excepting the candidates. It is completely wrong that any bodyelse would have obtained the list and especially Mr. Chopra on mybehalf. It was not essential that if Chopra had obtained the list, hewould have made a mention of it to me. I categorically stated thatno such list came to my office and I know about it. The entry inExhibit PW 1/1 regarding Gurdarshan Singh is identically copiedon the letter, Exhibit PW 9/9.

Question : Is the address on the letter, Exhibit PW 9/10 clipped from thecopy of the voters' list and pasted on the letter ?

Answer : I am not an expert.

In the letter addressed to Ram Sarup Khanna, on the address, there issomething written in hand also. I do not know whether the hand-written

102 JAI SINGH V. RAM KISHAN AND OTHERS [VOL. XXXIV

portion is by the post office. Excepting the hand-written portion on ExhibitPW 9/10, my statement is the same with regard to letter Exhibit PW 9/9.

Question : J put it to you that you wrote personal letters to all the PresidingOfficers because you had been occupying the office of the ChiefMinister and you wanted to obtain their assistance in further-ance of your election prospects, even knowing that they were notvoters ?

Answer : 1 deny the suggestion totally. 1 personally wrote no letter tothe Presiding Officers.

Ouestion : I put it to you that you only got about 550 of such letters printed(exhibits PW 9/9 and PW 9/10)?

Answer : The letters in English were printed to the extent of 550 or so;but there were similar letters in Hindi, Gurumukhi and Urdu.

In view of all what has been stated above, it is difficult to escape from theconclusion that these letters were sent by Shri Krishan Parshad Chopra tothe addressees; and they were received by them.

What has to be determined next, is whether the letter Exh. PW/9/9,falls within the mischief of section 123(7) of the Act. Section 123(7) readsthus:—

"123. Corrupt Practices. The following, shall be deemed to be corruptpractices for the purposes of this Act:—

(7) The obtaining or procuring or abetting or attempting to obtain orprocure by a^candidate or his agent or, by any other person with theconsent of a candidate or his election agent, any assistance otherthan the giving of vote for the furtherance of the prospects of thatcandidate's election, from any person in the service of the Govern-ment and belonging to any of the following classes, namely :—

(a) gazetted officers;

(b) stipendiary judges and magistrates;

(c) members of the armed forces of the Union;

(d) members of the police forces;

(e) excise officers;

(f) revenue officers other than village revenue officers known as.lambardars, malguzars, patels, deshmukhs or by any other name,whose duty is to collect land revenue and who are remuneratedby a share or, commission on the amount of land revenuecollected by them but who do not discharge any police functions;and

(g) such other class of persons in the service of the Governmentas may be prescribed.

E. L. R.] AMAR NATH V. S. L. SINGH AND OTHERS 103

EXPLANATION.— (1) In this section, the expression 'agent' includes an electionagent, a polling agent and any person who is held to haveacted as an agent in connection with the election with theconsent of the candidate.

(2) For the purpose of clause (7), a person shall be deemedto assist in the furtherance of the prospects of a candidate'selection if he acts as an election agent of that candidate . . . . "

There can be no doubt that the letters are an attempt at obtaining assis-tance for the furtherance of the prospects of the candidate's election froma person in the service of the Gbvt., who is a gazetted officer. The only ques-tion that remains\to be answered is whether the letters were sent with theconsent of the candidate. On the proved facts, the conclusion is inescapablethat they were sent by Krishan Parshad Chopra with the consent of the candi-date. The expenses in connection with these letters are shown in the return ofelection expenses filed by the candidate. I have already held that where ex-penses for the publication of a poster are incurred by the candidate or areauthorised by him, it necessarily follows that it must have been publishedwith the consent of the candidate. It is not necessary to cover that groundall over again. I, therefore, hold that the charge under section 123(7) has alsobeen brought home to the respondent.

For the reasons recorded above, I allow this petition and declare theelection of the returned candidate void under section 100(l)(b) of the Act.The petitioner will be entitled to his costs which are assessed at Rs. 750/-.

So far as the recreminatory petition is concerned, the respondent'scounsel gave it up vide his statement dated 15-9-1967. That petition is there-fore dismissed. No order as to costs.

Petition allowed.

TN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDI-GARH

SHRI AMAR NATHV.

SARDAR LACHMAN SINGH- AND OTHERS.

(A. N. GROYER, J.)December 5, 1967.

Representation of the People Act, 1951, ss. 9A, 11, 123(4) and (6)Corrupt Practice—Bribery—Burden of Proof—Donation or contributionto party funds whether attracts Section 123(4)—Outright purchase offorest produce—Whether a contract, whether attracts the "works" inSection 9-A—Failure to maintain separate account of election expens-es—Whether a corrupt practice under Section 123(6)—Absence of Fullparticulars in the petition—Whether absence of jurisdiction—Whethercauses material prejudice—Amount paid as deposit to a political party fora party tickets-forfeiture of the amount under the rules of the party with-in the material dates—Failure to include the amount in return of electionexpenses—Whether attracts Section 77.

2 EC/71—8.

104 AMAR NATH V. S. L. SINGH AND OTHERS [VOL. XXXIV

The petitioner, an elector, challenged the election of the first respon-dent to the Haryana Legislative Assembly on the grounds of corrupt practicealleging, inter alia, that the first respondent made a false statement relat-ing to the twelfth respondent in public to the effect that he purchased theCongress ticket by payment of one lakh of rupees to the Chief Minister,that the first respondent was disqualified to file the nomination as he hadsome subsisting contracts with Government on the relevant dates; and thathe failed to keep a separate and correct account of all his election expensesas required under section 77 of the Act.

HELD: Dismissing the petition:

(/) The offending statement that a certain amount of money was givento the Chief Minister as bribe is capable of being understood by severalpersons to mean that the payment had the character of a donation or con-tribution to a political party or the party funds and would not necessarilycontain an imputation of a personal bribe having been given to the ChiefMinister; accordingly, even if it be assumed that the offending statementwas made by the first respondent, it would not fall within the mischiefof Section 123(4) of the Act. The main onus is on the petitioner underSection 123(4) and he has to show that a statement of fact was publishedby a candidate or his agent etc., and also to show that the statement wasfalse and related to his personal character or conduct. Once that is provedthe burden shifts to the candidate making the false statement of fact toshow what his belief was.

Kumara Nand v. Brijmohanlal Sharma, (1957) 2. E. L. R. 126(128);Dr. Jagjit Singh v. Giani Kartar Singh, A. I. R. 1966, S. C. 773; SheopalSingh v. Ram Partap, A. I. R. 1965 S. C. 677 \lnder lal v. Lai Singh & Others,A. I. R. 1963 S. C. 1156, referred to;

(ii) A contract which is clearly one of sale by the Government and out-right purchase by the respondent of forest produce .could not fall withinthe meaning of the word "works" as employed in Section 9-A of the Act.

Rai Kokilabai v. Keshavalal Mangaldas & Co., A. I. R. 1942 Bom. 18;Satya Parkash v. Bashir Ahmed Qureshi A. I. R. 1963 Madhya Pradesh 316;Yugal Kishore Sinha v. Nagendra Prasad Yadow, 1965 Doabia's ElectionCases, Case No. (30/236); referred to.

(Hi) Even if no separate account book has been maintained for elec-tion expenses that will not make it a corrupt practice within the meaningof Section 123(6) of the Act. Where a candidate has paid a deposit to theCongress Committee for getting the Congress ticket and where he agreedto the condition that in the event of his not being given a ticket he Would notbe entitled to the refund of amount in case he contested the electionagainst the Congress candidate, and if the forfeiture of this amount of de-posit took place during the material dates, this expense is covered by Sec-tion 77 of the Act and the amount should have been included as an electionexpense by the first respondent. However, even after inclusion of theamount, the total expenditure was within the prescribed limit;

Khader Sheriffs. Munnuswami Gouder and Others, II G. L. R. 208;

Salig Ram Jaiswal v. Sheo Kumar and Others, 9 E. L. R. 67; referred to;

E. L. R.I AMAR NATH V. S. L. SINGH AND OTHERS 105

(iv) Even though the requirements of full particulars of corrupt practiceis of importance, where, notwithstanding the absence of those particularsin the petition, evidence is allowed to be given and taken, the question wouldnot be one of absence of jurisdiction but as to whether there has been mat-erial prejudice occasioned by the absence of particulars.

Sheopat Singh v. Harish Chandra, 16 E. L. R. 103 H. H. Raja Harin-der Singh v. S. Karnail Singh and others 12 E. L. R. 421; S. Mehar Singhv. Vmrao Singh A. I. R. 1962 Punjab 244; Bhagwan Datta Shastri v. RamRatanji Gupta, A. I. R. 1960 S. C. 200; referred to;

ELECTION PETITION NO. 11 OF 1967

J. N. Kaushal with Bakhtawar Singh and C. L. Lakhanpal for thepetitioner.

H. L. Sibal with B. R. Aggarwal for Respondent No. 1.

K. S. Nehra for Respondent No. 12.

Dalip Singh and S. K. Jain for respondent No. 3.

JUDGMENT

GROVER J.—The petitioner who is an elector in the Kalka AssemblyConstituency, has challenged the election of respondent No. 1 LachmanSingh, from that Constituency, to the Haryana Legislative Assembly, dur-ing the general election held in the beginning of 1967. Respondent No.1 who stood as an independent candidate polled 12,787 votes whereasrespondent No. 12 Kishori Lai who was the Congress candidate, got 12,086votes. The other contestants were Pavan Kumar respondent No. 2, Jas-jit Singh respondent No. 3, and Sarvan Singh respondent No. 4 whogot 5,974, 8,508 and 122 votes respectively.

The election of respondent No. 1 was challenged on various groundswhich need not be stated in detail at this stage as the controversy has finallybeen confined only to limited points. It may be mentioned, however, thaton the pleadings of the parties as many as 27 issues were framed. It wasalso claimed by the counsel for the petitioner that certain other issues arosewhich are mentioned in my order dated the 20th May, 1967. But I heldin my order dated the 25th May, 1967, that for the reasons stated thereinthese issues could not be framed particularly in view of the decision of theFull Bench of this Court in Election Petition No. 15 of 1967, delivered onMay 17, 1967. I propose to refer only to those issues which have beendebated and on which decision has been invited.

Counsel have addressed arguments firstly on Issue No. 26 which is inthe following terms:—

"Did respondent No. 1 in a meeting held on 5-2-1967, at Panchkula makea false statement relating to the personal character and conduct ofrespondent No. 12 that the latter had purchased the Congress Ticketby payment of rupees one lac to Shri Bhagwat Dayal Sharma, the

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then Chief Minister Haryana State knowing that the said statementis, in fact, false and believed to be false by respondent No. 1 ? Ifso, what is its eifect?"

The allegations relating to the above issue are contained in paragraph27 of the petition which may be reproduced:—

"That the Respondent No. 1 in a meeting held on 5th February, 1967,at Panchkula or otherwise also publicly and scandalously hadbeen making false statement that the respondent No. 12 purchasedthe Congress Ticket by payment of Rupees One Hundred Thousandto Shri Bhagwat Dayal Sharma the then Chief Minister of the Stateof Haryana and this statement in fact is false which the respondent No.1 believed to be false and did not believe to be true in relation to thepersonal character and conduct of the respondent No. 12 in rela-tion to his candidature and it was to prejudice the prospects ofthe respondent No. 12, in election."

In the written statement of respondent No. 1, the allegations contained inparagraph 27 of the petition were described as incorrect and were deniedand it was asserted that respondent No. 1 never made any such allegationsagainst respondent No. 12. The petitioner examined two witnesses, P.W. 27 A. R. Sethi, Branch Secretary of the Indian Mutual General InsuranceCompany, Chandigarh, and P. W. 67 Munshi Ram to prove the aforesaidallegations. A. R. Sethi stated that he attended a meeting held by respondentNo. 1 in Panchkula where it was publicly stated that Kishori Lai respondentNo. 12, had paid a sum of rupees one lac to Shri Bhagwat Dayal Sharma,the then Chief Minister of Haryana for purchasing a ticket. The other twospeakers at the meeting were Dr. Des Raj and Mistri Hari Chand who wereboth present in Court on the day Sethi gave evidence. In cross-examina-tion it was admitted by him that he did not have any vote in the KalkaConstituency but according to him, he had gone on a business tour toPanchkula. He was asked certain questions about Munshi Ram with whomhe had business relations. According to the suggestion made on behalfof respondent No. 1, the petitioner stayed mostly in the house of MunshiRam. The answer which the witness gave after a good deal of thinking(as has been mentioned in my note) was that he did not know it that wascorrect. He further stated that he did not see either the petitioneror respondent No. 12 at that meeting nor did he ever mention anythingabout the meeting to either of them. Munsi Ram deposed that respon-dent No. 1 addressed a meeting in Panchkula on February 5, 1967, wherehe told the audience that respondent No. 12 had purchased a ticket fromShri Bhagwat Dayal by making a payment of rupees one lac and in thatway he had sold away the interests of the voters of the Constituency. Accord-ing to him, a meeting was held on February 10, 1967 at the instance of res-pondent No. 12 which was addressed by Shri Bhagwat Dayal over whichhe presided. Shri Bhagwat Dayal publicly denounced the statement whichhad been made about the payment of rupees one lac and affirmed that itwas incorrect. In cross-examination he admitted that he was not on theelectoral rolls of the Kalka Assembly Constituency and that he was alsoa counting agent of Shrimati Phul Wati who had contested the AmbalaParliamentary seat as a Congress candidate. On February 5, 1967, he wasgoing back to Chandigarh from Chandi Mandir when he saw a meeting

E. L. R.] AMAR NATH V. S. t, SINGH AND OTHERS 107

being convened and he went there. He could not remember whether hehad seen the petitioner at the meeting though he believed that KishoriLai respondent No. 12 was there. I have not been particularly impressedby the evidence of these two witnesses. In the first place, they went to themeeting held at Panchkula on February 5, 1967, by chance. Secondly theywere not electors in the Kalka Assembly Constituency which would haveestablished some interest in their attending a meeting held in connectionwith the election in that Constituency. The demeanour of Sethi was notparticularly satisfactory as he answered questions relating to Munshi Ramhesitatingly and after a good deal of thinking. It is significant that hedid not even see either the petitioner or respondent No. 12 at the meetingnor had he ever mentioned anything about the meeting to either of them,and yet strangely enough he was cited as a witness. As regards MunshiRam, he was a counting agent of Shrimati Phul Wati, the Congress candi-date for the Parliamentary seat and would thus be interested in respondentNo. 12 who had also been set up by. the Congress Party. The charge aboutwhich both these witnesses have given evidence is essentially of a seriousnature and entails grave consequences. The corrupt practice which hasbeen alleged falls under section 123(4) of the Representation of the PeopleAct, 1951. Section 11 A provides for disqualification for a period ofsix years if a person is found guilty of a corrupt practice by an order undersection 99 of the Act. The evidence, therefore, has to be of a clear and con-vincing nature and has to satisfy the test which is well settled in electionmatters now where corrupt practices are concerned, of proof beyondreasonable doubt.

Mr. Kaushal says that the testimony of Sethi and Munshi Ram is corrob-orated by the statements of the petitioner as P.W. 60 and respondent No.12 as R. 12/W/l, apart from the facts stated or admitted by respondent No.1 and his witnesses and other evidence. According to respondent No.12, the public meeting of 5th February, 1967, at Panchkula was held on theroad-side and while sitting in his car for a few minutes, he heard respon-dent No. 1 utter the defamatory statement. Respondent No. 12 soon afterreturned to Kalka. Apart from his evidence being of an interested naturebecause virtually the election petition appears to have been filed at hisinstance, it is not possible to believe that respondent No. 12 reached onlyto hear the speech of respondent No. 1 at the crucial time. The petitionerAmar Nath also deposed about the alleged statement made by respondentNo. 1 at the meeting at Panchkula but he gave no reason how he happenedto be present at a meeting which had been convened by respondent No. 1for his propaganda. All that he said was that he was present at all themeetings which had been mentioned by him, which included the meetingat Panchkula. He is also an old political opponent of respondent No. 1inasmuch as in 1952 he contested the election against him. R. W. 9. Gur-charan Singh who was produced by respondent No. 1, however, made anadmission out of which capital has been sought to be made by Mr. Kaushal.He was the Block Development and Panchayat Officer, Mani Majra andhis jurisdiction extended to Pinjore as well. He happened to be present onthe day the meeting was held at Pinjore on February 5, 1967,as the Chairman of the Samiti had called him there. He was sitting in theOffice of the Chairman. The meeting took place at a distance of 20to 25 yards from there. A loudspeaker had been fitted and everythingthat was being said at the meeting could be heard. He did not go inside the

108 AMAR NATH V. S. L. SINGH AND OTHERS [VOL. XXXIV

place where the meeting was being held but he kept on hearing the speechesfrom the loudspeaker. According to him, respondent No. 1 and two othersspoke. Neither he nor anyone else mentioned the name of Shri BhagvyatDayal Sharma. He further stated, "I heard in the loudspeaker somethingbeing said to the effect that ticket had been purchased on payment of rupeesone Lac". R. W. 10 Hari Chand stated that he was one of the speakersat the meeting held at Panchkula on February 5, 1967. At first the meet-ing was addressed by him, respondent No. 1, and Dr. Des Raj but nothingwas said against any candidate and the speakers only expatiated on thequalities of respondent No. 1. The name of Shri Bhagwat Dayal Sharmawas not mentioned nor was any such allegation made that any candidatehad purchased a ticket from him on payment of rupees one lac. Afterhe along with respondent No. 1 and other members of his party left, otherspeakers addressed the gathering including Tikka Jagjit Singh, an independent candidate, from the same platform. In coross-examination he admitt-ed that there was only one loudspeaker which had been fixed on the jeepof respondent No. 1 which was kept on one side inside the place where themeeting was being held. He further stated:—

"The moment we finished the meeting at Panchkula on 5th Februaryand were going to sit in our vehicles for leaving, we heard it beingsaid that Tikka Jagjit Singh was going to address the meeting."

Now the point which has been very forcefully pressed by Mr. Kaushal isthat Hari Chand's statement that there was only one loudspeaker whichwas fitted in the jeep of respondent No. 1, shows conclusively that theOffending words had been uttered by him, when considered in the light ofevidence of Gurcharan Singh. It is maintained that Gurcharan Singh whois, more or less, an independent witness, definitely heard the words whichhave already been reproduced. Although Gurcharan Singh felt that theyhad not been spoken by respondent No. 1, but that was a pure matter ofopinion based on his own impression of the voice of respondent No. 1. Sinceonly the jeep of respondent No. 1 had a loudspeaker fitted to it and there wasno other loudspeakers which had been fixed at any other place in the meet-ing, Gurcharan Singh who heard the offending words must have heard themonly from some one from the party of respondent No. 1 or from respondentNo. 1 himself. There can be no manner of doubt that the evidence ofGurcharan Singh and Hari Chand when read together would lead to theconclusion that some one out of the speakers who addressed themeeting on behalf of respondent No. 1, uttered the words which had beenheard by Gurcharan Singh. Those words could not have been said by TikkaJagjit Singh or any other speaker who followed him as has been suggested onbehalf of respondent No. 1 for the simple reason that Gurcharan could nothave heard them on the loudspeaker as the jeep of respondent No. 1 onwhich alone the loudspeaker was fixed had left and there was no otherloudspeaker equipment in which Tikka Jagjit Singh or any of the personswho followed him, could have uttered those words. The difficulty, how-ever, is that according to Gurcharan Singh all that he heard was some-thing being said to the effect that ticket had been purchased on paymentof rupees one lac. He did not hear the name of Shri Bhagwat Dayal Sharmahaving been mentioned nor did he hear the name of respondent No. 12,but assuming that he only heard a part of the statement and that the wordswhich had been attributed to respondent No. 1 by Sethi and Munshi Ram

E. L. R.] AMAR NATH V. S. L. SINGH AND OTHERS 109

were uttered by some one, it is not possible to hold on the evidence of Gur-charan Singh and Hari Chand that it was respondent No. 1 who had utter-ed those words unless the evidence of the aforesaid two witnesses is believedwhich I am not inclined to do. It must be remembered that according to theallegations in paragraph 27 of the petition it was respondent No. 1 whomade the impugned statement and not anyone of his supporters. Mr. Kau-shal has called attention to the following observations in Kumara Nand v.Brijmohan Lai Sharma:1

"In the present case the poem was not actually read by the appellant,but it was read in his presence at a meeting at which he was pre-siding by Avinash Chandra. In these circumstances the HighCourt was right in coming to the conclusion that the recitation ofthe poem by Avinash Chandra at the meeting amounted to thepublication of the false statement of fact contained in it by anotherperson with the consent of the candidate, and in this case, evenof his election agent who was also present at the meeting. But theresponsibility for such publication in the circumstances of thiscase is of the candidate

Mr. Kaushal contends that even if it be proved that the offending state-ment was made by someone else in the presence of respondent No. 1, thecase would still fall within the mischief of section 123(4) of the Act. Thecase of Kumara Nand had come on appeal from the appellant judgementof the Rajasthan High Court which is reported in I.L.R. XV Rajasthan322. From that report it appears that there was a cjear allegation in thatcase that Avinash Chandra had with the consent of the appellant recitedthe offending poem. There is no allegation whatsoever in the presentpetition that either Dr. Des Raj or P.W. Hari Chand who were the onlyother speakers apart from respondent No. 1, had uttered the offendingwords with the consent of respondent No. 1. It is not possible to gobeyond the pleadings and to hold that although the offending words havebeen attributed in the petition to respondent No. 1, he is nevertheless guiltyof the corrupt practice under section 123(4) because in evidence it appearsthat someone else uttered those words in his presence. It is apparentthat the facts in the Rajasthan case were entirely different and their Lord-ships proceeded to decide that case on its facts.

Reliance has next been placed on behalf of the petitioner on ExhibitR.I.W.1/10 which is an appeal lodged by respondent No. 1 to CentralElection Committee of the All-India Congress Committee against the re-commendation by the Haryana Pradesh Election Committee relating tothe Congress ticket in respect of the Kalka Assembly Constituency. It maybe recalled that the Pradesh Committee had declined to give a ticket torespondent No. 1. In this document it is mentioned that the only quali-fication which might have been given consideration by the Chief Minister,Haryana, was that Kishori Lai (Respondent No. 12) happened to be amultimillionair. It has been sought to be argued from this that respon-dent No. 1 was perpetually making allegations against respondent No. 12that the latter was a very wealthy and rich person and that was the reason

i (1967) 2 S.C. R. 1277

E. L. R.] AMAR NATH V. S. L. SINGH AND OTHERS 111

for the first time on that very day. At any rate, reading the examination-in-chief along with cross-examination, I am not at all impressed with eitherthe credibility or veracity of this witness and I do not consider it safe toplace any reliance on him. As regards the statement appearing in ExhibitP. 142, it is clearly based on hear-say as has been expressly mentioned init and if the petitioner wanted to establish that Baljit Singh had insertedall this in consultation with er at the instance of respondent No. 1, theproper course to follow for the petitioner was to produce Baljit Singhas his witness. Even after counsel for respondent No. 1 stated that hewas giving up Baljit Singh, no attempt was made by the petitioner to per-suade this Court to summon Baljt Singh as his witness. Moreover, theportion published in Exhibit P. 142 does not appear to furnish any cor-roboration of the statement attributed to respondent No. 1.

There is another matter on which a good deal of emphasis has beenlaid which may be mentioned at this stage. That relates to the evidencegiven by Munshi Ram as also by the petitioner and respondent No. 12,that because of the statement made by respondent No. 1 at the Panchkulameeting, Shri Bhagwat Dayal Sharma had to be particularly summonedby respondent No. 12 for publicly contradicting that statement which he

, did at meetings which were specially convened. The contention which hasbeen advanced is that there would have been no occasion for Shri BhagwatDayal Sharma to contradict the statement attributed to respondent No.1 publicly unless such a statement had in fact been made. RespondentNo. 12 even sought to summon Shri Bhagwat Dayal Sharma as a witness.In my opinion even if Shri Bhagwat Dayal Sharma had appeared as a wit-ness and deposed that on being informed by respondent No. 12 that sucha statement had been made by respondent No. 1, he publicly contradictedthe same as it was false, the case of the petitioner would not have improvedin any manner. Assuming that Shri Bhagwat Dayal Sharma did contra-dict the aforesaid statement at certain meetings which were convened forthe purpose, he acted only on information given to him by respondent No.12. It is not the case of the petitioner or respondent No. 12 that he hadany personal knowledge of the offending statement or was present at anymeeting where it was made. The petitioner is bound to prove the alle-gation which has been made in this behalf beyond doubt, and on a consi-deration of the entire evidence as also the facts and circumstances whichhave been detailed before, I am unable to come to a firm conclusion thatthe statement in the words attributed to respondent No. 1, wass actuallymade by him.

The petitioner has also led evidence to establish that at a public meetingheld in Raipur Rani on 6th or 7th of February, 1967, respondent No. 1made a similar statement as was made by him at Panchkula, P.W. 43 SitaRam, deposed to that effect and further stated that Shri Bhagwat Dayalcame on 10th or 11th February, »1967 to Raipur Rani and publiclycontradicted the statement made by respondent No. 1. Sita Ram gaveevidence about various other matters relating to the other corrupt practicesalleged to have been committed by respondent No. 1. He admitted thatthe meeting at Raipur Rani where the alleged statement was made wasalso addressed by Shri Jagat Narain, M.P., who, however, has not beenproduced. In view of his political standing and status his evidence would

112 AMAR NATH V. S. L. SINGH AND OTHERS [VOL. XXXIV

have been of a good deal of assistance in determining the correctness offacts stated by Sita Ram. On the whole, I am not impressed with his evi-dence. According to P.W. 42 Ram Chander, it was on 11th February,1967, that the public meeting was convened by respondent No. 1 at whichhe made the offending statement. He admitted that he had been arrestedin connection with a theft which took place at a firing range which wasat a distance of five to six miles from his village, about four or five yearsago. He remained in the lock-up for about three or four days and was ulti-mately acquitted. Moreover, according to him, Babu Ram Bansal, Presi-dent of the local Congress Committee, was present at the meeting besidesSita Ram and others. Babu Ram Bansal has appeared as P.W. 44, buthe did not say anything about the meeting. If he had been there, there isno reason to suppose that he would not have given evidence with regard tothe offending statement attributed to respondent No. 1. Apart from thediscrepancy about the date, this is another reason for not accepting thestatement of Ram Chander as correct.

Mr. Hira Lai Sibal for respondent No. 1 has pointed out certain legalinfirmities relating to the issue under consideration. Section 123(4) ofthe Act reads :—

"The publication by a candidate or his agent or by any other personwith the consent of a candidate or his election agent, of any state-ment of fact which is false, and which he either believes to befalse or does not believe to be true, in relation to the personal cha-racter or conduct of any candidate, or in relation to the candida-ture, or wtihdrawal of any candidate, being a statement reason-ably calculated to prejudice the prospects of that candidate'selection. "

In paragraph 27 of the petition the allegations which were made, werecouched in accordance with the language of the said provision. In KumaraNand v. Brijmohan Lai Sharma1, the question of onus has been discussedat page 136. This is what has been said by their Lordships :—

"In this connection reliance is placed on Dr. Jagjit Singh v. KartarSingh (2). In that case it was held that the onus to provethe essential ingredients prescribed by sub-section (4) of section123 of the Act is on him who alleges publication of false statementof fact. The election petitioner has to. prove that the impugnedstatement has been published by the candidate or his agent, orif by any other person, with the consent of the candidate or hiselection agent. He has further to show that the impugned state-ment of fact is false and that the candidate either believed thatstatement to be false or did not believe it to be true. It hasfurther to be proved inter alia that the statement was in relationto the personal character or conduct of the complaining candidate.Finally, it has to be shown that the publication was reasonably

( 1 ) (1967)2 S.C.R. 127.( 2 ) A.I.R. 1966 S.C. 773.

E. L. R.] AMAR NATH V. S. L. SINGH AND OTHERS 113

calculated to prejudice the prospects of the complaining candidate'selection. But though the onus is on the election petitioner to showall these things, the main things that the election petitioner hasto prove are that such a publication was made of a statement offact and that that statement is false and is with respect to the per-sonal character or conduct of the election petitioner. The bur-den of proving that the candidate publishing the statement believedit to be false or did not believe it to be true though on th&complaining candidate is very light and would be discharged bythe complaining candidate swearing to that effect. Thereafterit would be for the candidate publishing the statement to proveotherwise."

This position of law has been further explained on the same pageand it has been made quite clear that the main onus on an election peti-tioner under section 123(4) is to show that a statement of fact was publi-shed by a candidate or his agent, etc., and also to show that that state-ment was false and related to his personal character or conduct. Oncethat is proved and the complaining candidate had sworn as indicatedabove, the burden shifts to the candidate making the false statement offact to show what his belief was. In the present case the complainingcandidate did not in so many words swear that respondent No. 1 believedthe offending statement to be false or did not believe it to be true althoughhe generally stated that all the allegations contained in the petition werecorrect. Mr. Kaushal points out that the petitioner in his statement asP.W. 60, gave evidence specifically relating to the facts relevant to thematter, and he even stated that the allegation which had been made byrespondent No. 1 at the meetings was absolutely incorrect but he didnot proceed to further swear that the latter believed it to be false or didnot believe it to be true. He has further relied on Sheopal Singh v. RamPartap (3) and Dr. Jagjit Singh v. Kartar Singh (2) and has submitted thatthe question of burden of proof is hardly of much consequence in thepresent case and, at any rate, the same has been discharged by the peti-tioner swearing that all the allegations contained in the petition were correctwhich included the specific allegation in paragraph 27. I considerit wholly unnecessary to express any opinion on the rival contentions of theparties as it will not be of any material consequence in view of my decisionon the other points.

The other infirmity which has been strenuously emphasised by Mr.Sibal is that the impugned statement does not relate to the personal cha-racter or conduct of respondent No. 12. It is contended that the statementeven if made, related to the public or political character of the aforesaidrespondent. A good deal of reliance has been placed on Inder Lai v. LaiSingh and others (4) in this connection. One of the pamphlets which hadbeen published in that case contained an allegation against the candidate,among other matters, of having been a purchaser of the opponents of theCongress by means of money. Gajendragadkar J., as he then was, deli-vering the judgment of the Court, stressed the distinction between the false

~ ( 3) A.I.R. 1965 S.C. 677.( 2 ) A.I.R. 1966S.C. 773.(4 A.I.R. 1962 S.C. 1156.

1 1 4 AMAR NATH V. S. L. SINGH AND OTHERS [VOL. XXXIV

statement relating to the personal character of the candidate and statementin connection with his public or political character. It was observedthat if a false statement was made in regard to the public or political cha-racter of the candidate, it would not constitute a corrupt practice even ifit was likely to prejudice the prospects of that candidate's election. Thefollowing observations on page 1159 may be usefully reproduced :—

"Though it is clear that the statute wants to make a broad distinctionbetween public and political character on the one hand and pri-vate character on the other, it is obvious that a sharp and clear-cut dividing line cannot be drawn to distinguish the one from theother. In discussing the distinction between the private characterand the public character, sometimes reference is made to the'man beneath the politician' and it is said that if a statement offact affects the man beneath the politician, it touches private cha-racter and if it affects the politician, it does not touch his privatecharacter."

In that case it was held that the allegation that respondent No. 2 beforetheir Lordships was purchaser of the opponents of the Congress by meansof money clearly attracted the provisions of section 123 (4) as thestatement amounted to an allegation that the said respondent bought byoffering bribes the votes of the opponents of the Congress. Mr. Kaushalsays that the facts in the present case are opposite and the insinuationwhich was contained in the impugned statement attributed to respondentTSlo. 1 was that respondent No. 12 had purchased the congress ticket bybribing Shri Bhagwat Dayal Sharma by payment of a sum of rupees onelac to him. Mr. Sibal, on the other hand, suggests that in the context inwhich the words were attributed to respondent No. 1, all that they meantwas, that a sum of rupees one lac had been given to Shri Bhagwat DayalSharma in his capacity as Chief Minister and leader of the Congress Legis-lature Party in Haryana in order to obtain a ticket for election. In otherwords all that they conveyed was that a sum of rupees one lac had beengiven to the Chief Minister who was also the leader of the Congress partyin the State in his capacity as such which could never mean that he hadbeen bribed personally. It is pointed out that it is a matter of daily occur-rence that on similar occasions large amounts are presented to party leadersor holders of high offices like Chief Ministers which funds are meant andare known to be utilised only for party purposes which have nothing todo with the private capacity of either the person making j the donationor the person receiving it. The Supreme Court decision relied upon byMr. Kaushal has been sought to be distinguished on the short groundthat the allegation there jvas of a different nature and the only insinuationor implication possible was that the candidate had bought the votes of theopponents of the Congress by offering bribes. This distinction certainlyappears to be valid and I am unable to hold that the statement attributedto respondent No. 1, was in any way, similar or opposite to what was statedin Inder Lai's case (4). On the other hand, in Dr. Jagjit Singh v.Kartar Singh (2) a statement published in one of the papers was that the

(*") A.I.R. 1962 S.C. 1156.(2) A.LR. 1966 S.C. 773,

E. L. R.] A.MAR NATH V. S. L. SINGH AND OTHERS I I S

appellant before their Lordships was an unprincipled chhokra. Whileobserving that it was not easy to lay down any general considerationswhich would help the determination of the question whether the statementrelated to public or private character of an individual, it was pointed outthat in actual practice there would hardly be much difficulty to decidewhether the false statement impugned on the personal character of thecandidate or on his public character. Their Lordships agreed with theTribunal and the High Court that the statement had relation only to the;public character of the candidate and not to his personal character.

In the present case apart from the general statements of the witnesseswho deposed to the words used by respondent No. 1 at the meetings, thereis no evidence to indicate that they were understood by anyone to meanthat respondent No. 12 had given a sum of rupees one lac as a bribe toShri Bhagwat Dayal Sharma. It appears to me that the offending statementis capable of being understood by several persons to mean that a sum ofrupees one lac had been given to Shri Bhagwat Dayal Sharma by respon-dent No. 12 in his capacity as Chief Minister and party leader which wouldgive the character of a donation or contribution to the Congress or the partyfunds and would not necessarily contain an imputation of a personal bribehaving been given to him. I would, therefore, be inclined to hold thateven if it be assumed that the offending statement was made by respon-dent No. 1, it did not fall within the mischief of section 123 (4) of the Act.Issue No. 26 consequently is decided in favour of the respondent andagainst the petitioner and it is held that no such corrupt practice as hasbeen alleged and is covered by this issue, has been proved.

The next point which has been argued and which has to be decided iscovered by issue No. 9 which runs as follows:—

"Whether respondent No. 1 was disqualified under section 9-A of theRepresentation of People Act, 1951, for the reasons given in paragraph16, sub-paragraphs 1 to 3 and (i) to (x) ?"

Before any reference is made to the pleadings giving rise to this issue^section 9-A of the Act may be reproduced :—

"A person shall be disqualified if, and for so long as, there subsistsa contract entered into by him in the course of his trade or businesswith the appropriate Government for the supply of goods to, orfor the execution of any works undertaken by, that Government.Explanation: "

It is alleged in paragraph 16 of the petition that the Returning Officerimproperly and illegally accepted the nomination papers of respondentNo. 1 as he was disqualified under the aforesaid section inasmuch as he hadthree subsisting contracts entered into by him in the course of his businesswith the State of Haryana for the execution of works undertaken by theState Government for felling of trees. The details of these contracts and,the instalments which were paid or were payable, are set out in sub-.

116 AMAR NATH V. S. L. SINGH AND OTHERS [VOL. XXXIV

paragraphs 1, 2 and 3 of paragraph 16. It was next alleged that an approxi-mate sum of Rs. 3,36,960 was due and outstanding against respondentNo. 1 which had not been paid by him under the said contracts on the dateof filing the nomination papers and he was not competent to transferthem as alleged by him to his cousin Baldev Singh and that the contractswere subsisting and continued to subsist on the date the nomination pa-pers were filed. Further the alleged transfers were benami and the transac-tion between respondent No. 1 and Baldev Singh was without considerationand against public policy. Although a number of other points were takenin various sub-paragraphs of paragraph 16, it is not necessary to mentionthem. In this written statement respondent No. 1 pleaded that he hadpurchased the trees in question from the State Government at a publicauction and with the express approval of the competent authority he hadtransferred his rights to Baldev Singh on January 12, 1967, having appliedfor such transfer on January 9, 1967, which was approved on January11, 1967. Such purchase of trees did not come within the definition of thecontract mentioned in section 9-A as the answering respondent neitherentered into a contract for supply of any goods to the Government norfor the purposes of executing any work on behalf of the State Govern-ment. The Conservator of Forests had issued a certificate to the answer-ing respondent that he had no subsisting contracts with the State ofHaryana. Most of the material allegations made in paragraph 16 of thepetition were denied, and it was averred that on the date the nominationpapers were filed the answering respondent was not disqualified fromseeking election.

Under issue No. 9, two questions will have to be decided. The firstwill be whether the contracts in question which were admittedly entered intoby respondent No. 1 with the appropriate Government were of suchnature as fell within the ambit of section 9-A. The second question wouldbe whether respondent No. 1 did in fact transfer his rights under the con-tracts and did not have any subsisting interest in them on the date of thefiling of his nomination papers.

Before the terms and conditions of the three contracts which were em-bodied in printed documents which are identically the same, apart fromthe details relating to payment and the areas from where the trees had tobe felled are discussed, it will be useful to refer to what transpired be-fore the contracts were entered into. By means of a letter dated May 27,1966, Exhibit P. 3. the Divisional Forest Officer, Chandigarh, wrote to theConservator of Forests, Sutlaj Circle, that during the 4th Plan quite alarge number of trees were required in the division for raising quick grow-ing eucalyptus plantations. The areas near about Bir Shikargarh andThadugarh were quite fit for raising such plantations as had been success-fully done in recent years. He asked for permission to put the forests men-tioned in the letter to auction immediately. It was added that the areasproposed for clear-felling as detailed in the letter would be required forplantation work during 1967-68 and a part in 1968-69. By means of aletter dated 7th June, 1966, Exhibit P. 4, sanction was accorded underparagraph 110 of the Code of working Plan Procedure to the clear fellingin the forests mentioned in that letter. Notice Exhibit P. 1 was then issuedfor auction of the various forest produce to be held on 7th October, 1965.

E. L. R.] AMAR NAHT V. S. L. SINGH AND OTHERS 117

It was stated in the notice that conditions of sale would be announced atthe time of the auction. At the auction, the bid of respondent No. 1 wasaccepted. Exhibit P. 2 is the contract dated 20th August, 1966. It isunnecessary to refer to the other contracts because they are, as stated be-fore, identical and in similar terms. In Exhibit P. 2, it is stated at thetop :

"Certified that the sale was sanctioned in favour of highest bidderafter holding an open auction and all the conditions of sale areincluded in this agreement."

The date of commencing the work was given as 16th October, 1965,and the date of completion as 31st October, 1967. The approximate valueof the contract was given as Rs. 1,14,100.00. It is necessary to set out theopening part of the aforesaid document :—

"The indenture made on the 20th day of August, 1966 (One thousandnine hundred and sixty-six) between the Governor of Punjab (herein-after called the Governor of the one part) and Shri Lachhman Singhson of Shri Daulat Singh, Caste Jat Sikh, resident of V. & P.O.Kalka in the District of Ambala (hereinafter called the purchaser)of the other part witnesseth as follows :—

1. That unless there is something repugnant in the subject or con-text or words used in this agreement which are defined in theIndian Forest Act, 1927, shall have the meanings respectivelyassigned to them in that Act.

2. That the Governor in consideration of a sum of Rs. 1,14,100.00(Rupees One Lac Fourteen Thousand and One Hundredonly) to be paid by the purchaser as hereinafter provided,hereby sells to the purchaser subject to the conditions here-inafter appearing the following clear felling Coupe duly de-marcated by a boundary line and limited to the area.

Detail of Clear Felling Coupe

Clause 5 dealt with the manner in which the sum of Rs. 1,14,100/- wasto be paid by instalments including the earnest money. Now the entiredocument contains 25 clauses and practically in every one of them the wordused is 'purchaser'. Certain clauses may be reproduced as they are help-ful in determining the true nature of the contract :—

"11. That it is hereby clearly understood that time is the essence ofthis agreement and that the purchaser shall complete the fellingof the coupes and removal of forest produce obtained therefromoutside the said forests by the 31st of October, 1967.

(a) - -

(b) - -

118 AMAR NATH V. S. L. SINGH AND OTHERS [VOL. XXXIV

16. That the clear felling coupes or its outturn sold to the purchaserunder this indenture shall remain at the purchaser's risk afterthe fall of hammer and the Governor will not be responsible forany loss or damage which may occur thereto from any causewhatsoever.

22. That in every case in which by virtue of the provisions of section12 sub-section (1) of the Workmen's Compensation Act, 1923,Government is liable to pay compensation to a workman emp-loyed by the contractor, in execution of the works, Government'shall have the right to recover from the contractor the amountof compensation, if any, paid by it, to the contractor's workmanand without prejudice to the rights of Government under section12 sub-section (2) of the said Act, to be indemnified by the cont-ractor or to recover the amount for the contract, Governmentshall be entitled to deduct the amount for which it is likely to beheld liable to pay to the contractor's workman by way of compen-sation from the security deposit by the contractor from any sumdue by the Government to the contractor whether under thiscontract or otherwise and to pay the same to the workman or towithhold the same otherwise and to pay the same until the claimof the workman for compensation is finally settled.

Government shall not be bound to contest any claim madeagainst it under seption 12, sub-section (1) of the said Act, excepton the written request of the contractor and upon his giving toGovernment full security for all costs for which Governmentmight become liable in consequence of contesting such claims."

An examination of the aforesaid terms and conditions as also theentire tenor of the document shows that the contract embodied in it isone of sale by the Government and purchase by respondent No. 1, of thetrees of which the details are given in clause 2. All that Mr. Kaushal hasbeen able to point out is that clause 22 is altogether inconsistent with thenotion of a contract of sale or purchase. A perusal of section 12(1) ofthe Workmen's Compensation Act does seem to suggest that clause 22 in thecontract Exhibit P. 2 does not fit into an agreement which is one of puresale or purchase. It is on this clause that Mr. Kaushal has mainlyrelied for contending that the felling of trees pursuant to a plan whichhad been elaborately prepared by the Government would essentiallyfall within the meaning of the word "Works" appearing in section 9 (a)of the Act, Mr. Sibal has relied on Bai Kokilabai v. Keshav Lai Mangaldas& Co. (5) to illustrate the true meaning and import of section 12 of theWorkmen's Compensation Act, 1923, and has further submitted that clause22 appears to have been inserted only by way of abundant caution anddoes not detract from the apparent nature of the agreement which waspurely one of sale and purchase of forest produce.

Mr. Kaushal has relied a great deal on the working plan Exhibit P. 175,pursuant to which the auctions in question were held or are stated to havebeen held. In particular, attention has been invited to paragraph 62 of

(5) A.I.R. 1942 Bom. 18.

E. L. R.] AMAR NATH V. S- L. SINGH AND OTHERS 119

the plan which deals with two types of execution- of works. One is anti-erosion engineering works and the other, sowing and planting. Underthe head "Vegetable control measure; sowing and planting", clause (d)deals with Eucalyptus planting. It is stated that Eucalyptus may be in-troduced after clear felling as provided under plantation working circle.Paragraph 63 gives the programme of works. Paragraph 75. sets out thefelling rules which have to be observed in carrying out the same. It .is pro-vided by rule (xi) that cleaning and fellings must be constantly supervisedby a forest official capable of deciding the silvicultural limits of the opera-tions. Mr. Kaushal contends that the working plan contemplates andprovides for the execution of works by the Government and the first andessential stage is to clear the forests which have been set apart for the pur-pose of plantation. That could be done either by the forest officialsthrough employment of labour or by getting a contractor to do the remo-val on payment of certain fixed charges. Another- method which couldbe employed and has been employed was to auction the forest for fellingthe trees. But merely because auction has taken place and contracts pur-port to be of sale or purchase, the essential nature of the work does notchange and, therefore, the contracts in question clearly relate to the exe-cution of the works within the meaning of section 9-A of the Act.

In Satya Parkash v. Bashir Ahmed Qureshi,(6) one of the questionswas whether a contract by which a person undertook the transport of postalarticles and maii bags, was a contract which related to the execution of anyworks undertaken by the Government as contemplated by Section 7(d) ofthe Act as it stood prior to its substitution by section 9-A. It was observedthat the expression "execution of any works" meant and implied thecarrying out of some act or acts or course of conductjto the commencementor completion of the works. The use of the word "works" in plural show-ed that it was implied in the sense of 'operations', 'projects',' scheme', 'plan',such as building works, irrigation works, defence works, etc. It was fur-ther said :

'Any work' no doubt conveys the meaning of 'any task or job or acti-vity' and the 'execution of any work' may mean the carrying outof any task or job or the undertaking of any activity. But this wideimport disappears in the expression 'any works'. In the contextin which the words 'execution of any works' have been used, what isconnoted is the carrying out of something to be built or constructedand not merely something to be done."

Now Mr. Kaushal relies on the first part of the above view and pointsout that the contracts in the present case were entered into to carry outworks in the sense of a scheme or plan. But then the second part of; theabove observations is admittedly against his contention and he has at-tempted to cast a doubt on their correctness. The Madhya Pradesh viewwas followed by the Patna Court in Yugal Kishore Sinha v. Nagendra Pra-sad Yadav.(7)

(6) A.I.R. 1963 M.P. 316.(7) 1965 Doabia's Election Cases, case No. 30(236).

2 EC/71—9

120 AMAR NATH V. S. L. SINGH AND OTHERS [VOL. XXXIV

I do not propose to enter into an examination of the general obser-vations made in the above cases. With respect it seems to me that the useof the word "works" in plural, is certainly significant but what the natureof such works should be so as to attract the applicability of section 9-Aof the Act would depend on the facts of each case, and it is possible thatit may not be confined only to the illustrations given in the MadhyaPradesh case which do not appear to be exhaustive. To my mind, thenature of the contracts entered into by respondent No. 1 was clearly oneof sale by the Government and purchased by him of forest produce and itcould not possibly fall within the meaning of the word "works" as employ-ed in section 9-A. It is true that clause 22 of the contract does not fit intoa scheme of an agreement of sale or purchase but it is well known thatthe legal advisers of the Government sometimes insert certain clauses byway of abundant caution in order to avoid any possible dispute on certainpoints. I am inclined to the view that clause 22 cannot convert the cont-racts into one of execution of works undertaken by the Government. Aclear case where that would have been if the Government had entered intoa contract with respondent No. 1 according to which he had to fell andremove the trees on payment of fixed charges. In the present case cont-racts were of outright sale or purchase and property passed to respondentNo. 1 who became the full owner of the trees in question which he coulddispose of in any manner he liked subject to the conditions of the contract.I would accordingly hold that the contracts entered into by respondentNo. 1 did not fall within the ambit of section 9-A of the Act and he wasthus not disqualified under that section.

The next question is whether the three contracts which had been enteredinto by respondent No. 1, were transferred to Baldev Singh, his uncle'sson, before the date of filing of the nomination papers. The applicationfor transfer, as stated before, was made on January 9, 1967. On January11, 1967, three affidavits, Exhibits P. 169, P. 170, and P. 171, were filed be-fore the Chief Conservator of Forests. The transfer was sanctioned onJanuary 12, 1967, and from February 4, 1967 to February 13, 1967, newcontracts, Exhibits P. 158, P. 159, and P. 160, were entered into by theHaryana Government with Baldev Singh. Reference may be made onlyto one of the affidavits, Exhibit P. 169, which is reproduced in extensobelow:—

"I Lachhman Singh S/o Shri Daulat Singh, resident of Kalka, solemnlydeclare as under:—•

1. That I have a contract of the sale of clear felling over 702 acresfrom Thadugarh etc. for Rs. 1,14,100.00 in Pinjore Range.

2. That I have received all the sums paid by me in respect of thecontract mentioned in '(1) above from Shri Baldev Singh son ofShri Jaimal Singh of Kalka. All other expenses incurredhave also been received.

3. That I shall have no claim or right whatsoever over this cont-ract benefits except the security deposit of Rs. 1,14,100.00 inthe Post Office Savings Bank Account No. 11,66,896 whichmay be released after the transferee has completed the work

fi. U. R.] AMAR NATH V. S. L. SINGH AND OTHERS 121

successfully. In the event of any deduction made from thesaid security on account of any liabilities that may accruefrom the transferee, I shall have no claim for such a sum.

Sd/-(Lachhman Singh)

I Baldev Singh S/o Shri Jaimal Singh of Kalka do hereby solemnlyaffirm and declare as under :—

1. That I have reimbursed all sums paid by Shri Lachhman Singhin respect of the contract. I have also paid all the expendi-tures incurred by Shri Lachhman Singh.

2. That I have taken over all the felled and removed material.

3. That I hereby undertake to and abide by the conditions of saleand terms of the agreement deed.

Sd/-(Baldev Singh)"

The order sanctioning the transfer has not been produced but accordingto the statement of P.W. 3 Shakti Parkash Accountant, Ambala ForestsDivision, the record showed that the contracts had been transferred toBaldev Singh with the approval of the Chief Conservator of Forests.

Respondent No. 1 while in the witness box stated that the considerationfor the transfer was that Baldev Singh was to have all the trees which werestanding in the forests and he was to clear up all the liabilities to the Govern-ment. He admitted that he did not take any money or any other form ofconsideration from Baldev Singh. He further stated that the contractswere in fact the property of the firm Jaimal Singh Lachhman Singh andthat the partners of that firm had only verbally agreed to the transfer. Secu-rity had been furnished to the extent of 10% by him in respect of these con-tracts and he did not get its refund. The securities were transferred toBaldev Singh. The securities were deposited in the Post Office SavingsBank the Pass Books of which were pledged with the Government. Res-pondent No. 1 never wrote to the Post Office to transfer those accountsto the name of Baldev Singh, nor did he surrender the contracts into whichhe had entered with the Government. Respondent No. 1 next stated thatwhatever was mentioned in paragraph 3 of the affidavits Exhibits P. 169,P. 170, and P. 171, relating to the security deposits, was correct. He didnot admit that all the instalments which were in arrears relating to the con-tracts were paid by Jaimal Singh Lachhman Singh after the transfer of thesecontracts. As regards the expenses, he stated that they were incurred bythe firm in respect of the material which had been cut and removed to itsdepot, but whatever material was left uncut or was cut after the date of the

122 AMAR NATH V. S. L. SINGH AND OTHERS [VOL. XXJOV

transfer, expenses in connection with its removal or manufacture, etc.,were borne by Baldev Singh. He has earlier stated in his examination-in-chief that katha was manufactured every year (from khair trees) worthabout fifteen to sixteen lacs of rupees. This was in addition to the sale ofother items like charcoal, fuel wood, etc. According to him the manufactureof katha was going on when he made the transfer in favour of Baldev Singhand that was continued by the firm in respect of the material which hadalready been cut and collected at the firm's depot, and the labour whichhad been employed, continued doing the work.

Mr. Kaushal has laid a good deal of emphasis on the contradiction bet-ween the position as disclosed in the affidavits relating to transfer of thecontracts by respondent No. 1 to Baldev Singh and the one emerging fromhis statement in Court. For instance, it has been pointed out that respondentNo. 1, stated in Exhibit P. 169 that he had no claim or right whatsoever overthe contract benefits except the security deposit of Rs. 1,14,100.00 int he PostOffice Savings Bank account which was to be released after the transfereehad completed the work successfully. Baldev Singh in his affidavit, whichaccording to Mr. Kaushal has to be read as an integral part of the entiretransaction, had stated that he had taken over all the felled and removedmaterial after having reimbursed all the sums paid by respondent No. 1,including the expenditure incurred by him in respect of the contract. Thisappears to be inconsistent with the statement made in Court by respondentNo. 1, that whatever trees had been cut or felled including those trees {khair)from which katha was manufactured, had been removed or had to be remov-ed by respondent No. 1.

Mr. Sibal does not deny that such an inconsistency on the face of thematerial mentioned above, appears to exist. But according to him, theaffidavits had to be filed in the form in which they were filed owing to thelanguage prescribed by the Department. He maintains that the statementmade by Baldev Singh appearing in the joint affidavit Exhibit P. 169, evenif binding impliedly on respondent No. 1 can be easily explained by theStatement made by him in Court which has already been reproduced. Itis pointed out that as a matter of fact, transliteration of entries of the booksof Baldev Singh which have been marked 'I' but which by the consent ofcounsel are exhibited as C. 1, show that Baldev Singh did not pay the amountwhich had been paid by Lachhman Singh up to the date of the transfer nordid he reimburse respondent No. 1 for the expenditure incurred upto thatpoint of time. Baldev Singh, however, made payment of the instalmentswhich fell due after the date of the transfer. Therefore, it is said that res-pondent No. 1 was fully entitled to remove those trees which had alreadybeen felled before the date of transfer and which were his property.

Mr. Kaushal has called attention to the statement of P.W. 3 Shakti Par-kash, Accountant, Ambala Forest Division. According to him, sums ofRs. 45,640/-, Rs. 1,37,250/- and Rs. 1,31,250/- were outstanding against thecontractor for payment to the Government on January 12, 1967, in respectof the three contracts which had been entered into by respondent No. 1.In March, 1967, sums of Rs. 45,640/-, Rs. 45,750/- and Rs. 43,750/- werepaid by the contractor respectively and two further sums amounting to Rs.45,750/- and Rs. 87,500/- were paid in May, 1967, as instalments of the last

E. L. ft.] AMAR NATH V. S. L. SINGH AND OTHERS 123

two contracts. In the present case, the payments upto March, 1967, areimportant, and a total amount of Rs. 1,35,140/- was paid into the treasuryon account of the three instalments due on the three contracts. In theaccount of Jaimal Singh Lachhman Singh with the Bank of Patiala, ExhibitP. 97, there is a withdrawal of a cheque of Rs. 1,35,000/- on 27th March,1967, and the suggestion of Mr. Kaushal is that actually the aforesaidamount was withdrawn from the account of Jaimal Singh Lachhman Singhand the payment was made on behalf of Baldev Singh in the treasury of theinstalments which were then due and which aggregated Rs. 1,35,140/-. Whenquestioned about this payment, respondent No. 1 admitted that there wasan entry dated 27th March, 1967, of a payment of Rs. 1,35,000/- to BaldevSingh through cheque No. 313662 but he refuted the suggestion that thisamount was paid for the payment of arrears of instalments due under thecontracts which had been transferred to him on January 12, 1967. InExhibit C.I which is the khata of Baldev Singh, there are two amounts shownon 27th March, 1967, namely Rs. 1,35,000/- and Rs. 140/- which make atotal of Rs. 1,35,140/-. These figures, according to Mr. Kaushal, are tell-tale and clearly show that although the contracts are alleged to have beentransferred in favour of Baldev Singh, the payment of instalments relating tothem nevertheless continued to be made from the account of firm JaimalSingh Lachhman Singh. It appears from the statement of respondentNo. 1 and Exhibits C. 2 and C. 3 which were admitted into evidence byconsent of parties that since some years Baldev Sihgh was maintaining anextensive account with firm Jaimal Singh Lachhman Singh. According torespondent No. 1 on February 1, 1967, a sum pf Rs. 60,000/- was depositedin cash by Baldev Singh who had received a draft from M/s Har Sahai MaiRam Jas Mai of Delhi. There was an entry in the books of account of thefirm debiting him with Rs. 45,225/- paid on account of some instalment tothe State Bank of Patiala. (This apparently related to some other contract).On February 15, 1967, Baldev Singh was paid a sum of Rs. 27,500/- in cashby the firm and similarly a sum of Rs. 23,000/- was paid in cash on February17, 1967. Mr. Sibal has also pointed out that the instalments which werepaid in May, 1967, on account of three contracts in question, cannot beconnected in any manner with any of the debit items in the books of thefirm Jaimal Singh Lachhman Singh so as to connect them with that firm.

On a consideration of the evidence which has been mentioned above, Iam of the opinion that the contention of Mr. Kaushal must prevail. Itmust be remembered that Baldev Singh is a very close relation of respondentNo. 1. Nothing has been disclosed how the negotiations commenced aboutthe transfer of the three contracts to him and what was the benefit or gainwhich respondent No. 1 was to make by making those transfers. It isalmost indisputable that these contracts were of a highly profitable natureand no explanation has been given why interests therein were parted withgratuitously. The only reason was that the date for filling the nominationpapers was approaching near and respondent No. 1 either, thought or wasadvised that it would be safer for him to effect such transfer. There isa clear contradiction between the statement contained in the affidavits rela-ting to transfer and the position which was ultimately taken by respondentNo. 1, which has already been discussed in detail. No proper deeds oftransfer were executed. So far as the instalments which were paid up toMarch, 1967, are concerned, the figures tally in such a way that there is onescape from the conclusion that the money was taken from the firm Jamial

124 AMAR NATH V. S. L. SINGH AND OTHERS [VOL. XXXIV

Singh Lachhman Singh for payment thereof. Under clause 4 of the con-tracts, the purchaser expressly undertook that he would part with none ofthe clear felling coupes or with their outturn or with any part thereof orwith his rights therein to any person in any manner whatsoever until hehad paid the price agreed upon in full, etc. It is common ground thatrespondent No. 1 did not pay the price in full before he transferred thecontracts to Baldev Singh. The admission of respondent No. 1 that eventhe work and the labour which had been employed, continued to be em-ployed by the firm Jaimal Singh Lachhman Singh after the transfer had beeneffected in favour of Baldev Singh, lends support to the contention that theso-called transfers were paper-transactions and were intended only to avoidany legal difficulties which might arise under section 9-A of the Act in thematter of disqualification. I would accordingly hold that the three contractswhich had been entered into by respondent No. 1, were subsisting on thedate of filing of the nomination papers. But issue No. 9 has to be decidedin favour of respondent No. 1 and against the petitioner on account of thedecision on the first part of that issue relating to the true nature of the con-tracts.

The other issues to which arguments have been confined, are 6, 7, 15(part only), 19, 20, 21, and 22. All these issues involve the question of ex-penses which are alleged to have been incurred by respondent No. 1 in con-nection with the election, and will be disposed of not issue-wise but accord-ing to the items which have formed the subject-matter of discussion. Sec-tion 77 of the Act Provides that every candidate at an election shall, eitherby himself or by his election agent, keep a separate and correct accountof all expenditure in connection with the election incurred or authorisedby him or by his election agent between the date of publication of the noti-fication calling the election and the date of declaration of the result thereof,both dates inclusive. The account has to contain such particulars as maybe prescribed and the total of the said expenditure cannot exceed the pres-cribed limit. Rule 87 of the Conduct of Election Rules, 1961, contains theparticulars and other provisions relating to account of election expenses.In the State of Haryana, the total amount of expenditure which could be,incurred by a candidate at the elections held in 1967 to the State Legislatureis Rs. 6000/-.

In sub-paragraph (vii) of paragraph 23 of the petition it has been allegedthat respondent No. 1 has not maintained an account of his election expensesas provided in section 77 of the Act and the rules made thereunder. Inthe return, however, it has been asserted that the answering respondent hasmaintained his accounts and the election expenses return was duly submit-ted to the authorities. The petitioner by means of interrogatories, soughta direction for making discovery of the various books of accounts, etc.,including account books relating to election expenses. The reply on behalfof respondent No. 1 was that no account books had been maintained inrespect of the election expenses and that the return has been prepared on thebasis of receipts—and vouchers. Respondent No. 1 stated that he withdrewthe amount of expenses relating to election, from his firm. He used to takeout amounts in round figures like Rs. 500/- or Rs. 1000/-, whenever required.Whatever he withdrew from the firm in his personal account had been en-tered in the books. The total amount shown to have been withdrawn in

E. L. R.] AMAR NATH V. S. L. SINGH AND OTHERS 125

his personal account in the ledger from January 16, 1967 to February 27,1967, was Rs. 5,750/- but that included a sum of Rs. 750/- paid to the Bankof Patiala as Professional Tax on January 16, 1967. Respondent No.1 maintained that he did not spend the entire amount of Rs. 5,000/- on theelection. A part of it was spent on the election in accordance with thereturn submitted by him, and a part of his personal expenses. He furtherstated that there was no occasion to maintain day-to-day account of theelection expenses.

The first point raised by Mr. Kaushal is that the real object of enactingsection 77 and couching it in the language in which it appears is to keep aproper check on the day-to-day expenses incurred by a candidate in the matterof election. Emphasis has been laid on the words "A separate and correctaccount of all expenditure". According to Mr. Kaushal, it was necessaryfor respondent No. 1 to open a separate account book in which day-to-dayexpenditure should have been entered particularly in view of the languageemployed in Rule 86. He suggests that the penal provisions contained insection 171-1 of the Indian Penal Code which makes failure to keep accountsrelating to election punishable, show that the provisions concerning main-tenance of separate account of election expenses are meant to be rigidlyapplied and enforced. Mr. Sibal has relied on Sheopat Singh v. HarishChandra(s) in which it has been laid down that with regard to maintainingan account of election expenses all that the rules require is the maintenanceof a separate account book in which the particulars mentioned in rule 131of the Representation of the People (Conduct of Elections and ElectionPetition) Rules, 1956, should be noted. So far as vouchers are concerned,the reference in the rule is only of the vouchers received from dealers andbills refer to the bills received from persons who have supplied goods orrendered some service on credit. There is no direction for keeping a sepa-rate cash book nor is there any direction for maintaining any order bookor receipt book or vouchers book. Under Section 123(6) of the Act, it isonly the incurring or authorising of expenditure in contravention of sec-tion 77 of the Act which amounts to a corrupt practice. Only sub-section(3) of section 77 deals with the same and, therefore, it cannot be said thata contravention of sub-section (1) and (2) of section 77 of the Act is a corruptpractice.

Tn that case the action which had been taken was not strictly in accordancewith the rules. With respect, I agree and hold that even if no separateaccount book has been maintained, that will not make it a corrupt practicewithin the meaning of section 123(6) of the Act, but the return will have tobe examined with care as it did not strictly conform to the rules.

I propose to dispose of some of the minor items in the first instance.In the return of election expenses Exhibit P. 185, a sum of Rs. 491/- has beenshown as having been paid to M/s Shobha Printers, Kalka, on account ofprinting. The date on which the expenditure was incurred or authorisedis stated to be 26th January, 1967, and the dates of payment are 14th Feb-ruary,1 1967, and 13th March, 1967. It has been pointed out by Mr. Kaushalfrom Exhibit P. 135 that in all 24,000 badges were prepared apart from the

(8) 16E.L.R. 103,

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printing of the hand-bills and posters, The total cost of these 24,000 badges,according to the aforesaid document, comes to Rs. 96/-. P.W. 35 SomNath, who appeared on behalf of that press stated inter aha that 64 badgesare prepared out of one sheet and" there are 144 sheets in one gross, and thecost of one gross of paper is Rs. 40/- According to him, the amounts shownin the bill included partly the cost of the paper and partly the printing charges.But he was not in a position to say, what was the amount ofjjcost ofjthe paperand what was the amount of printing charges. He admitted that the rateof printing of such badges was Rs. 4/- to Rs. 5/- per thousand. Now if therate of printing alone of the badges was Rs. 4/- per thousand, the cost ofprinting of 24,000 badges would come to Rs. 96/-. This according to Mr.Kaushal, clearly establishes that the cost of paper was not included in thecharges shown in the bill Exhibit P. 135 against these badges. Makingcalculations according to the statement of P.W. 35 who was not all cross-examined by the counsel for respondent No. 1, Mr. Kaushal has arrived atthe figure of Rs. 104/- which ought to have been included in the return butwhich has not been included being the cost of paper utilised for making24,000 badges. Mr. Sibal has not been able to challenge the correctnessof the figure arrived at by Mr. Kaushal as the cost of paper but he has con-tended that in the bill Exhibit P. 135, the cost of paper was included and atany rate, the bill had been prepared according to the statement of P. W. 35Som Nath by his brother Ved Kumar Gupta who has not been examinedand he might have shown same concession in the matter of not charging thecost of the paper. I am unable to accept this explanation and I am inclinedto agree with Mr. Kaushal that the sum of Rs. 104/- being the cost of paperutilised for the badges should have been included in the return.

The next item relates to the salary of two drivers of the firm JaimalSingh Lachhman Singh who drove the two cars and one jeep which wereutilised by respondent No. 1, according to his own statement, from January19, 1967, to February 19, 1967, for election purposes. Respondent No.1 stated that the cars and the jeep were driven by the two drivers and some-times by his own son and himself. The salaries of the drivers had beendebited to the firm's account. According to him, during the material period,the vehicles were being used for the work of the firm also but he admittedthat he had shown the cost of the entire petrol which was taken for thosevehicles in his return. The contention of Mr. Kaushal is thatfrom the books of the firm it is established that each driver was drawinga salary of Rs. 120/- from the firm. If their services were diverted orswitched over completely for the purpose of driving the cars and the jeepin connection with the election of respondent No. 1, their salary for onemonth amounting to Rs. 240/- should have been shown as an expense itemin the return. He has relied on H.H. Raja Harinder Singh v. S. KarnailSingh and others,(9) in support of this contention. In that case the appellanthad stood for election to the Legislative Assembly of the erstwhile PepsuUnion from the Faridkot Constituency in the general elections held in 1954.He was declared elected and his election was challenged by means of anelection petition. Among other points, contravention of rule 118 of therepresentation of the People (Conduct of Elections and Election Petitions)Rules, 1951, was alleged. Rule 118 provided that no person other than,

(9) E.L.R. 421.

E. L, R.] AMAR NATH V. S. L. SINGH AND OTHERS 127

or in addition to, those specified in schedule VI shall be employed for pay-ment by a candidate or his election agent in connection with an election.The argument raised on behalf of the appellant was that rule 118 would beapplicable only if the employment of the person was specifically for workin connection with the election when such employment was for paymentThis is what was said, "If however, the members of the staff are switched,off from their normal work and turned on to election work so that it couldbe said that work has been assigned to them in supersession of theirnormal work, then the salary paid to them could rightly be regarded as pay-ment for work in connection with election within rule 118.". The objectionsof Mr. Sibal are two-fold. The first is that no specific allegation was madewith regard to the salaries of the drivers in the petition. It has been allegedin paragraph 23 (iv) of the petition that respondent No. 1 employed morethan 100 paid workers, names of some of whom are mentioned in the listAnnexure 'Z' but none of their expenses had been shown by him in his accountof election expenses. Besides, about 50 permanent paid employees of thefirm had worked for the furtherance of his election prospects whose expeneshad not been shown in the return. According to Mr. Sibal, the aboveallegation does not contain the specific mention of the drivers in questionnor are their names to be found in Annexure 'Z'. Their employment couldnot be treated as one for the furtherance of the prospects of the electionof respondent No. 1. But to my mind the drivers would be included in theallegations made in paragraph 23(iv) of the petition.

The second objection is that rule 118 has been abrogated and, therefore,the law laid down in 12 E.L.R. 421, would no longer govern the presentcase. In spite of the argument of Mr. Sibal, I have not been able to appre-ciate how the abrogation of rule 118 will affect the true position with regardto the salary of the drivers who were switched over from their normalwork completely to election work. In that view of the matter, an amountof Rs. 240/- should have been shown in the return of expenses by respondentNo. 1

After considering detailed evidence regarding the allegation that the firstrespondent had not maintained an account of his election expenses as pro-vided in Section 77 of the Act, the judgement proceeded

*** *** *** *** * < :

In S. Mehar Singh v. Umrao Singh (10) one of the questions which hadto be decided was whether amounts aggregating Rs. 7,000/- which had beenreceived from Congress bodies had been actually spent on the election cam-paign. Falshaw J. as he then was, delivering the judgment of the Benchreferred to the test of proof beyond reasonable doubt in the matter of acorrupt practice and observed that it was not sufficient merely to establishthat somebody had received certain sum of money for a particular purposewhen it was the duty of the accuser to establish that the money was alsospent. Although there was a strong suspicion that the candidate had spentRs. 7,000/- or more on the election campaign, there was also a possibilitythat he did not spend all the moneys which were sent to him for the purposeof his election and, therefore, it was held that the onus about the moneyhaving been spent in excess of the prescribed limit had not been discharged.

(10) A.I.R. 1961 Punjab 244.

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It can well be said in the present case that although it has been shown thaton at least three days in the month of February 1967, large quantitiesof diesel oil and petrol were utilised from Lachhman Singh and Company,which has not been satisfactorily explained and there may be a strong sus-picion that most of the diesel and petrol was utilised by respondent No.1 for consumption in motor vehicles which were being utilised by him inconnection with the election, but the petitioner cannot be said to have dis-charged the onus of proving (a) the actual amount of the quantities so uti-lised, and (b) the number and the nature of vehicles for running whichthey were utilised.

Mr. Kaushal has next submitted that in the entries from the books of thefirm Jaimal Singh Lachhman Singh, Exhibit R. l.W. 1/6, the followingitems appeared which have not been included in the expense relating topetrol shown in the return.

18th January, 1967. Rs. 39.20 Petrol bill for car.

19th January, 1967. Rs. 26.44 Petrol bill for jeep.

28th January, 1967. Rs. 11.76 Petrol bill for car.

15th February, 1967. Rs. 43.66 Petrol bill for car.

It is pointed out that on his own statement respondent No. 1 startedusing these vehicles from 19th January, 1967, and used them fora month. The amount of petrol bills, therefore, which were paid on accountof these vehicles for this period, should have been included in the return.As no petrol is shown to have been purchased on the 19th January, 1967,for the car, the entry relating to 18th January x 1967, should be taken to beof expense of petrol which was utilised on the 19th January, 1967. Theseitems have not been satisfactorily explained by Mr. Sibal, and I hold thata sum of Rs. 121.06 should have been included in the petrol expense whichhas been shown in the return.

The next item which may be disposed of, relates to what may be calledthe langars which are said to have been maintained for providing food,refreshments, etc., by respondent No. 1, during the period of election. Inclause (c) of paragraph 20 (B), it has been stated that respondent No. 1opened a free langar at his residence in the main bazar of Kalka near thePolice station and entertained his electors and workers. At this langar500 persons took their meals daily. He served them with halwa, puri,meat and vegetables, besides liquor. Some of the persons who used to takefree meals were named in annexure 'V. In clause (d) of the same para-graph it has been stated that respondent No. 1 entertained electors andhis workers at Abdullapur, Saketri, Raipur Rani and Barwala on the dateof polling. Clause (e) gives the cost of the provisions and vegetables, etc.,purchased for the aforesaid purpose. In clause (g) it is alleged that alcoholwas purchased from Kalka, Pinjore, etc. and the electors were served withalcohol i.e. drinks from 19th January upto 19th February, 1967. The namesof some of the persons who were alleged to have been served with liquorwere set out in Annexure 'A'. Mr. Kaushal has referred to the statements

E. L. R.] AMAR NATH V. S. L. SINGH AND OTHERS 129

of a number of witnesses including the petitioner (P.W. 24 Jaimal, P.W.26 Ram Kishan, P.W. 29 Parmodh Bhushan, P.W. 34 Brij Bhushan, P.W.42 Ram Chander, P.W. 43 Sita Ram, P.W. 44 Babu Ram, P.W. 45 anotherBabu Ram, P.W. 54 Ranjodh Singh, and the petitioner who appeared asP.W. 60), who gave evidence relating to treatment and entertainment butit is futile to refer to them except to those who gave testimony relating tothe places mentioned in the pleadings. I am alive to the rule laid downby the Supreme Court in Bhagwan Datta Shastri v. Ram Ratanji Guptai11)that the requirement of full particulars of corrupt practice is of paramountimportance, but where, notwithstanding the absence of particulars, theevidence is allowed to be given and taken, the question would not be one ofabsence of jurisdiction but as to whether there has been any material preju-dice occasioned by the absence of particulars. It is unfortunate that counselfor respondent No. 1 never pointed out that evidence relating to villagesor places other than those mentioned in the pleadings and the particularsof which were given should not be allowed to be led. However, evenMr. Kaushal agrees that the evidence of these witnesses is of a general natureand no evidence has been produced from which any definite amount can beascertained to have been spent on the langars.

After considering further evidence on the allegation that some items ofexpenses incurred by the first respondent have not been included in his returns,the Court, while holding that items of expenses on account of cost of paperfor the badges, salary of drivers, some items of petrol expense for motorcars and on account of painting work and cloth should have been includedin his return, the judgment proceeded

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

The last item may now be disposed of. It relates to sum of Rs. 1,000/-which had been deposited by respondent No. 1 when he applied for beinggiven a Congress ticket together with an application fee of Rs. 200/-. P.W.14 Hari Ram, Accountant in the office of the Haryana Pradesh CongressCommittee,. Chandigarh, produced Exhibits P. 84 and P. 85 being the cir-cular and the press release inviting applications for Congress ticket issuedby the Pradesh Congress Committee. Exhibit P. 86 and P. 87 are the appli-cation and the declaration of respondent No. 1. He paid Rs. 1,200/- by meansof a receipt dated 30th November, 1966, out of which a sum of Rs. 200/-was the application fee and the remaining amount of Rs. 1,000/- was thesecurity deposit. According to Hari Ram the sum of Rs. 200/- was non-refundable. Respondent No. 1 was not given any ticket but he contestedthe election. Pt. Roop Chand, Secretary of the Pradesh Congress, issuedinstructions t o forfeit the security deposits of various applicants includingrespondent No. 1. Exhibit P. 88 is the original containing the list of suchpersons and the orders of the Secretary. The original document ExhibitP. 91 by which the securities of 52 persons amounting to Rs. 45,400/- wereforfeited, was also produced by Hari Ram. He produced Exhibits. P. 92to P. 96 which are copies of the cash book and the ledger relating to thereceipt and forfeiture of the amount. He stated that no individual intimationwas sent to the persons whose securities had thus been forfeited. In cross-examination he stated that the Election Committee of the Haryana Pradesh

(11) A.I.R. 1960 S.C. 200.

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Congress had passed a resolution earlier that in the circumstances mentionedabove, security deposit would be forfeited. He had not, however, broughtthat resolution. Respondent No. 1, while giving evidence, admitted thathe had applied for a ticket to the Congress and paid a sum of Rs. 1,000/- assecurity and Rs. 200/- as contribution to the Congress Election Fund. Accord-ing to him in the month of October, 1966, the Pradesh Congress Committeehad decided that some security should be obtained from persons who decidedto get the Congress ticket so that those persons who were not serious enough,should not apply. It was further considered necessary to ask for a contri-bution because the Congress needed funds for righting the elections. Heproceeded to say that it was decided that if a ticket was given, the securityamount was to be refunded and if the ticket was not granted, in that eventalso the security was to be refunded. He would demand the refund ofRs. 1,000/- from the Pradesh Congress Committee as it was refundable. If itwas not refunded, he proposed to take legal proceedings. As regardsthe various circulars, etc., and the other documents which had been producedby Hari Ram, this is what he stated:—

"I do not remember, owing to lapse of time, whether any circulars similarto Exhibits P. 84 and P. 85 were circulated to all the District CongressCommittees in Haryana Pradesh, all the Congress legislators fromHaryana, as also to all the members of the Haryana Pradesh Cong-ress Committee. I cannot remember now if any circular of thenature of Exhibits P. 84 and P. 85 came to me in my capacity asmember of the Haryana Pradesh Congress Committee, althoughmany circulars used to come. Exhibits P. 86 and P. 87 are myapplication and declaration of consent respectively which I filedon the 30th November, 1966, agreeing to the conditions laid downtherein. It is incorrect and I have no information so far aboutit that my security deposit of Rs. 1,000/- was forfeited because Icontested the election against the Congress candidate in violationof paragraph 3 of circular dated November, 19, 1966, Exhibit P. 84.Although I have been approaching the Haryana Congress Committeeverbally for the refund but I did not serve any notice on it in thatbehalf".

Exhibit P. 84 is dated 19th November, 1966, and is entitled under circularNo. 8. This circular was to be sent to all the District Congress Committees inHaryana Pradesh. It is added at the foot of the circular :—

"Copy, together with a set of Application and Information Forms, issent to all the Congress Legislators from Haryana and all membersof Haryana Pradesh Congress Committee, for their information,please."

One of the paragraphs in this circular is as follows :—

"The applicants should be informed that the application fee of Rs. 200/-in the case of Assembly candidates and Rs. 500/- in the case ofParliamentary candidates, is not refundable under any circumstances;but the security of Rs. 1,000/- in the case of Assembly and Rs. 2,000/-in the case of Parliament is to be refunded to the i3 3.i;n:j, vvi

E.L.R.] AMAR NATH V. S. L. SINGH AND OTHERS 131

are not given Congress ticket. This refund would be made soonafter the date of withdrawals of nominations. The security of suchapplicants as stand and dishonour their pledge for not contestingwhen Congress ticket was not given to them, would be forfeited."

In the press release dated 18th November, 1966, Exhibit P. 85, all that wasstated was :—

"This amount of security would be refunded to the applicants who arenot given Congress ticket and do not contest against the officialcandidates."

Exhibit P. 86 is the application form which was filled in by respondent No. 1.This form contains various columns requiring information on matters men-tioned therein and there is another page in continuation of it at the top ofwhich is written, "Application Form or Declaration of Consent." Clause3 of this is :—

"I hereby give an undertaking that if I am not selected for any consti-tuency on behalf of the Congress, I will not contest any seat againstany Congress candidate in this election and will support Congresscandidates."

There is a note at the end which runs :—•

"The application fee is non-refundable while the security deposit will berefunded to those who are not given Congress ticket, after the with-drawals of nomination for the concerned election."

Exhibit P. 88, as stated by Shri Hari Ram, contains the names of 65 personswith an order made thereon that since the aforesaid 65 Congressmen hadviolated the pledge and contested election against the Congress candidates,their security deposits were to be forfeited under instructions conveyedvide circular No. 8 dated 19th November, 1966.

Mr. Kaushal maintains that the sum of Rs. 1,000/- which was given assecurity deposit by respondent No. 1 in the above circumstances and whichstood forfeited on 4th February, 1967, should have been included as an elec-tion expense. Mr. Sibal on the other hand says that there was no ques-tion of this amount being shown as an election expense because (a) res-pondent No. 1 never agreed to the forfeiture of the deposit in the event ofhis contesting the election against a Congress candidate after he had beenrefused a Congress ticket, and (b) the amount should not have been legallyand validly forfeited because there was no binding contract under which itcould be done and even if there was a binding contract such a contractwould be against public policy and, therefore, void and unenforceable.

According to Mr. Kaushal, respondent No. 1 who was an active memberof the Pradesh Congress Committee was fully aware of the conditions laiddown in Exhibit P. 84 for he grant of a ticket by the Pradesh Congress andin view of the foot-note it should be presumed that he did receive a copy of

132 AMAR NATH V. S. L. SINGH AND OTHERS [VOL. XXXIV

that circular. The receipt of knowledge of the circular was not denied inpositive terms by respondent No. 1 and as stated before, he only said thathe could not remember about it. It is pointed out by Mr. Kaushal thatthe real object of laying down such a Condition is that those applying for theticket to a political organisation like the Congress should not then startcontesting against those candidates to whom tickets are granted in the eventof the applicant having been refused a ticket. It is for the political organisa-tion to lay down those conditions and any person who applied for the ticketis bound by these conditions and when they are breached, forfeiture of thesecurity deposit can be rightly and properly as also legally made. Mr.Sibal has advanced an argument on these lines. Exhibit P. 84 was in thenature of an offer. Exhibits P. 86 and P. 87 which were the application andthe declaration of the respondent respectively, could not be treated to be theacceptance of that offer because the material condition about the forfeitureof the deposit is not to be found therein. Therefore, Exhibit P. 87 shouldbe treated as a counter-offer which was accepted by the Haryana PradeshCongress Committee when the amount of security deposit as also the appli-cation money was taken and the application was entertained for considera-tion. The acceptance, therefore, was of the offer contained in ExhibitP. 87 and no binding contract came into force on the basis of the offer Exhi-bit P. 84. I entertain a serious doubt whether all the provisions of the IndianContract Act would be applicable to matters of the nature under considera-tion. Here we are concerned with a political organisation laying downcertain conditions and publishing them for granting a ticket for the electionwhich meant that the candidate would be adopted was a party candidateand would receive all the support and help from the party organisation.It was open to that organisation to lay down the conditions and if in thecircular Exhibit P. 84 those conditions which are to the knowledge of a parti-cular candidate have been laid down, I find it difficult to accept that he canlater on turn round and take shelter behind technical pleas of the natureput forward by Mr. Sibal and say simpliciter that because in the actualapplication form and the declaration of consent this condition does notexpressly appear, therefore, the same was not binding or that the politicalorganisation was not competent to forfeit the security deposit althoughadmittedly there was a breach of the condition laid down in Exhibit P. 84.Even if the matter be viewed in the light of all the technicalities of the lawof Contract, I would be inclined to hold that the application which wasgiven in response to Exhibit P. 84, contained the acceptance of all the termsand conditions mentioned therein and that it was not necessary to expresslyrepeat those conditions in the application. It must be remembered thatit was by means of the circular that the applications were invited. It was,therefore, implicit that anyone who made the applications was doing so afteraccepting the conditions which were laid down therein. I have no doubtthat in the circumstances which obtain in the present case, respondent No. 1could not wriggle out of the undertaking which had been furnished by himin clause 3 of the application read with the circular Exhibit P. 84. Asregards the forfeiture, enough evidence has been produced to show that theamount was in fact forfeited because respondent No. 1 had contested theelection as an independent candidate against a Congress candidate. Theconduct of respondent No. 1 in not claiming any amount by way of refundeven up till now further supports the position taken up on behalf of thepetitioner that he had virtually accepted the decision as regards the for-feiture of his security deposit and had raised no objection against it. In

E. L. R.] AMAR NATH V. S. t . SINGH AND OTHERS 133

Khader Sheriff v. Munnuswami Gounder and others(12) a person who wishedto stand as a candidate on the Congress ticket had, under the rules of theTamil Nad Congress Committee, to make an application together with asubscription of Rs. 100/- which was not returnable, and a deposit ofRs. 400/- which was to be refunded if he was not selected as a candidate. Theappellant before their Lordships made an application to the Committeedeclaring his intention to stand as a candidate and paid a sum of Rs. 500/-.He also paid another sum of Rs. 500/- to the District Congress Committeeas a donation. The evidence showed that the candidates were selected onthe recommendation of the District Congress Committee and that the Com-mittee spent moneys out of the donation for carrying on propaganda forCongress candidates. The appellant did not show these two items ofRs.500/- in the return of election expenses. It was held that the appellant mustbe deemed to have become a prospective candidate from the date on whichhe applied to the Congress Committee for the Congress ticket, and there-fore, the sum of Rs. 500/- paid to the Congress Committee with his appli-cation was an election expense. Similarly, the sum of Rs. 500/- paid to theDistrict Congress Committee was not really a charitable donation but anexpenditure incurred for furthering his prospects as a candidate and thissum also should have been shown in the return. Section 79(b) of theRepresentation of the People Act, 1950, as it stood then, denned a candi-adte thus :—

" 'Candidate' means a person who has been or claims to have beenduly nominated as a candidate at any election, and any such personshall be deemed to have been a candidate as from the time when,with the election in prospect, he began to hold himself out as aprospective candidate."

Section 77 after the amendments made and as it stands now provides thatthe account which every candidate has t'o furnish has to be of the expenditureincurred or authorised between the date of publication of the notificationcalling the election and the date of declaration of the result thereof. Inthe present case 13th January, 1967, was the date of the notification callingthe election and the date of declaration of the result was 21st February,1967. Mr Sibal has sought to distinguish the above decision of the SupremeCourt on the ground that in that case the question of expenses incurred evenbefore the date of publication of the notification came up for considerationin view of the language of the relevant statutory provisions as they stood atthat time including section 123 of the Act and it can be of no avail to thepetitioner for that reason. It has also been pointed out that there was noquestion of forfeiture of any security deposit which had been made alongwith an application for grant of a ticket to a political body like the PradeshCongress Committee. It is, however, noteworthy that the sum of Rs. 400/-vvhich was paid in that case was a kind of deposit of the same natureas the sum of Rs. 100 in the present case. There also it was liable to bereturned under the rules of the Congress Committee in case the applicantwas not adopted as a candidate but not otherwise. In the present case itwas refundable only if the applicant did not contest against any candidatesponsored by the Congress party after he had been declined the ticket.

(12) 11 E.L.R. 208.

134 AMAR NATH V. S. L. SINGH AND OTHERS [VOL. XXXIV

Mr. Sibal contends that in Khader Sheriff's case,(lz) since the candidatewas given a ticket by the Congress, the amount which he paid should bedeemed to have been utilised in his election and, therefore, it was rightlyheld that the same constituted election expenses but the situation obtainingin the present case is different. The language of section 77 of the Act isquite clear and what has to be seen is whether the sum of Rs. 1,000, wasan expenditure in connection with election. There can be no doubt thatrespondent No. 1 had paid that amount for getting the Congress ticket andthus ensuring from his point of view that his prospects of being elected wouldbe improved. If he agreed to the condition that in the event of his notbeing given a ticket he would not be entitled to the refund of the amount incase he contested the election against the Congress candidate that was alla part of the same 'venture' if it is permissible to use that word. It essentiallywas related to and connected with the prospects of the election of respondentNo. 1 and, in my opinion, it was covered by section 77 of the Act. Certaindecisions of the Tribunals were also cited by Mr. Kaushal one of whichmay be briefly noted. In Salig Ram Jaiswal v. Sheo Kumar Pande andothers(13), respondent No. 2 had paid the Uttar Pradesh Congress Parlia-mentary Board a sum of Rs. 50 in order to secure the Congress ticket.It was held that since the Congress was a well-established political party,this amount must have been paid with the hope that nomination on behalfof the Congress party would improve the candidate's chances of success inthe election. Since the forfeiture took place during the two material dates,I am of the opinion that the sum of Rs. 1,000 should have been shown inthe election return as an election expense by respondent No. 1. Noconvincing argument was addressed on the question of such forfeiture beingagainst public policy.

My conclusions may be summarised as follows :—

(1) It has not been proved that respondent No. 1 committed any corruptpractice covered by issue No. 26.

(2) Although the three contracts alleged in the petition, which had beenentered by respondent No. 1, were subsisting on the date of filingof the nomination papers but such contracts did not fall withinthe mischief of section 9(A) of the Act and, therefore, respondentNo. 1 was not disqualified within the meaning of that section.

(3) As regards the return of election expenses, Exhibit P. 185, filedby respondent No. 1 and the matters raised in issues 6, 7, 15 (partonly), 19, 20, 21 and 22, the return is not correct and the followingamounts, which should have been included in it, have not been showntherein :—

(0 on account of cost of paper utilized for thebadges (page 51 of the judgment) . . Rs. 104.00

(») on account of salary of drivers (page 53of the judgment) Rs. 240.00

(12) 11E.L.R. 208.(13) 9 E.L.R. 67.

E. L. R.] AMAR NATH V. S. L. SINGH AND OTHERS 135

(Hi) on account of petrol for the motor-cars (page75 of the judgment) . . . . Rs. 121.06

(/v) on account of painting work and cloth (page87 of the judgment) . . . . Rs. 217.00

(v) forfeiture of deposit by the Pradesh Congress(para 114 of the judgment) . . . Rs. 1,000.00

TOTAL . Rs. 1,682.06

But even after the addition of these amounts, the total amount of expenseswould come to Rs. 4,925.30 which is less than the prescribed amount ofRs. 6,000. The filing of an incorrect return not being a corrupt practiceunless the total expenditure exceeds Rs. 6,000, it has not been proved thatrespondent No. 1 has committed any corrupt practice under section123(6) of the Act.

The election petition fails and it is dismissed but in view of my conclusions,particularly with reference to the incorrectness of the return of electionexpenses, the parties are left to bear their own costs.

Petition dismissed.

IN THE HIGH COURT OF MADHYA PRADESH AT INDORE

RAM BHAROSE

V.

JAGANNATH SINGH AND OTHERS

(M. A. RAZZAQUE, J.)

December 5, 1967

Representation of the People Act 1951, ss. 33, 37(1), 38—Indianevidence Act 1872, Section 114, illustration (g)—Record of date ofbirth in school register, certificate of—proof—validity of certificate—Evidence of birth register not produced—Inference under illustration(g) under Section 114, of Evidence Act, Whether can be raised—scrutinyof nomination papers—Withdrawal of nomination—Requirements underElection Law.

The petitioner, an elector from the Daba Assembly constituency, chal-lenged the election of the first respondent to the Madhya Pradesh Assemblyon the ground that the nomination form of the fourth respondent was impro-perly rejected by the Returning Officer on the basis that he was below 25years of age; and that the alleged subsequent withdrawal by the fourth res-pondent of his nomination could not be treated as withdrawal under the pro-visions of Section 38 of the Act.

2 EC/71—10

136 RAM BHAROSE V JAGANNATH SINGH AND OTHERS [VOL. XXXIV

HELD : Dismissing the petition : Although it was established that thefourth respondent was above twenty-five years of age at the time of his nomi-nation, his nomination had been properly and effectively withdrawn by him;the question of improper rejection of his nomination paper did not thereforearise.

(i) The record of date of birth in the school register and certificates whensupported by important facts and circumstances of the case was entitled togreater probative value than the entries in the electoral rolls. No inferenceunder Section 114, illustration (g) of the Indian Evidence Act can be raisedwhen the court is not satisfied as to whether the birth register is in existenceand when it has not been produced in evidence by the parties.

Manikchand v. Krishna, A.I.R. 1932 Nag. 117; Aga Jan Khan RahimKhan and another v. Kesheo Rao Nathuram Maratha, A.I.R. 1940 Nag.217; Gayaprasad v. Jamna Prasad, 1959 M.P.L.J. notes of cases No. 143;B. Kala Ram S. Bhag Singh v. Fayal Bari Khan and others, A.I.R. 1941Peshawar 38; Subba Rao v. Venkata Rama Rao, A.I.R. 1964 A.P. 53; Lila-dhar Bania v. Mabibi and other, A.I.R. 1934 Nag. 44; Hrishikesh Banerjeeand others v. Sushil Chandra Moulik, A.I.R. 1957 Calcutta 211; Jagadanandav. Rabindra Nath, A.I.R. 1958 Calcutta 533; Anadi Mohon Ghose v. RabindraNath Dutta and others, A.I.R. 1962 Cal. 265; referred to;

The entry in the electoral roll as regards age is not final and conclusive.Sub-section (7) of Section 36 makes the electoral roll conclusive evidenceof the candidate's qualification in regard to his being an elector only and notabout his age.

Brijandralal Gupta and another v. Jwala Prasad and others, 22 E.L.R.366 S.C. Abdul Majeed v. Bhargavan, A.I.R. 1963 Kerala 18; Raja JanakiNath Roy and others v. Jyotish Chandra Acharya, A.I.R. 1941 Calcutta 41;Tata Iron and Steel Co. Ltd., Jamshedpur v. Abdul Watab A.I.R. 1966 Patna458; Shivram v. Shivcharan Singh, 1964 Doabia's Election cases 80; MahabriSingh v. Rohtn Ramandhwaj Prasad Singh, A.I.R. 1961 S.C. 1277; referredto;

(ii) An enquiry before the court on a question of improper rejection of thenomination paper is not restricted to the material placed before the Return-ing Officer relating to the ground taken before it; all evidence bearing on thatground could be adduced before the court and the court had to come to itsindependent conclusion on the basis of evidence produced before it and thendetermine whether the nomination was improperly rejected or not.

Pt. Chiranjit Lai Ram Sarup v. Lahiri Singh Ram Narain, A.I.R. 1958Punjab 433; Durga Shanker Mehta v. Raghuraj Singh and others, A.I.R.1954 S.C. 520; S. N. Banerji v. Sri Krishna Agarwal, A.I.R. 1960 S.C. 368;N. K. Veluswami Thevar v. Raja Nainar and others, A.I.R. 1959 S.C. 422;Referred to;

(iii) When a candidate delivers the notice of withdrawal containing all theparticulars as required by Section 37, the duty of the Returning Officer is

E.L.R.] RAM BHAROSE V. JAGANNATH SINGH AND OTHERS 137

confined only to the fact that he should be satisfied as to genuineness of thenotice of withdrawal and the identity of the person delivering it. When thishas been done, nothing survives thereafter. The Returning Officer has nopowers to consider the merits and demerits of that nomination paper. Afterthe due notice of withdrawal of the candidate his nomination papers shall bedeemed to have no existence in the eye of law. The last date of withdrawalwould clearly imply that the withdrawal can be made earlier than the lastdate fixed for the same; but how early, that has not been given though the lastlimit of time for such withdrawal has been specifically mentioned in Section37(1). The words "any candidate" in Section 37(1) mean any other candidatein addition to the validly nominated candidates, including a candidate whohad duly filed his nomination paper under Section 33 and subsequently with-drawn his candidature at any time after he has filed his nomination but be-fore the time for the date fixed for such withdrawal in accordance with theprovisions of Section 37.

ELECTION PETITION NO. 30 OF 1967

U.N. Bhachawat for the applicant.

v K. A. Chitaley and P. L. Dubey for the opposite party.

JUDGMENT

RAZZAQUE, J.—The petitioner Ram Bharose of Dabra, who is an elec-tor from the Dabra Assembly Constituency of the State of Madhya Pradesh,has filed this election petition under section 81 of the Representation of thePeople Act, 1951 (hereinafter referred to as the Act) challenging the electionof respondent No. 1 Shri Jagannath Singh who has been declared as dulyelected from the said constituency. The petitioner's simple prayer is that theelection of the returned candidate, respondent no. 1, Shri Jagannathsingh bedeclared to be void under section 100(l)(c) of the Act on the ground that thenomination form of respondent no. 4, Shri Motiram was improperly reject-ed by the Returning Officer. The petition was presented on 7-4-1967,the last date of the limitation period.

2. After various changes, which occurred during the course of the pro-ceedings in this Court, the only questions which have finally survived fordetermination are whether the nomination of respondent no. 4 Motiramhad been improperly rejected and, therefore, the election of the returned can-didate should be declared to be void under section 100(l)(c) of the Act orwhether the question of such improper rejection and declaration of the elec-tion to be void does not arise because of the alleged withdrawal of his candi-dature by Motiram at 10.30 A.M. on 23-1-1967, the last date for the with-drawal.

3. The admitted facts are that nine persons including the four respondentswere candidates for election from the Dabra Assembly Constituency is ques-tion in the general election held in February, 1967. The programme of theelection was as under:—

(i) The date of notification of election 13-1-1967

138 RAM BHAROSE V. JAGANNATH SINGH AND OTHERS [VOL. XXXIV

(ii) The last date for making nominations 20-1-1967

(iii) The date for the scrutiny of the nominations 21-1-1967

(iv) The last date for the withdrawal of candidatures 23-1-1967

(v) The date for polling 20-2-1967

(vi) The date of declaration of results 21 -2-1967

The returned candidate, Shri Jagannath Singh, respondent No. 1 was theofficial nominee of the Jan Sangh supported by Rajmata Vijaya Raje Scindiaof Gwalior; respondent no. 2 Shri Pahalwan was sponsored by Hindu Maha-Sabha and respondent no. 3, Shri Vrinda Sahai was the Congress candidate.The respondent no. 4, Shri Motiram and five others were either independentcandidates or belonged to some other parties.

4. All those nine candidates including respondent no. 4, Shri Motiramfiled their respective nomination papers by the due date. In his nominationform (Ex. P.7.), respondent Motiram had declared his age as 23 years. On21-1-1967, the date for the scrutiny of the nominations the Returning Officer,Shri R. C. Jain (R.W. 1) took up Motiram's nomination paper at 2 P.M.On scrutiny, he found that in the electoral roll, as well as in Motiram'snomination papers (both Ex. P. 7 and D. 1) his age mentioned was 23 yearsand, therefore, he raised an objection that under Article 173 of the Constitu-tion, he was not qualified to fill the Assembly seat as he was less than 25years of age. Shri Motiram was given two hours time to submit his replyto this objection and adduce such evidence as he might deem fit {vide Ex.D. 3). Accordingly, at 4 P.M. on the same day Motiram filed his reply(Ex. P. 8) along with a copy of the mark-sheet (Ex. P. 21) of the High SchoolExamination. In his reply, he stated that his age 23 years as mentioned inthe electoral roll as well as in his nomination forms was wrong and in fact hewas about 27 years old, as according to the copy of the mark-sheet (Ex.P. 21), he was born on 7-5-1940. He prayed for more time to adduce fur-ther evidence which was granted and the case was fixed for 23-1-1967 at10.30 A.M. as 22-1-1967 was Sunday (vide Ex. D. 4). 'School Certificate'mentioned in Ex. D-4 as well as Ex. D-5 is obviously a mistake for the 'copyof the mark-sheet (Ex. P. 21) vide para 12 of the evidence of Motiram (P.W.7).

5. The case was then taken up on 23-1-1967 at 10.30 A.M. by theReturning Officer. On this very date, which was the last date for the with-drawal of candidature, respondent Motiram did not produce any addi-tional evidence but instead he presented the withdrawal notice (Ex. D. 2)at 10.30 A.M. before the Returning Officer withdrawing his candidature.The evidence of the Returning Officer, Shri R. C. Jain (R.W. 1) shows that"on 23-1-1967, when I started writing the order at 10.30 A.M. the candidateMotiram presented the notice of withdrawal."

He then passed the order (Ex. D.5) which reads as under :—

"23-1-1967 The candidate is present. He has no further evidence(10.30 a.m.) to adduce.

E.L.R.] RAM BHAROSE V JAGANNATH SINGH AND OTHERS 139

2. Under Artxle 173 of the Constitution, a candidate should not be lessthan twenty five years of age. In this case the applicant has himselfstated and declared in his nomination papers that he is 23 years ofage. In the electoral roll also his age is mentioned as 23. At alate stage the candidate has come up with the contention that he isactually 27 years of age and he has filed a high school certificate tosupport his contention. When the candidate has himself declared inboth his nomination papers that he is 23 years of age, a bald statementto the contrary at a later stage has little meaning and can only beconstrued as an afterthought. The high school certificate is also nota conclusive evidence of age; it is not supported by any affidavitand as such has little evidentiary value. The applicant was givenfurther time to adduce evidence, but he has not adduced any. Assuch I hold that the applicant's age should be deemed to be 23years of age as declared by him in his nomination forms and boththese nomination forms are accordingly rejected.

3. The candidate has also submitted an application withdrawing hiscandidature. This application clearly shows that he has no intentionto contest the election. This application may also be kept on re-cord."

6. Accordingly on his nomination paper (Ex. P. 7) and also (Ex. D . I )Motiram had filed two nomination papers, the Returning Officer made theendorsement 'rejected as per orders passed separately'.

7. Thus with the rejection of Motiram's nomination, eight candidateswhose nominations were accepted including respondents 1 to 3 remained inthe arena to contest the election in question. The respondent no. 1, ShriJagannathsingh secured 22,821 votes, while the Congress candidate ShriVrinda Sahai, respondent no. 3 and Shri Pahalwan, the Hindu Maha-Sabhacandidate respondent no. 2 got 4,986 and 3,041 votes respectively. Othersalso obtained some votes as mentioned in para l(b) of the petition butas respondent no. 1 had secured the highest number of votes, he was declar-ed as duly elected on 21-2-1967 from the said constituency.

8. All these facts have either been admitted or established. As alreadystated, the petitioner Shri Ram Bharose, who is an elector from the Assemblyconstituency in question and appears to be a benami contestant for theCongress candidate presented this election petition on 7-4-1967 challengingthe election of the Returned candidate, respondent No. 1, Shri Jagannath-singh.

9. The election petition, as originally laid, assailed the election of thereturned candidate on the grounds of (/) corrupt practices said to have beencommitted by the returned candidate respondent no. 1 Shri Jagannath-singh and respondent no. 2 Shri Pahalwan as mentioned in paras 10 to 13of the petition and (ii) that the nomination of respondent no. 4 Shri Motiramwas improperly rejected as he was above 25 years of age on the date of thescrutiny. Respondent no. 1 the returned candidate denied all these allegation

140 RAM BHAROSE V JAGANNATH SINGH AND OTHERS [VOL. XXXIV

while respondent no. 3 and 4 supported the petitioner and respondentno. 2 Shri Pahalwan allowed the proceedings to go ex parte against him.

10. On 7-8-1967, the respondent no. 1 made an application for amend-ment of his written statement alleging that respondent no. 4 Shri Motiramhad withdrawn his candidature at 10.30 A.M. on 23-1-1967 by a notice inwriting and, therefore, on account of this withdrawal, the question that hisnomination was improperly rejected and hence the election should be declar-ed to be void does not arise. This amendment was allowed as it was notopposed by the contesting respondents and the petitioner. This necessitateda consequential amendment, which, on prayers of the petitioner and others•was also allowed and accordingly the petitioner and respondent no. 4 ShriMotiram embodied the consequential amendment in the petition and thewritten statement respectively. The consequential amendment in effect isthat the alleged withdrawal by respondent no. 4 at 10.30 A.M. cannot betreated as withdrawal under the provisions of section 37 of the Act as till thealleged time of withdrawal no decision accepting or rejecting his nominationform was given by the Returning Officer.

11. Then there was further development in this case. On 23-8-1967,the petitioner presented an application no. 5 stating that he did not want topress and challenge the election on the basis of corrupt practices mentionedin paras 10 to 13 of the election petition. He further alleged that the challengeto the election would be restricted only to the improper rejection of the nomi-nation of respondent no. 4 and accordingly submitted draft issues. Thecontesting respondents did not oppose this application which was therefore,allowed. The result is that the challenge which now survives for considera-tion is improper rejection of the nomination of respondent 4 and the effectof the notice of withdrawal.

12. On these pleadings of the parties, the following issues were framedfor determination and my findings thereon are as under: —

Issues Findings

(1) (a) Whether respondent no. 4 Shri Motiram Yes.was above the age of 25 years on thedate when he filled in his nominationform and whether, therefore, he wasqualified to contest as a candidate theelection from the Dabra constituencyof the Madhya Pradesh LegislativeAssembly in question as alleged by thepetitioner?

(b) Whether the nomination form of respon-dent no. 4 was improperly rejected bythe Returning Officer as alleged by the

Flection of the returnedcandidate would be

petitioner? | void or valid subject toj the findings on issuesJ (2)(a) and (b).

E.L.R.] RAM BHAROSE V JAGANNATH SINGH AND OTHERS 141

(c)

(2) (a)

(b)

(3)

(4)

Whether such improper rejection hasvitiated the election of the returnedcandidate Shri Jagannathsingh and isliable to be declared void under sec-tion 10Q(l)(c) of the Representationof the People Act, 1951 as alleged?

OR

Whether respondent no. 4 withdrew hiscandidature at 10.30 A.M. on23-1-1967 by a notice in writing as con-tended by the returned candidate, res-pondent no. 1 ?

Whether as a result of the said withdrawalquestion of improper rejection of hisnomination paper and the election be-ing void under section 100(l)(c) of theAct does not arise as alleged by thereturned candidate?

Should the election of the returned candi-date be declared to be void?

Yes.

Yes, does not arise.

No.

Relief ? Petition dismissed withcosts.

REASONS FOR FINDINGS

13. Issue no. (1) (a).

As regards age, respondent no. 4 Motiram (P.W. 7) deposed thathe was born on 7-5-1940 at Mouza Chak-Bhartari and that he had joinedthe Government Primary School Bhartari, when he was 8 years old. Hisfather Tantia (P.W. 6) supports him by saying that he was born on BaisakhBadi Amavashya Sambat 1997, which corresponds to 7th May, 1940 and incross-examination he deposed that he himself had taken Motiram to thePrimary School, Bhartari for admission and at that time Motiram's agewas 8 years. Darusingh (R.W. 3) who was examined by the contesting res-pondent no. 1, Shri Jagannathsingh has admitted that he too studied in thePrimary School, Bhartari and that respondent Motiram joined the said schoolin the year in which the witness left it after completing his studiesthere and that at that time he (Motiram) was about 8 years old. Therefore,all these facts taken collectively clearly establish that respondent no. 4Motiram was admitted to the Primary School, Bhartari and at the time ofhis admission he was 8 years old.

14. There were five classes—1st to 5th in the Bhartari Primary Schooland the evidence of respondent 4 Motiram (P.W. 7) reveals that since thedate of his admission to this Primary Scholol he has been continuouslystudying in various schools and colleges and also privately and today theposition is that he failed in final B.A. examination (Three years degree course)held in April. Evidence clearly establishes that during this period he conti-nuously prosecuted his studies in (i) Bhartari Primary School, (ii) V.C. High

142 RAM BHAROSE V JAGANNATH SINGH AND OTHERS [VOL. XXXIV

School, Lashkar, (iii) Middle School Taksal, Lashkar, (iv) Dabra HigherSecondary School, (v) Higher Secondary School, Dabra joining 'B' course,(vi) Then studied privately and passed Intermediate Examination, (vii)Then joined Degree College Dabra in B.A. Part II and passed it, (viii) Thenappeared in B.A. Final Part III but got supplementary and appeared in firstsupplementary examination in August 1966, but again failed and got secondchance to appear in second supplementary examination held in April 1967but in that too he failed. In support of this all, various documents pertainingto school, college and University records have come on record and they havebeen filed partly by him and partly by Shri Om Parakash Gupta (P.W. 1)Head Clerk, Janta Higher Secondary School Dabra and Shri Shyam Behari(P.W. 2) Head Master, Taksal Middle School. These documents give theduration of the period during which he continued the prosecution of his stu-dies. Some of these documents including the Matriculation Certificate(Ex. P. 14) mentions Motiram's date of birth also as 7-5-1940.

15. The particulars of the institutions in which Motiram studied, theduration of studies in these institutions or otherwise, the documents' insupport thereof etc. are given in the following statement in the light of hisevidence and that of others :—

(1) Primary School, Bhar-tari (Admitted at the ageof 8 years).

(2) V. C. High School, Lash-kar.

1st to 5thclass.

6th and 7th(studied in7th for twomonths on-ly), from1-7-1953 to3-9-1954.

Ex. P. 4 (Scholar'sregister)

5 years.

1 year and2 months.

(3) Middle School, TaksalLashkar joined class 7th.

(Ex. P. 12 shows that hefailed in 7th class).

(4) Joined Higher SecondarySchool Dabra on 18-7-57in 9th class. (Ex. P. 1—application for admis-sion.)

(5) Joined Higher SecondarySchool, Dabra 'B' Courseon 11-7-1960.

7th and 8th/15-9-1954

to30-6-1957.

Ex. P. 2 (Schoolleaving certificate)and Ex. P. 3 (ad-mission register).

PassedHigh SchoolExamina-tion in

1960.

Appearedin 'B' Cou-rse andfailed(11-7-1960

to30-6-1961).

Ex. P. 14 and Ex.P. 15 (Matricu-lation certificateand mark-sheetrespectively).

Ex. P. 16 (Scho-lar's register andtransfer cer-tificate).

2 years &10 months.

3 years.

1 year.

E.L.R.] RAM BHAROSE V JAGANNATH SINGH AND OTHERS

(6) Then studied privately Intermediateand passed Intermediate (1961-64)examination from theBoard of Secondary Edu-cation, M.P. Bhopal in1964 in 3rd division.

(7) Then joined Janta Degree B. A. part IICollege Dabra in part II (1964-65)of the Three year DegreeCourse in 1964 and pas-sed in 1965.

(8) After that appeared in 1966")Third year final B.A. butgot supplementary in1966. Appeared in sup-plementary examination Jin August, 1966 and fail-ed. Again appeared in se-cond supplementary exa-mination in April 1967but failed. 1967

Ex. P. 17 (mark-sheet)

143

3 years

Ex. P. 18sheet).

(Mark- 1 year

Ex. P. 19 (Lastmark-sheet of B.A.part III.

2 years

TOTAL:— 19 years

16. Thus the total period of Motiram's education right from the 1stprimary class to Third year Degree course the examination of which washeld in April 1967 and in which he finally failed, comes to 19 years. We havealready found above that he was admitted to the 1st primary class of theBhartari Primary School when he was 8 years old. Accordingly in April1967 he was 27 years old, which means he was born somewhere in 1940.It is true that no record of the Primary School Bhartari relating to Motiramhas been filed but that does not affect the result is clear from Ex. P. 2 thescholar's register of V. C. High School Lashkar that Motiram had joined6th class in that School on 1-7-1953. It is also on record that he studied from1st to 5th class in the Primary School Bhartari and after passing the 5thclass in that School he joined 6th class in V.C. High School, Lashkar. Thushe must have passed 5th class in the Bhartari Primary School in April-May1953 and as the duration of his studies in that school was 5 years, he musthave joined in the 1st class of that school in June 1948, the commencementof the session. As he was 8 years old at the time of joining the 1st class in thePrimary School, Bhartari, his date of birth must be somewhere in the year1940. So as stated above the result is the same even though no record of theBhartari Primary School has been filed in this case.

' 17. I have already said that there are several documents on record whichreveal that Motiram's date of birth was 7-5-1940. These documents are Ex.P. 1, P. 2, P. 3, P. 4, P. 5, P. 12, P. 13 (Middle School Examination Certi-ficate), Ex. P. 14 (Matriculation Certificate), P. 15, P. 16, and P. 21. Thus

144 RAM BHAROSE V JAGANNATH SINGH AND OTHERS [VOL. XXXIV

the arithmetical calculation of the total period of Motiram's education asdiscussed above coupled with these documents already goes to establish thatMotiram was born on 7-5-1940.

18. It is on record that the Primary School Bhartarik V.C. High SchoolLashkar (Victoria Collegiate High School Lashkar) and Middle School TaksalLashkar were and have been Government Schools at all material times. Ex. P.3 is an entry regarding age etc. of Motiram in the admission register of MiddleSchool Taksal, while Ex. P. 4 is the similar entry of the V.C. High SchoolLashkar. These entries regarding age in the school registers are admissibleunder section 35 of the Indian Evidence Act as entries made by public ser-vants in public or official registers in the discharge of his public duty videManikohand v. Krishna (') Aga Jan Khan Rahimkhan and anotherv. Kesheo Rao Nathuram Maratha (2) Gayaprasad v. Jamnaprasad (3) (FirstAppeal No. 115 of 1958 (decided by the Division Bench of this High Courton 22-4-1959. B. Kola Ram S. Bhag Singh, v. Fazal Bari Khan and others^*)and Subha Rao v. Venkata Rama Rao (5). Then Ex. P. 2 is the schoolleaving certificate of the Middle School Taksal. Ex. P. 13 is the Middle SchoolExamination Certificate and Ex. P. 14 is the Matriculation Certificate andin all these documents Motiram's date of birth has been mentioned. Suchcertificates are admissible in evidence as proof of age of the person concernedunder section 35 of the Evidence Act vide Liladhar Bania v. Mabibi andother (6) Hrishikesh Banerjee and others v. Sushil Chandra Moulik (7) Jaga-danada v. Rabindra Nath (*) and Anadi Mohon Ghose v. Rabindra NathDutta and others (9). Then Besides these documents, Ex. P. 1 is the applica-tion for admission made to the Janta Higher Secondary School Dabra andit bears the signature of Motiram (P.W. 7) and his father Tantiaram (P.W. 6)and this also gives Motiram's date of birth as 7-5-1940. The other documentsare mark-sheets and the progress report in which also Motiram's date ofbirth as 7-5-1940 has been mentioned. None of these documents waschallenged as false or a fabricated document. Thus the oral and documentaryevidence discussed above leads to the conclusion that Motiram was bornon 7-5-1940. Hence on 21-1-1967, the date for the scrutiny of the nomination,Motiram's age was 26 years 8 months and 14 days and thus, being not lessthan 25 years, he was duly qualified to be chosen to fill the assembly seat inquestion.

19. Motiram (P.W. 7) and his father Tantia (P.W. 6) were subjected toa very long and searching cross-examination. I agree that Motiram's evidencethat his mother used to celebrate his birthday every year on Baisakh BadiAmawashya does not appear to be true because his father Tantia (P.W. 6)

(1) A.I.R. 1932 Nagpur 117.(2) A.I.R. 1940 Nag. 217.(3) 1959 M.P.L.J. Note No. 143.(4) A.I.R. 1941 Peshawar 38.(5) A.I.R. 1964 A.P. 53.(6) A.I.R. 1934 Nagpur 44.(7) A.I.R. 1957 Cal. 211.(8) A.I.R. 1958 Cal. 533.(9) A.I.R. 1962 Cal. 265.

E.L.R.] RAM BHAROSE V JAGANNATH SINGH AND OTHERS 145

says nothing about it. Similarly the evidence of these two witnesses is notwholly reliable on other points. But such exaggerated or incorrect statementsdo not at all displace the fact that he was born in the year 1940. As alreadystated it has been conclusively established that he was 8 years old at thetime when he joined the Bhartari Primary School in 1948 and hence it getsestablished that he was born in the year 1940.

20. As against the oral and documentary evidence discussed above, thecontesting respondent has examined two witnesses—Asharam (R.W. 2)and Darusing (R.W. 3) to show that respondent no. 4 Motiram (R.W. 7)is about 23 years old today. Asharam (R.W. 2) would have us believe thathis grand-daughter Bhaggo was born on the same day on which Moti-ram was born, that Bhaggo was married when she was nine years old andthat her marriage took place 14 years ago. From this he calculates that Mst.Bhaggo is 23 years old today and so also Motiram. Darusing (R.W. 3) saysthat his younger brother Bhikamsingh was born two or three days beforethe birth of Motiram and as Bhikamsingh according to him, is 23 yearsold today so Motiram's age is also 23 years. The evidence of both thesewitness's as regards the manner in which they tried to show that Motiramis 23 years old today is highly artificial and unnatural. Besides Asharam(R.W. 2) was not originally mentioned in the list of witnesses by the contes-ting respondent and on the day of his evidence he happened to be presentat Indore where he was caught hold of and produced in Court. Theirevidence is against the formidable body of documentary evidence as discus-sed above and, therefore, I reject it as artificial. I was simply surprised to seethat the contesting respondent and his advisers thought it fit to producesuch worthless evidence in the face of the voluminous documentary evidenceon record. I reject their evidence as utterly unreliable on the point that Moti-ram is 23 years old today.

21. It is true that in the draft and final electoral rolls (Ex. D. 8 and D. 9)from Dabra constituency for the year 1966, Motiram was registered as anelector from Mouza Ramgarh of the said constituency and in this electoralroll he has been shown as 23 years old. It is also true that in his two nomi-nation forms (Ex. P. 7 and D. 1) he has mentioned his age as 23 years butin his evidence he has given reasons as to why he mentioned his age as 23 yearsin the nomination forms. One of the reasons given by him is that as his agewas recorded as 23 years in the electoral roll of 1966 so he mentioned thesame age in his nomination forms, though this was incorrect.

22. It is now settled that the entry in the electoral roll as regards age isnot final and conclusive. Sub-section (7) of section 36 makes the electoralroll conclusive evidence [in fact prima facie evidence as held in BrijendralalGupta and another v. Jwalaprasad and others (10) of the candidate's qualifica-tion in regard to his, being an elector only and not about his age. So the agerecorded in the electoral roll is not final. If this age is wrong and the sameis mentioned in the nomination forms by a candidate on account of somemisapprehension, neither he nor any other candidate nor any elector challeng-ing the election of the returned candidate can be debarred either before theReturning Officer or the Court, as the case may be, from showing what the

(10) 22 E.L.R. 366 S.C.

146 RAM BHAROSE V JAGANNATH SINGH AND OTHERS [VOL. XXXIV

true age of that candidate was and that the one recorded and mentionedwas wrong, In fact in this case when on 21-1-1967 the Returning Officerraised objection regarding the age qualification of Motiram and gave himtwo hours time to file reply and adduce evidence, Motiram actually filed hiswritten reply stating that he was about 27 years old then, that his age as23 years recorded in the electoral roll was wrong and that he happened tomention 23 years as his age in the nomination forms on the basis of the saidelectoral roll. In support of his age, he also filed the mark-sheet of the matri-culation examination (Ex. P. 21) which mentioned his date of birth as 7-5-40.Then further developments which took place on 23-1-1967 before the Re-turning Officer culminating in presenting withdrawal notice by Motiram(P. W. 7) and passing an order by the Returning Officer rejecting his nomi-nation have already been stated. So the age recorded in the electoral roll isnot final.

23. Relying on Abdul Majeed v. Bhargavan (*x) Shri Dube learned coun-sel for the contesting respondent urged that "entries in the school registersare of far less evidentiary value than the entries in the electoral roll andare, therefore, of little avail to show that age shown in the electoral roll jswrong". It was accordingly urged that Motiram's age shown in the electoralrolls (Ex. D. 8 and D. 9) as 23 years in 1966 should be preferred to the agegiven in the school registers and other documents. Even if this argumentwere accepted the contesting respondent's case is not bettered. It is to benoted that at the time of 1962 Election for the assembly seats of the State ofMadhya Pradesh, respondent no. 4 Motiram was registered as an electorfrom village Bhartari of the Dabra assembly constituency. Ex. P. 20 is thecertified copy of the said electoral roll and it shows that Motiram was 21 yearsold on 1-1-1960. On this basis Motiram would, therefore, be more than 27years old in 1966 which would accordingly establish that Motiram's agerecorded in the present electoral rolls (Ex. D. 8 and D. 9) in 1966 as 23 yearswas wrong. Accordingly the portion of the ruling relied on by the learnedcounsel does not better his case.

24. In fact the correct position has been given in the said ruling subse-quently where the learned Judges observed as under.:—

"It cannot be laid down that under no circumstance entries as to thedate of birth in school admission registers have any value, Often,the admission register, where available, is the sole evidence or re-liable evidence as to a man's age on which a court of law mightchoose to act, depending on the facts and circumstances of the case.The birth register extracts however are the most dependable evidenceas to age. But in determining whether a person had completed 21years of age on the qualifying date or not, as between the competingentries in the electoral roll and the admission register, unaided anduncorroborated by anything else, and in the absence of anything tothe contrary, the former is entitled to greater probative value thanthe latter. "

25. In the present case the most important and vital circumstance thathas come on record is that—respondent no. 4 Motiram consumed 19 years

(11) A.I.R. 1963 Kerala 18.

E.L.R.] RAM HAROSE V JAGANNATH SINGH AND OTHERS 147

of his life continuously in receiving education right from the 1st primaryclass to B.A. Part III in which he finally failed when the examination washeld in April 1967. This bold circumstance coupled with the fact that res-pondent's own witness admitted that Motiram was 8 years old at the timewhen he joined the Bhartari Primary School clearly proves as already statedthat Motiram was born in the year 1940. When the entries in the schoolregisters and certificates etc. regarding Motiram's age are considered in thelight of these important facts and circumstances when one has no option butto hold that Motiram was born on 7-5-1940 as mentioned in these documents.Accordingly these entries in the school registers and other documentsare entitled to greater probative value than the entries in the electoralrolls (Ex. D. 8 and D. 9) in which Motiram has been mentioned as 23 yearsold. Hence this ruling is of no avail to the contesting respondent in view ofthe facts and circumstances of this case.

26. He has also relied on Raja Janaki Nath Roy and others v. JyotishChandra Acharya Chowdhary (12) and Tata Iron & Steel Co. Ltd. Jamshedpurv. Abdul Wahab ( ) in which the above Calcutta ruling has been followedto show that the statement in the school register about the age of a personin absence of evidence to show on what materials the entry in the registerabout the age of that person was made has not much evidentiary value.What has been stated above in the preceding paragraph would show thatthese rulings too are of no avail to the contesting respondent because ofthe facts and circumstances of the case.

27. Finally it was contended that admission register or the school leavingcertificate of the Primary School, Bhartari relating to Motiram's age hasnot been filed in this case and thus the very basis on which the super-structurehas been sought to be built by various documents mentioned above is wantingin this case and, therefore, the said documents should not be relied upon.It was further contended that though Motiram's father Tantia (P.W. 6) ad-mitted that Motiram's date of birth was recorded by one Badrjprasad Patwariin the register, no such register or extract therefrom has been filed in thiscase. It was also urged that age entries in the birth register have to be pre-ferred to those in the school register, as held in Shivram v. Shivcharansingh(14). It was, therefore, contended that as best evidence has been held back noreliance should be placed on the documents mentioned above. There is noforce in these contentions.

28. As regards the first contention regarding records of Primary SchoolBhartari, I have simply to say that the petitioner's case would have been fur-ther strengthened if these papers had come on record but their absence inthis particular case does not affect the conclusion that Motiram was bornsomewhere in 1940. This aspect of the case has already been referred to byme in paras 17 and 25 of this order. At the risk of repetition, I may say that19 years were consumed by Motiram continuously in receiving educationsince the first primary class and at the time of joining this class in 1948 he

(12) A.I.R. 1941 Cal. 41.(13) A.I.R. 1966 Patna 458.(14) 1964 Doabia's Election cases 80.

148 RAM BHAROSE V JAGANNATH SINGH AND OTHERS [VOL. XXXIV

was 8 years old and thus he was born in 1940. As regards the second conten-tion, there is no material on record to show whether the alleged birth anddeath register containing Motiram's date of birth exists today and in whichoffice the same has been deposited. Obviously it is neither in possession norin power of the petitioner or respondent no. 4 Motiram. In fact nothingprevented the contesting respondent to get the said register on record if itreally existed and favoured him and was against the petitioner and respon-dent no. 4 Motiram. That being so no inference under section 114 illustra-tion (g) of the Indian Evidence Act can be raised as I am not satisfied thatthe said evidence is in existence and can be proved vide Mahabir Singh v.Rohini Ramanadhwaj Prasad Singh (1 5) and Davidas and others v. Shri Shailap-pa and others^16). Again I repeat that in view of the facts and circumstancesof this case, already referred to above, the absence of the birth register doesnot affect the final conclusion that Motiram was born somewhere in 1940.Accordingly the contentions are rejected.

29. For all these reasons I hold that Motiram respondent no. 4 wasborn on 7-5-1940 and that on 21-1-1967 the date for the scrutiny he wasabove the age of 25 years and, therefore, he was qualified to contest as acandidate the election from the Dabra Assembly constituency in question.Hence I decide this issue in the affirmative.

30. Issue No. 1. (b) and (c)

Under clause (c) of sub-section (1) of section 100 of the Act, if the HighCourt is of opinion that any nomination has been improperly rejected, itshall declare the election of the returned candidate to be void. On behalf ofthe contesting respondent, Shri Chitale argued that whether a nominationhas been improperly rejected or not has to be considered in relation to thestate of evidence in regard to the ground taken before the Returning Officerat the time of the scrutiny and that the Court cannot take notice of evidenceother than that bearing on that ground. He accordingly contended that inthe instant case the only objection was regarding the age disqualificationof Motiram and as Motiram produced only a mark-sheet (Ex. P. 21) beforethe Returning Officer and no other evidence was adduced by him before him,this Court shall confine its enquiry only to this evidence, which was pro-duced before the Returning Officer and no other evidence, to determine whe-ther his nomination had been improperly rejected or not. In support herelied on Pt. Chiranjit Lai Ram Samp v. Lehri Singh Ram Narain (17), whichaccording to him is a direct authority on the point. Indirectly also he reliedon Durga Shankar Mehta v, Raghuraj Singh and others (18), S.M. Bonerji v.Shri Krishna Agarwal (19). On behalf of the petitioner, Shri Bhachawatrepudiated these contentions and urged that an enquiry before the Courtwas not restricted to the material placed before the Returning Officerrelating to the ground taken before it but all evidence bearing on thatground could be adduced before that Court and the Court has to come

( 15) A.I.R. 1933 P.C. 87.(16) A.I.R. 1961 S.C. 1277.(17) A.I.R..1958 Punjab 433.(18) A.I.R. 1954 S.C. 520.(19) A.I.R. 1960 S .C. 368.

E.L.R.] RAM BHAROSE V JAGANNATH SINGH AND OTHERS 149

to its independent conclusion on the basis of the evidence produced beforeit and then determine whether the nomination was improperly rejected ornot. In support he relied on N. T. Veluswami Thevar v. G. Raja Nainarand others(20). In my opinion, Shri Bhachawat for the petitioner is onsound ground on this point.

31. Shri Chitale's argument in effect boils down to this that the jurisdic-tion of the Court trying the election petition is co-extensive with that of theReturning Officer and in fact the proceedings before the Court are in thenature of appeal against the order of the Returning Officer and, therefore,the Court trying the petition cannot travel beyond the material which camebefore the Returning Officer. On the other hand, Shri Bhachawat's argu-ment in substance is that the election proceedings before the Court areoriginal proceedings and not in the nature of an appeal against the decisionof the Returning Officer and that being so the enquiry before the Court isnot restricted only to the material placed before the Returning Officer ona particular ground but all evidence bearing on that ground can be adducedbefore the Court. The stand taken by Shri Bhachawat is fully supported byA.I.R. 1959 S.C. 422 (supra) where Their Lordship held as under:—

"The enquiry before the Tribunal is not restricted to the material placedbefore the Returning Officer relating to a ground, but all evidencebearing on that ground can be adduced before the Tribunal. Theenquiry which a returning Officer has to make under S. 36 is sum-mary in character. He may make such summary enquiry, if any,as he thinks necessary; he can act suo motu. Such being the natureof the enquiry, the right which is given to a party under S. 100(l)(c)and S. 100(l)(d)(i) to challenge the propriety of an order of rejectionor acceptance of a nomination paper will become illusory, if theTribunal is to base its decision only on the material placed beforethe returning officer."

"The jurisdiction which a Tribunal exercises in hearing an election peti-tion even when it raises a question under Section 100(l)(c) is not inthe nature of an appeal against the decision of the returning Officer.An election petition is an original proceeding instituted by the pre-sentation of a petition under Section 31 of the Act. The respondentshave a right to file written statements by way of reply to it; issueshave to be framed, and subject to the provisions of the Act, theprovisions of the Civil Procedure Code regulate the trial of the peti-tion. All the parties have the right to adduce evidence, and that isof the essence of an original proceeding as contrasted with a proceed-ing by way of appeal. That being the character of the proceedingsthe rule applicable is that which governs the trial of all originalproceedings, that is, it is open to a party to put forward all groundsin support of or negation of the claim, subject only to such limita-tions as may be found in the Act."

(20) A.I.R. 1959 S.C. 422.

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32. It is true that in A.I.R. 1958 Punjab 433(17) {Supra) relied on by ShriChitale, Their Lordships held as under:—

"Whether a nomination has been improperly rejected or not, has to beconsidered in relation to the state of evidence before the ReturningOfficer at the time of the scrutiny."

At the first sight this might appear .to favour the argument advanced on be-half of the returned candidate. This ruling, however, was considered by theirLordships of the Supreme Court in the above mentioned Supreme Courtcase and they explained in what circumstances the learned Judges of the Pun-jab High Court made the above observations and then observed as under:—

"In this context, the observations relied on could not be read as meaningthat no evidence could be adduced even in respect of a ground whichwas urged before the Returning Officer, as, in fact, evidence wastaken before the Tribunal and a finding given, and if they meant whatthe respondent suggests they do, we do not agree with them."

Thus the Punjab case cannot be accepted as an authority on the point thatno evidence other than the evidence that was placed before the ReturningOfficer on a particular ground can be produced before the Court in electionproceedings in order to determine whether any nomination was improperlyrejected or not.

33. It is now necessary to refer to the two decisions namely, DurgashankarMehta v. Raghuraj Singh and others(ls) and S. N. Banerji v. SrikrishnaAgarwal(19) relied on by Shri Chitale. In the latter case, N. T.Veluswamy Thevar Vs. G. Raja Nainar and others (20) (Supra)relied on by Shri Bhachawat and Durgashankar Mehta's ( l s ) casehas been discussed. Shri Chitale's contention if I have understood himcorrectly is that A.I.R. 1960 S.C. 368 ( " ) (Supra) and A.I.R. 1954 S.C.620(18) (Supra) suggest by implication that whether a nomination has beenimproperly rejected or improperly accepted or not has to be considered withreference to the material placed before the Returning Officer relating to aground and no other evidence bearing on that ground can be adduced beforethe Court. He re-inforces his contention by arguing that a candidate maydeliberately withhold all the relevant and important evidence from the Re-turning Officer with the intention and an ulterior motive to sabotage theelection of the returned candidate as and when the opportunity arose ifthe election of such candidate was not to his liking. This, according to him,would, therefore, provide a fruitful source to an unscrupulous and dis-honest candidate to get the election of the returned candidate set aside for nofault of the latter. He further argued that the order of the Returning Officermay not be final and the Court may on all evidence placed before.it come toa finding that the candidate was qualified or not—qualified at alland in such a case section 100(1) (d) (iv) would permit an attackon the ground, among others, of non-compliance with the provisionsof the Constitution or the Act or of any rules or orders madeunder the Act. Thus he urges that improper rejection within the meaning

(17) A.I.R. 19 58 Punjab 433.(18) A.I.R. 1954 S.C. 520.(19) A.I.R. 1960 S.C. 368.(20) A.I.R. 1959 S.C. 422.

E.L.R.] RAM BHAROSE V JAGANNATH SINGH AND OTHERS 151

of section 100 (1) (c) of the Act should be determined with referenceto the evidence that was placed. before the Returning Officer and notthe additional evidence that was produced before the Court on the parti-cular ground.

34. These arguments, though plausible to some extent, cannot be accep-ted in view of the decision in A.I.R. 1959 S.C. 422(20) {supra) and thoughthis authority was discussed in A.I.R. 1960 S.C. 368(19) (supra) it has notbeen positively and definitely stated therein that A.I.R. 1969 S.C. 422(2»)(supra) was wrongly decided. A perusal of the decision in A.I.R. 1959 S.C.422 (20) (supra) would show that Their Lordships came to the definite andspecific conclusions amongst others as under:—

"(0 Reading section 100(1) (c) in the context of the whole enactment,an enquiry before the Tribunal (now the Court) must embrace allthe matters as to qualification and disqualification mentioned insection 36(2). It cannot be limited to the particular ground of dis-qualification, which was taken before the returning officer.

(ii) The enquiry before the Tribunal (now the Court) is not restricted tothe material placed before the returning officer relating to a ground,but all evidence bearing on that ground can be adduced beforeTribunal (now the Court).

(Hi) The enquiry before the returning officer is a summary enquiry. Suchbeing the nature of the enquiry the right which is given to a partyunder section 100(l)(c) and section 100(l)(d) (i) to challenge the pro-priety of an order of rejection or acceptance of a nomination paperwill become illusory, if the Tribunal (now the Court) is to base itsdecision only on the material placed before the returning officer.

(iv) The jurisdiction which a Tribunal (now the Court) exercises in hear-ing an election petition even when it raises a question under section100(l)(c) is not in the nature of an appeal against the decisionof the returning officer, but the proceedings are original and,therefore, it is open to a party to put forward all grounds in sup-port of or negation of the claim subject only to such limitations asmay be found in the Act."

35. So as long as this authority holds the field, and it holds the fieldeven today, the arguments advanced by Shri Chitale cannot be accepted. Infact Durgashankar^ Mehta's case(ls) came for discussion in this veryauthority namely, A.I.R. 1959 S.C. (20) (supra). T. L. Venkatarama Aiyer,

' J., who delivered this judgement on behalf of the Court was a party to thejudgment in Durgashankar Mehta's case(18) and he distinguished Durga-shankar Mehta's case by observing that "This is not a direct pronouncementon the point now in controversy, and that is conceded."

(18) A.I.R. 1954 S.C. 520.(19) A.I.R. 1960 S.C. 368.

2 EC/71—11

152 RAM BHAROSE V JAGANNATH SINGH AND OTHERS [VOL. XXXIV

36. In Durgashankar Mehta's case (A.I.R. 1954 S.C. 520)08) the electionwas to a double-member constituency. The appellant Durga Shankar wasa candidate along with others for the general seat and one Vasantrao andothers, to the reserved seat. Vasantrao appeared to be properly qualifiedon the face of the electoral roll and the nomination paper and no objectionwas raised to his nomination and, therefore the Returning Officer had noother alternative but to accept his nomination. Durgashanker, the appellantwho obtained the largest number of votes was declared elected to the generalseat and Vasantrao to the reserved seat. The validity of the election waschallenged on the ground that Vasantrao was below the age of 25 years andwas, therefore, disqualified to stand. The Election Tribunal upheld that ob-jection and set aside the entire election. The decision was taken in appeal tothe Supreme Court and there the point for determination was whether theelection of the appellant Durga Shanker was liable to be set aside on accountof the disqualification of Vasantrao. It was held that the matter fell withinsection 100(2)(c) as it then stood and not under section 100(l)(c) and thatthe election of the appellant could not be declared void. In view of thisVankatarama Aiyer J., observed that "This is not a direct pronouncement onthe point now in controversy and that is conceded." So the judgment inDurga Shanker's case(ls) is a clear authority for the proposition that ifthe want of qualification does not appear on the face of the nomination paperand if no objection is raised on that ground before the Returning Officerthe acceptance of the nomination must be deemed to be a proper acceptanceas observed in A.I.R. 1960 S.C.368 (supra). So the net result is that the judg-ment in Durga Shankar's case cannot be considered as an authority on thepoint involved in this case.

37. Further both the cases, namely, Durga Shanker's Case (18) and A.I.R.1959 S.C. 422 (supra) were considered in A.I.R. 1960 S.C. 368 (supra) andTheir Lordships observed that the two decisions can stand together and theydeal with two different situations. They in para 10 held as under:—

"The two decisions can stand together and they deal with two differentsituations : in the former, no objection was raised at all to the nomi-nation, while in the latter an objection was raised on the ground ofdisqualifications; but in the election petition additional grounds ofdisqualification were alleged and sought to be proved: one is con-cerned with a case of improper acceptance and the other with acase of improper rejection...."

This para would, therefore, indicate that Their Lordships were of the opinionthat both the decisions in their respective places are correct in view of thefacts and circumstances of each case. In fact para 10 further indicates thatthey were favourably inclined towards the decision in 1959 S.C. 422 (supra).The net result, therefore, is that neither Durga Shankar's casenor A.I.R.1960 S.C. 368 (supra) supports the proposition advanced by Shri Chitale,namely, that the enquiry before the Court should be restricted to the materialplaced before the Returning Officer relating to a ground and that no otherevidence bearing on that ground can be adduced before the Court, when thequestion is whether a nomination has been improperly rejected or not within

(18) A.I.R. 1954 S.C. 520.

E.L.R.J RAM BHAROSE V JAGANNATH SINGH AND OTHERS 153

the meaning of section 100(l)(e) of the Act. Accordingly Shn Chitale'scontention is rejected and that of Shri Bhachawat is accepted.

38. So the position reached is that on 21-1-1967 the date for the scrutinyof the nomination, Motiram who was born on 7-5-1940, was 26 years 8 months14 days old. Accordingly he was duly qualified under Article 173 of the'Con-stitution of India to be chosen to fill the assembly seat in question. Had thematter stood only at this stage then it would have been, held that his nomi-nation was improperly rejected and, therefore, the election of the returnedcandidate was void under section 100(l)(c) of the Act. But there was furtherdevelopment in this case, namely, a notice of withdrawal of his candidaturewas given by Motiram under section 37 of the Act and we have to considerthe effect of the said withdrawal which shall be done hereafter. Therefore,my conclusions on these issues are that the election of the returned candidatewould be void or valid subject to the finding on the point of alleged with-drawal of his candidature by Motiram. I decided these issues accordingly.

39. Issues (3)(a) and (b).

The contention on behalf of the returned candidate is that as respondentno. 4 Motiram withdrew his candidature at 10-30 A.M. on 23-1-1967 thelast date fixed for withdrawal, by a notice (Ex. D. 2) dated 23-1-1967, nothingsurvives thereafter and hence the question of improper rejection of Moti-ram's nomination and consequently the election being void does arise. Onbehalf of the petitioner and respondent no. 4 Motiram, the contentions arethat Motiram never withdrew his candidature and in any case his allegedwithdrawal by the withdrawal notice (Ex. D. 2) cannot be treated as with-drawal under section 37 of the Act, in as much as till the time of withdrawalno decision accepting or rejecting his nomination paper was given by theReturning Officer. The argument of Shri. Bhachawat, learned counsel forthe petitioner is that according to the scheme of the Act, the stage of with-drawal of candidature comes after all the nomination papers have beenscrutinised and decisions accepting or rejecting the same have been recordedby the Returning Officer and a list of validly nominated candidates, namely,those whose nominations have been found valid is affixed to the NoticeBoard as contemplated by sub-section (8) of section 36 of the Act. He has,therefore urged that before this stage is reached a candidate cannot withdrawhis candidature within the meaning of section 37 of the Act and the ReturningOfficer cannot take cognisance of any withdrawal notice by the candidateconcerned. He has, therefore, contended that as the alleged withdrawalnotice by Motiram was filed before the Returning Officer passed the orderon nomination paper he was right in ignoring the said notice.

40. In para 4 to 6 of this order, I have already traced the course of eventsculminating in the filing of the withdrawal notice (Ex. D. 2) by Motiramand passing of the order (Ex. D. 5) by the Returning Officer, which hasalready been quoted in full. The brief summary of these facts is that 20th

• was the last date for making nominations, 21st for the scrutiny, and 23rdJanuary, 1967 was the last date for the withdrawal of candidature. On thedate of the scrutiny i.e. 21-1-1967 objection was raised to Motiram's nomi-nation paper because of his age disqualification and he was given two hourstime to file reply and adduce evidence which he did in the shape of Ex. P.8.

154 RAM BHAROSE V JAGANNATH SINGH AND OTHERS [VOL. XXXIV

and Ex. P. 21 respectively; that on his prayer for adducing further evidencemore time was granted to him and the proceedings were fixed for 23-1-1967.The Returning Officer took up the case at 10.30 A.M. on 23-1-1967 and Moti-ram informed him that he had no further evidence to adduce. Thus Motiramdid not produce any additional evidence but instead he delivered the with-drawal notice (Ex. D. 2) before the Returning Officer and the endorsementby the Returning Officer thereon shows that it was presented to him at 10.30A.M. The Returning Officer then passed the order (Ex. D. 5) dated 23-1-1967touching Motiram's nomination papers and the withdrawal notice. Thisorder has been fully quoted as already stated. [Ex. D. 3, D. 4 and D. 5 arethe original proceedings dated 21-1-1967 and 23-1-1967 before the Return-ing Officer and Ex. P. 9, P. 10 and P. 11 are their certified copies respectivelybut both these sets of documents have been taken on record because in thecertified copies time has not been mentioned but in the original the same hasbeen given.]

41. Now in both the documents, namely, Ex. D. 5 the order of the Return-ing Officer dated 23-1-1967 and the withdrawal notice (Ex. D. 2) dated23-1-1967 the time mentioned is 10-30 A.M. In order to ascertain the actualstage at which the withdrawal notice was presented, it is necessary to referto the evidence of the Returning Officer Shri R. C. Jain (R.W. 1). In para3 of the examination-in-chief, he stated as under:—

"On 23-l71967, when I started writing the order at 10-30 A.M., the candi-date Motiram presented the notice of withdrawal. After the presen-tation of this notice, I continued writing the order. It is not truethat before passing this order, I had told Motiram that I would rejecthis nomination form."

In para 7 of his cross-examination, he further stated as under:—

"At the time I started writing the order Ex. D. 5 Motiram was present...As soon as he stated that he had no other evidence to adduce, Istarted writing the order Ex. D. 5 and simultaneously he presentedthe withdrawal notice."

Thus from the evidence of the Returning Officer, it emerges that the twoacts—one by the Returning Officer namely, starting the writing ofthe order (Ex. D. 5) and the other by Motiram in filing the withdrawal notice(Ex. D. 2) were simultaneous. In any case it cannot be doubted that the with-drawal notice (Ex. D. 2) was presented before the writing of the order (Ex.D. 5) was completed and before the same was signed. So this is the positionas to the stage at which the withdrawal notice (Ex. D. 2) was presented.

42. Now section 37 which relates to withdrawal of candidature reads asunder:—

"(1) Any candidat e may withdraw his candidature by a notice in writingwhich shall contain such particulars as may be prescribed and shallbe subscribed by him and delivered before three o'clock in the after-noon on the day fixed under clause (c) of Section 30 to the returningofficer either by such candidate in person or by his proposer or elec-tion agent who has been authorised in this behalf in writing by suchcandidate.

E.L.R.] RAM BHAROSE V JAGANNATH SINGH AND OTHERS 155

(2) No person who has given a notice of withdrawal of his candidatureunder sub-section (1) shall be allowed to cancel the notice.

(3) The returning officer shall, on being satisfied as to the genuinenessof a notice of withdrawal and the identity of the person deliveringit under sub-section (1), cause the notice to be affixed in some conspi-cuous place in his office."

43. A perusal of the withdrawal notice (Ex. D. 2) clearly shows that itis in the prescribed form i.e. form no. 5 as required by rule 9(1) of the Conductof Election Rules, 1961; it contains all the requisite particulars; it admit-tedly bears the signature of Motiram respondent 4, and it was delivered byhim personally to the Returning Officer before three o'clock in the afternoonof 23-1 -1967, the last date fixed for the withdrawal. It also bears the endorse-ment of the Returning Officer that it was presented to him in his office at10-30 A.M. on 23-1-1967 by respondent Motiram personally. Thus the Re-turning Officer was satisfied as to the genuineness of this notice and theidentity of the person delivering it. Therefore, the said notice satisfies allthe ingredients of sub-section (1) and sub-section (3) of section 37 of theAct except that the record is silent on the point whether the notice was affixedin some conspicuous place in the Returning Officer's Office or not. Undersection 114(e) of the Evidence Act, the Court may presume that judicialand official acts have been regularly performed and, therefore, it may bepresumed in this case that such a notice was affixed. Assuming that it wasnot done, I am of the opinion that in view of the facts and circumstances ofthis case, this failure on the part of the Returning Officer would not invalidatethe otherwise valid withdrawal of his candidature by Motiram as everythingwhich was required to be done by him under the provisions of this sectionwas actually done.

44. Then sub-section (2) of section 37 is very important. Under this sub-section once a notice of withdrawal of the candidature has been given by thecandidate the withdrawal becomes irrevocable and cannot be cancelled atall subsequently. So the position reached is that respondent no. 4 Motiramduly delivered the withdrawal notice to the Returning Officer at about10-30 A.M. i.e. before three o'clock in the afternoon on 23-1-1967, the lastdate fixed for withdrawal of candidature, the notice contains all the necessaryparticulars and similarly it contains those particulars which are requiredto be filled in by the Returning Officer. The Returning Officer had also satis-fied himself as to the genuineness of this notice and the identity of the per-son delivering it. Accordingly, the notice of withdrawal became irrevocable.

45. Now the question is whether the Returning Officer was justified inpassing the order (Ex. D. 5) he did. This order is a composite order. It saysthat Motiram suffered from age disqualification and, therefore, both ofhis nomination papers were rejected It also says that Motiram has with-drawn his candidature and the notice by which he withdrew his candidaturemay be kept on record. Thus he took due notice of the notice of withdrawalof his candidature by Motiram. In withdrawing his candidature, the volitionis the volition of the candidate. If he delivers the notice of withdrawal contain-ing all the particulars as required by the section, then nothing remains to be

156 RAM BHAROSE V JAGANNATH SINGH AND OTHERS [VOL. XXXIV

done on his part, The duty of the Returning Officer is confined only tothe facts that he should be satisfied as to the genuineness of the notice ofwithdrawal and the identity of the person delivering it. When this all hasbeen done then the notice becomes irrevocable, if everything is found in order.In Motiram's case all this has been done and we find that the withdrawal ofhis candidature|was valid and proper. That being so, nothing survived there-c.ndr. Accordingly the Returning Officer had no powers to consider the meritsafte demerits of Motiram's nomination papers (Ex. P. 7 and D. 1) andinflict unnecessary trouble on himself to scrutinise them and pass the ordersrejecting them on merits as they suffered if I am permitted to say so, civildeath for all practical purposes on account of the withdrawal of his candida-ture by him by delivering a due and proper notice of withdrawal (Ex. D. 2)within time and actually before the Returning Officer had completed and sig-ned the order (Ex. D. 5) if it was thought necessary to pass any orders on thesenomination papers, the formality could have been completed by makingonly a simple endorsement on them such as "filed as the candidate withdrewhis candidature" or some such endorsement. But in no case in such circum-stances, it was necessary to scrutinise them and reject them oii merits. Hencethis part of the order touching Motiram's nomination papers shall be deemedto have no existence in the eye of law. That being so, the question of impro-per rejection of Motiram's nomination paper and consequently theelection being void on account of such withdrawal would not arise.

46. It is true that this ground relating to withdrawal was not taken beforethe Returning Officer but it is open to a party to put forward all groundsin support or negation of the claim, namely, whether Motiram was rightlykept out of the arena or not, and the Court has right to consider all suchgrounds vide A.I.R. 1959 S.C. 422 (supra). That being so, the election of thereturned candidate Shri Jagannath Singh is not liable to be declared to be void.

47. But Shri Bhachawat's argument is that according to the scheme ofthe Act, the state of withdrawal comes only after the Returning Officerpasses his order on the nominations of the candidates and not before.In other words, according to him, passing of the order on the nominationpapers of all the candidates by the Returning Officer is a condition prece-dent to the exercise of the right of withdrawal of his candidature by a candi-date under section 37 of the Act.

48. His first argument is that section 30(a) speaks about the "last date"for making nominations and the connected section 33 relating to the presen-tation of nomination papers speaks about the presentation of the nominationpapers by a candidate on or before the date appointed under clause (a)of section 30. Similarly section 30 (c) says about the "last date" for the with-drawal of candidature and its connected section 37 relating to withdrawalof candidature says that a candidate wanting to withdraw his candidaturemay do so 'before three o'clock in the afternoon on the day fixed underclause (c) of section 30'. Here the words "or before" do not appear afterthe word "on" as in the case of section 33. The contention is that in the caseof the nominations, it has been expressly provided that a candidate canpresent his nomination papers on or before the last date fixed under sec-tion 30(a). The same has not been provided in the case of withdrawal thata candidate can withdraw his candidature on or before the last date for the

E.L.R.] RAM BHAROSE V JAGANNATH SINGH AND OTHERS 157

withdrawal of candidature fixed under section 30(c). Accordingly, it is urgedthat the absence of the words "or before" in section 37 indicates that a candi-date cannot withdraw his candidature before the last date of withdrawalfixed under section 30(c). This argument cannot be accepted. In fact it in-troduces a shift in the stand which has been originally taken by the petitionerthat the stage of withdrawal comes only after the nomination papers arescrutinised and order passed but according to this argument the candidaturecan be withdrawn only on the last date fixed for the withdrawal of candi-datures and not before.

49. This argument cannot be accepted for other reasons also. A perusalof section 37(1) clearly shows that the section fixes the last limit of time(before three o'clock) by which on the last date fixed for the withdrawala candidate may withdraw his candidature. If the words "or before" wereadded after the word "on" (on the day fixed) then this intention of fixinglast limit of time of the last date for the withdrawal would have been destro-yed. This fixing of the last limit of time in section 37(1) would have becomemeaningless if the words "or before" were added after the word "on".Again refer to sections 30(a) and 30(c) which speak about the 'last date' formaking nominations and the 'last date' for the withdrawal of candidature.respectively. The expression "last date" is significant. The last date for makingnominations itself suggests by clear implication, that nomination paperscan be filed earlier also, which is also clear from section 33 of the Act. Simi-larly the last date of withdrawal would clearly imply that the withdrawalcan be made earlier than the last date fixed for the same; but how early,that limit is not given, though last limit of time for such withdrawal has geenspecifically mentioned in section 37(1). Accordingly, I do not accept ShriBhachawat's argument.

50. Shri Bhachawat has also invited my attention to certain expressionsin sections 36(1) and (2) and sub-seqtion (8) of section 36 of the Act. He haslaid special stress on the words "the nomination papers of all candidateswhich have been delivered within the time and in the manner laid down insection 33" occurring in section 36(1) and the words "reject any nomination"occuring in sub-section (2) of that section. Similarly he has laid stress on thewords of sub-section (8) of section 36 and specially the words "after allthe nomination papers have been scrutinised and decisions acceptingor rejecting the same have been recorded". He has also drawn myattention to the placing of section 37 which comes immediately aftersub-section (8) of section 36. Relying on these expressions andalso the placing of section 37 relating to withdrawal of candidatureimmediately after section 36(8) of the Act, Shri Bhachawat arguesthat the stage for withdrawing the candidature comes after the order is passedon all the nomination papers by the Returning Officer accepting or rejectingthem and the list of validly nominated candidate or candidates is affixed tothe Notice Board. He tries to re-inforce his argument by saying that theword "candidate" occurring in the words "any candidate" in section 37(1)means only that candidate whose nomination paper is accepted and noother, Shri Chitale for the contesting—respondent has repudiated these con-tentions and urged that after filing the nomination paper within time acandidate can withdraw his candidature thereafter at any time till the lastlimit of time of the last date of withdrawal fixed under the relevant section.

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He contends that the words "any candidate" mentioned in section 37(1) doesnot necessarily mean only a validly nominated candidate, but it meansany other candidate in addition to the validly nominated candidate. Hefurther contends that there is no express provision in the Act as to the earlierlimit of time when a candidate can withdraw his candidature. I agree withShri Chitale.

51. The words "any candidate" in section 37(1) undoubtedly includea validly nominated candidate as contemplated by sub-section (8) of section36 but they do not exclude the candidate, who had duly filed his nominationpaper under section 33 within time and then withdrew his candidature sub-sequently at any time before the last limit of time fixed under section 37(1).If it was intended by the Legislature that 'any candidate' should mean onlythat candidate who was validly nominated then the words "validly nomina-ted" would have certainly occurred after the word "any" and before theword—"candidate" in section 37(1) but this is not to be found there. Weare asked by Shri Bhachawat to sandwich these words i.e. 'validly nominated'between the words "any candidate" as stated above in section 37(1) but suchaddition cannot legally be done. The words are "any candidate" and thisis important. Any candidate means any candidate and this would includenot only the validly nominated candidate but also a candidate who hadduly filed his nomination paper under section 33 and subsequently withdrawhis candidature.

52. I have already given the programme of election. Supposing a candi-date had filed his nomination paper on 16th January 1967 and subsequentlyfiled a due and proper notice of withdrawal of his candidature on 17-1-1967;or if he had filed his nomination on 20-1-1967 the last date for making suchnomination and withdrew his candidature subsequently on the same dayafter a few hours; or having filed his nomination papers on 20-1-1967, hewithdrew his candidature on 21-1-1967 the date of the scrutiny then whenwill the withdrawal be effective? Undoubtedly such a candidate had a rightto withdraw his candidature on the dates mentioned above because there isno express prohibition that he could not withdraw his candidature onsuch dates, in Lallpur and Jhang General Constituency Second Case11, itwas held that a candidate has the right to withdraw and if a candidate choosesto take that action even before the last date for nomination of candidates,there is nothing as to why he should be prohibited from taking that actionand should be compelled to continue as a candidate till a day after the dateof scrutiny and thus inflict unnecessary labour on the Returning Officer inscrutinising his nomination paper. The rule relating to withdrawal of candi-dature has been fully quoted in this authority and a comparison of this rulewith section 37 of the Act would show that the wordings of the two are subs-tantially the same and this was conceded by Shri Bhachawat at the time ofthe argument. It would, therefore, be found that this authority supports theview taken by me.

53. Having reached this conclusion, we have to see from what point oftime the withdrawal of candidature would be effective in the instance givenas above. Here placing of the section 37 immediately after sub-section (8)

(21) I.E.C.D. Vol. II p. 243.

E.L.R.] RAM BHAROSE V JAGANNATH SINGH AND OTHERS 159

of section 36 does not matter. It is a self-contained section. It is also anoverriding section because sub-section (2) thereof says that once a noticeof withdrawal of the candidature has been given by the candidate, the with-drawal becomes irrevocable and cannot be cancelled at all subsequently.Such being the position, the withdrawal in the instance given by me wouldbecome effective from the date and the moment the due and proper noticeof withdrawal was delivered by the candidate concerned to the ReturningOfficer. Accordingly, it is wrong to say that the stage for withdrawing candi-dature comes only after the nomination papers have been scrutinised anddecisions accepting or rejecting them have been recorded and a list of thevalidly nominated candidates is affixed to the Notice Board.

54. It is true that section 36(1) speaks about the examination of the nomi-nation papers of "all candidates" and sub-section (2) says about rejection ofany nomination. Much cannot be made of the words "nomination papersof all candidates" and "rejection of any—nomination" occurring in thesetwo sub-sections. In view of what has been said by me in the preceding para-graph above. If, however, it is considered necessary to examine the nomi-nation paper of that candidate also who has withdrawn his candidature bya due and proper notice then the formality can be completed by making aformal endorsement on the back of the nomination paper of such candidateas already stated by me. For all these reasons, I reject the arguments advan-ced by Shri Bhachawat.

55. Accordingly, I hold that respondent No. 4. Motiram had duly with-drawn his candidature at 10-30 A.M. on 23-1-1967 by a valid and propernotice in writing and that the withdrawal had become irrevocable and,therefore, the question of improper rejection of his nomination paper andthe election being void does not arise. Hence I decide issues 2(a) and (b)accordingly.

56. Issue No. (3).

In view of my findings given above the election of the returned candidateShri Jagannath Singh cannot be declared to be void and hence I decide thisissue in the negative.

57. In conclusion,, I hold that respondent No. 4 Motiram was 26 years8 months 14 days old on the date of the scrutiny of the nomination papersand, therefore, he was duly qualified to be chosen to fill the Assembly seatin question. I would have declared the election of the returned candidateShri Jagannath Singh to be void under section 100 (1) (c) of the Act, but forthe withdrawal of his candidature by Motiram. As Motiram, however,withdrew his candidature within time by delivering due and proper noticeof withdrawal under section 37 of the Act to the Returning Officer and thewithdrawal was valid, then nothing survived thereafter on account of suchwithdrawal and, therefore, the question that Motiram's nomination paperwas improperly rejected and so the election of the returned candidate isvoid does not arise. In the result, the election petition is dismissed. The peti-tioner shall pay the costs of respondent No. 1 Shri Jagannath Singh and bearhis own. Counsel's fee for each side Rs. 250 if certified. The other res-pondent Nos. 2, 3 and 4 shall bear their own costs as incurred.

Petition dismissed.

160 P.R. PATEL V K J . YAGNIK AND OTHERS [VOL. XXXIV

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

PURSHOTTAMDAS RANCHHODDAS PATELV.

KANTIPRASAD JAYSHANKER YAGNIK AND OTHERS

(B. J. DIWAN, J.)

December 5, 1967

Representation of the Peoples Act, 1951, ss. 100 (1) (b) and 123(2)and (3). Election speeches by religious leader in favour of a candidate—on grounds of religion—caste—threat of divine displeasure—whethercorrupt practice. Statement of Fact—Statement of • opinion—Distinc-

tion—Attack on personal character—Hand bills—Criticism of a person'spolitical or public activities—whether corrupt practice—Evidenceof partisan—Whether permissible—election pamphlets. Electionmeetings—notes recorded by Police Constables—recorded at meetings—recorded after meetings—Evidence—admissibility of-—Indian EvidenceAct, 1872, ss. 159 and 160.

The appellant, a Congress candidate, challenged the election of the FirstRespondent by an election petition on the grounds inter alia that at an elec-tion meeting an appeal was made on behalf of the first respondent not tovote for Congress as it slaughtered cows and bullocks; that a hand billcontaining false statements as to the character and conduct of the petitionerwas distributed by the first respondent and his agents; and that SambhuMaharaj, a popular religious leader, had delivered speeches with the con-sent of the first respondent, making appeals in the name of religion andthreatening divine displeasure and spiritual censure to the voters if theyvoted for Congress. The petitioner also claimed that he should be declaredelected.

HELD : Allowing the petition :

On the evidence, the religious leader in his speeches, made with the con-sent of the First Respondent, had committed breaches of the provisions ofSection 123(2) and Section 123(3) of the Act. The election of the First res-pondent must therefore be set aside.

A statement in a hand bill (Ex. Z.-l) that the petitioner had no regardfor the life of Jagatguru is an expression of opinion distinguished from astatement of fact and therefore, is not hit by the provisions of Section 123(4)of the Act. The law requires that the statement must be in relation to the per-sonal or moral character or conduct of any reflection of the man beneaththe politician. Statements that the petitioner was puffed with pride andabout his political and public activities do not attract the provisions ofSection 123(4).

Judicial approach has to be cautious in dealing with evidence by witnesseswho are partisan or interested, but the plea that such evidence should berejected because it is partisan cannot be accepted as correct.

E.L.R.] P.R. PATEL V K J . YAGNIK. AND OTHERS 161

Inderlal v. Lai Singh A.I.R. 1962 S.C. 115; Masalti v. State of UttarPradesh, A.I.R. 1965 S.C. 202; Ram Dial\. Sant Lai, A.I.R. 1959 S.C. 855;Lai Singh Rehvar v. Vallabhdass, 7 G.L.R. 753; Kultar Singh v. MukhtiarSingh A.I.R. 965 S.C. 141; Kumara Nand v. Brijmohan Lai Sharma A.I.R.1967 S.C. 808; referred to ;

Under Sections 159 and 160 of the Evidence Act, the notes recorded bythe Police Constables, while the election speech was made and some noteswhich were made very soon after as to what was said at the meeting whilestill fresh in the memory of the Police Constables concerned can be treatedas substantive evidence.

In re. Krishna Naicker and another, I.L.R. 54—Madras 678; Pratap Singhv. Crown, I.L.R. 7 Lahore 91; referred to.

The election of the returned candidate can be set aside under SectioniO0(l)(b) of the Act when it has been established that corrupt practices underSections 123(2) and 123(3) of the Act were committed by a third personwith the consent of the returned candidate.

A declaration under Section 101 of the Act that the Petitioner was dulyelected is not possible when it is difficult to say due to the secrecy of the ballotas to how many votes have been obtained by the First Respondent by corruptpractices unless and until any decision regarding the number of votes soobtained can be reached.

ELECTION PETITION NO. 3 OF 1967.

S. N. Patel for the petitioner

A.M. Baret for the respondent No. 1.

JUDGMENT

DIVAN J.—This Election Petition has been filed to challenge the elec-tion of the first respondent as the returned candidate from Mehsana StateAssembly Constituency in Gujarat State. The poll was taken on February,21, 1967 and the result of the election was declared on February 22nd, 1967.The petitioner was the candidate put up by the Congress Party, the firstrespondent was the candidate put up by the Swatantra party, the secondrespondent was the candidate put up by the Janata Parishad and respondentNos. 3 and 4 were independent candidates. The petitioner secured a totalnumber of 16,159 votes whereas the first respondent secured 23,055 votes;the second respondent secured 720 votes, the third respondent secured 1,017votes and 4th respondent secured 454 votes. Thereafter, the present peti-tion has been filed by the petitioner, the Congress candidate on April 5, 1967;and the petitioner has asked for the relief that the election of the first res-pondent from the Mehsana State Assembly Constituency be declared voidand he has also asked for a further relief that the petitioner may be declaredto be duly elected to the Mehsana State Assembly Constituency Seat of theGujarat Legislative Assembly.

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There has been no recriminatory statement by the first respondent andthe petitioner has challenged the election of the first respondent on fourmain grounds in the petition. The first ground is that on December 17,1966, when a meeting was organized in Mehsana Town, which is part ofthis constituency, one Swami Shivanand Paramhans addressed the meeting;and it is alleged that in that meeting Swami Shivanand exhorted people notto vote for the Congress as it slaughtered cows and bullocks. He further,asked the people not to be partners in the sin of slaughtering cows andbullocks and exhorted the people to vote for the Swatantra Party candidatei.e. the first respondent, and not to vote for the Congress Party candidate,i.e. the petitioner. According to the petitioner, this meeting of December17, 1966, was organised by the first respondent and his agents to further theelection prospects of respondent No. 1, and the first respondent and membersof the Mehsana District Swatantra Party office-bearers and other peoplehad attended that meeting.

The second ground on which the election of the first respondent has beenchallenged is the publication of a hand-bill on February 14, 1967, by oneManeklal Ranchhodlal Shukla; and, according to the petitioner, this hand-bill published by Maneklal contained false statements and these statementswere false to the knowledge of Maneklal Ranchhodlal Shukla and respon-dent No. 1. It is further alleged by the petitioner that respondent No. 1,his agents and supporters distributed copies of this leaflet throughout theconstituency. According to the petitioner, this hand-bill was in relationto the personal character and conduct of the petitioner and was reasonablycalculated to prejudice the prospects of the petitioner's election.

The next ground which is urged in the petition by the petitioner is that onFebruary 18, 1967, Sambhu Maharaj, who is a popular religious leader, hadaddressed meetings at Bamosane, Moti-Dav, Meu, Vadasama, Langhnaj,Dangerwa and Karjisan; and on 19th February, 1967 at Kherwa in theearly hours and at Mehsana Town in the afternoon of 19th February. It iscontended by the petitioner that in these speeches which were delivered withthe consent of the first respondent. Shambhu Maharaj had appealed tothe voters to vote for the petitioner in the name of religion and also not tovote for the Congress candidate i.e. the petitioner, in the name of religion.It is further the case of the petitioner that in the course of his speeches, whichwere delivered with the consent of the first respondent Shambhu Maharajhad held out threats of divine displeasure or spiritual censure to the votersif they voted for the Congress Party candidate i.e. the petitioner and did notvote for the first respondent i.e. the Swatantra Party candidate. It is furtherthe case of the petitioner that in the course of his speeches, there was asystematic appeal to a large section of the electors on the ground of commu-nity and that these speeches were delivered by Shambhu Maharaj in thecourse of a period of about 24 hours appealing to the voters, with the con-sent of the first respondent, in the name of religion, in the name of commu-nity and also threatening the electors with divine displeasure. It is furthercontended by the petitioner that Shambhu Maharaj has delivered similarspeeches at Dehgam, Bareja and Gondal and that these speeches were re-ported in the daily newspaper called "Jai-Hind" in the issue of January 13,1967, so far as the speech at Dehgam was concerned, in the issue of January14, so far the speech at Bareja was concerned, and in the issue of February

E.L.R.] P.R. PATEL V KJ . YAGNIK AND OTHERS 163

19, so far as the speech at Gondal was concerned. It is further the case ofthe petitioner that 'Jai-Hind' newspaper is a daily newspaper published atAhmedabad and widely circulated and read in Mehsana Constituency.According to the petitioner, these speeches appealing to the electors to votefor the Swatantra Party and to refrain from voting for the Congress Partyexercised undue influence over the free exercise of the electoral rights of thevoters. It has also been stated in the petition that the first respondent hasfailed to include all the election expenses in the election account submittedby him and has spent much more than the amount permitted by law.

Besides contending that these different corrupt practices were committedeither by the first respondent himself or with his consent, the petitioner hadalso alleged that the corrupt practices had materially affected the result ofthe election in so far as it concerned the first respondent and has contendedthat if these corrupt practices had not been committed, the petitioner wouldhave secured more votes than the first respondent and would have been dec-lared elected for the Mehsana Constituency Seat of the Gujarat State Legis-lative Assembly. Thus the petitioner also relies on the ground set out inSection 100 (l)(d)(ii) of the Representation of the People Act, 1951 (here-inafter referred to as the Act).

The first respondent has denied the different allegations set out in the peti-tion and on these pleadings, my learned Brother Shelat J. has drawn up thenecessary issues.

I must point out that at the hearing of the petition, the evidence has beenmostly concentrated on the publication of the hand-bill by Maneklal Ranch-hodlal Shukla and the alleged distribution of the copies of this hand-billcontaining personal attack on the petitioner; and it is sought to be esta-blished that the first respondent himself had distributed some copies of thishand-bill which was published by Maneklal Ranchhodlal Shukla on Feb-ruary 14, 1967. Reliance has also been placed at the time of hearing be-fore me on the speeches delivered by Shambhu Maharaj at different villagesin this constituency on February 18 and 19, 1967. It is contended that inthe course of the said speeches corrupt practices were committed and itis further sought to be established that these corrupt practices were com-mitted with the consent of the first respondent. At the hearing of the peti-tion before me, no reliance is placed on the speech said to have been deliveredby Swami Shivanand at Mehsana on December 17, 1966 and no attempthas been made to prove the contents of that speech. Under these circum-stances, I will not consider that particular ground regarding the speech ofSwami Shivanand on December 17, 1966. In the same manner, thoughallegations have been set out in the petition, no attempt has been made toprove that Shambhu Maharaj delivered speeches at Dehgam, Bareja andGondal or that those speeches were correctly reproduced in the issues of"Jai-Hind" as alleged. Under these circumstances, it will not be necessaryfor me to consider in the course of this judgment the contents of the speechesalleged to have been delivered by Shambhu Maharaj at Dehgam, Barejaand Gondal, and the circulation of those speeches in the Mehsana Consti-tuency through the issues of "Jai-Hind" daily newspaper as alleged.

Though allegations have been made in the petition that the first respon-dent had actually incurred expenses in excess of the amount permitted by

164 P.R. PATEL V K.J. YAGNIK AND OTHERS [VOL. XXXIV

law, no attempt has been made to prove that allegation; no issue was fram-ed nor is there any evidence led in that behalf. It will, therefore, be notnecessary for me to consider that aspect of the matter. Thus in the lightof the evidence which has been led, I have to deal with only two aspectsviz. (1) with the hand-bill published by Maneklal Ranchhodlal Shukla ofMehsana; and (2) with the meetings addressed by Shambhu Maharaj in thisconstituency for Mehsana State Legislative Assembly Seat, on the 18th and19th February 1967.

In order to establish the distribution of the hand-bills and also to esta-blish the contents of the speeches delivered by Shambhu Maharaj, the peti-tioner has examined various witnesses; and to deny these allegations or theallegations of this kind on these two points, the first respondent has alsoexamined witnesses on his behalf.

Now so far as the witnesses for the petitioner are concerned, they can bebroadly divided into two categories. One group of witnesses consistsof witnesses from the Police Department, viz., Police Sub-Inspectors,who were in charge of Mehsana Taluka Police Station, LanghnajPolice Station and Kadi Police Station on 18th and 19th February1967. At this stage, it will be necessary to point out that in the RevenueTaluka of Mehsana, there are two Police Stations, one at Mehsana Townand the other at Langhnaj. Besides these two police Stations, there arcoutposts. Some villages which are included in the Revenue Taluka of Kadiform part of Mehsana State Assembly Constituency and those villages arewithin the jurisdiction of the Police Station at Kadi. One of these villageswhich is necessary to be borne in mind for the purposes of this judgmentis Dangerwa, which is under the jurisdiction of Kadi Police Station but isat the same time included in the Mahsana State Assembly .Constituency.So far as the villages, under Langhnaj Police Station are concerned, thosevillages are Langhnaj, Meu and Vadasama; and the rest of the villagesat which the speeches were delivered by Shambhu Maharaj, were all in-cluded within the jurisdiction of Mehsana Police Station. Different PoliceConstables were instructed by the three Police Sub-Inspectors at Mehsana,Langhnaj and Kadi Police Stations, to attend the different villages whereShambhu Maharaj was scheduled to deliver his speeches on the 18th and19th February, 1967; and these different Police Constables were asked tomake their reports regarding the speeches delivered at such meetings. Underthese instructions received from their respective Police Station OfficersLaxmansing Masotsing Chavda, Petitioner's Witness No. 6, has reportedabout the speech delivered at Ramosana. Refiuddin Faijuddin Saiyad,Petitioner's witness No. 7, reported about the speech at Moti-Dav, Soyal-khan Mohamadkhan Chavan, Petitioner's Witness No. 8 reported aboutthe speech at Kherwa, Amratlal Girjashanker Yagnik, Petitioner's witnessNo. 9, reported about the speech at Sara Chowk, Mehsana, on February19, 1967, Virchandbhai Vanmalidas Patel, Petitioner's witness No. 10,reported about the speech at Langhnaj, Popatlal Vithaldas, Nai, Petitioner'switness No. 12, reported about the speech at Meu; Dipsinh Jalamsinh Raj-put, petitioner's witness No. 13. reported about the speech at Vadasama;and Nizarmohmad Validad Sindhi, Petitioner's witness No. 14, reportedabout the speech at Dangerwa. These witnesses of the petitioner's are allPolice Constables or Head Constables and under the instructions from their

E.L.R.] P.R. PATEL V K.J. YAGNIK AND OTHERS 165

respective police Station officers are alleged to have submitted their reportsto their immediate superior officers within a very short time after the speecheswere made. The petitioner has relied on these reports as contempora-neous documents made soon after the speeches were delivered and he con-tends that these Police Constables should be believed and the contents ofthe speeches delivered by Shambhu Maharaj can be said to be properlyproved.

Over and above this group of witnesses from the Police Department,three Police Sub-Inspectors and eight Police Constables, the petitioner alsorelies on the evidence of various other witnesses, who are alleged to havebeen present at the time when speeches were delivered by Shambhu Maharajat these various meetings. These witnesses who are alleged to have atten-ded these meetings are Prithviraj Govindji Chaudhary, Petitioner's witnessNo. 25, from Bamosana, Bhagwandas Dungerdas Patel, Petitioner's witnessNo. 26, from Langhnaj, Ramanlal Himatlal Rao, Petitioner's witness No.27, from Mehsana, Kalyanbhai Revabhai Raika, Petitioner's witness No.30 from Kherwa, Ambalal Vithaldas Patel, Petitioner's witness No. 31,from Moti Dav and Bhaichandbhai Shivdas Patel, Petitioner's witness No.33, from Dangerwa. Apart from these witnesses who were present at themeetings, the petitioner had also examined witnesses Chhaganbhai LaldasPatel, Petitioner's witness No. 28, from Jagudan and Hiralal Ambalal PatelPetitioner's witness No. 29, from Ghumasan, to prove that the first respon-dent himself had distributed the copies of the hand-bills published by Manek-lal Ranchhodlal Shukla. Besides these two witnesses, three other wit-nesses, viz., Prithviraj Govindji Chaudhary from Bamosana, BhagwandasDungardas Patel from Langhnaj and Kalyanbhai Raika from Kherwa,also speak about the distribution of the hand-bills by the first respondent,Purushottam Nathubhai Brahmbhatt, Petitioner's witness No. 32, alsospeaks about the copies of the hand-bills being distributed in Mehsana Town;but neither he nor Bhagwandas Dungerdas Patel of Langhnaj associatesthe first respondent with the actual work of distribution of these hand-bills.But it must be pointed out that all these witnesses of the petitioner are inone way or the other supporters of the Congress Party or sympathizers withthe cause of the petitioner. In the course of this judgment, I will adoptthe safe course of treating all partisan witnesses with considerable cautionand not accepting their evidence unless it is corroborated by an independentwitness. Hence, it will not be necessary to examine the evidence of wit-nesses Nos. 25 to 33 of the petitioner. In the same way, all the six witnessesof the respondent are Swatantra Party workers or sympathizers and theyalso being partisan witnesses, their evidence cannot help me in arriving atany definite conclusion regarding the allegations of corrupt practice. Be-sides examining the witnesses, the petitioner and the first respondent havestepped into the witness-box but it will be not possible to rely on the evidenceof either of them, each of them being an interested party, for arriving at anydefinite conclusion in the course of this judgment. The main question will,therefore, turn upon ascertaining as to whether the petitioner has succee-ded in establishing through independent and reliable evidence the allega-tions of corrupt practice (1) regarding the hand-bills and (2) regarding thespeeches delivered by Shambhu Maharaj.

Exhibit Z-l in this case is a copy of the hand-bill, which was publishedby Maneklal Ranchhodlal Shukla on February 14, 1967. This hand-bill

166 P.R. PATEL V K.J. YAGNIK AND OTHERS [VOL. XXXIV

was printed at Sadhna Printers, Mehsana; and Hirabhai Chaturbhai Patel,Petitioner's witness No. 20 has been examined to establish the circumstancesunder which this hand-bill came to be printed. Hirabhai is a partner alongwith Sureshchandra Kantilal Shah in this firm of Sadhana Printers. Thisfirm carries on business of a printing Press at Mahsana and Hirabhai looksafter the day to day running of the Press. According to Hirabhai ExhibitZ-l was printed at Sadhana Printers under the instructions of ManeklalRanchhodlal Shukla. He has produced the proof and the manuscript re-garding this hand-bill Exhibit Z-l. Now, one important thing regarding thishand-bill of Maneklal Ranchhodlal Shukla is that when the bill for print-ing this hand-bil! under the instruction of Maneklal Ranchhodlal Shuklacame to be prepared, in the bill the amount of Rs. 16 for printing 2000copies of this particular hand-bill was written in the name of KantiprasadYagnik i.e. the first respondent and 'Haste' Maneklal Shukla was written.That name appears to have been scored out on the duplicate and the nameof Shri Maneklal Ranchhodlal Shukla is written in place and stead of thefirst respondent. Hirabhai's explanations regarding the circumstancesunder which this alteration from the name of the first respondent to thename of Maneklal Ranchhodlal Shukla came to be made does not inspireconfidence regarding the preparation of this hand-bill, such suspicious cir-cumstances by itself cannot establish that the first respondent was responsi-ble for getting these copies printed at Sadhana Printers. It is true thatseveral bills in connection with the different items of election literature prin-ted at Sadhana Printers were prepared on 3rd and 4th March 1967; andthis bill in the name of Maneklal Ranchhodlal Shukla at Sr. No. 133, in theduplicate bill book was originally written out in the name of the first res-pondent; but, as I have stated, merely because some mistake or error iscommitted in the printing Press while preparing this bill, it does not neces-sarily follow that first respondent had instigated Maneklal RanchhodlalShukla to get this hand-bill printed, or was in any way responsible for get-ting the hand-bill printed or was undertaking any liability to pay the amountof Rs. 16 in respect of this hand-bill. .

When one turns to the hand-bill itself, the hand-bill is in these terms:—

"Let the public consider (or ponder).

On 17th February 1967, a public meeting was held at Mehsana Sara-Azad Chowk under the auspices of the Congress Election Propaganda Com-mittee; and in that public meeting Shri Purushottamdas Ranchhoddas Patel,Pleader of Mehsana, the great Congress leader, at present candidate forthe State Legislative Assembly and Member of Parliament, has made cer-tain remarks regarding the fast of Revered Shri Shankaracharya and theseremarks were improper and likely to hurt the feelings of the public. There-fore, we bring to the notice of the general public that in the course of thatspeech, he (Purushottamdas Patel, the petitioner herein) had mentionedthat if Shankaracharya had continued his fast, then by this time by catch-ing hold of the tail of the cow he would have crossed Vaitarni River. Nowhow will he cross that river ? The only meaning of saying like this is thatShri Purushottamdas has no regard in his mind for the life of Shri Jagat-guru. The general public should consider whether they should vote forsuch a candidate who has been puffed up with pride."

E.L.R.] P.R. PATEL V K.J. YAGNIK AND OTHERS 167

This hand-bill has been signed by Maneklal Ranchhodlal Shukla and pur-ports to have been published on 14th February 1967, The manuscript ispart of Exhibit Z-7.

It must be pointed out that Sadhana Printers must have received severalorders to compose and print copies of this hand-bill, Exhibit Z-l, becausebesides Exhibit Z-l, on the record there are also Exhibits Z-2 and Z-l-A;and these other copies from the manner in which they are composed go toshow that though the matter was the same, it must have been composed atdifferent times and at least there must have been three different printings ofone and the same matter, which is common to Exhibits Z-l, Z-l-A and Z-2.Hirabhai has stated in his evidence that the other two copies in Exhibit Z-2though printed at his Press were not printed at the same time as ExhibitZ-l, and according to him, it was possible that additional copies of the samehand-bill were got printed at his Press during his absence and he has beenable to say this after comparing the type settings of the two hand-bills inExhibit Z-2 with the copy of the hand-bill in Exhibit Z-l.

It is contended on behalf of the petitioner that in this hand-bill, there isfirst a false statement regarding what the petitioner had stated in the courseof the meeting held at Mehsana Sara-Azad Chowk on February 7, 1967.The petitioner has stepped into the witness-box and has said that in thecourse of that speech what he had stated was that the Swatantra Party hadcaught hold of the tail of the cow and now that Shankaracharya of Purihad given up his fast, how would it be possible for the Swatantra Party tocross the Vaitarni River. It is common ground before me that accordingto a Hindu mythology Vaitarni River is the river which every soul has tocross on the way from this earth to heaven and that a cow helps a soul incrossing that river. Vaitarni River is, therefore, comparable to a similarmythological river in the Roman and Greek mythology. Now, accordingto the petitioner, he had never made the statement which has been attributedto him in this hand-bill and, therefore, according to the petitioner it has beenfalsely stated in Exhibit Z-1, the hand-bill issued by Maneklal RanchhodlalShukla that he had made such a remark in connection with the fast of Shan-karacharya of Puri and thereby was wrongly alleged to have hurt the feel-ing of the general public. Since the petitioner himself has denied that hehad made any such statement, the petitioner has discharged the burden ofproving that the statement was false.

As pointed out by the Supreme Court in Kumara Nand v. Brijmohan LaiSharma, A.I.R. 1967 S.C. 808, in para 18 at page 813 of the report, oncethe complaining candidate has sworn that the statement in question wasfalse, he has discharged the burden of establishing that the false statementwas published and then the burden shifts to the candidate making the falsestatement to show what his belief was. Now, in this particular case, no-body has attributed making of this false statement to the first respondenthimself but it is alleged that the first respondent had deliberatly distribu-ted the copies of this hand-bill containing such false statement and therebyhe published the same. Now, it is true that this particular statement offact viz., that the petitioner made such a statement in the course of hisspeech, has been falsely attributed to the petitioner, but the real objectiona-ble part is not the statement itself but the other sentence viz., "The only2 EC/71—12.

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meaning of stating like this is that Shri Purushottamdas Patel has no re*gard in his mind for the life of Shri Jagatguru". It must be borne in mindthat the writer of this statement emphasises this statement by setting outthe meaning which he attributes to the alleged statement of the petitioner.There is a clear distinction between a statement of fact and a statement ofopinion and by stating; "the enly meaning that can be attributed to thisstatement" the author clearly shows that this is the opinion expressed bythe writer regarding the meaning to be attributed to the remark whichaccording to the hand-bill was made by the petitioner in the meeting at Sara-.Chowk, Mehsana. It is, therefore, clear that a clear distinction is madein this hand-bill between the statement of fact and the statement of opinion.It is true that the statement of fact is false in the sense that as a matter of<,fact the hand-bill attributes a particular statement to the petitioner, whichin fact the petitioner had never made but proceeding from that false state-ment of fact; the opinion is expressed that the only meaning which could beattributed to that remark of the petitioner was that the petitioner had noregard in his mind for the life of Shri Jagatguru. In my opinion, bearingin mind the distinction between a statement of fact and a statement of opi-nion, it is clear that statement in Exhibit Z-l that the petitioner had no re-gard for the life of Jagatguru is an expression of opinion as distinguishedfrom a statement of fact and, therefore, is not hit by the provision of Sec-tion 123(4) of the Act. As pointed out in Kumara Nand's case (supra), thelaw requires that the statement must be in relation to the personal characteror conduct. Now apart from stating that the petitioner was "spfir"(puffed with pride), there is nothing else said about the personal, characterof the petitioner^ The statement that the petitioner had no regard for thelife of Shri Jagatguru is a statement of opinion of the writer of the hand-bill and the attack on the petitioner describing him as puifed up with pride,is not an attack on the personal character of conduct of the petitioner. Afterexpressing the opinion that the petitioner had no regard for the life of Jagat-guru, the hand-bill proceeds to say that the public should consider whetherthey should cast their vote in favour of such a candidate who had beenpuffed with pride. It must be also borne in mind that at the time when theelection campaigns of the respective candidates were going on, there wasa lively political controversy regarding the issue of ban on cow-slaughter,regarding the fast under taken by Shankaracharya of Puri and the advisa-bility of Shankaracharya having undertaken that fast. It is in the light ofthat background that one has to judge the contents of this hand-bill andthough a highly exaggerated term has been used with reference to the peti-tioner describing him as a man puffed" up with pride, there is no re-flection on the moral character of the petitioner but the criticism was regard-ing the petitioner's public activities and was made in the course of the politi-cal or public activity.

In Inder Lai v. Lai Singh, (*), it was pointed out that in discussing thedistinction between the private character and the public character, some-times reference is made to the "man beneath the politician" and it is saidthat if a statement of fact affects the man beneath the politician it touchesprivate character and if it affects the politician, it does not touch his privatecharacter. In my opinion; the instant case is not one of the border-line-cases where the false statement may affect both the politician and the man

(1) A.I.R. 1962 S.C. 1156.

E.L.R.] P.R. PATEL V K.J. YAGNIK AND OTHERS 169

beneath the politician. In the first place, there is no statement of fact re^garding the personal or moral character of the petitioner. Secondly, thereis no reference to the man beneath the politician and if cannot be said in theinstant case that this is a border-line case touching the both politician andthe man beneath the politician. Under these circumstances it is clear thatthis particular hand-bill, whosoever published it and in whatever circum-stances it came to be published, is not hit by the provisions of Section 123(4) of the Act.

Even if this conclusion is wrong and even if it were to be held that thecontents of the hand-bill, are hit by the provisions of Section 123(4) of theAct, there is a still further difficulty in the way of the petitioner. Merelyproving that a corrupt practice came to be committed by Maneklal Ran-chhodlal Shukla cannot help the petitioner in obtaining the relief that hehas sought for in this petition. He has further to establish under Section100(l)(6) of the Act that such corrupt practice was committed by ManeklalRanchhodlal Shukla with the consent of the first respondent or his electionagent. No material has been brought before me to link up the electionagent of the 1st Respondent Dashrathlal (Bapu), with the hand-bill and theonly attempt which has been made is to link up the first respondenthimself with the distribution of these hand-bills. The four witnesses, whospeak about the first respondent himself having distributed these hand-billsat different villages in the course of the election campaign, have each • intheir respective deposition admitted that he was either an active Congressworker or a sympathizer of the Congress party and though not an activeworker of the Congress was a follower of the Congress Party. The peti-tioner was a candidate put up by the Congress Party and therefore the afore-said witnesses are on their own showing partisan witnesses. Out of thesaid four witnesses, Hiralal Ambalal Patel, petitioner's witness No. 29, fromGhumasan, has tried to show that he was in no way a Congress Party sym-pathizer, but there is one factor which goes to show that even Hiralal is nota non-partisan witness. The petitioner has stated in his deposition thatafter the result of the election was declared, four or five days later, thepetitioner went round different villages in his constituency to ascertain thecauses of his defeat in the election and during this tour the petitioner hadvisited Ghumansan. The petitioner has stated in his cross-examinationas follows:—

"At all the villages which I visited in the course of rny tour to ascertainthe reasons of my defeat, I contacted only those persons in eachvillage who had been my principal workers in each villages."

Hiralal has admitted in his cross-examination that a few days after thedeclaration of the result of the elections, when he was sitting on the 'Ota'of a temple at Ghumasan, the petitioner came to the 'Ota\ Hiralal wassitting with 5 or 6 other parsons and the petitioner asked them about thslines on which the election propaganda was being conducted at the timeof the election campaign. Hiralal told the petitioner about the electionpropaganda being carried through jeep-car fitted with loud-speaker equip-ment. Hiralal forgot to tell the petitioner on that occasion about the hand-bill, Exhibit Z-l-A. Then he has further stated in his evidence that hehad thus informed the petitioner because the petitioner had asked him,

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specifically about the election propaganda and the petitioner had not putthat question to any other person sitting on the lOta\ There is one furtherfactor regarding Hiralal, which is rather peculiar and it is this. Accordingto Hiralal, when the petitioner contacted him in this manner 6 or 7 daysafter the result of the election he had given his name to the petitioner andthe petitioner had noted down his name on some paper but at the time whenthe petitioner filed his list of witnesses, the name which was given, so far asGhumasan, was concerned, was not of Hiralal but was of his brother Prah-ladbhai. Under these circumstances, it is difficult to accept Hiralal's wordwhen he says that he is a disinterested person or that he is a non-partisanwitness. In view of the clear statement made by the petitioner in his cross-examination about contacting only his principal workers in each village itis clear to my mind that Hiralal must also be treated on the same footingas other three witnesses, viz. Prithviraj, Chhaganbhai and Kalyanbhai.Thus, there is no independent evidence to establish that the first respondenthimself had distributed any copies of the hand-bill, Exhibit Z-l.

It is true as pointed out by the Supreme Court in Masalti v. State of UttarPradesh,{2) that when a Court has to appreciate evidence by witnesses whoare partisan or interested, it has to be very careful in weighing such evidence.Whether or not there are discrepancies in the evidence; whether or not evi-dence strikes the Court as genuine; whether or not the story disclosed by theevidence is probable, are all matters which must be taken into consideration.But it would be unreasonable to contend that evidence given by witnessesshould be discarded only on the ground that it is evidence of partisan orinterested witnesses. The mechanical rejection of such evidence on the soleground that it is partisan would invariably lead to failure of justice. No hardand fast rule can be laid down as to how much evidence should be apprecia-ted. Judicial approach has to be cautious in dealing with such evidence; butthe plea that such evidence should be rejected because it is partisan cannotbe accepted as correct.

With respect, I will apply the principles which have been enunciated bythe Supreme Court in Masalti's case (Supra), but the question that I haveto ask myself is that after applying the rule of caution in dealing with theevidence of these four witnesses, Prithviraj, Chhaganbhai, Hirabhai andKalyanbhai, whether there is anything else on the record which would satisfyme that what they are stating is the truth. Clearly on the evidence as itappears on the record, they are partisan witnesses. They are interested inthe success of the Congress candidate i.e. the petitioner and it is very easyfor them to come forward before the Court and state that the first respondenthad distributed copies of this hand-bill, Exhibit Z-l; but there is no touch-stone available on the record by which the evidence of these partisan wit-nesses can be tested and once the rule of caution is adopted, that very cautionrequires that unless some independent evidence is forthcoming, it would behazardous to rely on the testimony of these partisan witnesses. I am notdiscarding their testimony merely because they are partisan witnesses butbecause, in my opinion, it would be unsafe to rely on the testimony of thesepartisan witnesses regarding the distribution of this hand-bill, when it isnot supported by some independent material.

(2) A.I.R. 1965 S.C. 202.

E.L.R.] P.R. PATEL V K.J. YAGNIK AND OTHERS 171

Under these circumstances, even if I am wrong regarding the interpreta-tion of the words of the hand-bill, Exhibit Z-l, and even if it were to beheld that the publication of this hand-bill amounted to a corrupt practiceon the part of Maneklal Ranchhodlal Shukla, as defined by Section 123(4)of the Act, it cannot be said that the first respondent in any way gave hisconsent to such publication or himself published it by distributing copiesof the hand-bill.

It was very faintly contended before me on behalf of the petitioner thatonce it is held that the corrupt practice in the form of publication anddistribution of the copies of this hand-bill, Exhibit Z-l, came to be com-mitted by some persons, the provision of Section 100(/)(d)(*7) of the Actshould be considered by the Court and it should be held that the result ofthe election in so far as it concerned the first respondent had been materiallyaffected by the corrupt practice which was committed in the interests ofthe returned candidate. Now, it is practically impossible when voting isby secret ballot to establish that the result of the election in so far as it con-cerned the first respondent had been affected by the publication and distri-bution of the copies of the hand-bill, Exhibit Z-l and, therefore, the groundunder Section 100(i)(d)(ii) of the Act cannot help the petitioner in gettingany relief on the ground of this particular hand-bill, Exhibit Z-l.

Under these circumstances, I have come to the conclusion, firstly, thatthere is merely a statement of opinion as distinguished from a statement offact, so far as the impugned statement is concerned. Secondly, there is noattack on the personal character of the first respondent and that there ismerely an exaggerated or hyperbolic expression regarding the views attri-buted to the petitioner in the course of a political controversy, and parti-cularly there is no reliable evidence to show that the first respondent hadconsented to the commission of this corrupt practice or had himself com-mitted that corrupt practice by distributing copies of that hand-bill. Lastlyit cannot be said that the result of the election in so far as it concernedthe first respondent had been materially affected by commission of this cor-rupt practice mentioned in Section 123(4) of the Act.

That now takes me to the evidence, regarding the speeches delivered byShambhu Maharaj at different villages included in this constituency andthe speeches were all delivered between about 5 p.m. on 18th February 1967and 4.45 p.m. on 19th February 1967. AH the speeches delivered at thesedifferent villages were in pursuance of a programme which was announcedin advance by distribution of hand-bills setting out the tour programmeof Shambhu Maharaj. A copy of this hand bill is to be found at Sr. No. 6,in Exhibit C. This hand-bill purports to have been issued by the Swatan-tra Party Election Committee at Mehsana and it mentions that ShambhuMaharaj, "Gau Bhakta" (i.e. devotee of cows), is going to tour the consti-tuency in order to bring success to Shri Kantilal Yagnik (the first respon-dent), the candidate for Mehsana State Assembly Constituency and theprogramme as set out in the hand-bill had been fixed by him, and excepttwo places, viz., Visnagar and Kadi, all the other villages and places men-tioned in the hand bill are in Mehsana State Assembly Constituency. Thishand-bill was printed at Sadhna Printers and at S. No. 4 in Exhibit W is themanuscript, which was sent to this printing press. The manuscript is in

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the handwriting of the first respondent himself. In his deposition the firstrespondent had admitted that he himself had mentioned the different villagesin his constituency which should be visited by Shambhu Maharaj and thatthis tour programme was fixed up after consultation between the first res-pondent and Maganlal Ambaram Patel, the -President of the Mehsana Dis-trict Unit of the Swatantra Party. I will deal with this manuscript lateron but 1 have mentioned the question of the manuscript at this stage to setout the background of the circumstances in which Shambhu Maharaj cameto deliver his speech at these different villages in Mehsana State AssemblyConstituency area.

Ishverlal Keshawlal Chaudhary, petitioner's witness No. 3 was in themonths of December 1966 and January-February, 1967, posted as SeniorPolice Sub-Inspector, Mehsana Taluka Police Station and he was workingat Mehsana. He has stated that the practice of his police station was tosend police constables to different meetings held within the jurisdiction ofhis police station to take down notes of the speeches made at these meet-ings. Police Sub-Inspector Chaudhary, though he was in-charge of PoliceBandobast at such meetings, had never attended any of such meetings. PoliceSub-Inspector Chaudhary has further stated in his evidence that after theconstable concerned submits his report at the police station, the report issent to the D.S.P. and a copy of that report is maintained in the records ofthe police station. He has subsequently made it clear that what he meantby stating about sending the report to the D. S. P. was that the reports givento him by the police constables regarding the meetings remained with himand copies were sent to the D.S.P. and he had brought with him to Courtthose reports of the constables. In his cross-examinations, he has statedthat constables Amratlal. Rafiuddin and Laxmansing were being sent outfor attending the meetings and making notes of speeches. According toPolice Sub-Inspector Chaudhari, this work would be assigned to one orthe other of three constables and he admitted that he had received instruc-tions from the Government to take down verbatim speeches delivered byIndulal Yagnik, Shambhu Maharaj and Bhailalbhai Patel.

In pursuance of the instructions given by P,olice Sub-Inspector Chaud-hari, Laxmansing Masotsing, petitioner's witness No.-6, had gone to Bamo-sana village and had made a report about the speech delivered by ShambhuMaharaj at that village and the report of the speech at Bamosana isExhibit I on the record of this case. Similarly in pursuance of theinstructions given by Police Sub-Inspector Chaudhary, Rafiuddin FaijuddinSaiyad, petitioners' witness No. 7, had attended the meeting of ShambhuMaharaj at Moti-Dav and the reports submitted by him regarding whathappended at Moti Dav are Exhibit J collectively on the record of thiscase. There were two meetings at Moti-Dav, the first from 4-10 p.m. to4-20 p.m. That meeting was first addressed by Maganlal Ambaram Pateland then by the first respondent himself; and the second meeting was heldat 5.30 p.m. when Shambhu Maharaj arrived at Moti Dav; and the firstrespondent was also present at that meeting. In the same manner, Soyal-khan Mohamadkhan Chava, petitioner's witness No. 8, attended the, meet-ing at Kherwa under the instructions of Police Sub-Inspector Chaudhary,and Police constable Amratlal Girjashanker Yagnik, petitioners' witness

E.L.R.] P.R. PATEL V K.J. YAGNIK AND OTHERS 173

No. 9 attended the meeting at Mehsana, Sara Chowk, These four cons-tables were working within the jurisdiction of the Mehsana Taluka policestation and they have all acted under the instructions of Police Sub-Inspec-tor Chaudhary.

So far as Langhnaj police station was concerned, Police Sub-InspeciorBhikhabhai Karshandas Rathod, petitioner's, witness No. 4 was in charge ofthat police station at the relevant time and he had instructed different policeconstables to make reports about the speeches delivered at Vadasama,Langhnaj and Meu, all situated within the jurisdiction of Langhnaj policestation. Head constable Dipsinh Jalamsinh Rajput, petitioner's witnessNo. 13 had attended the meeting at Vadasama, police constable Virchand-bhai Vanmalidas Patel, petitioner's witness No. 10, had attended the meetingat Langhnaj; and Head constable Popatlal Vithaldas Raj, petitioner's wit-ness No. 12, had attended the meeting at Meu; and each of these threepersons has submitted his own report to the witness, Police Sub-InspectorRathod. The report regarding the speech at Langhnaj is Exhibit M, thereport regarding the speech at Meu is Exhibit N and the report regardingthe meeting at Vadasama is Exhibit O.

Chimanlal Nanalal Barot, petitioner's witness No. 5, was in the monthof February 1967, police sub-inspector in charge of Kadi police station.Some villages of Kadi Taluka were included in Mehsana State Assemblyconstituency and Dangerwa was one of those villages. Head constable,Nazarmohmad Validad Sindhi, petitioner's witness No. 14 had been instruc-ted by Police Sub-Inspector Barot to attend the meeting at Dangerwa andmake notes about the speeches delievered at the meeting. Nazarmohmadhad submitted his report about what transpired at the meeting and that re-port is Exhibit P on the record of the case. As I have indicated earlier, itis only in the light of these reports of the police constables made to theirrespective superior officers that I will have to consider what were the wordsactually used by Shambhu Maharaj in the course of his speeches all deliveredbetween about 5 p.m. on 18th February, 1967 and 5 p.m. on 19th February1967. I am emphasising the fact about the instructions given by differentpolice officers for this reason that three different police officers, viz., PoliceSub-Inspector Chaudhary of Mehsana Taluka police station, Police Sub-Inspector Rathod of Langhnaj police station and Police Sub-Inspector Barotof Kadi police station, had deputed different police constables to attend themeetings where Shambhu Maharaj was going to deliver his speeches; andeach of these police constables had subraitted his own report to his superiorofficer. All these reports are made between 5 p.m. on the 18th February1967 and shortly after 5 p.m. on the 19th February 1967. They are all madeto officers in charge of three different police stations and yet there is a consi-derable amount of unanimity between these different reports regardingwhat Shambhu Maharj said in the course of his speeches at these differentvillages during this span of about 24 hours. Looking to the fact thatShambhu Maharaj was delivering his speeches on the same subject and withthe same object in view, viz., to bring success to the candidature of the firstrespondent, it is not surprising that the lines on which these speeches weredelivered, the topic which were discussed in the course of these speeches,the illustrations which were given and the words which were used were al-most identical in these different speeches. After all, it was not unnatural

174 P.R. PATEL V K.J. YAGNIK AND OTHERS [VOL. XXXIV

that this unanimity about the expressions used, topics discussed and the lineson which the propaganda was conducted by Shambhu Maharaj should beidentical. Listeners were different though the speaker was "the same andunder these circumstances there was no possibility of any repetition of thesame speech being noticed by the members of the audience. As I will exa-mine in detail when 1 come to examine the different police reports, the topicswere divided into two or three broad categories, illustrations used werecommon to practically all the speeches; and it is in the light of these reportsthat I have to consider whether any corrupt practice as defined in Section123(4) of the Act came to be committed by Shambhu Maharaj while deliver-ing these speeches.

Mr. Barot, appearing on behalf of the first respondent, has contendedbefore me that Shambhu Maharaj was delivering his speeches at what maybe called a talking speed and none of these eight police constables was atrained shorthand writer. He has further contended that all these speecheswere taken down in long hand by the different police constables and, there-fore, it is not unlikely that the entire speeches delivered by Shambhu Maharjat different villages have not been reproduced in the reports. Moreover,the police constables Soyalkhan and Nazarmohmad have admitted that thepractice followed by them was that when the speech was delivered, they werenoting down the points about what Shambhu Maharaj was speaking andimmediately after the meeting was over a full report was prepared from whatwas written down by them. So far as the meeting at Moti Dav was con-cerned, the version of police constables Rafiuddin is that he wrote out theentire report Exhibit J at the place of the meeting when the meeting wasgoing on. Now, Mr. Barot is right when he contends that these differentpolice reports are not 100% full reports of the speeches which were madeby Shambhu Maharaj but at the same time it must be borne in mind thatthese different reports were written down either when the speeches wereactually delivered or from the points noted down while the meeting wasgoing on and in each case the full report from the points thus noted downwas written out either at the place of the meeting within a very short timeafter the meeting was over and, therefore, when the speech delivered byShambhu Maharaj was still fresh in the mind of the police constables makingthe report. A contention was urged before me that the notes made by eachof these police constables made at the time when Shambhu Maharaj wasactually delivering the speech are destroyed and, therefore, reliance cannotbe placed on the contents of these reports. But one remarkable thing aboutthese reports is the unanimity of some of these reports, Exhibits I, J, K, L,P, about the topics dealt with by Shambhu Maharaj the words uttered byShambhu Maharaj and the criticism he was putting forward regarding someof the Government policies and this unanimity occurring in the reports sub-mitted to three different police stations viz. Mehsana Taluka Langhnaj andKadi goes a long way in establishing the truthfulness and credibility of thesereports.

Mr. Barot also contended in this connection that none of the police cons-tables had actually deposed in his evidence about the speech in questionand each witness had merely stated that what he had written down in hisrespective report was correctly reproduced and was spoken by ShambhuMaharaj during the course of his speech. He, therefore, contended that

E.t.R.] P.R. PATEL V K.J. YAGNIK AND OTHERS 175

unless the report had been used to refresh the memory of the witness orto corroborate the oral evidence of the police constables in question^ thedocument itself could not be used as a substantive piece of evidence. Thisargument of Mr. Barot overlooks the provisions of S- 160 of the EvidenceAct, which provides that a witness may also testify to facts mentioned inany such document as is mentioned in section 159 although he has no specificrecollection of the facts themselves, if he is sure that the facts were correctlyrecorded in the document. It is not necessary for the witness to say inso many words that he is sure that the facts were correctly recorded in thedocument if the Court can come to the conclusion that the fact were correctlyrecorded in the document- Section 159 of the Evidence Act refers to awriting made by a witness at the time of the transaction concerning whichhe is questioned and it provides that a witness may, while under examination,refresh his memory by referring to any writing made by himself at the timeof the transaction concerning which he is questioned or so soon afterwardsthat the court considers it likely that the transaction was at that time freshin his memory. Now, regarding Exhibit, J, the report made at Moti Dav,the police constable concerned has stated that Exhibit J. was written outwhile the meeting was going on and as regards Exhibits K, L, P, the noteswere made by the police constables concerned while the speech in questionwas delivered and very soon after when what was said at the meeting wasstill fresh in the memory of the police constable concerned, the report waswritten out by the witness concerned. Under these circumstances, eachof the document is of the type mentioned in Section 159 of the Evidence Actand though the Police Constable concerned may not have any specificrecollection of the facts themselves, the document as such can go in as subs-tantive evidence.

A distinction between Section 159 and Section 160 of the Evidence Acthas-been correctly pointed out by the Division Bench of the Madras HighCourt in In re Krishna Naicken and Another, (3) at page 689; and there citingthe judgment of the Lahore High Court in Pratap Singh v. The Crown(*)it has been stated as follows:—

"In sections 159 and 160 of the Evidence Act a distinction is drawn bet-ween the manner in which a witne ss may refresh his memory by referringto the writing and the testimony which he can give of facts stated in thedocument. It is merely a question of man refreshing his memory the docu-ment itself is not tendered in evidence, and the witness merely gives evidencein the ordinary way after reading what has been written. Section 160 dealswith the case where in spite of having written or read a document underthe circumstances described in section 159, the witness has got no specificrecollection of the facts therein recorded, but is sure that they were correctlyrecorded. Where this is the case the witness is still entitled to testify to thefacts and the document itself is then tendered in evidence.

Section 160 of the Evidence Act applied equally when the witness statesin so many words that he does not recollect and when the circumstancesestablish beyond doubt that this is so. Having no specific recollection of

(3) I.L.R. 54 Mad. 67,8.4 r.L.R. 7 Lahore 91.

176 P.R. PATEL V K.J. YAGNIK AND OTHERS [VOL. XXXiV

the facts he can only testify to the effect that he recorded correctly what theperson said at the time."

I respectfully agree with the above passages; and it is clear to my mind tha:under the provisions of Section 160 of the Evidence Act, each of these docu-ments viz., these reports prepared by the Police Constables, can be produced.

1 will now take up each of these reports in so far as the meetings addres-sed by Shambhu Maharaj are concerned.

In Exhibit "I", though Mr. Patel, appearing on behalf of the petitioner,has urged before me, that in the course of the meeting at Bamosana, someobjectionable portions or passages occur, I find that all that ShambhuMaharaj has stated in the course of the meeting at Bamosana was withinlimit permitted by law; for example, it has been stated:

"That Shri Shankaracharya of Puri fasted for 73 days in order to havea ban imposed on cow-slaughter but our Congress Governmenthas not even paid any attention in this connection."

Now, as I have pointed out earlier in the course of this judgment, the fastundertaken by Shankaracharya of Puri was itself a matter of political con-troversy one side contending that the fast was rightly undertaken and theo|herside contending that it was an error to undertake such a fast. Thus,though there is a religious background, no fault can be found with this parti-cular statement in Exhibit "I".

It has also been stated in Exhibit "I" that at Bamosana Shambhu Maha-raj had spoken;

"To vote for our present Congress Government and to put the mark ofvoting on the symbol of bullocks (the Congress Party election symbolbeing a pair of bullocks with a yoke on) is equivalent to stab witha kinfe (cutting the throat of a bullock)."

Even here in the matter of a political controversy using some sort of punon the election symbol of the Congress Party. Shambhu Maharaj has putforward in rather picturesque and exaggerated language- his appeal not tovote for the Congress Party. It cannot, therefore, be said that there wasany appeal to religion or any appeal to religious sentiments so far as thisparticular statement in Exhibit " 1 " is concerned. There is nothing else inExhibit "I" which can be said to constitute either an appeal in the name ofreligion or threat of divine displeasure or any appeal to vote for the first res-pondent in the name of caste or community.

Coming now to Exhibit "J", I am concerned at the present stage with thepart of Exhibit "J", which deals with the speech delivered by ShambhuMaharaj. According to this report, Exhibit "J", Shambhu Maharaj wasat Bamosana from 5 P.M. to 5-25 P. M. on 18th February 1967, he wasat Moti-Dav, which is quite near, from 5-30 P.M. to 6 P. M. on 18th February1967. According to the tour programme, Shambhu Maharaj was to address

E.L.R.] P.R. PATEL V K.J. YAGNIK AND OTHERS 177

the meeting at Bamosana at 3 P.M. and at Moti-Dav at 2 P.M. but forsome reason or the other, as explained by the first respondent and also byMaganlal Ambaram Patel, Petitioner's Witness No. 23, Shambhu Maharajwas delayed on the way to Mehsana and some part of the programme hadto be dropped and the first meeting started at Bamosana at about 5 P.M.and thereafter different villages were visited as announced in the program-me but later than the scheduled time. Regarding the speech at Moti-Dav,the following passages have been objected to :—

"I will say one fact and that is that at present the Congress is statingeverwhere that nobody else will make the people happy except them-selves. But I say that apart from God no other Government eitherCongress or Swatantra Party can make people happy. An agri-culturist may have one bigha of land (about half an acre) and hemight have sown wheat but if there is heavy frost or locusts or ifone bullock worth Rs. 1000/- dies, Government may give him money,may give him bullock, but I do not think that that man can behappy; but Nature can make him happy. Today in our India,everyday 33,000 cows are being slaughtered throughout the country.Ten to eleven lacs of bullocks are being slaughtered during the yearand in Ahmedabad Town alone 10,000 bullocks are slaughtered."

Mr. Patel, on behalf of the petitioner, has contended before me that so faras the natural calamities like frost, visitation of locusts or the death of abullock of an agriculturist are concerned, they are sought to be connected,though not in so many words, as cause and effect, with the slaughter of alarge number of bullocks in India; but it is not possible to accept this con-tention of Mr. Patel. It is possible that in the course of his speech at Moti-Dav, Shambhu Maharaj put forward two different points of view—oneregarding the philosophical approach viz., that no Government can makepeople happy and only God or Nature can make people happy and anotherline of thought regarding a large number of cows and bullocks being allowedto be slaughtered throughout India; with any casual connection between thetwo. It is, therefore, not possible to say that Shambhu Maharaj in thecourse of this passage in Exhibit "J" was trying to connect natural cala-mities like frosts, visitation of locusts or death of a bullock with the largenumber of cows and bullocks which were being slaughtered everyday inIndia. Therefore, it cannot be said that in this particular passage, therewas any threat of divine displeasure by connecting the natural calamities withthe slaughter of cows. It is true that Shambhu Maharaj was propagatingthe view that slaughter of cows and bullocks should be completely bannedby Government action but it is, therefore, not correct to say that in thisparticular passage which I have set out above, Shambhu Maharaj was con-necting the natural calamities with the slaughter of a large number of cowsand thereby holding out a threat of divine displeasure on the ordinary peopleof the country because slaughter of cows and bullocks was not banned.

The other passage in Exhibit "G" about which Mr. Patel has contendedbefore me is as follows :—

"This unworthy Congress Government has cut the nose of Hindu Society.Sant Fateh Singh, the religious preceptor of the Sikhs, faste'd for

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10 days; whereas Jagadguru fasted for 73 days, still this Governmentis not even thinking of opening negotiations. This unworthyGovernment accepted the contention of the Sikhs after the fast of 10days, whereas in spite of the presence undertaken by Jagadguru by hisfast by 73 days, the Government has not considered any topic in thisconnection. Your Jagadguru had full confidence that, except forten crores who are the followers of the Congress, twenty to thirtycrores from the Hindu Society would help him."

It was contended by Mr. Patel that in this particular passage, ShambhuMaharaj was appealing to the voters on the ground of religion. Now. thereal substance of this particular passage is voicing of a feeling of discrimi-nation between Sikhs on the one hand and Hindu on the other. WhatShambhu Maharaj has been complaining in this passage is that the Hindus,who constitute a large majority, were being discriminated in the sense thatwhen a religious leader of the Sikhs fasted only for 10 days, the point ofview urged by that Sikh religious leader was accepted by the Government;whereas even though the religious leader of Hindus, viz., Shankaracharyaof Puri, had fasted for 73 days, the Government was not even consideringto open negotiations with him. It was in this sense of a discriminatorytreatment at the hands of the Government, one in the case of Sikhs and theother in the case of Hindus, that Shambhu Maharaj was complaining in thisparticular passage. Whether Shambhu Maharaj was right or wrong is notfor me to consider. But it cannot be said that by uttering the words inthis passage, Shambhu Maharaj was appealing to any person not to vote forthe Congress Party on the ground of religion or was asking any personto vote or not to vote on the ground of community or was holding out threatof divine displeasure.

The third passage which is complained of by Mr. Patel in Exhibit " J "is as follows :—

"For example, if any Maulvi from Mucca had fasted for 73 days and hadgiven such a mandate to our Muslim brothers, then would they havevoted for the Congress. That you have to consider. In the samemanner, if Fateh Singh, the religious leader of Sikhs, had fasted for73 days, would they (Sikhs) have voted for the Congress? In thesame manner if there were Parsis or Christians, then they alsowould vote for their religious preceptor. This is what you have toconsider. The mandate of your religious preceptor is that do notcast your vote for anyone, the mandate of the Jagadguru is that letcows be slaughtered, let bullocks be slaughtered. In Gujarat Statethough there is a ban, still bullocks are allowed to be slaughtered;the bullocks which give every individual happiness throughout thelife. This Government asks for vote in the name of the bullocks(the Congress Party election symbol being a pair of bullocks withyoke on) and I am, therefore, having an exprience. Do not votefor the Congress for voting for the Congress and putting the mark ofvoting on the symbol of bullocks, amounts to cutting the throatof bullock by a knife symbolized by your vote. Tt is my mandatethat you should not do this dastardly act."

E.L.R.] P.R. PATEL V K.J. YAGNIK AND OTHERS 179

It was contended by Mr. Pate] in this connection that there is in this passagean appeal to the voters in the name of religion and that there is an impliedthreat of divine displeasure. In this connection. Mr. Patel has relied uponthe decision of the Supreme Court in Ram Dial v. Sant Lat,(5)- In this caseas set out in para 9, at page 859 of the report, the spiritual head of a sectknown as Namdharies issued the poster Exhibit P-l, and the poster was inthese terms:—

"A command from Shri Sat Guru Sacha Padshah to the Namdharies ofHalqa-Sirsa."

"Every Namdhari of this Halqa is commanded by Shri Sat Guru thathe should make every effort for the success of Shri Ram Dayal Vaid, a can-didate for the Punjab Vidhan Sabha, by giving his own vote and those of hisfriends and acquaintances, it being our primary duty to make him successfulin the election. The election symbol of Shri Vaid is a riding horseman.

Sd. Maharaj Bir Singh,S/o. Sat Guru Maharaj Pratap Singh,

Jiwan Nagar (Hissar)."

This poster was purported to have been signed by the Mahant or the reli-gious leader of this sect of Namdharies. It was found that a large numberof Namdharies were voters in that constituency and this poster was inter-preted as a mandate from the spiritual leader who wielded great influence

.amongst the Namdharies. B. P. Sinha J. (as he then was) delivering thejudgment of the Supreme Court has observed at page 860 of the report asfollows :—

"A religious leader has a right to exercise his influence in favour of anyparticular candidate by voting for him and by canvassing votes ofothers for him. He has a right to express his opinion on the indivi-dual merits of the candidates. Such a course of conduct on his part,will only be a use of his great influence amongst a particular sectionof the voters in the constituency; but it will amount to an abuse ofhis great influence if the words he uses in a document, or utters inhis speeches, leave no choice to the persons addressed by him, inthe exercise of their electoral rights."

Now, it is to be borne in mind that Shambhu Maharaj himself, the persondelivering the speech, was not the religious leader of any section of thepeople. He himself merely purported to convey to the electors the mandateof the Jagadguru Shankaracharya of Puri. To that extent, Shambhu Maha-raj is merely a conduit-pipepur porting to convey the message of Jagadguruto the voters but all the same he has urged before the electors that it was amandate from the religious leader that they should not vote for the CongressParty candidate. Now, if the words had merely rested with a mandate, thenthere would have been something to be said in favour of the first respondentso far as this particular passage in Exhibit "J" is concerned; but the contextin which this mandate is set out, viz., comparing Hindus with Muslims, Sikhs,Parsis and Christians and stating that, members of other communities viz.,Muslims, Sikhs, Parsis and Christians would not have disregarded themandate of their own religious leaders, if such leaders had fasted for 73 days

(5) A.I.R. 1959 S.C. 855.

180 P.R. PATEL V K.J. YAGNIK AND OTHERS [VOL. XXXIV

is very material. Thus, the voters have been asked in the name of the man-date from their religious leader not to vote for the Congress Party. Underthese circumstances, in the light of the judgment of the Supreme Court inRam Dial's case (supra), it is clear to my mind that in the name of Shankara-charya of Puri in the context of his fast for 73 days, an appeal in the nameof religion was made by Shambhu Maharaj to the electors in this meetingat Moii-Dav and there was implicit in it divine displeasure or spiritualcensure if this particular mandate purporting to come from Shankaracharyaof Puri were not to be obeyed. It is true as Mr. Barot, on behalf of the firstrespondent, has contended before me in this connection, that there wasno evidence in the instant case, as was the evidence before the Supreme Courtin Ram Dial's case (supra), of there being any followers of Shri Shankara-charya of Puri in this particular constituency or a Moti-Dav. But to mymind the comparison between the small sect of Namdharies and a large body-like the Hinc!^ Society, which is referred to in the above passage in Exhibit"J", is very significant. What is being put forward in this particular passagebefore the electors is the imagined conduct of Muslims, Sikhs, Parsis andChristians on the one hand and Hindus, as a community on the other Hindusas followers of a particular religion are asked to obey the mandate issuedby their own Jagadguru, who had fasted for 73 days in the cause of ban OPcow-slaughter; and against that background it has been stated that votingfor the Congress would amount to killing cows and bullocks and this acthas been referred to as a dastardly act. It is true as Mr. Barot has urgedbefore me that a part of this passage is not clear in the sense that it is unbe-lievable that a Hindu religious preceptor would say that the voters shouldnot give their vote to anyone, let the cows be slaughtered, let .bullocks beslaughtered. Since in the context in which the passage occurs, the exactmeaning of those sentences with reference to the context does not becomeclear, I will not take those sentences into consideraton but at the same timethe juxtaposition between the Muslims, Sikhs, Parsis and Christians on theone hand obeying the mandate of their religious leaders, particularly in thelight of the background of the fast for 73 days for a particular cause; andthe code of conduct which the Hindus as a community are asked to adopt ;svery clear; and there can be no doubt that in this passage Shambhu Maharsjhad put forward an appeal to the electors not to vote for the Congress Partyin the name of the religion; and secondly though there may not be anythreat of divine displeasue in this passage in express terms, implicit in it ssthe threat that those who do not obey the mandate of Jagadguru would beincurring spiritual censure or divine displeasure.

It may be pointed out that this decision of the Supreme Court in RamDial's case (supra) was considered by a Division Bench of this High Courtconsisting of Miabhoy J. (as he then was) and Vakil J. in Lalsingh Rehvurv. Vallabhdas 6. In that particular case, the speech in question was deli-vered by Goswami Dixitji Maharaj at a public temple and a message wasgiven, and in the course of this message, this religious preceptor of theVaishnavas had asked his followers not to vote for the Congress party be-cause of certain acts of commission and omission of that party. Afterexamining the contents of the message, the Division bench observed at page770 of the report as follows :—

"In our judgment, such an impression on the part of a Vaishnav wouldcertainly undermine his freedom of choice of candidate. Whatever

•• .I..R,] P. R. PATEL V K. J. YAGNIK AND OTHERS 181

may be the views which such a person may form, based upon thepolicy or the programme of the Congress Party or on the individualmerit of the candidate standing for the party, there is a strong likeli-hood that, to an ordinary Vaishnav, subject to religious influence,he is likely to decide not to vote for the Congress Party on the groundthat, by doing so, he would be betraying a great religious leader orthat he would be committing a sin and thereby endangering his ulti-mate salvation."

] respectfully agree with the view taken by the Division Bench regardingsuch appeals made by religious preceptors. In the instant case also theappeal made by Shambhu Maharaj from this particular passage it wouldappear to an ordinary Hindu voter in this constituency that if he were todisregard this mandate of the Jagadguru Shankaracharya, he would be be-traying this religious leader, who had fasted for 73 days for the cause ofbanning cow-slaughter, or that he would be committing asm and therebyendangering his ultimate salvation. Under these circumstances, thoughthere is no proof that Shankaracharya had any religious following as suchin this particular constituency, there is no mandate in writing from the Jagad-guru and there is no direct address to his followers by the Jagadguru,Shambhu Maharaj has clearly appealed to the Hindu voters as such not tovote for the Congress Party lest they might be betraying their religious leader,particularly when he had fasted for 73 days in a cause which had some basisin the religious beliefs of the Hindus.

Exhibit "K" is the speech delivered by Shambhu Maharaj at Kherwa aftermid-night of February 18th-19th, 1967. Shambhu Maharaja, according tothe report, Exhibit "K", said as follows :—

"The Congress says that it has brought happiness and will give happi-ness in future; but even a father cannot give happiness to his son, norcan a son give happiness to this father. Giving happiness rests inthe hands of God. But God gives happiness where there is religion.He does not give happiness to the irreligious.

Formerly there were no famines. Possibly once in 100 years there mightbe one famine. As against that nowadays every year there is somenatural calamity like a famine. Either there is no rain or there isfrost or there is visitation of locusts or there is some disease in thecrops and some calamity or the other is constantly visiting us.The reason for this is that Congress permits slaughter of 33,000bullocks everyday. When slaughter of cows is banned, bullocks areallowed to be slaughtered. In Gujarat 12,000 bullocks are beingslaughtered."

Now, in this particular passage in the course of the speech at Kherwa, it isclear that a cause and effect relationship between the natural calamities onthe one hand and the slaughter of cows and bullocks, which is permitted bythe Congress Government on the other, has been put forward before thevoters by Shambhu Maharaj. The voters are told in very clear terms thatthe natural calamities like famine, frost, visitation of locusts or disease incrops are all due to the permission for slaughtering of cows and bullocksgranted by the Congress Party. Thus the voters are told that these naturalcalamities, which visit only the irreligious, are due to the action of the Con-gress Party in permitting the said slaughter. The voters in the course of

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this speech were asked not to vote for the Congress Party but to vote for theSwatantra Party candidate. Various other topics regarding economics,agriculture and politics are discussed in the course of this speech; but thisdirect casual relationship between the cow-slaughter and the natural calami-ties clearly shows that the voters were told that if they did not want suchnatural calamities to visit them, they should not vote for the Congress Partyand thus avoid the divine displeasure, which was reponsible for these naturalcalamities. In the first place, the voters are told that happiness can comeonly from God and God gives happiness only to the religious and not to theirreligious. They are told within a very short time thereafter that the naturalcalamities which are visiting the people every year as against once in 100years in the old days are all due to the permission for cow-slaughter beinggranted by the Congress Party. Reading these passages together, there isno doubt in my mind, that the electors were told not to vote for the CongressParty and in order to secure their happiness as religious-minded people andto avoid being irreligious not to vote for the Congress Party but to vote forthe Swatantra Party. To my mind, these two passages in Exhibit "K" readtogether could have only one meaning that they amounted to interferencewith the free exercise of the electoral right of the voters by holding out threatsof divine displeasure and spiritual censure. Therefore, the presumptionmentioned in Section 123(2), proviso (a)(ii) of the Act will apply and itmust be held that there was interference with the free exercise of the electoralrights of the electors within the meaning of Section 123(2) of the Act.

With reference to this passage, Mr. Barot has contended that ShambhuMaharaj wanted to say that because of the mal- administration of the CongressGovernment the people were not able to face the natural calamities as andwhen they came and therefore people were asked not to vote for the CongressParty. But this argument of Mr. Barot cannot be accepted in view of theclear cause and effect relationship set out by the words: *'a^ »FR<T"(because of that) in this passage viz., that these natural calamities were therebecause of. the fact that the Congress Party had permitted the cows andbullocks to be slaughtered.

There are two more passages in Exhibit "K" which are also alleged toamount to commission of corrupt practice by Shambhu Maharaj while deli-vering the speech at Kherwa, viz.:—

"Nobody would sit till 12.30 a.m. at night to listen to any talks by theCongresswalas. But I have cpme to tell the public, which is fondof its religion, to elect the Swatantra Party, so that the slaughterof bullocks might be stopped and all people who are fond of theirreligion are also keeping awake till 12.30 a.m. at night."

In the context that was said earlier about religion, it is contended that thisportion asks the religious-minded people and the members of the publicwho are fond of their religion not to vote for the Congress Party but to votefor the Swatantra Party. Now, this passage by itself or even in the contextof what has been stated in other parts of this speech at Kherwa, does not inany manner appeal to the public in the name of the religion. It merely givesa sort of certificate to the people, who have waited to listen to ShambhuMaharaj till 12.30 a.m. at night, that they were fond of their religion. Atthe time when this speech was delivered, there was a political controversygoing on about the desirability of or otherwise of a ban on cow-slaughter

E.L.R.] P. R. PATEL v K. J. YAGNIK AND OTHERS 183

and bullock slaughter; and in the light of this political controversy, whichhad its undertone and background of religious beliefs of the Hindus, itcannot be said that it ceased to be a matter of political controversy. To usethe language of Section 123(2), proviso (b) of the Act, such discussion ofpublic policy cannot be deemed to be interference with the free exercise ofany electoral right. There was no threat of divine displeasure; nor becauseof the political controversy can it be said to be an appeal purely on theground of religion. As pointed out the Supreme Court in Kultar Singh v.Mukhtiar SinghC1), political issues which form the subject-matter of contro-versies at election meetings may indirectly and incidentally introduce con-siderations of language or religion, but in deciding the question as to whethercorrupt practice has been committed under Section 123(3), care must betaken to consider the impugned speech or appeal carefully and always in thelight of the relevant political controversy. It is in this background of thepolitical controversy which going on at that time that I have to come to theconclusion that this particular passage about "the people fond of their reli-gion waiting till 12.30 a.m. cannot be said to offend against Section 123(3)of the Act.

The last passage about which grievance is made on behalf of the petition-er regarding the speech at Kherwa is as follows:—

"Vijaykumarbhai has gone. A Brahmin Minister must be there andhence Kantilalbhai is going to be a Minister, hence vote for him. Wemust have at least one minister who is a Brahmin. Hence vote forKantilalbhai. At the same time vote for Bhaikaka and H. M. Patelby putting your voting mark on the star."

The reference to Vijaykumarbhai is to Vijaykumar Trivedi, who was aBrahmin and was a Minister in the Gujarat Government till March, 1967,and when this speech was delivered. The reference to Kantilalbhai is tothe first respondent, who is also a Brahmin and the reference to Bhaikakais to Bhailalbhai Patel, leader of the Swatantra Party and H. M. Patel isanother leader of the Swatantra Party; and what Shambhu Maharaj wasasking in this connection was that it was necessary that there should be oneBrahmin in the Gujarat State Ministry and if one Brahmin, VijaykumarTrivedi, was to leave the Ministry, another Brahmin Minister viz., the firstrespondent, should be first elected so that he might get a seat in the legis-lature and thereafter become a Minister; and thus it is clear that in thispassage, Shambhu Maharaj was asking the people to vote for the first res-pondent because he was a Brahmin By caste. It has been stated as a catego-rical statement that there must be at least one Minister, who was a Brahmin.Under Section 123(3) of the Act, an appeal by any person to vote for anyperson on the ground of his caste or community is a corrupt practice, pro-vided, of course, that such person has made such appeal with the consentof the candidate concerned. I will come to the question of consent a bitlater on, but it is clear that in this particular passage an appeal was beingmade to the electors to cast their votes for the first respondent because thefirst respondent is a Brahmin and also because of the promise, which had beenput forward in this passage, that there should be at least one BrahminMinister in the Ministry. I may point out that so far as the petitioner isconcerned, the petitioner is a Patidar and it is in the context of this back-

CT) A.I.R. 1965 S.C. 141.2EC/71—13

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ground that an appeal is made in the name of caste of the first respondentand the people are asked to vote for the first respondent because he was aBrahmin.

Thus, in the course of this speech at Kherwa, Shambhu Maharaj had heldout a threat of divine displeasure in case the people did not vote for theSwatantra Party and voted for the Congress Party and the threat was ofnatural calamities in case of the Congress Party being voted into power.There is also an appeal to3'the voters to vote for the first "respondent becausehe was a Brahmin.

[After considering the evidence on the election speeches made by ShambuMaharaj at the various places and on the part played by the First Respon-dent in arranging the meetings and in the issuing of hand bills in connectionwith these meetings, the judgement proceeded:]

* # * * # # * # *

On the probabilities of the case also I have come to the conclusion that thefirst respondent must have accompanied Shambhu Maharaj on his tour onthe 18th and 19th February of the different villages in this constituency. Asshown in the hand-bill setting out the programme, the manuscript of whichwas written out by the first respondent himself in consultation with Magan-lal Ambaram Patel, this tour programme had been arranged to bring successto the first respondent in his election contest. Shambhu Maharaj was, tour-ing these villages specifically so that the first respondent might succeed in hiscontest. Further it would be natural on the part of the first respondent totake advantage of being seen in the presence of a good speaker like ShambhuMaharaj. Some of the meetings of Shambhu Maharaj appear to have beenwell-attended. Under these circumstances, it is highly improbable that thefirst respondent accompanied Shambhu Maharaj. To my mind, therefore,it is clear that the first respondent had accompanied Shambhu Maharajand was present in each of the meetings at Moti-Dav, Kherwa and Dangerwawhen Shambhu Maharaj delivered speeches at these three villages.

In this connection, I may point out that in Kumar a Nand v. BrijmolianLai Sharma (8) what happened'-was that a poem was composed by oneAvinash and was recited at a meeting by Avinash, at which the appellantbefore the Supreme Court himself was presiding. The poem was highlyobjectionable in the sense that it said that the candidate concerned was athief and a leader of thieves. The objectionable words in that poem areto be found at page 810 of the report and the Supreme Court observedas follows :—

"Now, there is no doubt that the poem was aimed at the respondentwhich is made clear by the second stanza which starts with the words:"Pakka Pandit Sharma Hoon": (I am pucca Pandit Sharma). It isnot in dispute that the respondent was the only Sharma who contest-ed the election. Considering the heading of the poem to which wehave already referred it is obvious that the respondent was depictedtherein as requesting for votes. In the sixth stanza, the respondentis made to say: sub choron ka sartaj : (I am the greatest of allthieves): and it is this phrase which the High Court has held to bestatement of fact."

(«) A.I.R. 1967 S.C. 808.

E.L.R.] P. R. PATEL V K. J. YAGNIK AND OTHERS 185

Thus the poem making false statement of fact and against the personalcharacter of the candidate concerned was recited in the presence of thesuccessful candidate; and on these facts, it has been observed by the SupremeCourt in para 17, at page 830 of the report as follows:—

"In the present case the poem was not actually read by the appellant,but it was read in his presence at a meeting at which he was presidingby Avinash Chander. In these circumstances the High Court wasright in coming to the conclusion that the recitation of the poem byAvinash Chander at the meeting amounted to the publication of thefalse statement of fact contained in it by another person with theconsent of the candidate, and in this case, even of his election agentwho was also present at the meeting."

In the instant case also, the first respondent, according to the conclusion thatI have reached, was present at the meetings which were addressed byShambhu Maharaj at Moti-Dav, Dangerwa and Kherwa and in each of thesethree meetings at least, according to the conclusions reached by me, SharrtbhuMaharaj in the course of his speeches had committed breaches of theseprovisions of section 123(2) and secton 123(3) of the Act; and these corruptpractices were :—

(1) Interference with the free exercise of the electoral right of the votersby holding out threats of divine displeasure in case they voted for theCongress Party;

(2) Asking the electors to vote for the first respondent because he wasa Brahmin by caste;.

(3) By making appeal to religion of the electors.Under these circumstances, it is clear to my mind, judging by the mannerin which the first respondent was touring with Shambhu Maharaj, the man-ner in which the tour programme was arranged and judging from the factthat this tour was specifically arranged to bring success to the first respon-dent, that the first respondent did consent to the commission of these breach-es of the provisions of section 123(2) and section 123(3) of the Act byShambhu Maharaj. Under these circumstances, both under the provisions ofsection 123(2} and section 123(3) and also under the provisions of section100(l)(b) of the Act, the election of the first respondent to the Gujarat StateAssembly from Mehsana State Assembly Constituency is liable to be setaside.

I am not in a position to say, nor is it possible to say in the light of thefacts and circumstances of this case, that the result of the election of thefirst respondent was affected in any manner by the corrupt practice com-mitted by Shambhu Maharaj or by Maneklal Ranchhodlal Shukla by pub-lishing Exhibit Z-l. However, since the first respondent himself has notcommitted the corrupt practice, the case clearly falls within section 100(l)(b)of the Act.

In this petition, the petitioner has also asked for a relief that the petitionerhimself should have been declared elected to the Gujarat State Assemblyafter the declaration regarding the election of the first respondent being void,is granted. But it is not possible to grant that relief under section 101 of theAct. The reason for not granting that declaration under section 101 of theAct is that it is not possible to say how many votes were obtained by the

186 P. R. PATEL V K. J. YAGNIK AND OTHERS [VOL. XXXIV

first respondent by the corrupt practice, which I have found to have beencommitted. Unless and until any decision regarding the number of votes soobtained by the commission of corrupt practice can be reached, it is notpossible to grant the declaration under section 101 of the Act in favour ofthe petitioner. Therefore the only declaration which can be granted is thedeclaration that the election of the first respondent is void.

In the result, this Election Petition is allowed and I declare that the elec-tion of the first respondent to the Gujarat State Legislative Assembly fromthe Mehsana State Assembly Constituency is void because of the corruptpractice committed by Shambhu Maharaj, to which the first respondent hadconsented. In view of the fact that the corrupt practice was committed byShambhu Maharaj and not by the first respondent himself and the responsi-bility of the first respondent arises merely because of the consent given byhim. I cannot make an order under section 99 of the Act, naming the firstrespondent as the person who has been guilty of corrupt practice.

As regards the question of costs, nearly 22 working days have been takenup for the hearing of this Election Petition. Voluminous evidence runninginto nearly more than 600 pages of the notes of evidence has been recorded inthis case. The petitioner has lost on the issue regarding the circulation of thepamphlet and though there have been allegations in the petition regardingthe speech delivered by Swami Shivanand and also regarding the speechesreported in "Jai-Hind" daily newspaper; no evidence has been.led to provethe contents of the speeches of Shambhu Maharaj. These issues were notgiven up till the end. Under these circumstances, the fair order should bethat the first respondent shall pay as and by way of Advocate's feesRs. 3,000/- (Rupees Three Thousand only), and other taxed costs.

Mr. R. K. Patel, appearing at this stage on behalf of the first resp&ndent,applied for stay of the operation of this order in order to enable the firstrespondent to appeal to the Supreme Court and to apply for a stay of thisorder. Under section 116-B of the Act, I am entitled to put the first respon-dent on terms. Mr. Patel on behalf of the first respondent undertakes thatthe first respondent will not attend any meetings of the State LegislativeAssembly except for the purpose of saving himself from the disqualificationfor non-attendance. Mr. Patel on behalf of the first respondent furtherundertakes that the first respondent will not participate in any work of theState Legislature; nor will he work in his capacity as a Member of the StateLegislative Assembly; nor will he draw any remuneration. On these under-takings, the stay of operation of this order is granted for a period of six weeksfrom the date of supply of the certified copy of this judgment.

In the result, I answer the issues as follows:—

Issue No.1234

5

Finding.

Not necessary.In the affirmative.Not pressed.In the negative as to first part.In the affirmative as to second part.In the negative as to third part.In the negative as to first part.Second part does not arise.

E.L.R.] P. K. PATEL V K. J. YAGNIK AND OTHER 187

6 In the affirmative as to first part.In the affirmative as to second part as regards thespeeches at Moti-Dav, Kherwa and Dangerwa.In the affirmative as to third part.

7 First part not pressed.Second part does not arise.

8 In ' the negative.9 In the affirmative.

10 In the negative.11 As ordered above.

Petition Allowed.

IN THE HIGH COURT OF THE STATEjOFPUNJAB AND HARYANA

SHAFQAT RAIV.

PHUMAN SINGH & OTHERS(HARBANS SINGH J.)

August 3, 1967 and December 6, 1967

Evidence Act, 1872—Section 78(6)—Requirements of section—Non-compliance would render document inadmissible.

To prove that the respondent who was the returned candidate, wasdisqualified from contesting the election since he had net attained the ageof 25 years, the petitioner produced a copy of the birth register of the Policestation, District Montgomery, signed by the District Health Officer in Pakistan.According to the respondent the copy was merely signed by someone pur-porting to be the District Health Officer without his appending a certificate thatit was a true copy; and further, no certificate as required by sub section (6)of section 78 of the Evidence Act was appended by the person signing on be-half of the Indian High Commissioner, Karachi, but only some attache tothe High Commission had signed the document putting the word "attest-ed". On the question whether there was sufficient compliance with sec-tion 78(6) of the Evidence Act.

Held: Dismissing the petition, under sub section 6 of section 78, thefollowing conditions are to be fulfilled:

(i) the copy must be certified by the legal keeper of the document;(ii) there must be a certificate by a Notary Public or an Indian Con-

sul or diplomatic agent;(Hi) this certificate must be to the effect that the copy is duly certified

by the legal keeper of the original.

In the present case, on the face of it, the copy is not certified as the truecopy, although signatures of some one purporting to be the legal keeperof the original are appended. Again, above the signatures of the attachethe word "attested" only is written and it is not certified that the copy iscertified by the officer having the legal custody of the original. Difficultyin obtaining a proper certified copy is no ground for condoning the non-compliance with the requirements of the section.

1 88 SHAFQAT RAl V PHUMAN SINGH AND OTHERS [VOL. XXXIV

Badat & Co. v. East India Trading Co., A. I. R. 1964 S. C. 533;Referred to :

ELECTION PETITION NO. 3 of 1967.H. L. Sibal and R. C. Setia, Advocates for the Petitioner.B. S. Bindra and Kuldip Singh, Advocates for the Respondents.

JUDGMENT (Dated, August 3, 1967)

HARBANS SINGH J.—This election petition filed by Shafqai Rai, aneiuutor in the Jalalabad Punjab Assembly Constituency, challenges theelection of Phuman Singh, respondent No. 1, who was declared successfulon 22nd of February, 1967 from that constituency.

It was stated and not denied that nomination papers were to be filedbetween 13th and 20th of January, 1967 and the same were scrutinised onthe following day. /. e. 21st of January. 1967. The ground of attack is thaion the date of the filing of the nomination paper by respondent No. 1,as well as on the date of scrutiny the successful candidate, had not attainedthe age of twenty-five years and was consequently not qualified for beingchosen to fill a seat in the Punjab Legislative Assembly under Article 173of the Constitution of India and section 36 of the Representation of thePeople Act, 1951.

Article 173 of the Constitution runs as follows:—"173. A person shall not be qualified to be chosen to fill a seat in

the Legislature of a State unless he—•f Q\ * * * * * * * * * * * * * * * * * * * * * * * * * * * « * * * * * * * * * * * * * * #****** * * * .

(b) is, in the case of a seat in the Legislative Assembly, notless than twenty-five years of age**************. a n c j

(c\ ****************************************************According to the petition, the date of birth of respondent No. 1 is 5th ofFebruary, 1942 and consequently on the date of the scrutiny he wasless than twenty-five and, therefore, not qualified and as such as it was pray-ed that the election or respondent No. 1 be' set aside.

Respondent No. 1 resisted the petition and averred that in fact he wasborn some time in the year 1937 in village Bunga Amir Singh, Tehsil Dipal-pur, District Montgomery (now in West Pakistan), that immediately afterthe partition, when the father of the respondent migrated to India, he gothim admitted in the Government Primary School, Chang, District Hissar,where the date of birth of the respondent given by his father was 7th ofAugust, 1940, that even this date was incorrect, and that he was in fact bornin 1937. With regard to the date of birth given in the school at LamocharKalan, on which reliance was placed by the petitioner, it was stated thatthe same was given incorrectly. The only issue in the case, therefore, isas follows:—

"Whether respondent No. I was not qualified to contest the election, be-ing less than twenty-five years of age on the date of filing the nomina-tion papers?"

The petitioner in addition to producing certain jamabandis of villageBunga Amir Singh and certain copies of the mutations attached therewithreceived by the Rehabilitation Department from Pakistan, examined the

E.L.R.] SHAFQAT RAI V PHUMAN SINGH AND OTHERS 189

Headmaster of Government Middle School, Lomochar Kala, Tehsil Fanzil-ka, District Ferozepore, and one Jagga Singh, who is a displaced person fromthe original village of respondent No. 1. The Headmaster merely provedthe admission form signed by Pala Singh, father of respondent No. 1, atthe time of the admission of respondent No. 1 in the 1st primary class inthat school on 2nd of April, 1953. The date of birth of respondent No. 1given in this form is 5th of February, 1942. Jagga Singh in his examina-tion-in-chief stated that the knew Pala Singh, father of respondent No. 1,who used to live in his village before partition and belonged to his brother-hood. He further stated that at the time of the partition of the countryPhuman Singh was a mere child, 3-1/2 or 3-3/4 years old, that the boy wasborn during the winter months and that he had attended the celebrationsin connection with his birth, which took place, as usual, on the eighth dayafter his birth. In cross-examination, however, this witness created ratheran adverse impression, by not giving answers in a straight manner andin trying to prevaricate. To begin with he stated that the second childof Pala Singh was a daughter, Mst. Jito, who was just in the lap of hermother at the time of the partition of the country. When he was asked thequestion, by the Court, as to how old was Phuman Singh at the time of thebirth of Mst. Jito, he could give no reply. And when he was further askedwhether Phnrnan Singh was 7 years or 5 years old at that time, all thathe stated was that it may be so. He was later asked to try to rememberwhether he was 7, 5, 3, 2 or 1 year old at the time of the partition of thecountry, and the answer given by him was that he generally remained illand did not remember. He did not even know whether after the birth of Mst.Jito another son was born to Pala Singh who had died after 21 days. Whenanother question was put to him as to whether he went to attend the usualceremony conducted on the birth of a son on the eighth day with regardto the second son, he just kept mum and did not answer. The evidenceof this witness is so vague and unsatisfactory, that no reliance can be plac-ed thereon.

The mutations produced on the record merely show that some landwas purchased by Phuman Singh when he was a minor and a suit was broughtpre-empting the same, which was ultimately decreed, and in pursuance ofthat decree, mutation (copy Exhibit P. 4) was entered. According to thismutation, the decision of the Court was dated 15th of December, 1944and the suit was filed in the year 1944. This would throw no light whateveron the date of birth of respondent No. 1, because all that it would show isthat respondent No. 1 was in existence in the year 1944. The case of thepetitioner himself is that respondent No. 1 was born on 5th of February,1942. This was clearly stated in the petition and in the statement madeby the learned counsel for the petitioner closing his evidence on 22nd ofMay, 1967 he stated as follows:—

"In view of the fact that in the present case we have to establish theexact date, and even according to our allegations his (PhumanSingh's) age was short by only 15 days on the date of scrutinyfrom the qualifying age, I feel it is no use examining oral wit-nesses generally stating about the birth of Phuman Singh. I praythat time may be granted to the petitioner, who is trying to getthe birth entry •. , I loose myevidence except that I reserve the right to produce certified copyif and when received."

190 SHAFQAT RAI V PHUMAN SINGH AND OTHERS [VOL XXXIV

The only thing, therefore, left is the statement of Shri Gurdial Singh,Headmaster of Lamochar Kalan School, showing that the father whilegetting respondent No. 1, admitted into that school in the first Primaryclass on 2nd of April, 1953 gave the date of birth of respondent No. 1, as5th of February, 1942 on behalf of the respondent, the records of the Govern-ment Primary School, Chang weregot produced through R.W.I. Shri Kishan,Headmaster of that School, showing that much earlier i.e. on 5th ofMarch, 1948, when Pala Singh, father of respondent No. 1, got the res-pondent admitted in the first primary class in that School, he gave his dateof birth as 7th of August, 1940. According to R.W.I. Phuman Singh's namewas removed on 17th of July 1948 on account of long absence. The Head-master who was actually working in that school, on the day respondent No.'1was admitted, is dead. His signatures allowing the admission on theadmission form filled in by the father were proved by R.W.I. .

Pala Singh, father of Phuman Singh respondent No. 1, went into thewitness-box and it was clear from the statement that he had very little ideaof dates. All that he stated was that respondent No. 1 was his eldest sonand was born nine years before the partition of the country. He furthergave the details of various children born thereafter. He then stated thaton coming over to the Indian Union after the partition he settled at villageChang in Hissar District, where he got his son admitted in the school andall that he told the Headmaster was that the boy was born in the year 1940and that he did not give the date of the month which were filled in by theHeadmaster of his own accord. As regards the date of birth given byhim subsequently in the year 1953 at Lamochar Kalan, he explained thatrespondent No. 1 was to be admitted in the first primary class and at thattime he was about 14 years of age. The Headmaster told him that theycould not admit a boy in the first primary class if he was aged 12 or 14 yearsbut they could admit a boy aged 7 years only. On this Pala Singh told theHeadmaster that he could write any date in the admission form and it wasin these circumstances that the date of birth was mentioned as 5th of Febr-uary, 1942.

The respondent proved on the record that he was entered as a voter fromhis village Fattuwal in the year 1961 and again in the year 1966. ExhibitR. 4/1 is a copy of the electoral roll of the year 1961 where Phuman Singhrespondent is entered at serial No. 5208. His age is entered as 25 yearsand that of his wife (who is entered at serial No. 5207) as 23 years. Itis now well settled that entry in the electoral roll is final only qua the factthat the person entered therein is entitled to exercise his franchise if he is nototherwise disqualified, but there is no presumption of truth of finality attach-ed to the age mentioned in such electoral roll. Apart from this, ExhibitR. 5/1 (copy of the electoral roll for the year 1966) makes it absolutely clearthat no reliance can be placed on the entry regarding age in such rolls.The entry of 1966 was made five years after the first entry made in 1961and whereas the age of Phuman Singh in the latter entry at serial No. 1390is mentioned as 30 years, which will correspond to his age being 25 yearsin 1961, that of his father Pala Singh remains 50, /. e. the same which wasrecorded in 1961. Similarly the age of his mother Gango Bai is mentionedas 40 years in 1966 as was shown in the year 1961.

On the record as it is we are left only with the evidence to the effectthat the father of respondent No. 1 in the year 1948, at the time of gettinghim admitted into a school at Chang, gave his date of birth as 7th of Augmt,

E.L.R.] SHAFQAT RAI V PHUNAM SINGH AND OTHERS 191

1940 whereas some five years thereafter, while getting him admitted into aschool at Lamochar Kalan, he gave the date of his birth as 5th of Febr-uary, 1942. Apart from the fact that the date of birth entered in the schoolregisters as given by a illiterate father is not a satisfactory material on whichone can arrive at a finding as to the exact date of birth, we have in the presentcase two contradictory dates having been given by the same person. Theexplanation given by the father of respondent No. 1 for subsequently giv-ing a different date of birth may not be quite correct, but it is certainly notunreasonable. The petitioner wants to have the election of a duly electedrepresentative of the people to be set aside. This is a serious matter andunless he can establish by positive evidence the fact that he was disqualifi-ed on the relevant date it would not be proper to hold that the election isbad. The burden of proving such a fact is on the petitioner (See KrishanRao Maharu Patel v. Onkar Narayan Wagh, 14 E. L. R. 386). The evidenceon the record does not at all prove that respondent No. 1 was below twenty-five on the date of scrutiny. However, as both the parties desired an adjourn-ment, I allowed the same till today, to enable the parties to produce a copyof the relevant entry from the birth register. Neither party has been ableto produce such a copy and both parties pray for a further opportunity be-ing granted. I consequently adjourn the case to September 15, 1967.

JUDGMENT DATED 6-12-1967.

This order will be read in continuation of my order dated 3rd of Aug-ust, 1967, which shall form part of it.

As stated in my interim order dated 15th of September, 1967, a copyfrom the birth-register of Police Station Atari, District Montgomery, forthe year 1942, purporting to be signed by the District Health Officer, Sahi-wal in Pakistan, relating to one Phuman Singh, son of Pala Singh, son ofJiwan Singh, has been produced. This Phuman Singh was born on 6thof March, 1942. A number of adjournments were granted to enable therespondent to produce another copy. According to the respondent,the copy produced is not a genuine and proper one. He urged that nor-mally speaking, children born are not given any name for a considerableperiod after their birth, while according to this document, the boy bornon 6th of March, 1942 bore a name within ten days i. e. by 16th of March,1942, on which date the report is purported to have been made. The fur-ther contention of the learned counsel for the respondent is that the copyproduced on behalf of the petitioner is inadmissible in evidence, becausethe same is not covered by the provisions of Section 78 of the Indian Evi-dence Act. The register of birth, is a public document, is of a foreign coun-try. Sub-sections (4) and (6) of Section 78, deal with the method of proofof foreign documents. The relevant part runs as follows:—

"78. The following public documents may be proved as follows:—

(1)

(2)

(3)

192 SHA.FQAT RA.I V PHUNA.M SINGH AND OTHERS [VOL. XXXIV

(4) The acts of the Executive or the proceedings of the Legislatureof a foreign country,by journals published by their authority

(5)

(6) Public documents of any other class in a foreign country,

by the original, or by a copy certified by the legal keeper thereofwith a certificate under the seal of a Notary Public, or of an IndianConsul or diplomatic agent, that the copy is duly certified by theofficer having the legal custody of the original, and upon proofof the character of the document according to the law of the fore-ign country.

The present case would be covered by sub-section (6) and as a certifiedcopy is sought to be proved, the following conditions are necessary:—

(1) The copy must be certified by the legal keeper of the document;

(2) There must be a certificate by a Notary Public or an Indian Con-sul or diplomatic agent;

(3) This certificate must be to the effect that the copy is duly certifiedby the legal keeper of the original.

The learned counsel for the respondent urged that in the present caseall the three requirements are missing. In the first place, the copy is merelysigned by some one purporting to be the District Health Officer, Sahiwal,without his appending a certificate that it was a true copy. In the secondplace, no certificate, as required by sub-section (6) of section 78 of the IndianEvidence Act, 1872 has been appended by the person signing on behalfof the Indian High Commission, Karachi. Some Attache to the IndianHigh Commission, Karachi, has signed the document, putting the wordattested. The question for consideration is whether this word is sufficientcompliance with the provisions of law. It was urged on behalf of the peti-tioner that the word 'Attested' obviously means that the Attache was attest-ing to the signatures of the Medical Officer. In other words, it meansthat the persons who signed the certificate as a Medical Officer is such aperson and that the aforesaid person is the legal keeper of the original.On behalf of the respondent, it was urged that the word 'Attested' does notcomply with the provisions of law. The certificate that is to be appendedby an Indian Consul or the diplomatic agent, has to certify two things:(1) that the copy is duly certified by the officer and (2) that officer has thelegal custody of the original. Lastly, it was urged that an Attache doesnot fall in the category of a Consul or diplomatic agent; Attache may bean Official in the Indian High Commission, but he can neither be treatedas a Consul or as a diplomatic agent. Reference in this respect was madeto Oppenheim's International Law, Seventh Edition by Lauterpacht, atpage 694, Volume 1, where kinds and classes of diplomatic envoys aregiven. These include, Ambassadors, Ministers Plenipotentiary and En-voys Extraordinary, Charge d'affairs and Ministers Resident. At page745 of the same Volume, there are mentioned different classes of Consuls,which include, consuls-general, consuls, vice-consuls and consular agents.

E.L.R.] SHAFQAT RAI V PHUNAM SINGH AND OTHERS 193

It was desired that the burden lay on the petitioner to show that an Attacheto High Commission, Karachi was a person, who could be called an IndianConsul or diplomatic agent. It is not necessary to go into this pointfurther because I feel that there is force in the first two points raised onbehalf of the respondent.

The certificate bears signatures of some one. who signs as 'S. N. Sha,W. P. H. S. (1), District Health Officer, Sahiwal'. There is no writingabove this signatures to the effect "certified to be true copy". Similarly,the word 'attested' written above the signatures of the attache, cannot betaken to be equivalent to "certified that the copy is duly certified by theofficer having the legal custody of the original". No case dealing withthis matter direct was cited by the counsel for the parties. Reliance was,.however, placed on a Supreme Court judgement in Badat and Co., Bom-bay v. East India Trading Co., AIR 1964 S. C. 538. The question for deter-mination in that case was whether a copy of the record of proceedings of theSupreme Court of the State of New York relating to the arbitration betweenthe plaintiffs and respondents, could be given effect toby the Courts in India.So far as the present point is concerned, it was dealt with at page 549. Itwas observed as follows:—

"The said exhibit is the record of proceedings of the Supreme Courtof the State of New York relating to the arbitration between theplaintiffs and the respondents. That record contains the certifi-cate issued by the Consul-General, and other papers relating tothe proceedings including the order and judgement of the saidSupreme Court. The certificate reads thus:

'This is to certify (a) that the annexed proceedings have been dulyhad in accordance with the laws of the State of New York,

(b) that the annexed proceedings are duly certified by theofficer having the legal custody of the originals thereofat the time such annexed proceedings were issued by theSupreme Court, of New York,

(c) that the several persons named in the annexed proceed-ings as holding the respective offices stated therein in res-pect of each of them did in fact hold such respective officeat the time the same took place'.

The Consulate General of India assumes no responsibility for thecontents of this document."

Sd/- M. Gopalcharan,CONSUL GENERAL,

Seal of Consulate General of IndiaNew York, N. Y.

Dated:New York N. Y.June 18, 1967.

194 SHAFQAT RAI V PHUNAM SINGH AND OTHERS [VOL, XXXIV

Clause (b) of the certificate given above was relied upon for the argumentthat this is the type of certificate that is contemplated and is necessary tobe given under sub-section (6) of Section 78 of the Evidence Act. At page549 of the above judgement in Badat and Company case it was observedas follows:—•

"It is not disputed that the copy of the judgement is certified by the'legal keeper of the original within the meaning of Section 78(6) ofthe Evidence Act; nor is it contended that there is no certificateunder the seal of an Indian Consul certifying that the copy is certifiedby the officer having the legal custody of the original." '

la the present case, on the face of it, the copy is not certified as the truecopy, although signatures of some one purporting to be the legal keeperof the original are appended. Again, above the signatures of the Attachethe word 'attested' only is written and it is not certified that the copy iscertified by the officer having the legal custody of the original. It was urg-ed on behalf of the respondent that the requirements of law as envisag-ed by sub-section (6) of section 78, not having been complied with, the copyproduced is inadmissible in evidence. No doubt it is difficult for a non-muslim to get visa for visiting Pakistan and still more difficult to get a copy ofa document from there (and in fact it is due to these difficulties, it was con-tended, that the respondent in spite of a number of adjournment, has notbeen able to obtain a copy himself), but merely because it is difficult forthe petitioner to get another copy, a copy which is not properly certified,cannot be admitted.

As I have already stated in my order, dated 3rd August, 1967, the bur-den lies on the petitioner to establish that an elected representative of thepeople was disqualified on the date of his nomination on the ground thathe was less than 25 years of age. Before an elected representative is thusunseated, this burden must be discharged fully by the petitioner. In viewof the discussion above, though there may be no fault of his, yet the copyproduced does not appear to comply with the provisions of sub-sections(6) of section 78 of the Evidence Act and, therefore, cannot be admittedinto evidence.

I have already discussed the remaining evidence on the record in myorder dated 3rd August, 1967. The position, therefore, remains as it wason the 3rd August, 1967 and by my order of that date, after discussing theevidence on the record, I came to the conclusion that the evidence on therecord is not sufficient to discharge the burden, which lay on the petitioner.This petition is consequently dismissed. In the circumstances of this case,I do not make any order as to costs.

Petition Dismissed.

195

IN THE HIGH COURT OF ANDHRA PRADESH AT HYDERA-BAD

SHANTA BAI TALPALLIKARV.

D. GOPALAREDDY AND OTHERS

(BASI REDDY J.)

December 11 1967

Representation of the People Act, 1951, ss. 9-A, 36, 123(1) and (5)—Petitioner's objections at the time of scrutiny of nomination of the firstrespondent-Recording of decision of the Returning Officer—RequirementsofSection"36—Corrupt Practice—Burden of proof—Tainted evidence ofpersons who are in the nature of accomplices—Whether corroborationof evidence necessary.

The petitioner, a defeated candidate, challenged the election of thefirst respondent to the Assembly on the grounds, inter alia that he wasdisqualified as he was a partner of a firm which had several subsisting con-tracts with the State Government on the relevant dates, and that he hadcommitted several corrupt practices under s. 123(1) and (5).

It was further alleged that the objection raised by the petitioner at thetime of scrutiny of the nomination of the first respondent was improperlyover-ruled by the Returning Officer.

The respondent denied the allegations and stated that partnershipof the firm which had contracts with Government was dissolved prior tothe relevant dates.

HELD: The election of the first respondent must be set aside.

(i) It was established on the evidence that the first respondent hadhired a bus for the conveyance of voters to the polling station; and thatpromises of payment were made by him to voters if they would travel tothe polling station and vote for him.

(ii) On the facts, it was clear that the partnership firm in question wasdissolved before the relevant dates. There was therefore no subsistingcontract which could have the effect of disqualifying the first respondent.

(Hi) Under Section 36 of the Act, all that the Returning Officer needdo is to record his decision and where he rejects a nomination he has torecord in writing a brief statement dealing with the objection. He has nopower to adjourn the proceedings and give the petitioner an opportunityto adduce better evidence in support of his objection.

(zv) Since a finding of guilt in respect of a corrupt practice under Sec-tion 123 entails serious civic disabilities the standard of proof is as highas in a criminal case and the charge must be proved beyond reasonabledoubt and not merely by a balance of probabilities as in a civil case. In

196 SHANTA BA1 TALPALLIKAR V D. GOPALAREDDY AND OTHERS [VOL. XXXIV

dealing with corrupt practices, as a rule of prudence, the tainted evidenceof persons who are in the nature of accomplices should not normally beacted upon unless it is corroborated in material particulars by some in-dependent evidence of a direct or circumstantial nature.

Jagdev Singh v. Pratap Singh A. I. R. 1964 S. C. 133 at 188, C. SubbaRao v. K. Brahmananda Reddy, (1966) //. An. W. 401 at 409, GurunathReddy v. Seshaiah A.I. R. 1966 A. P. 331 at 333 and Raja Raj Dev. v.Gangadhar Mohapatra A. I. R. 2964 Orissa; referred to.

ELECTION PETITION NO. 2 OF 1967B. C. Jain and Venkataramiah for the Petitioner.T. Lakshmaiah, T. Dhanurbhandu, P. Sivshankar and S. Sardar for thefirst Respondent.

JUDGEMENT :

BASI REDDY J.—This is an election petition launched by Shri-mathi Shanta Bai Talpaliikar, one of the defeated candidates, claiming thatthe election of Shri D. Gopal Reddy (the 1st respondent) to the LegislativeAssembly of Andhra Pradesh at the last general election from the Kalwakur-thy constituency is invalid on the grounds that he was disqualified at thattime for being chosen as a member of the Legislative Assembly in that he hadseveral subsisting contracts with the State Government for the execution ofworks undertaken by the Government in contravention of section 9 A of theRepresentation of the People Act, 1951 (hereinafter called "the Act") and fur-ther that he had committed diverse corrupt practices falling within the mis-chief of section 123 of the Act.

The last date for making nominations was 20-1-67 the date of scrutinyof the nominations was 21-1-1967 the last date for withdrawal was 23-1-1967and the date on which the poll took place was 15-2-1967. Six candidatesfiled their nominations. The petitioner filed her nomination as a Congresscandidate; the 1st respondent filed his nomination as an Independent candi-date; the 2nd respondent (Shri Satyanarayana Reddy) filed his nominationas a candidate of Samyuktha Socialist Party and the 3rd respondent fledhis nomination as a Jan Sangh . candidate. Three others also filed theirnominations. At the time'of scrutiny of the nominations, the petitionerraised an objection that the 1st respondent was disqualified for being chosento fill the seat because he had subsisting contracts with the Public Works Dep-artment of the Government of the State"of Andhra Pradesh. That objectionwas, however, overruled by the returning officer. The nomination papersof all the candidates were scrutinised and accepted by the returning officer.Subsequently three of the candidates withdrew from the contest with theresult that the petitioner and the three respondents were left in the field.But as it turned out the real contest was between the petitioner and the1st respondent. The other two candidates "also ran ' . The result of thepoll was declared by the returning officer on 22-2-1967 and it showed thefollowing picture of valid votes.

Respondent No. 1 19,289 votes.

Petitioner 14,546 votes

E.L.R. SHANTA BAI TALPALLIKAR V D. GOPALAREDDY AND OTHERS 197

Respondent 2 3,764 votes.

Respondent 3 1,200 votes.

Thus the 1st respondent secured 4,743 votes more than the petitioner, whowas his nearest rival. He was, therefore, declared to have been duly elected.

The petitioner presented this election petition on 5-4-1967 contendingthat election of the 1st respondent was void and should be set aside, andseeking a further declaration that she herself has been duly elected.

I shall now set out the principal allegations made in the election petitionand the answer thereto in the written statment filed by the 1st respondent,and the issues framed upon those pleadings, (it may be mentioned herethat respondent No. 3 was set ex parte and respondent No. 2, though pre-sent in person throughout the trial, did not file any written statementnor did he cross-examine any of the petitioner's witnesses).

Allegation No. 1: Originally the 1st respondent, in partnership withthree other persons by names Sudhakar Reddy, Manik Reddy and VenkatReddy, was carrying on business at Jadcherala, executing works on con-tracts obtained from the Public Works Department of the Governmentof Andhra Pradesh, under the name and style of "G. Narasimha Reddy &Co." under the'terms and conditions embodied in an instrument of partner-ship dated 1-4-1962. The said Sudhakar Reddy and Manik Reddy retir-ed from the partnership as from 1-4-1965 and G. Narasimha Reddy, sonof Manik Reddy, was taken as a partner from 1-4-1965; and the capitalinvested by Manik Reddy was credited to the account of Narasimha Reddy.Although the partnership between the 1st respondent, Venkat Reddy andG. Narasimha Reddy commenced from 1-4-1965, the terms of the partner-ship were reduced into writing by a partnership deed dated 27-1-1966. Asper clause 3 of the said partnership deed, the business of the partnershipshall consist of obtaining contracts of all types from the Public Works Dep-artment and other Government Departments and works obtained in the nameof any of the partners shall be for the benefit of the partnership. In accord-ance with the terms of the partnership the partnership obtained a large num-ber of contracts in the name of G. Narasimha Reddy one of the partnerswhich were for the benefit of all the partners, including the 1st res-pondent. On the date of the nomination the said G. Narasimha Reddy had14 unfinished contracts with the P. W. D. (R & B) Mahbubnagar, Govern-ment of Andhra Pradesh and the works were in progress. (The detailsof the 14 contracts were mentioned in the election petition seriatim). Theabove contracts are for the execution of the Works undertaken by theAndhra Pradesh Government. The contracts have been entered into inthe course of the trade or business of the 1st respondent in the name of G.Narasimha Reddy, one of the partners of the firm, in which the 1st res-pondent has a subsisting interest of 25 per cent both in profit and loss. Theabove said works are being carried on and executed by the partnershipfirm with its funds for the benefit of the partnership. As per the termsof the partnership deed, G. Narasimha Reddy is constituted the agent ofthe 1st respondent and Venkat Reddy and as such all the contracts enteredinto by G. Narasimha Reddy shall be deemed to be entered into by the1st respondent also in the course of his trade or business. Although the

198 SHANTA BAI TALPALLIKAR V GOPALAREDDY AND OTHERS [VOL. XXXIV

contracts referred to were entered into in the name of G. Narasimha Reddyin fact and in law they are entered into by the 1st respondent also, as thecapacity of G. Narasimha Reddy is that of an agent of the 1st respondent.The 1st respondent shall consequently be deemed to have a subsisting con-,tract entered into by him in the course of his trade or business with the StateGovernment for the execution of the works undertaken by the State Govern-ment. The 1st respondent is, therefore, disqualified to stand for election forthe Andhra Pradesh State Assembly.

At the time of scrutiny of the nominations, the petitioner raised anobjection before the returning officer against the nomination of the 1strespondent on the ground that he has a subsisting contract with the P. W.D. of Andhra Pradesh Government, but the returning officer improperlyoverruled the objection of the petitioner without any enquiry andwithout passing a reasoned order and accepted the nomination of the 1strespondent. The nomination papar was improperly accepted by theReturning Officer and that has materially affected the result of the election.The election of the 1st respondent is, therefore void.

To this allegation the answer of the 1st respondent is as follows:— It istrue that initially there was an instrument of partnership dated 1-4-1962and the name of the partnership firm was "G. Narasimha Reddy & Co."This partnership continued till 1-4-1965. On that date two of the partnersManik Reddy and Sudhakar Reddy retired and G. Narasimha Reddy wastaken as a partner and the terms of the partnership were reduced intowriting. Under the deed of partnership dated 27-1-1966 the partners werethe following :

1. G. Narasimha Reddy;

2. D. Gopal Reddy 1st respondent in the election petition); and

3. V. Venkat Reddy.

The name and style of the partnership was "Messrs. G. Narasimha Reddy,Jedcherla". By that partnership deed the parties agreed to take overthe assets and liabilities of the firm of G. Narasimha Reddy & Co. as on31-3-1965.

This partnership firm bearing the name of Messrs. G. Narasimha Reddy,Jedcherla, which was constituted under the terms and conditions of theinstrument dated 27-1-1966, was however dissolved on 31-12-1966, andthe assets and liabilities and the uncompleted works of that partnsrshipwere taken over by a new firm under the name and style of "G. NarasimhaReddy & Brothers". The terms and conditions of the new partnershipwere reduced into writing under an instrument dated 1-1-1967 in whichthe partners were G. Narasimha Reddy and his five brothers.

In this new firm called G. Narasimha Reddy & Brothers which camsinto existence on 1-1-1967 on the dissolution of the previous firm on 31-12-66, the 1st respondent was not a partner. Therefore on the date of the fil-ing of his nomination i. e. 20-1-1967, the 1st respondent had severed all con-nection with the erstwhile partnership and there was no contract, much less

E.L.R.] SHANTA BAI TALPALLIKAR V D. GOPALAREDDY AND OTHERS 199

any subsisting contract, with the Government so far as he was concerned.The new partnership deed which came into existence on 1-1-1967 was insupersession of all the previous partnership instruments. The partner-ship deed dated 1-4-62 was superseded by partnership deed dated 27-1-1966which again was superseded by the latest partnership deed dated 1-1-1967,whereunder the 1st respondent is not a partner. The 14 unifinished worksreferred to in the election petition were taken over by the partnership firmof G. Narasimha Reddy & Brothers under the instrument dated 1-1-1967so the allegation of the petitioner that the 1st respondent had a subsistinginterest of 25 per cent in the said contracts on the date of the filing of hisnomination, is incorrect. Hence the 1st respondent has not incurred anydisqualification as contemplated by section 9A of the Act.

The allegation that the returning officer has improperly accepted thenomination of the 1st respondent is wholly unfounded.

On these pleadings, Issue No. 1 was framed with three heads as un-der :

" 1 . (a) Whether the contracts entered into by G. Narasimha Reddyfor the partnership firm of Messrs. G. Narasimha Reddy" must be deem-ed to be contracts entered into by the 1st respondent himself by virtue ofclause (3) of the partnership deed dated 27-1-1966, and as a result the 1strespondent incurred disqualification under section 9A of the Representationof the People Act, 1951 ?

(b) Whether the 1st respondent had subsisting contracts with the AndhraPradesh State Government on the date of his nomination, as alleged in para-graph 5 of the petition?

(c) Whether, as alleged by the 1st respondent, there was a dissolutionof the partnership entered into on 27-1-1966, in consequence of whichthe 1st respondent ceased to be a partner and all the assets and liabilities ofthe uncompleted works of the erstwhile partnership were taken over by anew firm under the name and style of "G. Narasimha Reddy and Brothers"on 1-1-1967, with the result that the 1st respondent ceased to have any connec-tion with the uncompleted works of the erstwhile partnership?"

Allegation No. II: This allegation may conveniently be split up intotwo parts •—(a) and (b).

Allegation No. Il(a). The 1st respondent along with one Ramayyaof Urjundapet and one Battu Srinivaslu, son of Balkishtiah of Kadthal,contacted a bus owner by name Abdul Gafoor, son of Mahammad Moulana,on 14-2-1967 at Hyderabad and engaged his bus, bearing registration num-ber A. P. Q. 2095, on hire to carry 85 to 90 voters from Chatrinaka inHyderabad to the polling station at Kadthal and back again on 15-2-1967.The 1st respondent informed the said bus-owner that Battu Srinivaslu andanother person, would come the next day and he should arrange tocarry the voters. Accordingly the said Srinivaslu and one Lambada byname Desya with the consent and under the instructions of the1st respondent, came to Hyderabad on 15-2-1967 the date of pollingand arranged to carry about 90 voters in two trips from Chatrinaka to2EC/71—14.

200 SHANTA BAI TALPALLIKAR V D. GOPALAREDDY AND OTHERS [VOL. XXXIV

the polling station at Kadthal. The said 90 persons were the registered votersof Kadthal but were residing temporarily at Chatrinaka, having comeover to Hyderabad to find seasonal work for their livelihood.

The above act of the 1 st respondent is a corrupt practice within themeaning of section 123(5) of the Act.

It was further averred in the petition.

"The petitioner's worker, one Sri Gopal Reddy, tried to present the petit-ion narrating the incident through the polling agent of the petitioner at boothNo. 2 to the Presiding Officer of polling booth No. 2 at Kadthal but he re-fused to accept it on the ground of there being no provision in the Act andthe rules to entertain, any such petition and to make enquiry. Sri GopalReddy then went to Amangal to present the petition to the Sub-Inspectorof Police, but as the Sub-Inspector was not present, being away on dutyelsewhere no action could be taken. By the time the said Gopal Reddyreturned to Kadthal, the bus had already gone for the second trip and soin order to take action at Hyderabad, Sri Gopal Reddy went to Chatrinaka,Hyderabad, but by then the bus had just left for Kadthal with the voters.The said bus was stopped at the police station of Pahdi Shareef, where thesaid Gopal Reddy had presented a petition to the Sub-Inspector of Policebut the same was returned by the latter, as he had no jurisdiction to takecognizance."

In answer to Allegation No. II (a), the 1st respondent stated as follows :

"The respondent begs to submit that the material particulars leadingto the carrying of the voters in a bus bearing No. APQ 2095 is nothing buta naked falsehood invented for the purpose of this case. There is a regularbus route from State Talkies, Hyderabad, to Kothapet (via) Thukgudaand the owner of APQ 2095 got a permit only in this route. The place towhich the voters alleged to have been carried is one Kadthal which fallsoutside the permit route and is at a distance of more than 15 miles. There-fore it is humanly impossible to a bus having a permit on a particularroute to go out of the route nearly 15 miles distance to reach Kadthal. Inthe light of the permit it is impossible how the petitioner can conceive suchan idea of carrying the voters. The bus is, regularly running between StateTalkies (Hyderabad) to Kothapet carrying regular passengers under thepermit granted according to timings prescribed by the authorities. The ownercannot be expected to run the bus according to his whims and fancies, andin the teeth of competition on this route no bus-owner can take such a riskwhich may result in the cancellation of the permit. The story that oneRamayya and Battu Srinivaslu went to the owner of the bus APQ 2095 isagain an invention of the petitioner. First of all the respondent submitsthat he does not know who these tv/o people are. So is Lambada Deshia,Whom the respondent does not know, much less had he any contact withthese three people. The names of these three people were purposely conceiv-ed by the petitioner for the purpose of the story. The respondent never gavehis consent or instructed anybody to carry voters. Therefore the carryingof about 90 voters on 15-2-1967 in two trips from Chatrinaka to Kadthalis nothing but the imagination. Nor the story that I met along with the

E.L.R.] SHANTA BAI TALPALLIKAR V. D: GOiPALAREDDY AND OTHERS 2 0 1

alleged two people the owner of the bus on 14-2-1967 is correct. It is allvague, ambiguous and uncertain

No corrupt practice of carrying voters was committed at all by the respond-dent and therefore the application and applicability of section 123(5) of theRepresentation of the People Act, 1951 does not arise as there is no corrputpractice except the unfounded allegation of the petitioner.

The averment that the petitioner's worker Gopal Reddy had tried togoad the authorities to take action, was false. The said Gopal Reddy wasa polling agent of the petitioner and the petitioner has used him as a pawn.

Based on Allegation No. II(a). Issue No. 2 was framed as under:"Whether the 1st respondent along with one Rameyya of Urkundapeta

and one Battu Srinivaslu, son of Balkishtiah of Kadthal, engaged• on hire on 14-2-1967 a bus belonging to Abdul Gaffoor, bearingNo. APQ 2095 to convey about 85 to 90 persons from Chatrinaka,Hyderabad to Kadthal polling station and back again on 15-2-1967 and whether Srinivaslu and a Lambada by name Deshish,under the instructions of the 1st respondent, conveyed in that buson 15-2-1967, 90 voters in two trips from Chatrainka to Kadthalpolling station, as alleged in paragraph 6 of the petition. If so,whether it amounts to a corrupt practice under section 123(5) ofthe Representation of the People Act ?"

Allegation No. II (B) furthermore, on 14-2-1967 the 1st respondentpromised to pay Rs. 5/- to each voter residing at Chatrinaka who went toKadthal the next day and voted for him. In pursuance ofthe said promise made by the 1st respondent, the voters were paid Rs. 5/-each and also given meals and drinks on 15-2-1967 in the house of B. Sri-nivas Reddy, who was a strong supporter of the 1st respondent. The abovecorrupt practice was committed with-the consent and knowledge of the 1strespondent and falls within the mischief of section 123(1) of the Act.

In answer to Allegation No. II (b) the 1st respondent stated a follows:—

"The allegation in para 7 that respondent No. 1 on 14-2-67 promisedto pay Rs. 5/- to each voter at Chatrinaka if they went to Kadthal to votefor him, is another story conceived by the petitioner which is false and deni-ed. No promise was made, much less any payment was made. In factthe respondent totally denied this allegation. 'This is vague as anythingelse. The allegation that the first respondent paid Rs. 5/- to each voterand voters were given meals and drinks on 15-2-1967 in the house of oneSrinivas Reddy, who is a strong supporter, is another maked falsehoodwithout any basis. On the other hand the said Srinivas Reddy is out and outsupporter of the petitioner, who apprehending that we may file incriminat-ing statement, in advance foisted this theory declaring Srinivas Reddy tobe the man of respondent in the petition and this is an ingenious methodwhereby the petitioner has chosen to name her supportor to be belongingto the respondent's group so that such a person could be easily availableto her to get into the box and depose in order to make the Court believe the

202 SHANTA BAI TALPALLIKAR V. D. GOPALAREDDY AND OTHERS [VOL. XXXIV

truthfulness of her allegations. Therefore, the respondent denies the alleg-ed corrupt practice of bribery and inducement nor did anybody act in thatdirection with the consent of the respondent and therefore Section 123(1)of the Representation of the People Act, 1951 is not attracted and the elec-tion is not void".

Based on Allegation No. II (b), Issue No. 3 was framed thus:

"Whether on 14-2-1967 the 1st respondent promised to pay Rs. 5/- toeach voter residing at Chatrinaka, Hyderabad if he went to Kadthalthe next day and voted for the 1st respondent; whether on 15-2-1967 the voters were paid Rs. 5/- each, and whether with the consentof the 1st respondent they were also given meals and drinks in thehouse of Sri B. Srinivasa Reddy, a strong supporter of the 1st res-pondent, as alleged in paragraph 7 of the petition ? If so, whetherit amounts to a corrupt practice under section 123 (1) of theRepresentation of the People Act?"

Allegation No. Ill: One Raj Reddy of Chippunnuthala, an agent ofthe 1st respondent, distributed Rs. 5/- to each voter of Chippunuthala on15-2-1967 at about 10 AM to induce them to cast their votes in polling boothNo. 20 at Chukkapur. The above act constitutes a corrupt practice undersection 123(1) of the Act.

Answer: The 1st respondent refuted this allegation and characterisedit as utter falsehood.

In respect of Allegation No. Ill, Issue No. 4 was framed as under:

"Whether Raj Reddy, an agent of the 1st respondent gave Rs. 5/- toeach of the voters of Chippunuthala village on 15-2-1967 at about10 A. M. to cast their votes in polling Booth No. 20 at Chukka-pur, as alleged in paragraph 7 (a) of the petition? If so, whe-ther it amounts to a corrupt practice under section 123(1) of theRepresentation of the People Act ?"

Allegation No. IV. The 1st respondent procured Jeep Cars Nos. APY 5069and'APY7365 from his friends and used them in carrying voters from the villageof Chouderpalli to Cherkur polling booth and back again between 12 noonand 3 P. M. on 15-2-1967. The voters of the said village of Chouder-palli were carried with the knowledge and consent of the 1st respondentby Janga Reddy, son of Boji Reddy, who is the agent of the 1st respondent.The said conduct is a corrupt practice under section 123(5) of the Act.

Answer: The 1st respondent totally denied the allegation and statedthat it was all a figment of the petitioner's imagination.

In respect of Allegation No. IV, Issue No. 5 was framed as follows :

"Whether the 1st respondent procured jeep cars Nos. APY 5069 andAPY 7365 from his friends and used them for conveying voters fromthe village of Chouderpalli to Cherkpur polling booth and back again

E.L.R.] SHANTA BAI TALPALLIKAR V. D. GOPALAREDDY AND OTHERS 203

between 12 noon and 3 P. M. on 15-2-1967 with the help of JangReddy son of Boji Reddy, who was the agent of the 1st respondent?If so, whether it amounts to a corrupt practice under section123(5) of the Representation of the People Act?

Issues Nos. 6, 7 and 8 pertain to the reliefs claimed by the petitionerand are as follows:

"6. Whether all or any of the allegations made in the petition, if proved,would render the election of the 1st respondent void, as laid downby section 100 of the Representation of the People Act?

7. Whether, but for the votes alleged to have been obtained by the1st respondent by corrupt practices, the petitioner would haveobtained a majority of the valid votes, as alleged in paragraph 8of the petition?

8. To what relief or reliefs, if any is the petitioner entitled?"

Before turning to the issue and the evidence pro and con, it is necessaryto refer to the background against which the petitioner and the 1st respondentcontested the election. On this aspect of the case, I attach a great weightto the testimony of P. W. 31 Shri R. Raghupathi Rao, the president of theTaluk Congress Committee. Despite a searching cross-examination,calculated to showing that he is a partisan and ill-disposed towards the 1strespondent, he impressed me as a sincere Congressman and as a straight-forward and truthful witness. It appears from his evidence, as also fromother acceptable evidence in the case, that at the time of the last generalelection, the Congress party in this State was a House divided against it-self. It was split into two groups the official group and the dissidentgroup. In selecting candidates for election to the State Assembly eachgroup supported its own candidates at the State level and ultimately theCentral Election Committee representing the All-India Congress Com-mittee decided the matter. Generally speaking, sitting members werepreferred to new entrants. The internal dissensions amongst the Congressleaders had their repercussions at all levels and Kalwakurthy was no excep-tion to the general pattern. The official group backed one Shri JaipalReddy, the Secretary of the Youth Congress Committee, while the dissidentgroup supported the candidature of Shrimati Shanta Bai, the petitionerin the election petition, who was the sitting member. The Pradesh Con-gress Committee recommended Shri Jaipal Reddy but the All-India CongressCommittee gave the ticket to the petitioner. That brought about assharp reaction. It appears from the evidence of P. W. 31 that there was a gooddeal of resentment among some of the Congressmen of Kalwakurthy con-stituency because of the selection of the petitioner whom they regarded asan outsider apparently because she is residing in Hyderabad. They wanteda local man to represent the constituency. Their choice fell on Shri D.Gopal Reddy, the 1st respondent. He was till then a member of theCongress party but he was persuaded to resign his membership of the Con-gress and stand as an Independent candidate against the petitioner. Sothe 1st respondent resigned his primary membership of the Congress on25-12-1966 and filed his nomination as an Independent on 20-1-1967.

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Amongst the leading Congressmen of the locality who supported and help-ed the 1st respondent, were Srinivas Reddy the Sarpanch of Kadthal pan-chyat, and Ethiraj Reddy, a member of the Pradesh Congress Committee.Although this fact was stoutly denied by the 1st respondent and his witness-es, and it was asserted that these two persons had actually worked for the

petitioner, yet I am satisfied on an over-all view of the evidence in the caseand In pa rticular on the convincing testimony of P. W. 31 that these twopersons, besides some other Congressmen did support and work for the 1strespondent in the Election. (Here it may be mentionedparenthetically that recently the 1st respondent has joined the CongressLegislature Party in the State Assembly).

I shall now take up the several issues seriatim except that I shall reserve,to the last Issues Nos. 2 and 3.

Issue No. 1 (a), (b) and (c) : This issue may conveniently be consideredas a whole although it has been framed with three heads. The crucial ques-tion that falls for consideration under this issue is whether the partnershipfirm of Messrs G. Narasimha Reddy, Jadcherla, in which the 1st respon-dent was admittedly a partner was dissolved on 31-12-1966, and a newpartnership under the name and style of G. Narasimha Reddy and Brotherscame into being on 1-1-1967 which took over all the assets and liabilitiesincluding the 14 unfinished contracts with the Public Works Department,and in which partnership the 1st respondent had neither part nor lot.

Before dealing with this question, a contention on behalf of the 1strespondent with reference to Issue No. l(a) may be disposed of while con-ceding that the 1st respondent had a quarter share in the partnership ofMessrs. G. Narasimha Reddy, Jadcherla, and that all the partners includingthe 1st respondent stood to benefit by those contracts yet it was contendedthat those contracts were entered into by G. Narasimha Reddy in his in-dividual capacity and not on behalf of the partnership. Consequently,the 1st respondent did not incur the disqualification envisaged by section 9Aof the Act. The short and conclusive answer to this contention is that itis in the teeth of the evidence adduced by the 1st respondent himself besidesthe absence of any such plea in the written statement filed by the 1st res-pondent. In the first place the relevant clauses of partnership deed ruleout this contention. Clause 3 provides :

"The business of the partnership is and shall be that of executing con-tracts of all nature, for the P. W. D. and other Government depart-ments. The parties may carry on business in any similar line orlines as they may agree upon from time to time. The parties here-by agree that works obtained in the name of any one of the partnersshall be for the benefit of this partnership."

Then clause 6 provides : 4

"The parties have agreed to take over the assets and liabilities of theold firm of Messrs G. Narasimha Reddy Co. as on 31st March, 1965.The party of the first part (G. Narasimha Reddy) has agreed

E.L.R.] SHANTA BAI TALPALLIKAR V. D. GQPALAREDDY AND OTHERS 205

that the works taken in the name of the party of the first part be-fore anci after the commencement of this partnership shall be forthe benefit of the partnership."

Clause 7 is in these terms :

"It is agreed to by and between the parties that the profit or loss onworks unexecuted as on 31st March, 1965 taken in the name of theparty of the first part shall be taken into account in the books ofthis partnership. All expenses pertaining to the unexecuted con-tracts shall be borne by this'partnership and all books for such worksdone after 1st April, 1965 shall be taken into account in this partner-ship books."

It is patent from the above terms of the partnership that although thecontracts were taken in the name of G. Narasimha Reddy one of the Partnersyet they were for the benefit of the partnership as a whole and were takenon benefit of the partnership by G. Narasimha Reddy as a partner of thefirm and not in his individual capacity.

That this was the true position appears also from the evidence given byG. Narasimha Reddy as R. W. 1 and by the 1st respondent as R. W. 4, R.W. 1 deposed as follows:—

Q. "It was agreed between you and both the partners that works areto be taken in the name of G. Narasimha Reddy?

A. Yes.

Q. Even if any contract is taken in the name of G. Narasimha Reddyor Venkat Reddy that also must be deemed to be for the partner-ship?

A. Yes

Similarly, in the course of this deposition R. W. 4 stated all the contractswith the P. W. D. between 1-4-1962 and 31-3-1965 were taken in the nameof G. Narasimha Reddy. Similarly all the contracts from 1-4-1965 to31-12-1966 were taken in the name of G. Narasimha Reddy". Then thefollowing question was put to R. W. 4 in cross-examination:—

"Q. I am putting it to you that all the contracts of the partnership werebeing taken in the name of G. Narasimha Reddy for and onbehalf of the partnership?

A. In the name of G. Narasimha Reddy."

Then the following further questions were put :

"Q. Now the 14 contracts subsisting upto 31-12-1966 were contractsobtained in the name of G. Narasimha Reddy by your partnership?

A. Yes.

2 0 6 SHANTA BAI TALPALLIKAR V. D. GOPALAREDDY AND OTHERS [VOL. XXXIV

Q. Why were these contracts not taken in the name of Messrs. G.Narasimha Reddy?

A. Since the company of Messrs. G. Narasimha Reddy was not re-gistered in the P. W. D. the contracts were taken in the name ofG. Narasimha Reddy.

Q. None of these contracts were personal contracts?

A. All the 14 contracts which are in existence are not the personalcontracts of G. Narasimha Reddy."

The decision of the Madhya' Pradesh High Court in Satya PrakashV. Bashir Ahmed (A. T. R. 1963 Madhya Pradesh 316) is of little avail to the1st respondent because that was not a case of a partner in a partnershipbut that was a case of a shareholder in a company known as "The Com-bined Transport Service (Pvt.) Ltd., Bilaspur" which had entered into acontract with the Central Government to carry post mail bags and articlefor a specified remuneration. In this connection the following passage inLindley's Law of Partnership (Twelfth Edition) at page 222 is instructive:

" The general proposition that a partnership is bound by those acts ofits agents which are within the scope of their authority must betaken with the qualification that the agent whose acts are soughtto be imputed to the firm was acting in his character of agent, andnot as a principal. If he did not act in his character of agent, butas a principal on his own account, his agent's acts cannot be imputedto the firm and he alone is liable for them, even though the firm mayhave benefited by them."

In view of the above evidence in this case it must be held that althoughthe contracts were taken in the name of G. Narasimha Reddy, yet they wereentered into by him on behalf of the partnership firm in his character asan agent and not as principal and inasmuch as the 1st respondent had a onefourth share in the partnership those contracts must be deemed to havebeen entered into by him, so as to attract the disqualification under section9A of the Act, provided that subcontracts were subsisting as on the datewhen the 1st respondent filed his nomination.

Now the vital question for determination is whether the partnershipfirm of Messrs. G. Narasimha Reddy, Jadcherla, was dissolved on31-12-1966 by and under Ex. B. 19 as contended by the 1st respondent,or whether it continued to subsist even after the date of nomination andthe date of election, as contended by the petitioner. In support of hercase, the petitioner relied on Exs. A. 1 and A. 3; but these documents do notreally advance her case. Ex. A. 1 is an extract from the Registrar of Firmsmaintained under section 59 of the Indian Partnership Act and it showsthe name of the firm as Messrs. G. Narasimha Reddy; the date of registra-tion as 31-1-1966; that the duration of the firm was at will; that the partnerswere G. Narasimha Reddy, D. Gopal Reddy and V. Venkat Reddy; thatthe date of their joining the firm was 1-4-1965 and that the principal placeof business was Jadcherla, Kalwakurthy taluk, Mahbubnagar District.

E.L.R.] SHANTA BAI TALPALLIKAR V. D. GOPALAREDDY AND OTHERS 207

Ex. A. 3 is a list of works let out to Sri G. Narasimha Reddy, Contractor,in P. W. D. (R & B) Division, Mahbubnagar, and it shows a list of 23 con-tracts out of which 14 were still in progress as on 21-3-1967, when the listwas furnished to the petitioner by the Executive Engineer P. W. D. (R &B)Division, Mahbubnagar.

It is not disputed by the 1st respondent that he was a partner in the firmof Messrs. G. Narasimha Reddy. Nor is it denied that a number of con-tracts were taken in the name of G. Narasimha Reddy on behalf of the part-nership firm of Messrs. G. Narasimha Reddy, Jadcherla. But the 1st res-pondent's case is that the firm of Messrs. G. Narasimha Reddy, Jadcherla,of which he was a partner, was dissolved on 31-12-1966 and a new firm inwhich he was not a partner, consisting of G. Narasimha Reddy and hisfive brothers, was constituted on 1-1-1967 and that partnership took overall the assets and liabilities of the old firm including all the uncompletedworks with the P. W. D.

On this vital question beyond an assertion by the petitioner that thepartnership of Messrs. G. Narasimha Reddy was not dissolved and it conti-nued to exist, there is no tangible evidence produced by her to substantiateher claim. ' No doubt she made an astounding attempt to show that she hadactually seen the 1st respondent and G. Narasimha Reddy on 20th or 21stof August, 1967 in the office of the P.W.D. at Mahbubnagar, preparing,estimate bills. The following questions and answers in her examination inchief and in cross-examination make interesting reading:

[After considering the detailed evidence as to whether the partnershipfirm of the first respondent was dissolved on the material date, the judgmentproceeded...]

It was, however, contended by the learned advocate for the petitionerthat since the fact of dissolution of the firm of Messrs. G. Narasimha Reddywas not brought to the notice of the returning officer on the date of scrutinyof nominations on 21-1-1967 Ex.B.19 could not have been in existence on thatdate; and further, although in the written statement filed by the 1st respon-dent a specific reference to the fact of dissolution was made no deed wasreferred to and this gain, it was submitted, is a circumstance tending to showthat Ex.B.19 was cooked up later. There is no force in either of these con-tentions. It is true that before the returning officer, at the time of scrutinyof the nominations, the petitioner raised an objection to the 1st respondent'snomination, alleging that he had subsisting interest of 25 per cent in the contractworks with the P.W.D. (R. & B.) Mahbubnagar, as per the partnership dated27-1-1966, although the contracts stood in the name of G. Narasimha Reddy.In support of her contention, she filed a private copy of the partnership deeddated 27-1-1966 relating to the partnership firm of Messrs G. NarasimhaReddy and filed a list of contracts which stood in the name of G. NarasimhaReddy. On this material the returning officer was apparently not satisfiedthat the objection raised by the petitioner was valid and so, he overruled theobjection and accepted the nomination of the 1st respondent by an orderdated 21-1-1967, which has been filed as Ex.B.17. The order reads as follows:

"Heard the objections from Sri V. Ramachandra Reddy, the personauthorised by Srimati Shanta Bai. Relying on a true copy of

208 SHANTA BA1 TALPALLIKAR V. D. GOPALAREDDY AND OTHERS [VOL. XXXIV

partnership deed and what has been stated in the affidavit, Sri V.Ramachandra Reddy, quoting statutory provisions and the letterfrom P.W.D., objected to the candidature of Shri Gopal Reddy.I do not accept the objection because of the fact that the P.W.D.which is a representative of the Government, has not stated thatSri Gopal Reddy has any subsisting contract. Secondly, a mereentry in unattested partnership deed does not qualify any one beinga contractor. Sri Gopal Reddy does not, therefore, suffer disquali-fication by Sec. 9A".

In making the above order, the returning officer was acting in strict confor-mity with the provisions of section 36 of the Act. The relevant provisionsof this Section are sub-sections (5) and (6) which are in these terms:

"(5) The returning officer shall hold the scrutiny on the date appointedin this behalf under clause (b) of section 30 and shall not allow anyadjournment of the proceedings except when such proceedings areinterrupted or obstructed by riot or open violence or by causesbeyond his control:

Provided that in case an objection is raised by the returning officeror is made by any other person, the candidate concerned may beallowed time to rebut it not later than the next day but one followingthe date fixed for scrutiny, and the returning officer shall record hisdecision on the date to which the proceedings have been adjourned.

(6) The returning officer shall endorse on such nomination paper hisdecision accepting or rejecting the same and, if the nomination paperis rejected, shall record in writing a brief statement of his reasonsfor such rejection.

It will be seen that where a returning officer accepts a nomination, allthat he need do is to record his decision. But where he rejects a nominationhe has to record in writing a brief statement of his reasons for such rejection.In this case the returning officer by way of abundant caution, not only gavehis decision accepting the nomination, but gave reasons therefor. But indealing with the objection he had no power to adjourn the proceedings andgive the petitioner an opportunity to adduce better evidence in support ofher objection. The fact that in the order no reference is made to thedissolution of the partnership, is explicable on the basis that since thereturning officer was not satisfied prima facie as to the validity of theobjection, there was no question of requiring the 1st respondent to meetthe objection that was apparently the reason why no reference was made tothe fact of dissolution.

Again, the fact that in the written statement no specific reference wasmade to the deed of dissolution, is of no consequences because a referencewas made to the deed of partnership whereby a new partnership under thename and style of Messrs. G. Narasimha Reddy and Brothers was formed,and a perusal of that document (Ex.B.31) shows that the fact of dissolutionis referred to therein.

E.L.R.] SHANTA BAI TALPALLIKAR V. D. GOPALAREDDY AND OTHERS 209

On a consideration of the entire evidence adduced on this issue, I holdthat the partnership of Messrs G. Narasimha Reddy was dissolved on 31-12-1966, and as from that date, the fst respondent had no interest in the con-tracts entered into by G. Narasimha Reddy on behalf of that partnershipfirm. It follows that on the date of his filing the nomination paper and afortiori on the date of election, the 1st respondent had no subsisting contractwith the State Government for the execution of any worksundertaken by that Government, and he had not therefore incurred the dis-qualification contemplated by Section 9A of the Act. Issues Nos. l(b) and(c)are accordingly found in favour of the 1st respondent.

The remaining substantive issues relate to the alleged commission by the1st respondent of a number of corrupt practices, falling within the ambitof section 123 of the Act. Now, it has been firmly established by the deci-sions of the Supreme Court that since a finding of guilty in respect of a cor-rupt practice, entails serious civic disabilities, the standard of proof is ashigh as in a criminal case, that is to say the charge must be proved beyond areasonable doubt and not merely by a balance of probability as in a civilcase, I need only refer to one decision of the Supreme Court in Jagdev Singhv. Pratap Singh(V). This is what their Lordships said:

"It may be remembered that in the trial of an election petition the burdenof proving that the election of a successful candidate is liable to beset aside on the plea that he was responsible directly or throughhis agents for corrupt practices at the election, lies heavily upon theapplicant to establish his case, and unless it is established in bothits branches i.e., the commission of acts which the law regards ascorrupt and the responsibility of the successful candidate directlyor through his agents or with his consent for its practice not by merepreponderance of probability, but by cogent and reliable evidencebeyond any reasonable doubt, the petition must fail. The evidencemay be examined bearing this approach to the evidence in mind."

Furthermore, several Division Bench rulings of this Court have laid down thatin dealing with corrupt practices, as a rule of prudence, the tainted evidenceof persons who are in the nature of accomplices should not normally beacted upon unless it is corroborated in material particulars by some inde-pendent evidence of a direct or circumstancial nature. See for instance,C. Subba Rao, v.K. Brahmananda Reddy(2) and Gurunath Reddy v. Seshaiah(3) To the same effect is a decision of the Orissa High Court in Raja Raj Devv. Gangadhar Mohapatra(4).

Bearing these principles in mind, I shall evaluate the evidence bearingupon Issues Nos. 4, 5 and 2 and 3 in that order.

After considering the evidence on the allegations that an agent of thefirst respondent had given Rs.5/- to each of the voters which was held a&

(1) A.I.R. 1964 S.C. 133 at 188.(2) (1966) II An. W. 401 at 409.(3) A.I.R. 1966 A.P. 331 at 333.(4) A.I.R. 1964 Orissa P. 1.

2 1 0 SHANTA BAI TALPALLIKAR V. D. GOPALAREDDY AND OTHERS [VOL. XXXIV

not proved and that the first respondent engaged two jeeps to convey the"voters to a polling station, the judgment proceeded.

It follows from the foregoing discussion that the petitioner has failedto discharge the burden of proving this charge beyond reasonable doubt.I, therefore, hold this issue against the petitioner and in favour of the 1st res-pondent.

There remain Issues Nos. 2 and 3. These two issues are closely connec-ted and the evidence bearing upon them is to some extent common, as someof the witnesses speak to matters touching both the issues. The allegationsupon which these issues are based and the issues as framed have been set outsupra. Issue No. 2 is based on Allegation No. II(a) and Issue No. 3 onAllegation No. II(b).

It will be recalled that sum and substance of the case of the petitioner, asaverred in the election petition, is that on 14-2-1967, that is to say, a day be-fore the election took place, the 1st respondent, accompanied by two personsby names Ramayya of Urkundapet and Battu Srinivaslu of Kadthal, had goneto Hyderabad and engaged on hire a passenger service bus, belonging to oneAbdul Gaffor wearing No. APQ 2095 to convey 85 to 90 voters from Chatri-naka in Hyderabad to Kadthal polling station and back again on the nextday; and further that on 15-2-67. Buttu Srinivaslu and a Lambada by nameDesya under the instructions of the 1st respondent, had taken in that busabout 90 voters in two trips from Chatrinaka to Kadthal. Those Lambadasbelonged to Mysignadi, a hamlet of Kadthal. Those 85 to 90 persons wereregistered as voters in Kadthal, but were staying temporarily in Chatrinakain Hyderabad, where they had come to find work and take out a living. (Itis to be noted that the distance between Hyderabad and Kadthal is about31 miles).

It was further alleged in the petition that on 14-2-1967, the 1st respon-dent had contacted the Lambada voters at Chatrinaka and promised to payeach of them Rs. 5/- if they went to Kadthal the next day and voted for him,and that on 15-2-67 after the Lambada voters had been taken in the bus toKadthal and they had cast their votes, all of them were given meals and drinksin the house of B. Srinivas Reddy, a strong supporter of the 1st respondent,and they were also paid Rs. 5/- each by the said Srinivas Reddy.

The plea of the 1st respondent as adumbrated in his written statementwas that he had not gone to Hyderabad at all on the 14th February in thecompany of Ramayya and Battu Srinivaslu; that in fact he did not know•them at all; that he had not hired the bus belonging to Abdul Gaffar whowas an utter stranger to him; that on the 14th he had not promised to pay theLambada voters at the rate of Rs. 5/- each if they went to Kadthal the nextday; that the Lambada voters had not been taken to Kadthal on the 15thin the said bus nor had they been given money, meals and drinks in the houseof Srinivas Reddy on the 15th. But in truth Srinivas Reddy was a Congressman and had worked for the petitioner in the election. In short, the afore-said allegations made by the petitioner in the election petition were totallyfalse and were invented by the petitioner and her supporters and in parti-cular, by one G. Gopal Reddy of Kadthal, who was the right hand man ofthe petitioner in her election campaign.

E.L.R.] SHANTA BAI TALPALLIKAR V D. GOPALAREDDY AND OTHERS 211

I will now set out the evidence pro and contra, which has a materialbearing upon these two issues and then deal with each issue separately.

After considering the allegations (issues Nos. 2 and 3) in the petition thatthe first respondent had hired a bus from Hyderabad to convey voters fromChatrinaka to Kadthal polling stations and that the first respondent hadpromised to pay Rs. 5/- to each of the Lambada voters at Chatrinaka, thejudgment proceeded.

On the other hand, the case of the 1st respondent as put forward throughthe mouth of Abdul Gafoor, the owner of the bus examined as R. W. 22,is that his bus APQ 2095 had not been hired by the 1st respondent, that ithad not carried the Lambada voters from Chatrinaka to Kadthal on 15-2-67but that it had plied as usual on the sanctioned route according to the pre-scribed timings. R. W. 22 cut a sorry figure in the witness box and he wasbadly shaken in cross-examination. On every material particular, he spokefalsehood. I have no hesitation in holding that his entire deposition isnothing but a tissue of lies.

On a close and careful consideration of the entire evidence bearing uponthis issue, I am fully satisfied that the petitioner has discharged the burdenof proving the corrupt practice which forms the subject matter of this issue,beyond all reasonable doubt. I therefore, hold this issue in favour of the peti-tioner and against the 1st respondent.

Issue No. 3 : This issue may be divided into two parts—the first partrelates to the promise said to have been made by the 1st respondent on14-2-1967 that he would pay the Lambada voters residing at Chatrinakaat the rate of Rs. 5/- each if they went to Kadthal the next day and votedfor him; and the second part relates to the allegation that Srinivasa Reddy,with the consent of the 1st respondent/had distributed money at the rate of Rs.5/- to each voter, besides giving meals in his house at Kadthal to the Lambadavoters, who had gone there to vote for the 1st respondent.

The first part of this issue is conclusively established by the evidenceof P. W. 3 (Kumari Ramayya) which I have found to be acceptable and iscorroborative of the evidence of the P. Ws. 4 and 5, the leaders of the Lam-badas.

As regards the second part, it seems to me highly improbable that Sri-nivas Reddy who was a leading member of the Congress Party at Kadthalwould have been so foolhardy as to distribute bribe money with his own handand arrange for food in his own house, although there can be little doubtthat he had helped the 1st respondent in the election. Moreover, the evidenceof P. Ws. 4, 5, 11,12 and 13 who spoke in support of this allegation is taintedevidence being that of accomplices, and in the absence of independent cor-roboration it would not be safe to act upon it.

I therefore hold the first part of this issue in favour of the petitioner andagainst the 1st respondent and the second part against the petitioner and infavour of the 1st respondent.

212 SHANTA BAI TALPALLIKAR V D. GOPALAREDDY AND OTHERS [VOL. XXXIV

Tn view of my findings on Issue No. 2 and on" the first part of Issue No.3,1 declare the election of the 1st respondent to be void. However, as regardsthe additional relief sought by the peitioner, namely that she would be de-clared to have been duly elected, obviously that relief cannot be granted forthe simple reason that it cannot possibly be held that but for the votes ob-tained by the returned candidate by corrupt practices the petitioner wouldhave obtained a majority of the valid votes because even if all the 90 Lambadavotes which the 1st respondent had got by means of corrupt practices, aresubtracted from his total, yet it would not help the petitioner, as the 1strespondent had won by a margin of over 4,000 votes.

In the result, the election petition is allowed to the extent indicated above,with costs of the petitioner, payable by the 1st respondent. I fix the Advocatesfee at Rs. 1000/-.

Petition allowed.

IN THE HIGH COURT OF ORISSA

KOLAKA NILAKANTHAM

V

ANANTA RAM MAJHI

(G. K. MISRA, J.)

December 12, 1967

Electoral Roll—Electoral roll in Telugu and Oriya languages—Thosein Telugu Roll not in the Oriya Roll—Polling Officers relying on OriyaRoll and preventing those in Telugu Roll from voting—Propriety of.Representation of the People Act, 1951, s. \2^{\){A){b)—Corrupt practiceof offers of money to secure votes—if proved.

The respondent was declared elected to the State Legislative Assemblywith a margin of 949 votes. The petitioner challenged the election of therespondent on the grounds (i) the names of a large number of electors re-gistered in the electroal roll published in the Telugu language were not re-gistered as electors in the Oriya Electoral Roll, that the presiding and pollingofficers of all the booths were using only the Oriya Electoral Roll and)refusedto allow electors registered in the Telugu Electoral roll to cast their votes,and that this refusal materially affected the result of the election; and (ii)corrupt' practice was resorted to by the respondent by paying money tovoters to secure their votes in his favour. Allowing the petition,

HELD :

(i) Where electoral rolls are published in two different languages undert h e authority of the Election Commissioner, both the Electoral rolls must beidentical. The electors whese names are registered in the Telugu language

I-.L.R.] KOLAK.A NILAKANTHAM V. ANANTA RAM MAHJI 213

cannot be refused the right to cast their votes merely because their narmsdid not occur in the corresponding electoral roll in the Oriya language.'Beforerefusing the ballot papers to an elector, it is the duty of the Presiding andPolling Officers to overlook mere clerical and printing errors in an entryin the electoral roll, if he is satisfied that such person is identical with theelector to whom such en try relates.

In the present case it could not be taken that about 970 voters would havecast their votes if the defects had not occurred in the electoral rolls. Fromthe total votes cast in favour of the petitioner and the respondent the lattergot more than 50 per cent. Even assuming that out of these 970 votes thepetitioner would have polled 97% he could not have procured 949 votes.Therefore the result of the election could not be said to have been materiallyaffected.

Basistha Narayan v. Debchandra, A.I.R. 1954 S. C. 513; and Mahqdeov. Babu UdayaPartap Singh, A.LR. 1966 S. C. 824; referred to.

(ii) The petitioner had proved the allegations about corrupt practicewithin the meaning of s. lZ$(l)(A)(b) of the Act. Therefore the respondent'selection must be declared void under s. 1000X6) of the Act.

Election Petition No. 2 of 1967

G. S. Misra, L. Rath, B. B. Rath, S. N. Mitra, B. K. Behura and S.Mohanty for the Petitioner.

D. Sahu, S. N. Sinha, R. N. Dass and K. C. J. Roy, Advocates for theOpposite Party.

JUDGMENT

G. K. Misra, J.—The petition has been filed under Section 81 of theRepresentation of the People Act, 1951 (hereinafter to be referred to as theAct) for declaring the election of the respondent void under Section 100(/)(6)and (d) (Hi) & (iv) of the Act.

2. In respect of the Rayagada Assembly Constitutency in the districtof Koraput, the petitioner, the respondent and one Shri Jhiru Judia were thevalidly nominated candidates. Respondent was declared elected fromthe said constituency with a margin of 949 votes. He secured 8641 voteswhile the petitioner secured 7692 votes. A large number of grounds weretaken in the petition, but as the case proceeded ex-parte, evidence was notJed in respect of some of the grounds. It is, therefore, unnecessary to statethe material facts narrated in the petition in respect of the grounds on whichno evidence was led. Only on two grounds mentioned in the petition evidencehas been led.

They are—

(J) corrupt practice was resorted to by the respondent by paying moneyto voters in different streets to secure their votes in his favour;and

E.L.R.] KOLAKA NILAKANTHAM V ANANTA RAM MAJHI 214

(ii) about 2000 voters, though registered in the Telugu electoral rollin booth nos. 40, 41, 42 and 43, were not registered in the corres-ponding Oriya electoral roll. The Presiding Officers of the boothswere issuing ballot papers with reference to the Oriya electoral ro 11sand refused to issue ballot papers to voters, whose names occurredin the Telugu electoral roll but did not occur in the correspondingOriya electoral roll. These voters were not allowed to exercisetheir franchise both on this ground as well as on the ground thatthere were mistakes in serial numbers and holding numbers in boththe rolls.

These allegations had been denied in the written statement.

3. On these pleadings, the following issues have been framed:—•

I. («) Is there any discrepancy between the Oriya Electoral Roll andthe Telugu Electoral Roll for the Rayagada Assembly Consti-tuency?

(b) Was there any refusal of ballot papers to any of the electors astheir names were not included in the Oriya Electoral Roll?

(c) Has the result of the election been materially affected by theimproper refusal or rejection of any vote?

II. (a) Was the village Ramchandrapur included in two Constituencies-Rayagada Assembly Constituency and Narayanpatna AssemblyConstituency?

(Z>) If it was so included, did it cause any confusion in the mind ofthe electors of that village so as not to vote for any of the Consti-tuencies?

(c) If so, did it materially effect the result of the election?

III. (a) Did the respondent commit corrupt practices and take theassistance of Government servants as mentioned in paragraphs13 to 20 of the election petition?

(b) Did the respondent resort to bribery as mentioned in paragraphs21 and 22 of the election petition?

IV. Is the election petition not maintainable for non-compliancewith Section 83(l)(b) of the Representation of the People Act,1951?

4. Issue No. II:—No evidence was laid on this issue. It is accordinglydecided against the petitioner.

5. Issue No. Ill (a):—In paragraphs nos. 13 to 20 of the petition, the cor-rupt practice alleged is that the petitioner took the help of Government ser-vants for the purpose of canvassing and influencing the voters to cast their

E.L.R.] KOLAKA NILAKANTHAM V ANANTA RAM MAJHI 215

votes in favour of the respondent. No evidence has been led on these alleg-ations. The allegations are not substantiated and Tssue No. III(a) is accor-dingly decided against the petitioner.

6. Issue No. IV:—Section 83(i)(Z>> runs thus—

"83.(1) An election petition—* *

(b) shall set forth full particulars of any corrupt practice thatthe petitioner alleges, including as full a statement aspossible of the names of the parties alleged to have com-mitted such corrupt practice and the date and place ofthe commission of each such practice,"

In the application, the particulars given are more or less full. As, how-ever, the case proceeded ex-parte, the question of the respondent being pre-judiced by the absence of particulars does not arise in this case. The appli-cation is maintainable and cannot be dismissed for non-compliance with theprovisions of Section 83(l)(fr). This issue is answered in favour of the peti-tioner.

7. Issue No. Ill (b):—In paragraph nos. 21 and 22 of the petition,corrupt practices by payment of money have been referred to. It was averredin paragraph 21 that the respondent distributed through his agent Rs. 3000in village Kottapada on 19th February, 1967 and paid the villagers of ViraNarayanapur a sum of Rs. 1,800 on the same day to secure their supportfor him in the election. No evidence has been led on this assertion. Thefacts alleged in paragraph no. 21 have not been substantiated by thepetitioner. ^

The averment in paragraph no. 22 is that the respondent paid large sumof money to his workers and agents for distribution amongst the voters andhis workers distributed Rs. 300 in each of Domb street, Dhobi street,Ghasi street and Reli street of Rayagada to secure the vote of the voters inhis support. No evidence has been led about distribution of money in Dombstreet, Ghasi street and Reli street. P.W. 8 deposed that the respondentand his agent Shyam Rajguru approached him and some people of hisstreet (Railway Gate street) and asked them to come to Dhobi street. Bothofthem offered Rs. 100 to them in the Dhobi street and asked them to votefor the respondent the next day. Rs. 100 was paid to P.W. 8 personally.The money was paid by Shyam Rajguru in presence of the respondent. Hisevidence is fully corroborated by P.W.9. The petitioner (P.W. 11) was notpresent at the time of this payment but states that this matter was reportedto him by P.Ws. 8 and 9. None of these witnesses has been cross-examined.There is no intrinsic infirmity in their evidence. When the respondent hadfull opportunity of demolishing their evidence in cross-examination and didnot contest, there is no reason why their evidence should not be accepted.On their evidence I record a finding that Rs.100/- was paid to P.Ws. 8 and 9for distribution amongst the voters to induce them to vote for the respon-dent,

8. Section 123 of the Act enumerates corrupt practices. 'Bribery'is a corrupt prac tice. Section 123(1)( A){b) defines 'bribery' thus:—

2EC/71—15

216 KOLAKA NILAKANTHAM V ANANTA RAM MAJHI [VOL. XXXIV

"Any gift, offer or promise by a candidate or his agent or by any otherperson with the consent of a candidate or his election agent of anygratification, to any person whomsoever, with the object, directlyor indirectly of inducing—

* * *

(b) an elector to vote or refrain from voting at an election."

On the aforesaid finding respondent made a gift of money with the objectof directly inducing P.Ws. 8 and 9 and other electors to vote for the respondentand to refrain from voting in favour of the petitioner. Thus a corruptpractice was resorted to by the respondent within the meaning of Section123(l)(A)(b) of the Act.

Respondent's election must be declared void under Section 100(l)(6)of the Act.

It says that—

"If the High Court is of opinion—

(b) that any corrupt practice has been committed by a returnedcandidate or his election agent or by any other person withthe consent of a returned candidate or his election agent;

the High Court shall declare the election of the returned candidate tobe void."

Respondent's action in resorting to corrupt practice thus comes within themischief of Section 100(l)(&) of the Act and his election is declared void.This issue is answered in favour of the petitioner.

9. Issue No. I:—This issue is based on Section 100, sub-section (1 )(d(Hi) & (iv) which run thus—

"100. (1)—Subject to the provisions of sub-section (2) if the High Courtis of opinion—

(d) that the result of the election, in so far as it concerns a returnedcandidate, has been materially affected—

* * *

(in) by the improper reception, refusal or rejection of any voteor the reception of any vote which is void, or

(iv) by any non-compliance with the provisions of the Consti-tution or of this Act or of any rules or orders made under thisAct,

the High Court shall declare the election of the returned candidateto be void."

E.L.R.] _ KOLAKA NILAKANTHAM V ANANTA RAM MAJHI 217

The averments covering both these points are mentioned in paragraphs4 to 10 of the petition. The facts stated therein are that in Rayagada consti-tuency a large section of the people speak and read only the Telugu dialect.The electoral rolls were published both in Oriya and Telugu languages-underthe authority of the Electoral Registration Officer for the facilities of theelectors speaking in the two dialects. There were, however, gross discre-pancies between the two electoral rolls. The names of a large number ofelectors registered in the electoral roll published in Telugu were not regis-tered as electors in the Oriya electoral rrll. The Presiding and PollingOfficers of all the booths in the Rayagada constituency were using only theOriya electoral roll and refused to allow electors registered in the Teluguelectoral roll to cast their votes. About 2000 electors registered in the Teluguelectoral roll in booth Nos. 40 to 43 could not cast their votes as their namesdid not occur in the Telugu electoral roll of those booths. The refusal tosuch a large number of voters in the Telugu electoral roll materially affectedthe result of election so far as the returned candidate is concerned and theelection of the respondent is void.

10. To appreciate the aforesaid contention, it would be appropriateto refer to certain relevant sections of the Act and the rules framedthereunder. Section 25 of the Act makes provision for polling stations forconstituencies. Under this section—

"the district election officer shall, with the previous approval of theElection Commission, provide a sufficient number of polling sta-tions for every constituency the whole or greater part of whichlies within his jurisdiction, and shall publish, in such matter as theElection Commission may direct, a list showing the polling sta-tions so privided and the polling areas or groups of voters forwhich they have respectively been provided."

Section 62, sub-section (1) lays down—

"No person who is not, and except as expressly provided by this Act,every person who is, for the time being entered in the electoralroll of any constituency shall be entitled to vote in that consti-tuency."

Rules 4 and 22 of the Registration of Electors Rules, 1960 run thus:—

"4. From and language of roll.—The roll for each constituency shallbe prepared in such form and in such language or languages as theElection Commission may direct.

22. Final publication of roll.— (1) The Registration Officer shall there-after—•

(a) prepare a list of amendments to carry out his decisions underrules 18, 20 and 21 and to .correct any clerical or printingerrors or other inaccuracies subsequently discovered in theroll; and

218 KOLAKA NILAKANTHAM V ANANTA RAM MAJHI [VOL. XXXIV

(b) publish the roll, together with the list of amendments, bymaking a complete copy thereof available for inspection anddisplaying a notice in Form 16 at his office.

(2) On such publication, the roll together with the list of amendmentsshall be the electoral roll of the constituency."

Rule 33A of the Conduct of Elections Rules, 1961 is as follows:—

"Marked copy of elecatoral roll.—Immediately before the commencementof the poll, the presiding officer shall also demonstrate to the pollingagents and others present that the marked copy of the electoral rollto be used during the foil does not contain any entries other thanthose made in pursuance of clause (b) of sub-rule (2) of rule 20 andclause (a) of sub-rule (2) of rule 23."

Rule 35 of the Conduct of Elections Rules concerns with identification ofelectors. Sub-rule (4) thereof is to the effect that—

"In deciding the right of a person to obtain a ballot paper the presidingofficer or the polling officers, as the case may be, shall overlook merelyclerical or printing errors in an entry in the electoral roll, if he issatisfied that such person is identical with the elector to whom suchentry relates."

Rule 38 of the Conduct of Elections Rules deals with issue of ballot papersto electors. Sub-rule (2) thereof lays down that—

"At the time of issuing a ballot paper to an elector, the polling officershall record the serial number thereof against the entry relating tothe elector in the marked copy of the electoral roll."

11. The net effect of the aforesaid sections and rules may be noticed.Where electoral rolls are published in two different- languages under theauthority of the Election Commission, both the electoral rolls must be identi-cal. There should be no discrepancy. The electors whose names are regis-tered in the electoral roll prepared in Telugu language cannot be refused tocast their votes merely because their names did not occur in the correspondingelectoral roll in Oriya language. Before refusing the ballot paper to anelector, it is the duty of the Presiding and Polling Officers to overlook mereclerical and printing errors in an entry in the electoral roll, if he is satisfiedthat such person is identical with the elector to whom such entry relates.

12. The question for consideration in this case is whether on the materi-als on record, the contention of the petitioner is substantiated.

In booth No. 38, Ward No. IV, serial No. 178 of the Telugu list has beenomitted from the Oriya list [See Exs. 4, 4(a), 3, 5(a) and 5].

In booth No. 39, Ward No.VI, names of serial nos. 120, 154, 180,181 and182of theTelugu list have been omitted from the corresponding Oriya list,[See Exs. 4(b), 4(c), 3(a), 5(c) and 5(b)].

E.L.R.] KOLAKA NILAKANTHAM V ANANTA RAM MAHJI 219

Ward No. I was included in booth No. 40 (Majhi Gouri Temple)[See Exs. 4(d), 4(e), 3(b), 3(c) and 5(b)]. Names of 33 voters of this Wardwho were validly registered in the Telugu electoral roll were completelyomitted from the corresponding Oriya electoral roll (vide serial nos. 50,64, 71, 72, 76, 87, 192, 257, 306, 356, 377, 381 to 399, 473 and 501). P.W. 5is serial no. 192, who by mistake said that he lived in Ward No. II P.W.I isserial no. 257 and P.W. 2 is serial no. 71.

In Ward No. II, serial nos. 181 to 1378 were included in booth no. 41(Girls M.E. School) according to both the booth lists [See Exs. 4(f) and

(

Serial numbers of the voters mentioned against serial numbers 304 to1378 of the Telugu electoral roll are different in the Oriya electoral roll [SeeExs. 3(c), 5(g) and 5 (f)].

Thus, 1075 and not 1253 voters as deposed to by P.W. 10 by mistake,had different serial numbers in the Oriya and Telugu lists. The remaining178 voters of the Telugu list out of serials 1379 to 1559 were to cast their votesin booth no. 43 [See Exs. 4(g) and 4(k)].

Ward No. IX was included in booth no. 42 [See Ex. 4(h)J. 525 votersof the Telugu list were omitted from the corresponding Oriya list [See Exs.3(d), 5(g) and 5(h)].

In Ward No. II, serial nos. 1381 to 1978 were included in booth no. 43according to the Telugu booth list [See Ex. 4(k)]. In the Oriya booth list,the entry shows only 1338 [See Ex. 4(j)]. The names against serial nos.1381 to 1834 of the Telugu list do not find place in Oriya list [See Exs. 3(c),5(k) and 5(j)]. P.W. 10 by mistake included serial nos. 1366 to 1378 of theTelugu list in this booth. Other serial numbers have been dealt with inbooth no. 41. Serial and holding numbers of 91 electors of the Telugu listdo not tally with the Oriya list [See Exs. 3(c), 5(k) and 5(j)]. It shouldbe 91 plus 223 [See Ex. 3(c)]. By mistake, P.W. 10 stated that it was withreference to 91 voters.

13. To sum up the total number of Telugu voters in respect of whichserious discrepancy occurred between the Telugu and the Oriya rolls areas follows:—

Booth No. 38 1 Telugu voter's name was omitted from theOriya list

Booth No. 39 5 Telugu voters names were omitted fromthe Oriya list.

Booth No. 40 33 Telugu voters were omitted from theOriya list.

Booth No. 41 In respect of 1075 voters of Telugu list,serial and holding numbers do nottally with the serial and holding numbersgiven to those voters in the Oriya list.

220 KOLAKA NILAKANTHAM V ANANTA RAM MAHJI [VOL. XXXIV

Booth No. 42 525 voters of Telugu list were completelyomitted from the Oriya list.

Booth No. 43 ...... 454 voters of Telugu list were completelyomitted from the Oriya list.

In respect of 314 voters (91 plus 223), serial and holding numbers werediscrepant in the Oriya and Telugu lists.

No reference was made to booth nos. 38 and 39 in the election petition.They are, therefore, excluded from consideration. Thus, in respect of booths41 to 43, the total number of Telugu voters who could not have voted withreference to Oriya booth lists are 2401.

14. It is now necessary to consider whether the result of election in sofar as it concerns the respondent has been materially affected by the afore-said omission and discrepancy in respect of 2401 voters. Law is well-settledthat the onus is on the petitioner to establish that the result of the electionhas been materially affected. The mere fact that the results of the electionmight have been affected is not enough. There must be definite proof thatthe result of the election has been materially affected in order to set aside theelection as being void. (See A.I.R. 1954 S.C. 513 Basistha* Narayan-v-Debchandra and A.I.R. 1966 S.C. 824 Mahadeo v. Babu Udaya PartapSingh).

15. Tt has already been stated that besides the petitioner and the res-pondent, one Jhiru Judia contested the election. There are no materialson record to show as to how many votes were cast in favour of Jhiru Judia.The total number of electors in the booth nos. 40, 41, 42 and 43 are 1199,1298, 1102 and 1058 respectively. The total number of voters polling in theaforesaid booths are 641, 503, 331 and 415 respectively {See marked Oriyaelectoral rolls—Ex. 2 series). The percentage of electors who voted in theaforesaid booths are 53, 38, 29 and 39 respectively. Thus, out of the totalnumber of voters of 4657 in the four booths, 1882 voted and it comes to40.41 per cent. 40.41 per cent of the 2401 Telugu electors whose names didnot occur in the Oriya list or in respect of whose names the discrepancyoccurred come to 970.

16. The evidence of P.Ws. 1 to 7 and 11 would show that in the afore-said four booths, many voters came back without casting their votes onaccount of the aforesaid defects. P.W. 1 stated that most of the voters inbooth no. 40 were in favour of voting for the petitioner. P.W. 6 deposedthat in his area, i.e. booth no. 43, people were supporting the candidature ofthe petitioner. P.W. 7 stated that all the voters of his street returned withoutvoting. P.W. 11 stated that he lost about 1500 votes. He also deposed that1500 voters whose names occurred in the Telugu electoral rolls went to thebooths but ballot papers were refused to them and they came back withoutcasting their votes. All these statements are more or less based on conjec-tures and furnish no definite clue that more than 949 voters would have votedin favour of the petitioner but for the aforesaid defects. If, otherwise, only40% votes were cast on the average, it is difficult to accept that 1500 voterscame out of 2401 voters and went back.

E.L.R.] KOLAKA NILAKANTHAM V ANANTA RAM MAHJI 221

17. As has already been stated, it can be taken that about 970 voterswould have cast their votes if the aforesaid defects had not occurred in theelectoral rolls. Even excluding the case of Jhiru Judia that some votersmight have voted for him, it is difficult to accept that all these 970 voterswould have voted only for the petitioner. In the election, 8,641 -voted for therespondent and 7,692 for the petitioner. From the total votes cast in favourof both the respondent and the petitioner, the respondent got more than 50per cent. Even assuming that out of these 970 votes, the petitioner wouldhave polled 97 %, he could not have procured 949 votes. The result of theelection so far as it concerns the respondent would not have been materiallyaffected. The petitioner's case must accordingly fail under Section 100(1)(d)(iii) & (iv) of the Act. This issue is decided against the petitioner.

18. I have already held that the petitioner resorted to corrupt practiceand his election is to be declared void under Section 100(l)(b) of the Act.Section 8A of the Act lays down:-

"A person found guilty of a corrupt practice, by an order under Section99, shall be disqualified for a period of six years from the date onwhich that order takes effect."

19. In the result, the election petition succeeds. The respondent'selection is declared void under Section 100(l)(b) of the Act. He is disquali-fied for a period of six years. As the petition is not contested, there will beno order as to costs.

Petition allowed.

IN THE HIGH COURT OF MADHYA PRADESH AT INDORE

HARBHAJAN SINGH

V.

SAGAR SINGH SISODIYA

(M. A. RAZZAQUE, J.)

December 12, 1967

Representation of the People Act, \95\Section 33(5)—"Produced"if synonymous with"filed".

Evidence Act, 1867—s. 114 illustration (e)—Representation of the PeopleAct, 1951 s. 33(5)—Returning Officer accepting document withoutobjection—Presumption.

The petitioner alleged that the respondent, the returned candidate, didnot file either a- copy of the electoral roll or the relevant part thereof or acertified copy of the relevant entries in such roll along with his nominationpaper, nor did he produce these before the Returning Officer at the time ofscrutiny; and hence he did not comply with the requirements of s. 33(5)

222 HARBHAJAN SINGH V SAGAR SINGH SISODIYA [VOL. XXXIV

of the Act. Therefore it was contended that there was improper acceptanceof the nomination of the respondent and on account of such improper accept-ance, the result of the election was materially affected.

HELD :

(i) While it was conclusively established that the nomination papersfiled by the respondent were not accompanied by such a document as mention-ed in sub-section (5) of s. 33, considering the oral, documentary and cir-cumstantial evidence, it had to be held that a copy of the document as requiredby s. 33(5) was duly produced by the respondent before the Returning Officerat the time of scrutiny; and after verification and checking his nominationwas duly accepted by the Returning Officer.

(ii) The word "produced" in sub-sec. (5) does not necessarily mean"filed". "Produced" means offered for inspection or consideration orshown. In the present case a document as required by sub-section (5) wasactually produced before the Returning Officer and thus there was due com-pliance with the requirements of the sub-section. Assuming it was necessaryfor the Returning Officer to have placed this document on record after thesame was produced by the respondent before him but he did not do so, itcannot be said that on account of such a lapse the provisions of sub-section(5) had not been complied with.

Baru Ram v. Smt. Prasanni A.l.R 1959 S.C. 93 and Chand Singh v.Shankarlal, XX E.L.R. 63; Vashist Narain Sharma v. Dev Chandra andOthers, A.l.R. 1954 S.C. 513 and Mahadeo v. Bahu Udai Partap Singh andOthers, A.T.R. 1966 S.C. 824; referred to.

(iii) Under s. 114 illustration (e) of the Evidence Act, there is a presump-tion that official acts have been regularly performed. The act of the ReturningOfficer in accepting the respondent's nomination without any objection eitherfrom him or from the contesting candidates leads to an irresistible conclusionthat the respondent had produced at the time of scrutiny of the documentsrequired to be produced under s. 33(5).

Ranjit Singh v. Pritam Singh & Ors., A.l.R. 1966 S.C. 1626; referredto.

Election Case No. 35 of 1967

V. P. Mishra, for the Applicant.

K. A. Chitaley and P. L. Dubey, for the Opposite Party.

ORDER

M. A. RAZZAQUE, J.—This election petition by Shri'Harbhajansinghof mouza Panchi, tahsil Chanchoda, district Guna, a defeated Congresscandidate, is preferred under section 81 of the Representation of the PeopleAct, 1951 (hereinafter called the Act) challenging the election of respondent

E.L.R.] HARBHAJAN SINGH V SAGAR SINGH SISOD1YA 223

Shri Sagarsingh Sisodiya of Guna, a returned candidate from the ChanchodaAssembly Constituency of the State of Madhya Pradesh, who was declaredas such in the last general election held in February 1967.

2. Originally the petitioner had impleaded seven other persons as cor-respondents in this case, though they were not candidates for election fromthe Chanchoda Assembly constituency in question but they had contestedthe elections from different constituencies other than the Chanchoda consti-tuency and in the petition as originally laid, the election of the returned candi-date Shri Sagar Singh Sisodiya was assailed on several grounds includingvarious corrupt practices said to have been committed by these seven per-sons in their respective constituencies. Naturally they raised preliminaryobjections that they were not necessary parties to this petition and, therefore,they should be discharged. By my order dated 9-8-1967, these seven personswere discharged leaving only the returned candidate Shri Sagarsingh Sisodiyato contest the petition. In para 12 of the said order, it was observed asunder:—

"A perusal of the election petition would show that it is a mass of con-fused thinking not only in regard to the joining of the parties butalso regarding various allegations made therein. The learnedcounsel for the petitioner has already made an application for filingan amendment petition, for which he has prayed for a week's time.The time is allowed. The amendment petition shall be consideredat its appropriate stage."

3. After this the original petition was amended from time to time andfinally the only ground of attack which survived for decision is, that thereturned candidate did not comply with the provisions of section 33(5) ofthe Act and, therefore, his nomination was improperly accepted which hasmaterially affected the election and, therefore, the same should be declaredto be void.

4. It is common ground that the returned candidate Shri SagarsinghSisodiya is a resident of Guna and an elector from Guna Assembly consti-tuency of the State of Madhya Pradesh. The petitioner's case was thatShri Sagarsingh Sisodiya did not file either a copy of the electoral roll ofGuna constituency or the relevant part thereof or a certified copy of therelevant entries in such roll along with his nomination paper for the Chan-choda Assembly constituency in question. It was also alleged that he didnot produce before the Returning Officer at the time of the scrutiny of nomi-nation papers a copy of the electoral roll of Guna assembly constituencyor a relevant part thereof or a certified copy of the relevant entries. Henceit was asserted that the returned candidate did not comply with the provisionsof section 33(5) of the Act and, therefore, the Returning Officer should haverejected his nomination paper. Accordingly, it was alleged that there hasbeen improper acceptance of the nomination paper of the respondent andhence on account of such improper acceptance the result of the election inso far as it concerns the returned candidate, has been materially affected.Consequently it was prayed that Sisodiya's election should be delcared tobe void.

224 HARBHAJAN SINGH V SAGAR SINGH SISODIYA [VOL. XXXIV

5. In his amended written statement, Shri Sagarsingh Sisodiya deniednon-compliance with the provisions of section 33(5) of the Act. He assertedthat the relevant part of the electoral roll of Guna assembly constituencycontaining the entries relating to him was duly produced at the time of thescrutiny of nominations before the Returning Officer, that full complianceof section 33(5) of the Act was made and no objection of any kind was raisedin this respect at the time of the scrutiny. He thus denied that his nomi-nation was improperly accepted. Accordingly, he prayed that the petitionbe dismissed with costs.

6. On these pleadings of the parties, the following issues were framed fordetermination and my findings thereon are as under:—

ISSUES FINDINGS

(1) (a) Whether there has been non-compliance ofthe provisions of section 33(5) of the Re-presentation of the People Act, 1951 in thiscase as alleged by the petitioner in paras 35to 37 of the election petition ? No.

(b) Whether on this account the nominationpaper of the returned candidate, ShriSagarsingh Sisodiya should have been re-jected by the Returning Officer as alleged ? No.

(c) Whether Shri Sisodiya's nomination paperwas improperly accepted by the Retur-ning Officer as alleged by the petitioner ? No.

(d) Whether on account of such improperacceptance the result of the election in so faras it concerns the returned candidate ShriSisodiya has been materially affected asalleged ?

(2) Whether the election of Shri SagarsinghSisodiya should be declared to be void ?

(3) Relief ?

Does not arise

No.

Petition dis-missed withcosts.

Reasons for findings

7. Issue No. l(a)

It is common ground that the' returned candidate Shri Sagarsingh Siso-diya is an elector within the meaning of section 2(l)(e) of the Act in the GunaAssembly constituency of the State of Madhya Pradesh. Therefore, he wasentitled to contest the election from the Chanchoda Assembly constituencyunder section 5(c) of the Act. Section 33(5) says that "Where the candidate

E.L.R.] HARBHAJAN SINGH V SAGAR SINGH SISODIYA 225

is an elector of a different constituency, a copy of the electoral of that consti-tuency or of the relevant part thereof or a certified copy of the relevantentries in such roll shall, unless it has been filed along with the nominationpaper, be produced before the returning officer at the time of scrutiny".Thus, where a candidate is an elector of one assembly constituency in aState and he wants to contest the assembly seat from some other consti-tuency, he can do so but for this purpose, he has to comply with the provisionsof sub-section (5) of section 33 of the Act. As far as this sub-section is con-cerned, he has two alternatives open to him. The first alternative is thatalong with the nomination paper or papers he has to file a copy of theelectoral roll of that constituency in which he is an elector or of the relevantpart thereof or a certified copy of the relevant entries in such roll. The secondalternative is that if he has not filed such a document along with his nomi-nation paper, then he has to produce it before the Returning Officer at thetime of scrutiny of the nominations.

8. It is also now settled law that filing of such document along with thenomination paper or its production before the Returning Officer at the timeof the scrutiny, if the same was not enclosed with the nomination paper, ismandatory and failure to do so would be a defect of a substantial characterand thus entail rejection of the nomination of such a candidate under clause(b) of sub-section (2) of section 36 of the Act vide Ranjitsingh v. Pritamsingh(A.I.R. 1966 S.C. 1926), Bam Ram v. Smt. Darsanni (A.I.R. 1959 S.C. 93),Chand Singh v. Shankarlal (XX E.L.R. 63) (Rajasthan High Court). ShriChitaley, the learned counsel for the contesting respondent did not there-fore challenge the mandatory nature of the provisions of section 33(5).

9. Now it may safely be accepted that the returned candidate ShriSagarsingh did not file a copy of the electoral roll of the Guna constituencyor of the relevant part thereof or a certified copy of the relevant entries insuch roll along with his nomination papers which were delivered by him tothe Returning Officer on 20-1-1967, the last date for making the nomination,at 2.50 P.M., Shri Ramesh Verma (P.W.I), the senior election supervisor,Collectorate Guna, filed the record containing the nomination papers etc.of Shri Sagarsingh. It contains only six papers, namely, 2 nominationpapers (Exs. P-A-l and P-A-4), 2 forms of oath (Exs. P-A-3 and P-A-5) 1money-receipt (Ex.P-A-2) and 1 application for inspection (Ex. P-A-6). Itdoes not contain any document as contemplated by section 33(5). Furtherthe written statement of Shri Sagarsingh also does not show that such adocument was filed along with the nomination papers. Also, Shri Sagarsingh(R.W.I) does not say in his evidence that any such documents was.filed alongwith his nomination papers on the day he "delivered the nomination papersetc. to the Returning Officer. Thus, it must be taken as conclusively estab-lished that the nomination papers filed by Shri Sagarsingh Sisodiya were notaccompained by such a document as mentioned in sub-section (5) of sec-tion 33. This position was also not seriously challenged by his learned coun-sel at the time of arguments. So, the first alternative was not complied within this case.

10. Now, the point is whether the second alternative was compliedwith namely, whether a copy of the electoral roll of the Guna constituencyor of the relevant part thereof or a certified copy of the relevant entriesin such roll was produced before the Returning Officer by Shri Sagarsingh

2 2 6 HARBHAJAN SINGH V SAGAR SINGH SISODIYA [VOL. XXXIV

at the time of the scrutiny. The full and complete electoral roll of the Gunaassembly constituency is before me and it consists of 349 parts. PartNo. 342 thereof relates to tahsil Guna including the city of Guna. Thenin this part, at page No. 1, appears the name of Shri Sagarsingh Hansraj-singh against the entry No. 46 house No. 75, which has been marked asEx. D-l. These are the three types of documents mentioned in sub-section(5) of section 33 of the Act. So, the point is whether any of these threedocuments was produced by Shri Sagarsingh Sisodiya at the time of thescrutiny before the Returning Officer or not.

11. The petitioner has in all examined five witnesses including himself.It is clear from their evidence that the scrutiny of the nomination papersof the candidates from the Chanchoda assembly constituency in questionand those of Guna assembly constituency took place on one and the sameday namely—21-1-1967. Shri Ratanlal (P.W.2) who is an Advocate ofGuna was one of the contesting candidates from Guna Assembly constituencyand he says that he was present at the time of the scrutiny as the DistrictCongress Committee Convenor had entrusted him the task to watch thescrutiny proceedings of the nomination papers and also the interest of thecongress-candidates. Shri Gourishankar (P.W.3) was a P.S.P. nominee,Shri Ramnarayan (P.W.4) was a dummy congress candidate and Shri Har-bhajan Singh (P.W.5), the petitioner, was a congress-nominee from theChanchoda assembly constituency. The last three witnesses say that they werepresent at the time of the scrutiny of the nomination papers on 21-1-1967in the office of the Returning Officer and they would have to believethat no copy of the electoral roll of the Guna assembly constituency orrelevant part thereof or any certified copy of the entries in such a roll wasproduced by Shri Sagarsingh Sisodiya at the time of the scrutiny. They,however, admit that all the candidates from the Chanchoda assembly consti-tuency scrutinised the nomination papers filed by each; that no objectionwas raised by any one and all the nomination papers were accepted. ShriRatanlal (P.W.2) says that in his presence, the scrutiny of nominationpapers of the assembly constituencies of Mungawali, Ashoknagar, Gunaand Raghogarh was completed and thereafter, there was a break and sohe went to his house for his meals and, when he returned, he learnt fromsome of the above-mentioned witnesses that the scrutiny of the nominationpapers of the Chanchoda assembly constituency has also been completedand that all the nominations including that of Shri Sagarsingh Sisodiya,were accepted by the Returning Officer. It is thus clear from his evidence

"that he was not present at the time when the nomination papers of theChanchoda assembly constituency were taken up for scrutiny by theReturning Officer and, therefore, he is not in a position to say whetherany document as contemplated by section 33(5) was produced by Shri Sagar-singh Sisodiya at the time of the scrutiny or not.

12. But the evidence of the three witnesses namely, Shri Gourishankar{P.W.3), Ramnarayan (P.W.4) and the petitioner Harbhajansingh (P.W.5)on the point that Shri Sagarsingh had not produced any document as con-templated by section 33(5) of the Act has been believed by petitioner's ownwitness Shri Ramesh Verma (P.W.I) who was the senior election super-visor, Collectorate Guna, at the material time. He says that on 21-1-1967,the date of the scrutiny, he was present with the Returning Officer, ShriV. K. Shunglu and that the contesting respondent Shri Sargarsingh had

E.L.R.] HARBHAJAN SINGH V SAGAR SINGH SISODIYA 2 2 7

produced then the relevant part of the electoral roll ofGuna constituencyin which his name appears. He also says that at that very moment he veri-fied and checked the entries given in the nomination papers of Shri Sagar-singh with those given in the relevant part of the electoral roll which wasproduced by Shri Sagarsingh at the time of the scrutiny. He further saysthat after the verification and checking, Shri Sagarsingh took away hiscopy of the relevant part of the electoral roll after the scrutiny was over.His evidence also establishes that none of the candidates from the Chan-choda assembly constituency who were present then raised any objectionto the acceptance of Shri Sagarsingh's nomination. He is a responsibleand respectable witness and because of the position he held, his presenceat the time of scrutiny cannot be doubted at all. He is a disinterestedperson and there is nothing on record to shake his testimony. He is peti-tioner's own witness and at the time of the arguments nothing was saidagainst him by the learned counsel for the petitioner except that the otherthree witnesses, namely, Gourishankar (P.W.3), Ramnarayan (P.W.4) andthe petitioner Harbhajansingh (P.W.5) whose presence at the time of thescrutiny cannot be doubted, may be believed in preference to Shri RameshVerma (P.W.I).

13. It is true that the three witnesses mentioned above were naturalwitnesses but it is also true that they are interested witnesses. Undoubtedly,Shri Ramesh Verma (P.W.I) is also a natural witness but obviously a dis-interested and independent witness. That being so, I believe Shri Verma'stesiimony as reliable and specially so when it gets corroboration from thecircumstantial evidence on record and that of Shri Sagarsingh (R.W.I)which will be discussed hereafter at the proper stage.

14. It may also be noted that these three witnesses have stated lies aboutthe obvious facts. One of these witnesses have gone to "the extent of de-posing that Shri Verma (P.W.I) was not present at the time of the scrutiny.Shri Verma was associated with the election work in question at the mate-rial time and he has categorically stated that on both these days, namely,the last date of the filing of the nomination papers and the date of scrutiny,he was present with the returning officer and checked the entries in thenomination papers with those mentioned in the electoral rolls concerned.In the face of this statement, it is difficult to believe the testimony of thiswitness to the effect that Shri Verma was not present at the time of scrutiny.Thus, he is making untrue statement even in regard to the obvious fact.The motive to make such a statement is not far to seek. It was to undothe effect of Shri Verma's testimony to the effect that Shri Sagarsingh Siso-diya had produced a copy of the relevant part of the eiectroal rol! of theGuna assembly constituency before the returning officer at the time of thescrutiny and that the entries in his nomination forms were verified andchecked with reference to the said copy and when they were found to bacorrect, the said copy was returned to Shri Sagarsingh.

15. The other obvious fact which was denied by two of these three wit-nesses is that any electoral rolls were before the Returning Officer at thetime of the scrutiny. We have it from the testimony of Shri Ratanlal (P.W.2) that the nomination papers of one Parliamentary seat and five assem-bly seats including the Chanchoda assembly constituency were to be scruti-nised on 21-1-1967. It is, therefore, very natural that the electoral rolls

228 HARBHAJAN SINGH V SAGAR SINGH SISODIYA [VOL. XXXIV

of all these constituencies must have been before the Returning Officerat the time of scrutiny because the entries in the nomination papers have tobe verified and checked with reference to the electoral roll concerned. Buttwo of these witnesses denied that there was any electoral roll before theReturning Officer at the time of the scrutiny. The denial is obviously pro-mpted to suggest that Shri Sagarsingh had not produced the relevant copyof the electoral roll of Guna constituency and there was no checking andverification of the entries in his nomination forms. This denial is obviouslyfalse.

16. Again, these three witnesses made untrue statements in regard tothe number of papers which Shri Sagarsingh filed on 20-1-1967, the lastday for making the nominations. Shri Gourishankar (P.W.3) wouldhave us believe that he saw only two papers in the hands of Shri Sagarsinghwhen the latter entered the room of the returning officer; that one of themwas a nomination paper and the other was some other paper. He fur-ther says that when Shri Sagarsingh presented those two papers before thereturning officer, he was sitting just in front of the Returning Officer'stable. He deposed that he stood up in his own seat to see those papersagain and saw that only two papers were presented by Shri Sagarsingh.Ramnarayan (P.W.4) reduced the number of papers from two to one inexamination-in-chief saying that Shri Sagarsingh had filed only onepaper. In cross-examination, however, he raised the number to two papersand stated that one of these two papers was nomination form and the otherwas a receipt for money. He is quite positive and definite in this assertionand emphatically says "I had actually seen them. Except these two, he didnot file any other paper." Thus the net result of the testimony of thesetwo witnesses is that Shri Sagarsingh filed only two papers i.e. one nomi-nation form and the other money receipt and no third paper was filed byhim and that they had actually seen these two papers with their own eyes.This is false because Shri Sagarsingh's nomination file, which has alreadybeen referred to, clearly shows that on that day, he had filed at least threepapers, if not more, and they were two nomination forms (Ex. P.A-1 andP.A-3) and one money receipt (Ex. P.A-2).

17. That file further also contains two forms of oath or affirmationin Form VII-A, and required by Article 173 of the Constitution, as theseoath forms are (Ex. P.A-3) and (Ex. P.A-5). From these oath forms, it isclear that Shri Sagarsingh took the oath and the Returning Officer ad-ministered it to him on 20th January, 1967 at 2.50 P.M., namely, at the verymoment when he filed his nomination forms and the money receipt. Butnone of these witnesses say anything about oath proceedings. The recordis silent on the point whether these oath forms were supplied by the Re-turning Officer to Shri Sagarsingh at that moment, or they had alreadyaccompanied the nomination forms. If these two oath forms had accom-panied the two nomination forms and the money receipt mentioned above,then Shri Sagarsingh must have filed in all five papers. In any case, itcannot be doubted that he had filed three papers at least namely, (Ex. P.A-1,Ex. P. A-2 and Ex. P. A-4). Thus the emphatic assertion of these two wit-nesses that Shri Sagarsingh had filed only two papers and no more and theyhad actually seen them is obviously false.

E.L.R.l HARBHAJAN SINGH V SAGAR SINGH SISODIYA 229J I

18. Then, the petitioner Shri Harbhajansingh (P.W.5) was examinednext day of the examination of these two witnesses and that of Shri RameshVerma (P.W.I) who had filed the nomination record of Shri Sagarsingh.Shri Harbhajansingh (P.W.5) admittedly was present in the Court roomon the date when these witnesses were examined and the. nomination recordwas filed. He realised the mistake committed by these two witnessesand, therefore, he raised the number of these papers from two tothree by saying that on 20-1-1967, Shri Sagarsingh had filed twonomination forms and one money receipt in his presence. This witnesshas admitted that he had already filed his nomination paper on 16-1-1967and, therefore, it was not at all necessary for him to be present in theroom of the Returning Officer on 20-1-1967 at 2.50 P.M. (almost the lastlimit of time of the last date for making nominations) when Shri Sagar-singh filed his nomination papers etc. His explanation is that he wantedto ascertain, how many, candidates had filed their nomination papers and,therefore, he had attended the Returning Officer's room on 20-1-1967.If that was the only reason, then that could have been ascertained next dayon the date of scrutiny, namely, 21-1-1967. I do not believe him that hewas present in the Returning Officer's room on 20-1-1967 when Shri Sagar-singh filed his nomination papers etc. In this conclusion, I am fortifiedby the verification clause in the election petition where this relevant facthas been verified by him 'on information' received and believed to be 'true'.He did not verify this fact on his 'personal knowledge' which he has nowtried to depose in his evidence.

19. It is thus clear that Shri Gourishankar (P.W.3), Ramnarayan(P.W.4) and Shri Harbhajansingh (P.W.5) have been making wrong anduntrue statements even on obvious facts and they have been doing so withan ulterior motive. They are undoubtedly interested witnesses and theirmain object seems to be to get the election of the returned candidate setaside anyhow, as deposed to by Shri Sagarsingh (R.W.I).

20. I have already said that the testimony of Shri Ramesh Verma(P.W.I) Senior Election Supervisor Collectorate, Guna receivescorroborationfrom circumstantial evidence. The first circumstance is that none of thecandidates including the petitioner, Shri Harbhajansingh (P.W.5) fromthe Chanchoda assembly constituency raised any objection to the nominationof Shri Sagarsingh at the time of the scrutiny. The testimony of ShriRatanlal (P.W.2), who was entrusted with the task to watch the scrutinyproceedings and also the interest of the Congress candidates includingShri Harbhajansingh (P.W.5) and the conduct tried to be assigned to theother witnesses at the time of the evidence go to indicate that they werealready aware of the importance of the provisions of section 33(5) beforethe date of the scrutiny.

21. Shri Ratanlal (P.W.2) deposed that on his return from his house,the first question which he asked to these witnesses and other outside theroom of the Returning Officer was whether a certified copy of the electoralroll of the Guna constituency was produced by Shri Sagarsingh before theReturning Officer and one of them told him that it was not produced andhe further says that he told them that production of such a document wasvery essential. It is thus clearly established that Shri Ratanlal (P.W.2)

230 HARBHAJAN SINGH V SAGAR SINGH SISODIYA [VOL. XXXIV

had full knowledge about the importance of section 33(5) of the Act evenprior to the date of the scrutiny. When, however, he was asked in cross-examination as to whether he had filed any objection at that very time beforethe Returning Officer he replied that he had filed none and the explanationgiven by him is that the nomination forms were already accepted. It ison record that Shri Ratanlal (P.W.2) returned to the spot only about 15 or20 minutes after the acceptance of the nomination papers and, therefore,nothing could have prevented him from filing a written objection and re-questing the Returning Officer to place it on record but this was not done.This failure on his part renders this part of the story improbable.

22. As regards the other three witnesses, namely Gourishankar (P.W.3),Ramnarayan (P.W.4) and Harbhajansingh (P.W.5), it is clear that theconduct tried to be assigned to them is illustrative of their deep anxietyto ascertain whether any document as required by section 33(5) of the Actwas filed by the returned candidate, Shri Sagarsingh on 20-1-1967. Thiswould also indicate that these witnesses had knowledge even on 20-1-1967about the vital nature, of the provisions of section 33(5). The position,therefore, reached is that all these four witnesses including Ratanlal (P.W.2) were aware before the date of scrutiny i.e. 21-1-1967 that where thecandidate is an elector of a different constituency a document as requiredby section 33(5) has to be filed along with the nomination paper of sucha candidate or it has to be produced before the Returning Officer at thetime of the scrutiny,, if not already filed and if this is not done the nomi-nation paper of such a candidate is liable to be rejected. In spite of thisprevious knowledge we find that no objections were raised by any of thethree witnesses, namely, Gourishankar (P.W.3), Ramnarayan (P.W.4) andHarbhajansingh (P.W.5) at the time of the scrutiny and Shri Sagarsingh'snomination was accepted. This is explicable only on one reasonablehypothesis namely that Shri Sagarsingh had produced the relevant copyof the electoral roll before the Returning Officer at the time of the scrutiny.Thus the testimony of Shri Ramesh Verma (P.W.I) receives corroborationfrom the circumstance.

23. The second circumstance is that, at least the Returning Officer mustbe presumed to have full knowledge about the provisions of section 33(5)of the Act. He could have raised the objection suo motu under section36 of the Act to the acceptance of Shri Sagarsingh's nomination paperif the latter had not produced the relevant document as required by section33(5) of the Act. It is clear that the Returning Officer also did not raiseany such objection and accepted Shri Sagarsingh's nomination. Undersection 114 illustration (e) of the Evidence Act there is presumption thatofficial acts have been regularly performed. This act of the ReturningOfficer in accepting Shri Sagarsingh's nomination without any objectioneither from him or from any one of the contesting candidates leads to anirresistible conclusion that Shri Sagarsingh had actually produced a copyof the relevant roll of the Guna constituency at the time of the scrutinybefore him as required by section 33(5) of the Act. Thus this circumstancealso supports the testimony of Shri Ramesh Verma (P.W.I).

24. The third circumstance is the question put by the petitioner's learnedcounsel to Shri Sagarsingh and this question itself suggests that Shri Sagar-singh had produced such a document before the Returning Officer at the

E.L.R.] HARBHAJAN SINGH V SAGAR SINGH SISODIYA 231

time of the scrutiny when he raised objection. The question reads asunder:—

"Question:—On the date of the scrutiny, because the Returning Officerraised an objection about the absence of the voters' list or its certi-fied copy, so you showed to him the voters' list. What have youto say to this?"

It is thus abundantly clear from this very question that Shri Sagarsinghhad actually produced and shown the relevant copy of the electoral rollof the Guna constituency to the Returning Officer at the time of the scru-tiny. Then what else is needed further to establish that such a documentwas produced before the Returning Officer by Shri Sagarsingh ?

25. All these vital circumstances as discussed above fully corroboratethe testimony of the Senior Election Supervisor, Shri Ramesh Verma(P.W.I) to the effect that Shri Sagarsingh had produced the relevant copyof the electoral roll of the Guna constituency at the time of the scrutinybefore the Returning Officer and that after checking the entries the samewas returned to Shri Sagarsingh whose nomination was accordingly ac-cepted. Thus the testimony of Shri Ramesh Verma (P.W.I) has to beaccepted as true and reliable besides being disinterested.

26. Besides this, the returned candidate Shri Sagarsingh Sisodiya(R.W.I) entered the witness box and deposed that at the time of the scrutinyof his nomination paper he produced the copy of the voters' list of theGuna assembly constituency before the Returning Officer to whom it wasshown and at that time Shri Ramesh Verma (P.W.I) was sitting by theside of the Returning Officer. He further deposed that the ReturningOfficer verified and checked the entries and after that he enquired fromall the candidates from the Chanchoda constituency, who were present therewhether they had any objection and they said that they had none and thenhis nomination was accepted. He has also deposed that the nominationpaper of each candidate used to be taken up by the Returning Officer oneby one for scrutiny and after verification and checking he used to enquireif any one had any objection and then the nomination concerned used to bzaccepted. He remains unshaken in cross-examination. Thus his testimonyis consistent with that of Shri Ramesh Verma (P.W.I.) and the pointedand material circumstances of the case as discussed above. I believehim.

27. Thus considering the oral, documentary and circumstantial evidenceand record as discussed above, 1 hold that a copy of the document as re-quired by section 33(5) of the Act was duly produced by Shri SagarsinghSisodiya before the Returning Officer at the time of scrutiny and afterverification and checking his nomination was duly accepted by the Return-ing Officer and the said document was returned to him.

28. It was, however, urged by Shri Mishra, learned counsel for thepetitioner that as this document did not come to be placed on record oShri Sagarsingh's nomination file the mandatory provisions of sub-section

2EC/71—16

232 HARBHAJAN SINGH V SAGAR SINGH SISODIYA [VOL. XXXIV

(5) of section 33 have not been complied with, as according to him, theword "produced" is synonymous with the word 'filed' in the said sub-section. His contention is that mere showing of such document to theReturning Officer without the same being placed on record could not beconstrued as a due compliance with the provisions of this sub-section.He cited before me the case of Ranjitsingh v. Pritamsingh and others (A.I.R.1966 S.C. 1626) and according to him this authority supports his conten-tion to the effect that the word "produced" in sub-section (5) is synony-mous with the word "filed". I do not agree. In my opinion, the word"produced" does not necessarily mean "file" and the two words meandifferent things. To produce simply means to offer for inspection or con-sideration or to show while to file would mean place on record.

29. The Supreme Court authority relied on by the learned counselfor the petitioner in fact goes against him and supports what I have statedabove. In para 7 thereof, Their Lordships have observed as under:—

"Section 33(5) does not require that a copy must be filed with eachnomination paper, for the candidate is given the alternative to pro-duce before the returning officer such copy at the time of the scru-tiny. So the candidate need not file any copy with the nominationpaper and it is enough if he has a copy in his possession which heproduces before the returning officer at the time of the scrutiny.Further there is nothing in section 33(5) which requires that if acandidate has (say) filed four nomination papers he should havefour copies with him to produce before the returning officer at thetime of the scrutiny. It would in our opinion be enough if he hasone copy with him at the time of the scrutiny and shows it againand again as each nomination paper is taken up for scrutiny bythe returning officer. We see no sense in holding that in suchsituation the candidate should arm himself with four copies for thepurpose of showing the copy to the returning officer at the time ofscrutiny. The same copy in our opinion can be produced againand again before the returning officer as he takes up the scrutinyof each of the nomination papers filed on behalf of a candidate".

30. From this authority it would be plainly inferable that the words"filed" and "produced" are not synonymous. To produce simply meansto show. This interpretation is also consistent' with the dictionarymeaning of these words. According to the Shorter Oxford English Dic-tionary, Volume II page 1592 the word "produce" inter alia means "tooffer for inspection or consideration, exhibit". Similarly the word "file"inter alia means to place on a file, to place in consecutive order for pre-servation and reference, to place in due manner among the records of aCourt or a public office. It is thus clear that the word "produced" is notthe same thing as the word "filed" occurring in sub-section (5). Producedmeans offered for inspection or consideration or shown. We have al-ready found in this case that such a document as required by sub-section(5) was actually produced before the Returning Officer at the time of scru-tiny by Shri Sagarsingh. Thus there was due compliance with sub-section5. Assuming that it was necessary for the Returning Officer to have

E.L.R.] HARBHAJAN SINGH V SAGAR SINGH SISODIYA . 233

placed this document on record after the same was produced by Shri Sagar-singh before him but he did not do so then that may be a lapse on the partof the Returning Officer but it cannot be said that on account of such alapse the—provisions of sub-section (5) of section 33 had not been comp-lied with by the returned candidate Shri Sagarsingh. For all these reasonsI decide issue No. (l)(a) in the negative.

31. Issues (1)(Z>) and (c).

In view of my finding on issue (l)(a) above, I hold that the nominationof Shri Sagarsingh Sisodiya was properly accepted by the Returning Officerand there was no occasion to reject it. Accordingly, I decide both theseissues in the negative.

32. Issue No. (1) (d).

Tn view of my findings on the above issues, the question that the resultof the election in so far as it concerns the returned candidate has been ma-terially affected by the improper acceptance of any nomination as—con-templated by section 100(l)(d)(i) of the Act does not arise because I haveheld above that Shri Sagarsingh's nominations have been properly accepted.Had this been a case of improper acceptance of nomination of Shri Sagar-singh, who is a returned candidate in this case, then the result of electionwould have been held as materially affected and, therefere, the same wouldhave been declared as void vide Vashist Narain Sharma v. Dev Chandraand others (A.I.R. 1954 S.C. 513) and Mahadeo v. Babu Udai Partap Singhand others (A.I.R. 1966 S.C. 824); but as it has been found that there wasproper acceptance of his nomination, this question does not arise. I decidethis issue accordingly.

33. Issue No. (2).

In view of my findings above, I decide this issue in the nega-tive.

34. In the result, the election petition is dismissed with costs. Thepetitioner shall pay the costs of respondent Shri Sagarsingh Sisodiya andbear his own. Counsel's fee Rs. 250/-, if certified.

Petition Dismissed.

234 TIRLOCHAN SINGH V KARNAIL SINGH AND ANOTHER [VOL. XXXIV

IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDI-GARH

TIRLOCHAN SINGHV.

KARNAIL SINGH AND ANOTHER

(A. N. GROVER, HARBANS SINGH AND D. K. MAHAJAN, JJ.)

December 12, 1967

Representation of the People Act, 1951, Sections 123, 123(1), 123(2)and \23(])(B)(b)—Corrupt practice—Evidence of accomplice whetherrequires corroboration—Abettor—Gift for construction of Dharmshalafor Harijan community on the promise to sell the votes of the Harijans—Ingredients as to when a gift to a public purpose is a "bribe" underSection 123(1)—Appeal to Sikh voters to support Panthak candidate—Whether amounts to undue influence under Section 123(2).

The petitioner, a defeated candidate, challenged the election of the firstrespondent to the Punjab Assembly on the ground that he committed acorrupt practice in that he made a gift of Rs. 1500 to the Harijan com-munity of a villaae for construction of a Dharmshala on condition that theHarijan voters of the village would vote for him. It was further allegedthat the first respondent got published a poster seeking Sikh votes onthreat of divine displeasure. The first respondent while denying the alle-gations contended, inter alia, that a gift or promise made for a public pur-pose would not amount to "bribery".

(As there was no authoritative decision on the points raised in the peti-tion, the matter was referred to a Full Bench consisting of Harbans Singh,A. N. Grover and D. K. Mahajan, JJ. The order of the Bench wasdelivered by Harbans Singh, J. on the 14th November, 1967 and the casewas finally decided by Harbans Singh, J. on the 12th December,1967).

HELD : Allowing the petition :

(i) A gift or promise of such a gift made for a public purpose wouldfall within the definition of "bribery" under Sub-Section (1) of Section123 of the Act if it satisfied the following conditions :

(1) That it gives satisfiction or pleasure to an individual or indivi-duals;

(2) The gift or promise, which is to give such a gratification or pleasureto the individual, is of some value; and lastly

(3) The gift or promise by a candidate is made with the corrupt motiveof directly or indirectly inducing the persons gratified to vote inhis favour or to induce other electors to vote in his favour.

E.L.R.] TIRLOCHAN SINGH V KARNAIL SINGH ANDi ANOTHER 235

Moot Chanel Jain v. Rulia Ram etc., A.I.R. 1963 Punjab 516; MeharSingh v. Umrao Singh, A.I.R. 1961 Punjab 244; Balwant Rai Tayalv. Bishan Saroop and another, 17 E.L.R. 101; Gangadhar Maithaniv. Narendra Singh Bhandari, 18 E.L.R. 124; Mohan Singh v.Bhanwarlal and others, A.I.R. 1964 S.C. 1366; Magan Lai Bagdiv. Hari Vishnu Kamath, 15 E.L.R. 205; Shankara Gowda v. Mar-lyappa and another, IX E.L.R. 101; Amritsar & Sialkot {GeneralRural) Constituency, 1937, Sen and Podar Indian Election CasesP.21 and Kataria Takandas Hemraj v. Pinto Frederick Michael,XVII E.L.R. 403; referred to.

(ii) The two main witnesses of the petitioner who were directly concer-ned and privy to the offence of giving the bribe and through whose effortand instrumentality the respondent was persuaded to pay the amount forthe construction of Dharamshala on the promise to sell out the votes ofthe Harijans, were in the nature of accomplices. The rule of prudence,which impels a court to seek for independent corroboration on materialpoints of the evidence of an accomplice and it is not considered safe torely on the sole testimony of an accomplice, who is a tainted witness, shouldequally apply in the trial of a corrupt practice in election cases, since chargeof corrupt practice is in nature of a criminal charge.

Mohan Singh v. Bhanwarlal, A.I.R. 1964 S.C. 1366; Harish ChandraBajpai and another v. Triloki Singh and another, A.I.R. 1957 S.C.444; Jagdev Singh Sidhanti v. Pratap Singh Daulta and others, A.l.R. 1965 S.C. 183; C. Subba Rao v. K. B. Reddy and others, A.I.R. 1957 A.P. 155; Rameshwar v. The State of Rajasthan, A.I.R.1952 S.C. 54; W. C. Macdonald v. Fred Latiner, A.I.R. 1929 P.C.15 and Bankabehari Das v. Chittaranjan Naik, A.I.R. 1963 Orissa83; referred to.

A silent spectator to a commission of an offence of either giving orreceiving bribe by third parties, even though the spectator did not protestor disclose the offence, cannot be categorised as an accomplice. Theweight to be attached to the evidence of the spectator is a matter of appre-ciation by the trial judge depending on the peculiar circumstance of thecase.

(iii) On the facts, the petitioner had proved that the first respondenthad committed the corrupt practice of "bribery" as defined in Clause 'A'of Sub Section (1) of Section 123 of the Act.

Jnanendra Nath Ghose v. The State of West Bengal, A.I.R. 1959 S.C.1199; Rameshwar v. The State of Rajasthan, A.I.R. 1952 S.C. 54;Gurbanta Singh v. Piara Ram Jaggu Ram and others, A.I.R. 1960Punjab 614; Siddik Mahomed Shah v. Mt. Saran, A.I.R. 1930P.C. 57 (I) and Nagabai Ammal and others v. B. Shanna Rao andothers, 1956 S.C. 533; referred to.

(iv) A statement by a Sikh leader that the decision of the Panth andAkal Takhat shall be respected by all Sikhs to support the Panthak candi-date does not fall within the purview of undue influence as defined inSection 123(2) of the Act.

236 TIRLOCHAN SINGH V KARNAIL SINGH AND ANOTHER [VOL. XXXIV

(v) The evidence on record is far below the standard of evidence re-quired to prove beyond all reasonable doubt that the objectionable posterwas distributed by or at the instance of the first respondent.

ELECTION PETITION No. 33 OF 1967.

Rajinder Sachar and Mohinderjit Singh Sethi for the Petitioner.

J. N. Kaushal with B. S. Dhillon, S. S. Dhaliwal, B. S. Shant and KuldipSingh for the Respondents.

ORDER

{Dated October 10, 1967)

HARBANS SINGH, J.—One of the allegations in this election petitionfiled by the defeated candidate Tarlochan Singh for setting aside the electionof Karnail Singh from Pucca Kalan constituency of the PunjabLegislative Assembly, is that the respondent entered into an agreement withthe Harijan voters of village Jodhpur Ramana through the Harijan leadersSunder Singh and Munsha Singh to make a gift of Rs. 1,500 to the Harijancommunity for the construction of their Dharamsala in that village, providedthe Harijans of that village voted for him. The place where this arrangementwas arrived at was said to be the house of Ganda Singh of that village, on18th of February, 1967, in the presence of Ajaib Singh, brother-in-law ofthe aforesaid Ganda Singh. It was further stated that as a result of thisagreement, Rs. 1,500 were deposited with a brickkiln owner Manohar Laiwith the instructions to supply the bricks after the election was over and that,in consequence of the aforesaid deal, Harijan voters voted for the respon-dent and bricks were supplied for the construction of the said Dharamsalaafter the election. While leading evidence, the aforesaid story was slightlychanged. Whereas in the petition and in issues, it was stated that Rs. 1,500were deposited with the brickkiln owner, at the trial the two main witnessesSunder Singh and Munsha Singh, the Harijan leaders, stated that the afore-said money was left in trust with Ganda Singh and that it was Ganda Singh,who subsequently supplied the bricks, cement and two iron girders as wellas paid the masons, who were put on this job. According to them, one bigroom was constructed as part of the Dharamsala and two girders wereused on the roof and that the building was still incomplete. Manohar Lai,brickkiln owner was examined by the petitioner. He denied that any moneywas ever deposited with him, and the record produced by him of the sale ofbricks at his kiln after March, 1967, did not show that any bricks were sup-plied either to Ganda Singh or to the Harijan leaders above-mentioned. Therecord only indicated that bricks were supplied to the school committee.

The main witnesses for the petitioner were Sunder Singh andMunsha Singh, who stated that on 18th of February, 1967, they were sum-moned by Ganda Singh to his house where they found Karnail Singh res-pondent present, and in the presence of Ajaib Singh, the deal was settled asstated above and the money was kept in deposit with Ganda Singh. Inaddition to these two, Ajaib Singh was also examined and he stated that he

E.L.R.] TIRLOCHAN SINGH V KARNAIL SINGH AND ANOTHER 237

had gone to that village Jodhpur Ramana in order to settle a dispute bet-ween Ganda Singh and his son with regard to partition of the property thathad taken place between the father and the son. The matter was not set-tled on the very first day and he stayed on for another couple of days or so.

One of the questions raised by Mr. Jagan Nath Kaushal, counsel for therespondent, was that Sunder Singh and Munsha Singh were themselves inthe position of accomplices because, according to their own case, they de-manded money as consideration for the Harijans supporting Karnail Singhrespondent. Thus, if Karnail Singh was guilty of giving bribe, Sunder Singhand Munsha Singh were guilty of receiving the same. He, therefore, urgedthat in criminal cases, the evidence of the accomplices must be corroboratedin material particulars before the same can be safely acted upon. It is nowwell settled that the charge of a corrupt practice is in the nature of a criminalcharge and the same must be proved beyond all reasonable doubt, SeeMohan Singh v. BhanwarlalX1)- The question, however, is that "bribery"as defined in section 123 of the Representation of the People Act, has ingre-dients different from the charge of bribery, as defined in the Indian PenalCode. One of the important points that arises for consideration, therefore,is whether the rule of prudence, which, as stated by the Supreme Court, hashardened into a rule of law, that evidence of an accomplice must be corro-borated by independent evidence in material particulars and further that oneaccomplice cannot corroborate another, applies to the trial of election peti-tions, to which Civil Procedure Code is ordinarily applicable. No directcase on this point was cited by either party. Certain discrepancies in theevidence of Sunder Singh and Munsha Singh were also pointed out, butapart from this, the main question for determination would be whether theyare accomplices and their evidence requires corroboration.

In the present case, the two witnesses would certainly fall into the cate-gory of accomplices and, if the rule applicable in criminal cases also holdsgood in election petitions, they cannot corroborate each other and one hasto look for corroboration elsewhere. Ajaib Singh P.W.20 is the only otherperson, who makes any statement with regard to this matter. He was pre-sent at the time when the bargain was struck and the money was passed andhe obviously did not protest and, as admitted by him did not disclose whathappened on that date to the petitioner. His presence at village JodhpurRamana, it was urged, was highly improbable. According to him, his nep-hew met him on 17th of February saying that the matter was urgent and thathe should go with him that very day to settle the dispute with his father.According to this witness, the dispute between the son and the father onlywas that the son was to pay Rs. 8,000 to his father because of the allotmentof the haveli in Bhatinda in the course of the partition, and this witness set-tled the dispute by asking Ganda Singh to agree'to forgo this amount, whichthe latter did. If this was all that was done, it was urged, then he would havefinalised his work on 17th of February, the day on which he is said to havegone to Jodhpur Ramana and would have returned to Abohar, wherehe resided, in time to cast his vote in the Lambi constituency in which he wasregistered as an elector. According to the witness, however, when he talkedto Ganda Singh on 17th of February, he told him to stay on for two or threedays and that the matter would be discussed after the election. So, this

(1) A.I.R. 1964 S.C. 1366. '

2 3 8 TIRLOCHAN SINGH V. KARNAIL SINGH AND ANOTHER [VOL. XXXIV

witness stayed on till after the election and it was thus that he happened tobe present on 18th evening, a day before the election, to be a witness for thisincident. It was vehemently urged that if the matter was not so urgent andcould wait till after the election, he would have returned to Abohar to casthis vote and then gone back. He is a biggish landlord and his lands are ata distance of four miles from Abohar, and he resides at Abohar and managesthe lands from there. It was contended that no one in such a position wouldwaste his time doing nothing at village Jodhpur Ramana and not cast his voteat the place where he is registered as an elector. However, apart fromreliability or otherwise the question for consideration would be whether, hehimself falls in the category of an accomplice or not.

Another point that the learned counsel for the respondent vehementlycontended was that 'bribery', as defined in sub-section (1) of section 123 ofthe Act, means any gift, offer or promise by a candidate to any person whom-soever, with the object, directly or indirectly, of inducing a person to with-draw, to vote or refrain from voting at an election. He also referred to clause(b) of sub-section (2) of section 123, according to which a declaration ofpublic policy or a promise of public action would not be hit by the definitionof "undue influence". The contention was that before a gift or promisecan be treated as bribery, such a gift or promise must be to a person or per-sons and where the gift or promise is made for any public purpose as such andno personal benefit is to accrue to any individual, the gift etc. would not bebribery. In this respect, reference was made, inter alia, to S. Mehar Singhv. Umrao Singh, (2). Balwant Raj Taval v. Bishan Saroop and another, (3).Facts in both these cases were materially different. In the first case, thecandidate had held out a promise that he would get allotment made to cer-tain persons in Sirsa and get valuation of Bahawalpuri refugeesaltered if they voted for him. In the second case a promise was made toHarijans to help them get land for building houses and to retain a mosqueas their temple. Stress was, however, laid on certain observations in thesetwo rulings. In the first case, at page 249, it was observed as follows:—

"It is, however, clear, as the learned Tribunal has observed, that thisdemand of the Bahalwalpuri refugees as a body was of long stan-ding, and their grievances, if any, could only be met by the CentralGovernment, and I agree with the view of the learned Tribunal thateven if the candidate did make a promise that he would try to getgrievances remedied and got the Revenue Minister to reinforce hispromise, this amounts to only a promise of public actionand not individual benefit to such persons as the promise wasmade to. In my opinion it was correctly found that this did notamount to a corrupt practice."

In the second case, it was observed as follows:—

"A promise to the Harijans of a locality by a candidate when he iscanvassing for votes, that he would do his best to help them in the

(2) A.I.R. 1961 Punjab 244.(3) 17 E.L.R. 101.

E.L.R.] TIRLOCHAN SINGH V KARNAIL SINGH AND ANOTHER 239

matter of retaining an old mosque as a temple and for getting landfor building houses does not amount to 'bribery'. It is a kind ofpromise which any candidate is entitled to give to any section of hiselectors."

Tn Gangadhar Maithani vs. Narendra Singh Bhandari, (4) a decision by aDivision Bench of the Allahabad High Court, one of the allegations was thatthe respondent by himself or by his agent gave out to the voters that he hadgreat intimacy with the ministers of the Government and that he would securefor them advantages if they voted for him. While dealing with this point,the learned Judges observed as follows:—

"There being no evidence at all of any promise by the respondent thatany voter would receive any personal advantage because of therespondent's influence with the ministers, learned counsel for theappellant in the appeal had to give up that plea and try to connectthe issue with the pleading contained in clause (e) of paragraph 7 ofthe petition because in that clause the pleading related to the promiseby the respondent that he would have development work done inthe constituency. If evidence had been given of a promise of ob-taining personal advantage to the voters, it might have been possi-ble to hold that, in making such promise the respondent had commit-ted a corrupt practice of bribery * * * . The promisefor which evidence has been given is, however, one under which nopersonal advantage could be obtained by any voter; the advantagewas to the benefit of the whole constituency, if at all. That advan-tage to the constituency was also to be obtained by the respondentby using his influence, in such a way that public action by the StateGovernment in its development plans was to ensure to the benefitof the residents of his constituency. This means that his promisewas a promise relating to a public action and was not a promise re-lating to any private or personal benefit to any voter."

Tn Bankabehari Dasv. Chittaranjan Naik, (5) more or less similar observationswere made and it was held that where there is no personal bribery, the actswould not be hit.

The observations in all these cases do, to an extent, support, the conten-tion of the learned counsel for the respondent. The only other case to thecontrary, in which the facts are very near the present case, is Maganlal Bagdiv. Hari Vishnu Kamath, (6). Division Bench judgment of Madhya PradeshHigh Court, to which Hidayatullah, C.J., (as he then was) was a party.There, a candidate promised assistance in the digging of a well for the Hari-jans and this was held to fall within the definition of 'bribery'. The learnedcounsel for the respondent tried to distinguish this case on the ground thatthe aspect of the[case,that is urged by him now in this case and also consideredin the observations made in the judgements referred to above,was not debatedbefore the Bench and, in any case, the judgment is not a well-considered

(4) 18 E.L.R.- 124.(5) A.I.R. 1963 Orissa 83.(6) 15 E.L.R. 205.

240 TIRLOCHAN SINGH V, KARNAIL SINGH AND ANOTHER [VOL. XXXIV

authority. I feel that this is also an important point, on which an authorita-tive decision is necessary. I would, therefore, formulate the following threequestions for decision by a larger Bench:—

(1) Whether, in the circumstances of the case, Munsha Singh and SunderSingh fall in the category of accomplices and if so, whether the ruleapplicable to criminal trials requiring independent corroborationof the evidence of an accomplice, holds good in the case of electionpetitions in relation to a charge of a corrupt practice of bribery ?

(2) Whether, in the circumstances of this case, Ajaib Singh would alsofall in the category of an accomplice ?

(3) Whether a gift or promise made for a public purpose and not forthe benefit of any individual or individuals, but the object of whichis to make himself popular amongst a section of the electorate as awhole and thus directly or indirectly induce them to vote in hisfavour, would fall within the definition of 'bribery' as given in sec-tion 123 of the Representation of the People Act or not ?

I would, therefore, direct that the records of this case should be placed beforemy Lord the Chief Justice for necessary orders.

ORDER DATED 14TH NOVEMBER, 1967

HARBANS SINGH J.—In the above-mentioned election petition filedby the defeated candidate Tarlochan Singh for setting aside the election ofKarnail Singh from Pakka Kalan constituency of the Punjab LegislativeAssembly, one of the allegations was that the respondent entered into anagreement with the Harijan voters of village Jodhpur Ramana through theirleaders Sunder Singh and Munsha Singh to place at the disposal of the Hari-jan community Rs. 1,500 for the construction of their Dharamsala for aconsideration of the Harijan villagers voting for him. Sunder Singh andMunsha Singh above-mentioned, were examined by the petitioner and theyadmitted that the Harijans had all decided to vote for a candidate whowould assist them in getting their Dharamsala erected and these two personsmet Karnail Singh, respondent, at the house of Ganda Singh, the eveningbefore the date of polling and demanded Rs. 2,000 for the Dharamsala.Bargain was settled for Rs. 1,500, which amount was paid by Karnail

' Singh. In the petition it was alleged that the aforesaid amount was left indeposit with one Manohar Lai, brick kiln owner for supply of bricks, butin the trial the evidence led was to the effect that the money was left in de-posit with Ganda Singh, who subsequently supplied the bricks, iron girdersas well as paid for the labour of the masons. Apart from the question ofthis discrepancy between the two versions, with which we are not concerned,the question arose as to whether these two witnesses were accomplices, andif so, whether the rule, which is well settled so far as the criminal cases areconcerned, that the evidence of an accomplice requires independent corro-boration in material particulars, is applicable to the trial of an election peti-tion, to which Civil Procedure Code applies.

E.L.R.] TIRLOCHAN SINGH V, KARNAIL SINGH AND ANOTHER 241

One Ajaib Singh, a relation of Ganda Singh, also appeared as a witnessand said that he was present at the time of the aforesaid bargain betweenthe Harijan leaders and the respondent. He admitted that he did not raiseany objection at that time, nor did he inform the petitioner subsequently.Qua him also, a question was raised on behalf of the respondent that he alsowas no better than an accomplice, whose evidence could not be treated asindependent corroboration.

Lastly, an argument was raised on behalf of the respondent, that in anycase even according to the allegations of the petitioner, which were stoutlydenied by the respondent, the gift of Rs. 1,500 was made for the benefitof the entire Harijan community and not to any individual or individualsand that consequently such a gift could not fall within the definition of'bribery' as given in clause (A) of sub-section (1) of section 123 of the Re-presentation of the People Act, 1951, (hereinafter referred to as an 'Act').As I considered those matters to be of considerable importance, the follow-ing three questions were referred by me for an authoritative decision by alarger Bench and that is how the matter is before us:—

(1) Whether, in the circumstances of the case, Munsha Singh and SunderSingh fall in the category of accomplices and if so, whether the ruleapplicable to criminal trials requiring independent corroborationof the evidence of an accomplice, holds good in the case of electionpetitions in relation to a charge of a corrupt practice of bribery ?

(2) Whether, in the circumstances of this case, Ajaib Singh would alsofall in the category of an accomplice"?

(3) Whether a gift or promise made for a public purpose and not forthe benefit of any individual or individuals, but the object of whichis to make himself popular amongst a section of the electorate asa whole and thus directly or indirectly induce them to vote in hisfavour, would fall within the definition of 'bribery' as given in sec-tion 123 of the Representation of the people Act or not ?

Apart from any special provisions made in the Act, the trial of the electionpetition is governed by the procedure laid down in the Civil Procedure Code.However, it is now well settled that a charge of corrupt practices are in thenature of a criminal charge and the standard of judging evidence has to bethe same as in a criminal trial. Reference in that connection may be madeto the observations of the Supreme Court in Harish Chandra Bajpai andanother v. Triloki Singh and another (7) to the following effect:—

"Charges of corrupt practices are quasi-criminal in character and theallegations relating thereto must be sufficiently clear and preciseto bring home the charges to the candidates."

(7) A.I R. 1957 S.C. 444.

242 T1RLOCHAN SINGH V KARNAIL SINGH AND ANOTHER [VOL. XXX)V

Again, in Jagdev Singh Sidhanti v. Pratap Singh Daulta and others, (8) it wasobserved as follows:—

"It may be remembered that in the trial of an election petition, the burdenof proving that the election of a successful candidate is liable tobe set aside on the plea that he was responsible directly or throughhis agents for corrupt practices at the election, lies heavily upon theapplicant to establish his case, and unless it is established in bothits branches /.e.,the commission of acts which the law regards ascorrupt and the responsibility of the successful candidate directlyor through his agents or with his consent for its practice not by merepreponderance of probability, but by cogent and reliable evidencebeyond any reasonable doubt, the petition must fail."

Under clause (A) of sub-section (1) of section 123 of the Act, a candidatewho himself or through his agent or any other person with his consent, makesany gift, offer or promise of any gratification with the object of directly orindirectly inducing an elector to vote or refrain from voting at an electionis guilty of corrupt practice of bribery. Under clause (B), a person whoso-ever receives or agrees to receive such a gratification as a motive or rewardfor voting or refraining from voting, or inducing any elector to vote, is alsoguilty of bribery. It was consequently urged by the learned counsel forthe petitioner that the giver of the bribe and the receiver thereof are guiltyof two distinct offences and consequently the receiver of the bribe cannotbe said to be an accomplice of the giver. From this he argued that a re-ceiver cannot be an accomplice and, therefore, the rule of prudence, whichis followed by the Courts in case of a criminal charge, of looking for mate-rial and independent corroboration before relying on the evidence of anaccomplice would not be applicable in the case of Munsha Singh and SunderSingh. The word "accomplice" is not denned either in the Indian EvidenceAct or in the Indian Penal Code. In the Criminal Procedure Code, themarginal note to section 337 is to the following effect:—

"Tender of pardon to accomplice."

and in the body of the section it is provided that certain types of Magi-strates mentioned therein, may, at any stage of the investigation or enquiryetc. "with a view to obtaining the evidence of any person supposed to havebeen directly or indirectly concerned in or privy to the offence", tender apardon to such person. . . . The test, therefore, for finding whether a personis or is not an accomplice of another who has committed a particular offence,is to see whether the person concerned is directly or indirectly concerned inor privy to the offence, for which the main accused is charged. Illustration(a) to section 109 of Indian Penal Code, which provides punishment forabetment, is as follows:—

"A" offers a bribe to "B", a public servant, as a reward for showing"A" some favour in the exercise of B's official functions. 'B' acceptsthe bribe. 'A' has abetted the offence defined in section 161."

This is no doubt a converse case, but it shows that if the receiving of thebribe is an offence, the giver is an abettor and consequently if giving of the

(8) A.I.R. 1965 S.C. 183.

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bribe be an offence, the receiver would be an abettor, provided the receipt©f money is with the corrupt motive. In the present case, there can be nomanner of doubt that on their own showing, Munsha Singh and SunderSingh were out to sell the votes of the Harijans. It is in their evidence thatthey had also approached the applicant with the request to pay them moneyfor the construction of the Dharamsala and on his refusal they approachedthe respondent and settled a bargain with him at Rs. 1,500/-. In the cir-cumstances of the present case, there can be no manner of doubt that thesetwo witnesses were directly concerned and privy to the offence of giving ofthe bribe, as defined in the Act. It was through the effort and instrumen-tality of these two persons, that the respondent is said to have been persua-ded to pay the amount for the construction of Dharamsala. There is, there-fore, hardly any difficulty in answering the first part of the question, thatMunsha Singh and Sunder Singh are in the nature of accomplices.

If the charge of corrupt practice, which includes charge of bribery, isin the nature of a quasi-criminal charge involving very serious conse-quences and the same has to be established beyond reasonable doubt, byclear and satisfactory evidence, then it follows as a natural corollary, thatthe rule of prudence, which impels a Court to seek for independent corro-boration, on material points, of the evidence of an accomplice and it is notconsidered safe to rely on the sole testimony of an accomplice who is a tain-ted witness, should equally apply in the trial of a corrupt practice in elec-tion cases. This matter was dealt with at length by the Andhra PradeshHigh Court in C. Subba Rao v. K.B. Reddy and others » and the Bench of thatCourt came to the conclusion after reviewing the entire case law on the Pointthat dictum of the Supreme Court in relation to the testimony of the accom-plices applies to the persons, who in election cases say that they receivedbribe. Reference was made to the observations of the Supreme Court inRameshwar v. the State of Rajasthan ] ° about the desirability of lookingfor corroboration of the statement of an accomplice. At page 57 of thereport, reference was made by their Lordships of the Supreme Court to thecase of Basker-ville in which it was laid down that "uncorroborated evi-dence of an accomplice was admissible. But it has long been a rule of prac-tice at common law, which has become virtually equivalent to a rule of law,for the Judge to warn the jury of the danger of convicting a prisoner on theuncorroborated testimony of an accomplice," and it w s said that the lawwas the same in India. At this page, their Lordships further pointed out asfollows:—

"The only clarification necessary for purposes of this country iswhere this class of offence is sometimes tried by a Judge without theaid of a jury. In these cases, it is necessary that the Judge should givesome indication in his judgement that he has had this rule of cautionin mind and should proceed to give reasons for considering it unneces-sary to require corroboration on the facts of the particular casebefore him and show why he considers it safe to convict withoutcorroboration in that particular case".

9 A.I.R. 1967 A.P. 155.10 A.I.R. 1952 S.C. 54.

244 TIRLOCHAN SINGH V KARNAIL SINGH AND ANOTHER [VOL. XXXIV

After referring to the above-mentioned case of Rameshwar v. the State ofRajasthan, * ° the learned Judges of the Andhra Pradesh High Court wenton to observe as follows:—

"The same consideration must prevail in weighing the evidence of thereceiver of bribe in an a election proceeding for his position is nodifferent from that of an accomplice in relation to the offence commi-tted by the giver. The tainted nature of his testimony must subjecthis evidence to strict scrutiny before it can be accepted. It shouldnot be accepted without the usual safeguards unless the circumstancesof the case lend assurance to it."

Privy Council in W.C. Macdonald vs. Fred Latimer, 11 applied this ruleof caution, even in a civil suit for damages based on fraud. At page 18,it was observed as under:—

"Moreover, the trial Judge has very reasonably taken into account thefact that Deacon, upon whose evidence the plaintiffs must basetheir case, was, on his own admission, a party to a series of trans-actions in which he was deceiving the farmers and betraying theconfidence of his employers, the Dominion Company. By everycode of evidence the testimony of a professed accomplice requiresto be carefully scrutinized with anxious search for possible corro-boration".

A Division Bench of the Orissa High Court in Bankabehari Das v. Chittaran-jan Naik, 12 also took the view that the charges of corrupt practices beingquasi-criminal in character, the principles of criminal jurisprudence areapplicable. With regard to accomplices and the desirability of corrobora-tion of their evidence, the relevant part of the head-note runs as follows:—

"On accomplice evidence, which is an almost normal feature in an elec-tion petition, it is to be generally kept in view that the law in Indiawith regard to accomplice evidence is not different from the law inEngland. It is the rule of practice so invariable and peremptorythat it must be regarded as having hardened into a rule of law thatthe Judge must be fully and expressly alive to the need for inde-pendent corroboration in material particulars both with regard tothe offence and the offender, that one accomplice cannot corrobo-rate another. Save in most exceptional circumstances, no Courtwill record a finding of corrupt practice on such evidence."

Election creates partisan feelings at a very high pitch and it is unfortunatelywell known that it is not difficult to get substantial number of witnesses todepose to altogether false matters and partisan witnesses—even respectablepersons—would not hesitate to give a twist if it suits the party producingthem. In such cases, therefore, it will be altogether unsafe to base a findingof a corrupt practice having been committed by a successful candidate on

10 A.I.R. 1952 S.C. 54.11 A.I.R. 1929 P.C. 15.12 A.I.R. 1963 Orissa 83.

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the uncorroborated testimony of accomplices, except possibly in very ex-ceptional circumstances. Both parts of the first question, therefore, mustbe answered in the affirmative.

As regards Ajaib Singh, no active part is assigned to him. He was asilent spectator to what passed between Munsha Singh and Sunder Singhon one side and respondent No.l. on the other. He, however, did not pro-test and did not subsequently disclose to the petitioner what happened onthat date. This would certainly not make him directly or indirectly con-cerned in or privy to the offence of either giving bribe or receiving bribeand, therefore, cannot be categorized as an accomplice. The learned counselfor the respondent did not seriously press that Ajaib Singh was an accom-plice, but referring to a decision of the Madras High Court in Emperor v.Edward William Smither,13 added that in similar circumstances such awitness would be a tainted witness. That would, however, be a question ofappreciation of evidence of Ajaib Singh with which we are not concernedin this Full Bench. We are only called upon to record an opinion as towhether Ajaib Singh is an accomplice or not and this question must be ans-wered in the negative. The weight to be attached to his evidence is a matterof appreciation which is for the trial Judge and will depend on the pecu-liar circumstances of this case.

Section 123 of the Act details various 'Corrupt Practices.' Sub-section(1) defines 'bribery'. The relevant part is clause (A) read with sub-clause(b). This runs as follows:—

(A) any gift, offe r or promise by a candidate or his agent or by any otherperson with the consent of a candidate or his election agent of anygratification, to any person whomsoever, with the object, directlyor indirectly of inducing—

(a)

(b) an elector to vote or refrain from voting at an election, or as. a reward to

The third question referred to the Bench is worded in general terms.But, in the case out of which reference has been made, the allegations areof a gift of gratification and not merely of an offer or promise thereof. Simi-larly, gift is said to have been made by the candidate himself and not by hisagent or other person. The question for determination, therefore, is whetherthe payment of a sum of money or setting apart of such a sum, for the cons-truction of a Dharamsala for the entire Harijan community does or doesnot fall within the definition of 'bribery' as given in the aforesaid clause.The contention of the learned counsel for the respondent was really two-fold, first, that the gift of gratification has to be to a person and secondlya gift of gratification to the entire community of Harijans by getting a Dharam-sala erected cannot possibly be treated as a gift to a person or persons. Hari-jan community of the village Jodhpur Ramana consisted not only of theHarijan voters but also minors and other non-voters. Secondly, he urged

» I.L.R. 26 Madras 1.

246 TIRLOCHAN SINGH V KARNAIL SINGH AND ANOTHER [VOL. XXXIV

that 'bribery' and 'undue influence' are intimately connected. 'Undue in-fluence', as defined in sub-section (2) of section 123 means any direct or in-direct interference with the free exercise of any electoral right includingthe right to vote and sub-section (1) deals with 'bribery' which is only oneparticular form of exercise of undue influence. Now, there are two pro-visos to sub-section (2). The first proviso clarifies that without prejudiceto the generality of the provisions of the definition of 'undue influence',threat to any person with injury of any kind including social ostracism andex-communication or expulsion from any caste or community and inducingto believe that a person would be rendered an object of divine displeasureshall be deemed to be interference with the free exercise of the electoral rightof a candidate or elector, as the case may be. The second proviso lays dawnthat inter-alia "a declaration of public policy or a promise of public action. . shall not be deemed to be interference within the meaning of this clause".On the face of it, this second proviso relates only to sub-section (2) whichdefines 'undue influence". The argument of the learned counsel is thatinasmuch as 'bribery' as defined in sub-section (1) is merely one form ofundue influence, this proviso is applicable to a case of alleged bribery also.

Developing these points, the learned counsel referred to the definitionof 'person' as given in the Representation of People Act, 1950. Clause(g) of section 2 of that Act provides that 'person' ' 'does not include a bodyof persons". It was, therefore, argued that when by making a gift of money,a candidate benefits, not an individual or individuals, but the communityor the constituency or the country at large, he is not in fact offering anygift of gratification to any person within the meaning of sub-section (1) ofsection 123. He urged that the idea of the legislature obviously was thatno candidate should be allowed to corrupt an individual voter or voters byoffer of money or of other type of gratification. That, in no way, preventeda candidate from being charitably-inclined and making contributions tothe general good of the community by erecting hospitals, schools or thelike or by making promises to his constituency or any part thereof to getsuch public works executed by the Government or partly by the Govern-ment and partly by the contributions made by him personally. In all suchcases, it would be akin to a declaration of his public policy or public actionand would be excepted from the definition of 'undue influence' by the secondproviso to sub-section (2) and the same proviso would apply to any allega-tion of bribery, which is only a form of undue influence.

On the other hand, the argument of the learned counsel for the petitionerwas that in the first place, the definition of 'person' as given in the Act of1950 is not applicable to this sub-section, because, as provided in the Actof 1951, words defined in the Act of 1950 and not in the Act of 1951, shallhave the same meaning as in that Act unless "the context otherwise requires"and that the context in this clause (A) by using the words "to any personwhomsoever" clearly indicates a contrary indication and the word 'person'as used here cannot be given the limited meaning of an 'individual' andtherefore also covers a body of persons. Secondly that in any case, whatthe definition provides is that gift of gratification is to be to a person andthat an elector may be gratified not necessarily by payment of money to himdirectly but he may be gratified in a number of other ways, one of which maybe some charitable or philanthropic work, which is for the benefit of theentire community of which he forms a part.

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The counsel urged that the word 'gratification' has a very wide meaning.Explanation to sub-section (1) provides that:—

"For the purposes of this clause the term 'gratification' is not restrictedto pecuniary gratifications or gratifications estimable in money andit includes all forms of entertainment and all forms of employmentfor reward"

The word 'gratification', therefore, at least includes four different categories :—

(1) pecuniary gratification,

(2) gratifications which are not pecuniary but are estimable in money,

(3) all forms of entertainment, and

(4) all forms of employment for reward.

A division Bench of this Court in Moot Chand Jain v. Rulia Ram etc.,1*further held that these four categories are not exhaustive and that the ex-planation does not give complete definition. Mr. Justice Mehar Singh,as he then was, while delivering the judgment of the Court, with which DuaJ. agreed, though with hesitation, came to the conclusion that the word'gratification' as used in this paragraph has been used in the ordinary dic-tionary meaning, which is a very wide one and will cover "any return whichpleases for some favour done." In that case, respondent No. 1 inducedthe other candidates, namely, Jai Singh and Zila Singh to withdraw from thecontest of Charaunda constituency for promise of a support for Jai Singh'sbrother in Samalkha constituency and this was held to be within the mean-ing and scope of sub-section (1) of section 123.

Section 161 of the Indian Penal Code explains illegal gratification by apublic servant. The explanation with regard to word 'gratification' is insimilar terms as the explanation to sub-section (1) of section 123 of the Actand runs as follows:—

"The word ''gratification" is not restricted to pecuniary gratifications,or to gratifications estimable in money".

The learned counsel for the petitioner referred to Gour's Commentaryon Penal Law of India, 8th Edition, paragraph 11 at page 1124, who, whiledealing with the question as to "What is gratification" observes as follows:—

"The word "gratification" is not defined in the section or the Cods butits sense is extended by the explanation which says that the word"is not restricted to pecuniary gratification, or to gratification esti-mable in money". The word "gratification" is thus used in itslarger sense as connoting anything which affords gratification or sat-isfaction or pleasure to the taste, appetite or the mind. Money is,of course, one source of affording pleasure, inasmuch as it implies

2EC/71-17

248 TRILOCHAN StNGH V KARNAIL SINGH AND ANOTHER [VOL. XXXIV

command over things which afford pleasure but there are variousother objects which afford gratification. The satisfaction of one'sdesires, whether of body or of mind, is a gratification in the truesense of the term. The craving for an honorary distinction, or forsexual intercourse is an example of mental and bodily desires, thesatisfaction of which is gratification not estimable in money. Aperson may desire to marry his son to another's daughter, whomay consent to the match on condition of his doing him some offi-cial favour. It is bribery. A person may be taken into a caste onhis promising to do an official act as a motive or reward for his re-admission. It is bribery. In short, gratification is any benefit orreward given to influence one in one's behaviour in office, and in-cline one to act contrary to the rules of honesty and integrity. Any-thing, whether a sum of money, an object which appeals to one'ssenses, a dinner, a plateful of fruit, a medicinal pill, is gratificationwithin the meaning of the term, though the recipient may not bepunishable on that account. The expression "gratification" is usedin this section in the sense of anything which gives satisfaction tothe recipient."

The word "gratification" is thus used in its larger sense, as "an act, whichaffords gratification or satisfaction or pleasure to the taste, appetite or themind". He, therefore, contended that an elector may be gratified in a num-ber of ways. It may be by the payment of money. If the money is paiddirectly to him, that would be a simple case and it would be bribe; or he maynot like to accept any money for himself but may like the same to be paidto a poor relation of his. This would be an indirect payment to him and inno way different from the first case. In another cases, there may be nopayment of money to the elector, directly or indirectly and he may feel grati-fied by the candidate getting a well sunk in his village, where there is nosatisfactory arrangement for drinking water. Here, no doubt, the benefitis not directly to him and his object in getting the well sunk is very lauda-ble and not reprehensible as it may be in the case of his receiving money him-self directly or through his relation, but all the same, it cannot be said thathe is not gratified. The counsel further urged that if a person becomescharitable-minded only during the days of election, the main motive of thecandidate is obviously to influence the electors to vote in his favour and notto satisfy his conscience by allaying the distress of the needy. He referredto paragraph 378 of Halsbury's Laws of England, Third Edition, Volume14, where, on the basis of the decided English cases, it was observed as follows:

"The imminence of an election is an important factor to be taken intoconsideration in deciding whether a particular act of charity amountsto bribery. A charitable design may be unobjectionable so longas no election is in prospect; but if an election becomes imminentthe danger of the gift being regarded as bribery is increased. Ithas been said that charity at election times ought to be kept in thebackground by politicians".

The learned counsel for the respondent, however, urged that the Englishcases do not afford any proper guide because the definition of "bribery"in England is not the same and further there is no proviso like proviso (2)which excepts a promise of public action from being hit by the definition

E.L.R.] TIRLOCHAN STNGH V KARNAIL SINGH AND ANOTHER 249

of "undue influence". He laid great stress on the fact that in a large num-ber of decided cases, promise by a candidate to a section of his constituencythat after his election, he will get Land allotted to them, or get public deve-lopment works like, schools and hospitals done in the constituency, by usinghis influence as a member of the legislature, it has been held that such pro-mises would not fall within the definition of bribery but are mere declara-tions of public policy or public action. He referred to two decisions ofthis Court, in Mehar Singh v. Umrao Singh, (2) and Balwant Rai Tayal vs.Bishan Saroop and another, (3) wherein promises made generally for thebenefit of the electors in the constituency were held not to fall within thedefinition of bribery. In the first case, the candidate held out a promisethat he would get the allotment made to Bahawalpuri refugees, who werevoters in the constituency, changed to Sirsa and also get the valuationof the land left by them in Pakistan in Bahawalpur altered if they voted forhim. The Bench of this Court observed as follows:—

"It is, however, clear, as the learned Tribunal has observed, that thi=demand of the Bahawalpuri refugees as a body was of long stan-ding, and their grievances, if any, could only be "met by the CentralGovernment, and I agree with the view of the learned Tribunalthat even if the candidate, did make a promise that he would try toget grievances remedied and got the Revenue Minister to reinforcehis promise, this amounts to only a promise of public action and notindividual benefit to such persons as the promise was made to. Inmy opinion it was correctly found that this did not amount toa corrupt practice."

In this second case, Harijans wanted to retain a mosque, which they wereusing as their temple, and they were anxious to get land for building theirhouses. The candidate promised to do his best to have both their demandsacceded to. At page 108 of the report, it was observed as follows:—

"A promise to the Harijans of a locality by a candidate when he is can-vassing for votes, that he would do his best to help them in thematter of retaining an old mosque as a temple and for getting landfor building houses does not amount to 'bribery'. It is a kind ofpromise which any candidate is entitled to give to any section of hiselectors."

Again, in Gangadhar Maithani v. Narendra Singh Bhandari, (4) a DivisionBench of Allahabad High Court held that a promise by the candidate thathe would have development work done in his constituency and that he wouldsee that a large amount of money was spent on the development plan in theconstituency did not amount to 'bribery'. At page 127, Bhargava J. ob-served as follows:—

"In clause (d) of paragraph 7 the allegation was that the respondenthad promised that he would be able to procure personal advantageto the voters, but during the trial of the petition, no evidence at allwas led to establish that any such promise had been made. The

(2) A.I.R. 1961 Punjab 244.(3) 17E.L.R. 101.(4) 18 E.L.R. 124.

250 TRTLOCHAN SINGH V KARNAIL SINGH AND ANOTHER [VOL. XXXiV

evidence given on behalf of the appellant was, on the other handto the effect that the promise by the respondent was that he wouldhave development work done in his constituency and he wouldsee that a large amount of money was spent on the developmentplans in the constituency. There being no evidence at all of anypromise by the respondent that any voter would receive any per-sonal advantage because of the respondent's influence with theministers, learned counsel for the appellant in the appeal had togive up that plea and try to connect the issue with the pleading con-tained in clause (e) of paragraph 7 of the petition because in thatclause the pleading related to the promise by the respondent thathe would have development work done in the constituency. Ifevidence had been given of a promise of obtaining personal advan-tage to the voters, it might have been possible to hold that, in makingsuch promise the respondent had committed a corrupt practice ofbribery as denned in section 123 (1) of the Representation of thePeople Act. The promise for which evidence has been given is,however, one under which no personal advantage could be obtainedby any voter, the advantage was to the benefit of the whole consti-tuency, if at all. That advantage to the constituency was also to beobtained by the respondent by using his influence in such a way thatpublic action by the State Government in its development plans wasto ensure to the benefit of the residents of his constituency. Thismeans that his promise was a promise relating to a public action andwas not a promise relating to any private or personal benefit to anyvoter. Such a promise cannot possibly be deemed to be an offerof a gratification to any of the voters within the meaning of the word"gratification" as used and denned in section 123(1) of the Repre-sentation of the People Act".

The learned counsel, therefore, urged that if as in the above mentioned cases,a promise by the candidate to get allotments made to Bahawalpuri refugeeschanged to Sirsa and get their valuation of land left by them in Pakistanraised; or promise to Harijans that he would do his best to enable them toretain the old mosque for being used as their temple, and to get them landfor building houses; or get development work done in the constituency,does not amount to promise of gratification to a person or persons, withinthe meaning of sub-section (1) of section 123, then, if the candidate holdsout a promise that he, if elected, would get, through his influence as a legis-lator, the Government or the Zila Parishad, to construct a Dharamsala forthe Harijans, such a promise would also be excepted from the definition ofbribery, as being only a declaration of public action.

In the light of the above decisions, the above-mentioned contention ofthe learned counsel would be unexceptionable that a promise of this type wouldnot fall within the definition of 'bribery'. He, however, urged that thiswould show that priviso (2) or sub-section (2) of section 123 is equally appli-cable to sub-section (3), because in each of the above-mentioned cases,what is promised by the candidate is meant to "gratify the persons to whomthe promise is made". The learned counsel then went on to argue, thatif a promise to get a Dharamsala. built by the Government is a mere dec-laration of public action and not bribery, the case would not be different if

E.L.R.] TIRLOCHAN SINGH V KARNA1L SINGH AND ANOTHER 251

the candidate further adds a promise that if the State Government or theZila Parishad would not construct the Dharamsala, he would himself con-tribute a sum of Rs. 1,500/- towards the cost of the same. If a promise toget something done by the Government for the general good of the Harijanscommunity is only a declaration of public action and not an offer of bribe,then he urged, that a promise to do something by the candidate himself andout of his own resources, would still be a declaration of public action, solong as the promise made is not for the individual benefit of an elector butis for the general good of the community as a whole. The argument is cer-tainly plausible. Without deciding the question whether proviso 2 ofsub-section (2) of section 123 is applicable to sub-section (1) clause A alsoor not, it has to be kept in mind that in all the three cases noted above, onwhich reliance has been placed, the promise made by the candidate was inrespect of an action by him in his public capacity as a legislator. In eachcase, the candidate held out a promise that if elected, then as a member ofthe legislature, he would use his influence with the authorities concerned— Rehabilitation Department of the Central Government in the first twocases and State Government in the third case. Such use of his influence asan elected representative for the benefit of the constituency from which hehas been elected, can certainly be expected by the electors of the constituencyand as remarked in Tyal's case a promise to use such an influence is theone which a candidate is certainly entitled to make.

However, a promise to contribute or actual contribution by the candi-date to the construction of a Dharamsala or a well, even if it be for"the benefitof a section of the constituency, say, Harijans of a village, would fall in anentirely different category. It would not be a promise of an action by himin his capacity as an elected representative. The promise, in fact, wouldbe in his persona! and individual capacity and I think that will make all thedifference. It is not the normal expectation of the electors in the consti-tuency that the elected' representative should necessarily be a rich personwho can spend or who may promise to spend money on charitable or otherpublic works in the constituency. Such gifts for public charitable andother philanthropic purposes would certainly be laudible objects, if madein the ordinary circumstances. Even though such gifts may have the effectof making a candidate popular and thus be instrumental in getting his votesof the electors, yet they would not be treated, as gifts with a view to getvotes. However, when such charity is shown during the election days, in,effect, it may be only a method of gratifying the electorate with a view toinduce them to vote for him. Charity does not become bribery so long asit is not made with a view to get votes. Where such charity is given as aconsideration for an elector or electors to vote for him, the same would cer-tainly come within the mischief of sub-section (1) of section 123. The factsof the decided cases cited above, therefore, are distinguishable from a caselike the one before us, where money is alleged to have been paid by the candi-date in his personal capacity during the election days as consideration forHarijans' voting for him. *

Stress was, however, laid on the words in the observations in the above-mentioned cases, which have been underlined by me in the extracts repro-duced above, that the promise made therein gave " no individual benefit

252 TRILOCHAN STNGH V KARNAIL SINGH AND ANOTHER [VOL. XXXIV

to such persons as the promise was made to Mehar Singh's case, (2) or• from which "no personal advantage could be obtained by any voter".MaithanVs case, (4). The counsel argued that in case of contribution bythe candidate for the construction of Dharamsala also, no individual benefitaccrued to Sunder Singh and Munsha Singh, the two representatives ofHarijans. Having given our anxious thought to the argument, we feel thatthe observations referred to above, must be taken and understood in thecontext in which they have been made and the same are no authority forthe wide proposition, as was advanced by the learned counsel for the res-pondent that in no case any gift or promise of such a gift for purposes whichare beneficial to the community as a whole, as distinguished from conferr-ing benefit on individual or individuals, can be bribery, as defined in theAct. The obvious idea of the legislature in making 'bribery' and 'undueinfluence' as corrupt practices is to ensure that the institution of election isnot corrupted by gratifications offered as consideration for getting votesand it will be defeating the very object of the legislature if the interpretationsought to be put-forward by the learned counsel is accepted. The argu-ment that no gift made to a body of persons or to a section of the communityof electorate can be bribe, cannot be accepted. A gift of gratification toa person with the corrupt object mentioned therein is all that is necessaryfor the gift falling within the purview of 'bribery'. Gratification, as alreadyindicated, can be any act which gives to an individual satisfaction or plea-sure. In the present case, the satisfaction pr pleasure would, in the firstinstance, be of Sunder Singh and Munsha Singh, who allegedly approach-ed respondent No. 1 and told him that they would be gratified and wouldvote in his favour if the respondent constructed or contributed towards theconstruction of Dharamsala, of which the Harijan community was greatlyin need. As alleged by the petitioner, if thereafter the respondent paid asum of Rs. 1,500/- then such a gift, by respondent, would certainly be to thegratification of Sunder Singh and Munsha Singh, if not also to the grati-fication of other Harijan electors, on whose behalf the representation wasmade by Sunder Singh and Munsha Singh. In Mohan Singh v. Bhanwar-lal and others (1), Shah J. while delivering the judgment of their Lordshipsof the Supreme Court, at page 1369 observed as follows:—

"Gratification in its ordinary connotation means satisfaction. In thecontext in which the expression is used and its delimitation by theExplanation, it must mean something valuable which is calculatedto satisfy a person's aim, object or desire, whether or not that thingis estimable in terms of money."

In that case, it was alleged that Mohan Singh had offered to help HimmatSingh "in procuring a job in Dalauda Sugar Factory or elsewhere" andthat as a consequence of that offer Himmat Singh had withdrawn his candi-dature from the election. The question before their Lordships was whetherthis constituted a corrupt practice on behalf of Himmat Singh or not andthis again turned on the question whether th*e promise made by MohanSingh to help Himmat Singh in procuring a job in Dalauda Sugar Factory

(2) A.I.R. 1961 Punjab 244.(4) 18 E.L.R. 121(1) A.I.R. 1964 S.C. 1366.

E.L.R.] TIRLOCHAN SINGH V KARNAIL SINGH AND ANOTHER 253

or elsewhere, amounted to gratification within the meaning of sub-section(1) of section 123, and, therefore, amounted to a corrupt practice of bribery.After explaining the meaning of gratification, as quoted above, their Lord-ships went on to observe as follows:—

"The acceptance of offer which constitutes a motive or reward for with-drawing from the candidature must be acceptance of gratification;and if gratification does not include all offers and acceptances ofmere promises, but requires, to constitute it an offer and acceptancerelating to a thing of some value, though not necessarily estimablein terms of money, a mere offer to help in getting employment isnot such offer of gratification, within the meaning of section 123(1)(B) as to constitute it a corrupt practice."

In view of the above, therefore, for finding out whether a particular promiseor act amounts to gratification, within the meaning of the Act, two tests haveto be satisfied. First, that the gratification must be something which is cal-culated to satisfy a person's aimv object or desire and secondly, such a grati-fication must be of some value, though it need not be something estimablein terms of money. In the present case, a sum of Rs. 1,500/- is alleged tohave been offered for the construction of a Dharamsala. There can be nomanner of doubt that if this amounts to gratification, it is of value, which iseven estimable in terms of money. Even if it be taken that so far asthe individual electors, like Sunder Singh and Munsha Singh are concerned,the construction of a Dharamsala is not estimable in money, even then itis certainly of some value. In the present case, Dharamsala, if constructed,will be as useful to Sunder Singh and Munsha Singh as to other membersof the community, who may or may not have been voters. It is not necessarythat the gratification offered should be of value only to the person to whomit is offered and not to anybody else. Again, the second test is also satis-fied, because it was apparently the aim and obj'ect of Sunder Singh and MunshaSingh to get Dharamsala constructed or to obtain contribution or fundsfor the construction of the same and this aim and object was certainly satis-fied by the action of the respondent.

Magan Lai Bagdi v. Hari Vishnu Kamath, (6) is a case directly in point.A division Bench of the Madhya Pradesh High Court, to which Hidayatullah,C.J., (as he then was) was a party, held that a promise by a candidate of assis-tance in the digging of a well for the Harijans in the village during the elec-tion would fall within the definition of 'bribery'. In this case, the candi-date from the Hoshangabad Parliamentary constituency, with another con-gress candidate, who was from another constituency, addressed a publicmeeting at village Sighpur. The villagers said that they needed a well asthere was dearth of water supply in the village. A site was selected and there-after the appellant and the other candidate performed the ceremony of con-secrating and digging the well and promised to construct the well after theelection. At pages 215-216, it was observed by the Bench as follows:—

" the necessary effect of the gift being to induce the electors to votefor a particular candidate, we see no reason why it does not consti-tute corrupt practice within the meaning of section 123(1) of the

(6) 15 E.L.R. 205.

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Act. As held in Wigan, "charity at the election time ought to bekept by the politicians in the background", as, in truth, "it willgenerally be found that the feeling which distributes relief to thepoor at the election time, though those who are the distributorsmay not be aware of it, is really not charity, but party feeling follow-ing in the steps of charity, wearing the dress of charity and mimick-ing her gait". We are accordingly of the opinion that while weendorse the view of the Tribunal that the circumstances of the caseclearly reveal a case of a promise of reward for the voters, the casealso otherwise falls within the mischief of section 123(1) of theAct."

Reference was also made to a number of cases decided by the Tribunal.These are, Amritsar and Sialkot {General Rural) Constituency 1937, where-in a premise for building a water channel and a contribution to the SanatanDharam Sabha; Agra City Constituency, Hammond Indian Election Cases,page 18, wherein contribution for repairs of a temple; and Shankare Gowdav. Marlyappa and another, (15) wherein offer of Rs. 4,000/- by the candidateto the Managing Committee of the Gurukula Ashram High School evident-ly for consideration to influence the voters in his favour in the surroundingvillages, was held in each case to fall within the definition of 'bribery'.Similarly, in Kataria Takandas Hemrai v. Pinto Frederick Michael, (16)an offer to repair Dargah was also held to fall within the mischief of sub-section (1) of section 123. There is not a single decided case in which a giftof money made for public charity during the election with the corrupt motivewas held not to fall within the definition of 'bribery' on the ground that itis not made for the benefit of an individual.

In view of the above, we are of the considered opinion, that the answerto the question whether a gift or promise of such a gift made for a publicpurpose does or does not fall within the definition of 'bribery' under sub-section (1) of section 123, would mainly depend on the facts and circum-stancess of each case, but broadly speaking, it would so fall, if it satisfies thefollowing conditions:—

(1) That it gives satisfaction or pleasure to an individual or individuals;

(2) The gift or promise, which is to give such a gratification or pleasureto the individual, is of some value; and lastly;

(3) The gift or promise by a candidate is made with the corrupt motiveof directly or indirectly inducing the persons gratified to vote in hisfavour or to induce other electors to vote in his favour.

We consequently answer question No. (3) accordingly. The case willnow go back to the trial judge for further proceedings in the light of theabove answers.

GROVER J. 1 agree.

M AHA JAN j . 1 agree.

(15) IXE.L.R. 101.

(16) XV11 E.L.R. 403

E.L.R.] TIRLOCHAN SINGH V KARNAIL SINGH AND ANOTHER 255

ORDER DATED 12-12-1967.

HARBANS SINGH J.—This election petition has been filed by Tarlo-chan Singh, a defeated candidate from Pakka Kalan constituency inBhatinda district, against the election of Karnail Singh respondent No. 1.The petitioner fought the election as a nominee of the Congress whereasrespondent No. 1 was a candidate of Sant Fateh Singh Akali Da!. Themain grounds of attack were, first, that Amar Singh respondent No. 2, whowas another candidate from this constituency, his nomination paper havingbeen accepted and who had not withdrawn his candidature within thetime allowed, was later on made to withdraw from the active contest by un-due influence exercised through Sant Fateh Singh in the name of Sikh reli-gion, divine displeasure and spiritual censure. Secondly, that Jarnail Singh,who subsequently worked as the polling agent of respondent No. 1, publish-ed a poster with the consent of respondent No. 1, on 14th of February,1967. This poster contained a statement that Amar Singh respondent hadwithdrawn from the contest because it was indicated to him that anybodyopposing a Panthak candidate or not voting for such a candidate would bethe object of spiritual wrath; and that this poster was distributed after 14thof February in a number of villages in the constituencies, as detailed in thepetition; thirdly, that the respondent had incurred expenses with regard topetrol etc. in connection with the jeeps and other vehicles used by him duringthe election which he has not shown in the return filed by him and that thetotal expenses exceed the limits laid down by the law; fourthly, that respon-dent No. 1, through his agent Ganda Singh, entered into an agreementwith the Harijan voters of village Jodhpur Ramana in the constituency andmade them a gift of Rs. 1,500 for the construction of a Dharamsaia forthe Harijans in the village after the result of the election had been declaredwith a view to influence the Harijan voters of that village to cast their votesin his favour and that the money was kept in deposit with Manohar Lai,brick-kiln owner, who actually supplied the bricks for the Dharamsaia afterthe polling; and, lastly, that the respondent hired three jeeps and used thesame for free conveyance of the electors from different villages to the res-pective polling booths.

These allegations were controverted on behalf of the respondent, accord-ing to whom Sant Fateh Singh never stated any words as are attributed tohim and, in fact. Sant Fateh Singh never met Amar Singh, nor did he with-draw from the contest. It was further denied that the poster complainedof was ever published by or with the consent of respondent No.l or thatJarnail Singh ever worked as the polling agent of respondent No. 1. Thedjstribution of the poster was also denied. It was stated that the only ex-penses incurred were as detailed in the return and that no other expenseswere at all incurred. The story about any agreement with Plarijans ofjodhpur Ramana or payment of Rs. 1,500 or any other payment to themwas also denied. It was further,stated that no jeeps were hired or used forfree conveyance of electors. Certain preliminary objections were takenin regard to the lack of particulars. These were supplied and amendmentsmade in the petition. As a result of these pleadings, following issues weresettled:—

(1) (a) Did respondent No.l accompany Sant Fateh Singh on 6th ofFebruary, 1967, and through the aforesaid Sant Fateh Singh

256 TIRLOCHAN SINGH V KARNAIL SINGH AND ANOTHER [VOL. XXXVI

exercise undue influence on Amar Singh respondent No. 2in the name of Sikh religion and divine displeasure and spiri-tual censure and made him to withdraw from the contest ?

(b) Did Sant Fateh Singh and respondent No. 1 further give anunderstanding to Amar Singh respondent No. 2 that the casepending in the Court regarding Gurdwara Jassibaghwali, ofwhich he was the priest shall be withdrawn ?

(c) Did Amar Singh respondent No.2 actually withdraw from thecontest as a result of the influence exercised over him as men-tioned in the above issues ?

(d) If any of the above issues (a), (b) and (c) is proved, is respondentNo.l not guilty of corrupt practice?

(2) (a) Did Jarnail Singh, who subsequently worked as polling agentof respondent No. 1, with the consent of respondent No. 1,publish the poster Annexure 'B' with the petition ?

(b) Was this poster distributed on the dates and places mentionedin paragraph 12 of the petition by the persons named thereinwith the consent of respondent No. 1 ?

(c) If (a) and (b) are proved, does the publication of the poster notamount to a corrupt practice ?

(3) (a) Did respondent No. 1 incur expenses, detailed in paragraph14, or any one or more of them, which are not included in thereturn?

(b) If so, did the total expenses exceed the limit laid down by law,by the inclusion of the expenses proved to have been incurredin addition to those mentioned in the return ?

(c) If so, is respondent No. 1 not guilty of corrupt practice ?

(4) (a) Did respondent No. 1, through his agent Ganda Singh, enterinto an agreement with the Harijan voters of village JodhpurRamana, named in sub-clause (b) of paragraph 15, to makea gift of Rs. 1,500 to them for the construction of a Dharam-sala for the Harijans in that village after the result of the elec-tion had been declared, with a view to influence the Harijanvoters of that village to cast their votes in favour of respondentNo. 1 ?

(b) Was this aforesaid sum deposited with Manohar Lai, brick-kilnowner, with instruction to supply the bricks, after the electionwas over ? If so, were the bricks so supplied or are being supp-lied for the Harijan Dharamsala in pursuance of the above-mentioned agreement ?

(c) If so, is respondent No. 1 not guilty of corrupt practice ofbribery ?

E.L.R.] TIRLOCHAN SINGH V KARNAIL SINGH AND ANOTHER 257

(5) (a) Did respondent No. 1 hire jeeps Nos, PNF 7548, RJK 158 andRSL 5383 and use the same for the free conveyance of the elec-tors, as detailed in clauses (a), (b) and (c) of paragraph 16 ?

(b) If so, is respondent No. 1 not guilty of corrupt practice ?

Only issues 1, 2 and 4 require consideration and adjudication, because withregard to the remaining two issues, namely 3 and 5, though considerableevidence was led on behalf of the petitioner, it was conceded at the time ofthe argument, that the petitioner has not been able to establish these twoissues. I will, therefore, take up the remaining three issues.

The first two issues are, in a way, inter-connected because issue No. 1relates to the circumstances, in which, Amar Singh, another candidate, whosenomination paper had been accepted, was made to withdraw from the activecontest and issue No. 2 relates to a poster issued in the name of the afore-said Amar Singh, candidate but actually got printed and published anddistributed by respondent No.l and his agents and supporters. In thisposter, in addition to mentioning that Amar Singh had withdrawn in favourof respondent No. 1, because he was told that if he did not do so, he wouldbe subject to divine displeasure, it was stated that all voters should vote infavour of respondent No. 1, failing which they will also suffer divine dis-pleasure.

Paras 7 to 11 in the petition detail the allegations relating to issue No. 1.According to these allegations, a number of persons gathered at GurdwaraBugsar Jassibaghwali, of which, Amar Singh respondent No. 2 was inchargeSevadar and the leading Sikhs of the constituency exercised undue influenceover Amar Singh and persuaded him to withdraw from the contest and thisintention of his was made public by his executing a document, Annexure A.signed inter-alia by the supporters of respondent No. 1. It was further statedthat tills influence, which was exercised over Amar Singh, was brought tobear on him, in the name of Sikh religion and by creating a belief in themind of Amar Singh that if he did not withdraw, he would be the objectof divine displeasure. This happened on 5th of February, 1967. On thefollowing day, in the evening, Sant Fateh Singh, President of the ShiromaniAkali Dal, on whose ticket respondent No. 1 was fighting the election, hadto visit, in connection with the election campaign, village Pathrala, whichis at a short distance from Jassibaghwali, and it is alleged that there MahantAmar Singh met Sant Fateh Singh at the Gurdwara of village Pathrala, situa-ted on the road leading from Bhatinda to Dabwali. At that meeting,Sant Fateh Singh, Karnail Singh respondent No. 1 and others, broughtpressure and undue influence to bear on Amar Singh, respondent No. 2 towithdraw from the contest and the withdrawal of Amar Singh was pro-cured on the basis of an appeal in the name of Sikh religion and on a threatthat he would suffer divine displeasure and spiritual censure, if he did notso withdraw.

In addition to the above, it was alleged that Sant Fateh Singh furthergave Amar Singh an undertaking that the case filed by the Shiromani Gur-dwara Parbandhak Committee, Amritsar, against Amar Singh regarding the

258 TIRLOCHAN SINGH V KARNA1L SINGH AND ANOTHER [VOL. XXXIV

management of Gurdwara Jassibaghwali pending in the Court shall be with-drawn after the election, in consideration of Amar Singh's withdrawing fromthe contest.

Karnail Singh, the contesting respondent, denied all these allegations.Before the striking of the issues, objection was taken that details about the"leading Sikhs of. the constituency" who are said to have assembled in theGurdwara Jassibaghwali on the 5th February, 1967, to exercise undue influ-ence on Amar Singh, have not been given. On behalf of the petitioner, itwas urged, that paragraphs 7 to 11 must be read together and that althoughthere was a meeting on 5th of February, 1967 and pressure was brought onAmar Singh, yet, it was not the case of the petitioner that as a result of that,he actually withdrew and the facts relating to the meeting on 5th of February,1967 have been given merely to present a connected picture of how on 6thof February, 1967 at the instance of Sant Fateh Singh Amar Singhwithdrew from the contest. It was in view of this that no issue was settledwith regard to the meeting said to have taken place on 6th of February, 1967.

(After considering the evidence on the allegation that the first respondentaccompanied Sant Fateh Singh on 6th Feb., 1967 and the Sant exercised un-due influence on Amar Singh, the second respondent, to withdraw from thecontest in the name of Sikh religion and divine displeasure, and Amar Singhwas given an assurance that a case pending against him in the court will bewithdrawn, the judgment proceeded )

On behalf of the respondent, the witnesses examined went on to statethat although as a result of the persuasion of the Panchayats on 5th of Feb-ruary, Amar Singh agreed to withdraw, yet a few days thereafter, he againwent round in the constituency actively seeking support for his candidature.This was tried to be countered by the suggestion on behalf of the petitioner thatAmar Singh had no polling agent at any one of the polling stations on thedate of election and though this was doubted on behalf of the respondent,yet from the evidence of Miss Shama Bahl, P.W.I the Returning Officer ofthe constituency, it is clear that Amar Singh did not appoint any polling agentat any of the polling stations. Mahant Amar Singh, however, did appointsome counting agents at the time of the counting. Suggestion on behalfof the petitioner is that these counting agents were got appointed from AmarSingh simply to assist Karnail Singh, respondent during the course of coun-ting and to the same effect is the statement of Amar Singh. On behalf of therespondent, however, it was stated that most of the persons who were appoin-ted as counting agents on behalf of Amar Singh were Congress workers,present or past, and consequently the respondent being the main rival of theCongress candidate, namely, the petitioner, it could not be imagined that ifthe counting agents were got appointed by him to support him, he wouldhave such persons appointed for the purpose. The counter suggestion,however, was that these counting agents were there to help the petitioner.Be that as it may, one thing is quite clear that the evidence of the threewitnesses, namely, Amar Singh, Gursewak Singh and Hamir Singh is dis-crepant and is not of such a nature that on the basis of the same it can beheld to have been proved, beyond all reasonable doubt, that Sant FatehSingh brought any undue influence to bear on Amar Singh by holding out tohim that he will bs an object of divine wrath if he did not withdraw. As

E.L.R.] TIRLOCHAN SINGH V KARNAIL SINGH AND ANOTHER 259

already indicated, it is petitioner's own case that Amar Singh had with-drawn on the persuasion of the respectables of the villages a day earlier,that is, on 5th of February and he had acknowledged in writing videExhibit P.W. 4/1, of his having so withdrawn. It is highly improbable thatSant Fateh Singh, even if he happened to meet him, would hold out anythreats, because Amar Singh had already withdrawn in favour of thecandidate having the support of Sant Fateh Singh. Both Gursewak Singhand Amar Singh are inimicaHy disposed to Karnail Singh, because of thepending litigation about the management of their respective Gurdwarasand in view of this it would he highly unsafe to base a finding on theirstatements alone that the words attributed to Sant Fateh Singh were infact stated. Hamir Singh's evidence being contradictory on material pointsto that of Gursewak Singh and Amar Singh does not improve the matterany further.

For the reasons given above, therefore,' the petitioner is held to havefailed to establish issue No. I and the same is decided against him.

Issue No. 2.

In the petition, the allegations were that the poster (Annexure 'B'), theoriginal of which was subsequently marked Exhibit P.W. 3/1, purporting tohave been issued by Mahant Amar Singh, but in fact the same was got prin-ted, published and distributed by the respondent and his agents. On objec-tion being taken that the allegations in this para. 12 of the petition are vaguea statement was made on 18th of May, 1967 by the counsel for the petitionermaking it clear that it was-Jarnail Singh, who subsequently worked as hispolling agent, who got the thing printed and published with the consent ofrespondent No. 1, and that later on, as already alleged in the petition, KarnailSingh accompanied by his other supporters distributed the poster in the vil-lage on the dates mentioned in the petition.

The manuscript Exhibit P.W. 3/1 of this poster is in the hand-writing ofGursewak Singh. According to him some seven or eight days after thewithdrawal of Mahant Amar Singh in pursuance of the talk of Sant FatehSingh with him, as mentioned above, Karnail Singh respondent accompaniedby his nephew Bir Davinder Singh and some others went to him at the Gur-dv/ara Pathrala and suggested that some persons in the constituency stilldoubted whether Mahant Amar Singh was contesting or not and that it would,therefore, be better if a poster was got published. Thereafter, Karnail Singhrespondent dictated to Gursewak Singh this draft of the poster, which hewrote down at his dictation. Thereafter, the draft v/as taken by KarnailSingh. The next link of the story is given by Mahant Amar Singh asfollows : —

"Some two or three days thereafter, Bir Devinder Singh came with adraft of a pamphlet stating that I had withdrawn and told me to signit, so that it could be published to avoid misunderstanding amongstpeople, whether I have withdrawn or not and on this I signed thatdraft at the Gurdwara He then took me to the Press and thereI signed another form. Bir Devinder Singh, Surjit Singh, GurdevSingh and Karnail Singh, respondent were present."

260 TTRLOCHAN SINGH V KARNAIL SINGH AND ANOTHER [VOL. XXXIV

Garish Gupta, P.W.3 is the proprietor of Janta Printing Press at Bhatinda,where the poster was actually printed. According to this witness on 14thof February, 1967, Mahant Amar Singh came to his Press accompanied bySurjit Singh and Gurdev Singh, both of Ruldusinghwala, and KarnailSingh respondent. The manuscript Exhibit P.W. 3/1, according to him,was signed by Mahant Amar Singh at the Press, and so was the declarat-ion form, Exhibit P.W. 3/2. On the latter, signatures of Surjit Singh andGurdev Singh were taken as attesting witnesses of the signatures of MahantAmar Singh. Karnail Singh told him to have the poster printed on thatvery day. Later, one Jarnail Singh, whom he did not know, called on thethe same day. He delivered the posters, which were 1,000 in number to theaforesaid Jarnail Singh and took his signatures on the manuscript as wellas on the counterfoil of the cash memo No. 889 issued to him for Rs. 21.20Paise, being the cost of the printing and the paper. The counterfoil wasproduced by him and marked Exhibit P.W. 3/3. He produced his accountbooks in support of the feet that the cash entry was duly entered in the CashRegister and subsequently in the Ledger.

Leaving aside the question of details as to who went to get the posterprinted, the first question for consideration is whether on the evidence pro-duced it can be reasonably held that the poster was in fact printed round-about the date suggested. The contention of the respondent, however, wasthat no such poster was at all printed, it being suggested that possibly theposter was printed, either after the election or if it was printed beforethe election, it was never distributed and it was meant only to be utilizedin case the petitioner was unsuccessful in the contest. So far as the contentsof this poster are concerned, there can be no manner of doubt that the sameare hit squarely by clause (ii) of proviso (a) to sub-section (2) of section 123of the Representation of the People Act. This proviso runs as follows :—

"(a) Without prejudice to the generality of the provisions of this clauseany such person as is referred to therein who . . . .

(i)

(ii) induces or attempts to induce a candidate or an elector to believethat he, or any person in whom he is interested, will be renderedan object of divine displeasure or spiritual censure,

shall be deemed to interfere with the free exercise of the electoralright of such candidate or elector within the meaning of this clause;"

The relevant portion of the poster may be reproduced :—

"I might state to all the brethren and voters of Pakka Kalan constituencythat T stood up as a candidate from this constituency to contest theelection with your unanimous approval. Now at the instance ofShri Karnail Singh, candidate from Pakka Kalan, Sant Baba Fate]}Singh Ji disclosed to me that God had ordained to him at the AkalTakhat, Amritsar. He (Sant Fateh Singh) told me in presence ofShri Karnail Singh that I am a Sikh of the Guru and this has beenordained by the Guru at the Akal Takhat to Sant Fateh Singh that ifany Sikh candidate fights an election against a Panthak candidatehe would be committing a sin

E.L.R.] TIRLOCHAN SINGH V KARNAIL SINGH AND ANOTHER 261

In accordance with the aforesaid orders of Sant Fateh Singh, fearingthe God, I am withdrawing in favour of Shri Karnail Singh.I further appeal to the voters of Pakka Kalan constituency thatt hey should vote in favour of Karnail Singh, the Panthak candi-date and thus avoid the wrath of the Almighty God. Save your-selves from the unkindness of the God. Whosoever would notobey the orders of Sant Fateh Singh Ji he would be excommuni-cated from the Sikh community and would be socially boycotted."

This has been purported to have been signed by Mahant Amar Singh, butthe poster bears a pair of scales, which is the symbol of Karnail Singh andof Sant Fateh Singh's party.

One thing is clear that according to the evidence of Mahant Amar Singhhimself, while dealing with issue No.l, statements made in the above-men-tioned poster underlined by me in the extract above, are not in fact attributedto Sant Fateh Singh. As already discussed, there was no occasion for sucha thing, he having already withdrawn from the contest. According to thepetitioner, the whole of this poster was dictated by Karnail Singh. It hasbeen brought on record that Karnail Singh is not new to election contest.He has been contesting S.G.P. Committee elections and he was accompaniedby his nephew Bir Devinder Singh, who is a Sarpanch of his village andother persons. It was stressed on behalf of the respondent that no personin his senses would reduce to writing the things, as are stated in this pamphlet,because in this it is repeatedly tried to be shown that anybody not voting forKarnail Singh would be rendered an object of divine displeasure, and atanybody in his senses would not like to publish such a poster, because thatwould be tantamount to committing suicide. Only a person, who is depri-ved of common-sense, would do a thing of this type.

Further, it was urged that the story given by Gursewak Singh as to how'themanuscript of the pamphlet came to be written, was highly improbable. It isclear that Gursewak Singh could be at the best of terms with Karnail Singh.Again, Gursewak Singh is not the only literate person that was available toKarnail Singh. It is not the case of Gursewak Singh that the draft wasprepared by him. He only did the work of a scribe. The draft was of Kar-nail Singh. If that be the case, Karnail Singh, who himself is a literate per-son, could have written down the manuscript himself and have approachedMahant Amar Singh, as he is said to have done according to the petitioner'sstory. If no assistance was to be obtained from Gursewak Singh for induc-ing Amar Singh to sign this manuscript, then one cannot understand whyhe was at all approached simply for scribing this simple document. It wasurged that this document seems to have been drafted by someone with a clearobject of bringing it squarely within the mischief of (ii) of proviso (a) ofS. 123(2) reproduced above and this obviously is the work of someone, whois ill-disposed towards Karnail Singh.

Again, it was urged that in the constituency, in which the majority ofthe voters were illiterate, (as is clear from the fact that the petitioner on thequestion of publication could not produce more than one or two personswho were literate and the remaining witnesses expressed their inability toread the poster) there was hardly any fun in distributing a poster just fouror five days or so before the date of polling, and that in any case, if any neces-sity had been felt for publishing any poster conveying to the electorate the

262 TIRLOCHAN SINGH V KARNAIL SINGH AND NOTHER [VOL. XXXIV

fact that Mahant Amar Singh had withdrawn from the contest, there wasalready in existence a document, bearing not only the signatures of AmarSingh, but also that of the respectables of the itiaqa, which was executedas far back as 5th of February (Exhibit P.W. 4/1). As already discussed,that document indicated in unequivocal terms that Mahant Amar Singh,on the persuasion of Panchayats of the illaqa had withdrawn in favour ofKarnail Singh. At the same time, the language of the poster was absolutelyinnocent and unobjectionable. During the election days, particularly 4-5days before the polling, it was contended, Karnail Singh and his supporters,would be busy in doing their last minute propaganda in the constituency andthey would not be wasting their time in getting a document written outand signed by Amar Singh, which was altogether unnecessary. KarnailSingh could have easily gone to the Press and got the document, which cameinto existence on 5th of February, 1967, published or any one of the signa-tories could have been the publisher.

As is clear from part (a) of issue No. 2, the clear case of the petitioner wasthat this was got published by Jarnail Singh. Signatures of Jarnail Singhon the manuscript and on the counterfoil (duplicate) of the cash Memo weresought to be proved from Kewal Krishan. P.W. 5. This witness is the Secre-tary of Cooperative Societies of three villages, including Kot Bakhtu andaccording to him, Jarnail Singh of village Kalawander was the Secretaryof his village at a distance of 2\ miles from Kot Bakhtu. This witness sawJarnail Singh writing and signing at the meetings of the departmental officersor when they go to the bank. In order to connect this Jarnail Singh withrespondent No.l, he, however, stated that he had been visiting his villagein support of respondent No. 1 and that for the first time he saw him withKarnail Singh on 16th of February, when they together attended a gatheringand made an appeal to the electorate to vote for the Panthak candidate.Jarnail Singh was not produced. The allegation of the petitioner was thatthis Jarnail Singh subsequently worked as the polling agent of Karnail Singh.If this had been established, it would have certainly shown connection bet-ween Jarnail Singh and Karnail Singh. However, the original forms appoin-ting various polling agents by the candidates were sent for and Jarnail Singhwas not found to be the polling agent of Karnail Singh at any of the pollingstations. Position, therefore, is that the evidence of Gursewak Singh andMahant Amar Singh relating to the circumstances, in which the manuscriptcame to be written and printed, does not appeal to reason and appears to behighly improbable, for the reasons put forward by the learned counsel for therespondent. Apart from this, Gursewak Singh and Amar Singh are inimi-cally disposed to the respondent, as discussed above and in a serious matterlike this, in which the evidence has to be of such a nature as would bring homecharge of a corrupt practice beyond all reasonable doubt to the person accusedthereof, I do feel that their evidence even coupled with that of Garish Gupta,does not establish that it was Jarnail Singh, who got the poster published,and in any case there is no evidence on the record to show that this JarnailSingh was the polling agent of Karnail Singh, or that otherwise the posterwas published with the consent of Karnail Singh. It has to be seen that theevidence, as brought out, is to the effect that it was Karnail Singh himselfv/ho got the draft scribed and went to Amar Singh to get his signatures andit was he again, who went to the Press to have the poster printed, whereasin the petition, as amended by the statement of the counsel, the case of the

E.L.R.] TIRLOCHAN SINGH V KARNAIL STNGH AND ANOTHER 263

petitioner was to the effect that it was Jarnail Singh who, with the consentof Karnail Singh, got the poster printed. This is not the same thing as Kar-nail Singh himself getting the poster printed. Part (a) of issue No. 2, there-fore, as it is, cannot be said to have been established and the same must bedecided against the petitioner.

Now, with regard to the publication, evidence again is highly unsatis-factory. On behalf of the petitioner, five witnesses were examined in this con-nection.

(After considering the evidence on the allegation that Jarnail Singh,polling agent of the first respondent, published a pamphlet containing state-ment that it was ordained by the Guru to Sant Fateh Singh that if any Sikhcandidate fights an election against a Panthak candidate, he would be com-mitting sin, the judgment proceeded. . . .)

The evidence produced on behalf of the petitioner, regarding the contentsof the posters said to have been distributed is altogether discrepant, as mostof the witnesses produced are illiterate and they were not able to connectit by giving contents of the poster. I, therefore, feel that the evidence on therecord is far below the standard of evidence required to prove beyond allreasonable doubt that this objectionable poster wasdistri buted by or at theinstance of Karnail Singh. The second part of this issue is also decidedagainst the petitioner.

Issue No. 4

This issue was framed in the light of the allegations made by the peti-tioner in paragraph 15 of the petition. It was alleged that Harijans of villageJodhpur Ramana were in need of a Dharamsala building and Karnail Singh,respondent No. 1, through his agent Ganda Singh, a resident of that villageentered into an agreement with Sunder Singh and Mansha Singh, the Hari-jan leaders of that village, by which Karnail Singh offered a sum of Rs. 1,500/-as a gift to the Harijans for the construction of the aforesaid Dharamsala,if the Harijan electors of that village voted for him. It is further averredthat as airesult of the above-mentioned agreement, Rs.1,500 were deposit-ed with a brick-kiln owner, Manohar Lai, with instruction from respondentNo. 1 to supply bricks, after the election is over and that as a result of thisagreement, bricks were being supplied after the election, for the constructionof the Dharamsala,

At the trial, the latter part of the story was not supported and the positiontaken was that the amount of Rs. 1,500 was, in fact, not deposited with anybrick-kiln owner, but was kept in deposit with Ganda Singh himself and itwas Ganda Singh, who, subsequent to the election, supplied the bricks,cement and two iron girders, which were required for the Dharamshala buil-ding and, in addition, he paid for the labour charges of the masons employed.The work of the labourers was done by the Harijans themselves free of charge.Though this change in the story as put forward in sub-clause (c) of paragraph15, was made at the trial, no objection was taken on behalf of the respon-dent that this evidence should not be allowed to come on the record, becauseit ran counter to the allegations in the aforesaid sub-clause, or that the evi-dence led was different from the particulars of the corrupt practice, as givenin the petition.2EC/71—18.

264 TIRLOCHAN SINGH V KARNAIL SINGH AND ANOTHER [VOL. XX.\!7

(After considering the evidence on the allegations that the first respondentoffered a sum of Rs. 1,500/- as a gift for construction of a Dharmshala invillage Jodhpur Ramana on the condition that the Harijan voters of the vill-age voted for him, the judgment proceeded. . . .)

There can be no manner of doubt that both Munsha Singh and SunderSingh do appear to be partisan witnesses, because they have had affinities withthe Congress party and had also taken loan from the previous CongressGovernment and Munsha Singh was also connected with aKhadiBoard.Again, they were going about asking for gratification from any candidate,who was willing to offer, and as already held by the Full Bench, they areaccomplices and consequently complete reliance cannot normally be placedon their statements. In the present case, however, it was urged on behalfof the petitioner that thejeircumstantial evidence of the Dharamshala havingcome into existence soon after the election; the clear and definite denial asto the very existence of the Dharamshala building by Ganda Singh and hisevasive replies with regard to the supply of bricks and their utilization forthe purpose of room at the school, supply sufficient corroboration to theevidence of these two witnesses. As was held in Jannendra Nath Ghose v.The State of West Bengal('7) there should be corroboration in material parti-culars not only concerning the crime but corroboration of the approver'sstory by evidence which connects or tends to connect an accused with thecrime. It is this corroborative evidence which determines the mind of theCourt or a jury that the approver's evidence that the accused committed thecrime is true. However, this corroboration need not be direct evidencethat the accused committed the crime. It is sufficient if it is merely circums-tantial evidence of his connection with the crime (Rameshwar S/o KalyanSingh v. the State of Rajasthan (18).

In the present case, the main and important part of the circumstantialevidence is provided by the report of the Local Commissioner. It establishedbeyond all reasonable doubt that a room was constructed within six monthsof the date of his inspection, which was 10th September, 1967. The easternwall towards the small room, which was in existence from the very beginning,was an old one, while the remaining three walls were partly old and partlynew. It had arched roof supported over two girders. This, therefore,provides ample corroboration to the statements of two Harijan witnessesto the effect that the Harijans needed a Dharamshala. which was constructedafter the election. There could not be any direct evidence available, of thefact that the cost of this Dharamshala was met out of the money advanced byKarnail Singh, respondent. Now one thing is clear that the size of the roomand the type of the construction are such that its costs must have been consi-derable and may have been round-about the figures of Rs.1500, that ismentioned by the witnesses. It is highly improbable and it is no body's sug-gestion that the cost of the Dharamsala was met by the Harijans themselves.Even according to the statement of Ganda Singh, when the original old buil-ding was purchased to serve as a Dharamsala for the Harijans, the proprie-tors of the village collected Rs. 600 and the Harijans were able to collectonly Rs. 300 for themselves. In the present case, no suggestion was made

(17) A.I.R. 1959 S.C. 1199.(18) A.I.R. 195S S.C. 54.

E.L.R. TIRLOCHAN SINGH V KARNAIL SINGH AND ANOTHER 265

to any of the petitioner's witnesses, nor was it suggested by Ganda Singh orany other witness that the cost of this construction was partly met by anyconstructions made by the proprietors of the village. It is, therefore, not anunreasonable inference (and in fact that appears to be the only inference),that can be drawn under the circumstances that the money for this construc-tion was provided by Karnail Singh, as stated by the two Harijan witnesses.As I have already indicated, there was no earthly reason why Ganda Singhshould have gone to the extent of denying the very existence of this newconstruction, but for the fact that there was a feeling in his mind that if thatpart is admitted, the inference will be inevitable that the story of the peti-tioner is correct. Being under the impression that nobody is going to verify thefact at the spot, he boldly denied the very existence of the Dharamshala. Thebuilding of this additional room to the Dharamshala soon after the election,therefore, lends considerable assurance to the mind of the Court that thestory given by the Harijans, though they are accomplices, is substantiallytrue.

While considering the above matter, I have not considered the evidenceof Ajaib Singh, whose evidence affords direct corroboration of the negoti-ations and the transaction that are alleged to have taken place on 18th ofFebruary, 1967. The reason is, that, to me his presence in that village on18th February appears to be improbable and the explanation given by himfor being so present has not appealed to me. He is no doubt a very nearrelation of Ganda Singh, being his wife's brother. His village, Kala Tiba,is in a different constituency, namely, Lambi constituency. He is apparent-ly a well-to-do man, who lives in Abohar Mandi, where his children geteducation and from where he supervises the farming work in his village, whichis at a distance of four miles from Abohar. Normally speaking, the supportof such a well-to-do villager would be greatly in demand by the contestingcandidates during the election. Suggestion was also made that he had Con-gress inclinations and was supporting the Congress candidate in the election,which, however, he denied. According to him, his nephew, that is, son ofGanda Singh approached him to go to the village of his father to settle adispute between him and his father because there was a partition between thefather and the son and a Haveli in Bhatinda had fallen to the share of sonand he was required to pay Rs. 8,000, which the son wanted his father toforego. If this was the only dispute between the parties, it was urged on be-half of the respondent, that the matter was not very urgent and could havebeen postponed by a day or so, that is till after the election. This witness,however, wants us to believe that although he went to village Jodhpur Ram-ana on 17th of February and had a talk with Ganda Singh as soon as hereached there about this matter, he was asked to stay there for two-threedays and that the matter would be finalised after the election. So, this wit-ness stayed on there for three-four days and on the third day after the poll-ing, Ganda Singh agreed to forego the amount. It was contended by thelearned counsel for the respondent, that this story appears to be highly im-probable. If on the 17th, he was told that the talk would take place three-four days after the election, he could have easily returned to his own consti-tuency and not only exercised his own right of franchise, but taken activepart in the election and then gone back to settle the dispute. The fact that hewas asked to wait three-four days before the matter could be talked over,further shows that the matter was hardly of any importance. In any case,it was urged, that there was not much to be talked about, if the only dispute

266 TIRLOCHAN SINGH V KARNAIL SINGH AND ANOTHER [VOL. XXXIV

between the parties was whether the father would forego the sum of Rs. 8,000.I feel that there is a good deal of force in the arguments of the learned counselfor the respondent and I am not inclined to accept the version of this witnessthat he was in fact present at the time of the alleged negotiations betweenKarnail Singh and the Harijan leaders.

Be that as it may, there is ample corroboration afforded by the circumstan-tial evidence on the record, as discussed above, which gives re-assurance tothe main story put forward on behalf of the Harijan witnesses even if AjaibSingh's evidence is excluded from consideration.

The learned counsel for the respondent, however, urged that in the peti-tion it was definitely averred that the promised money was kept in depositwith Manohar Lai and part (b) of issue No. 4 was framed accordingly and thatwas the issue on which the parties went to trial and that at the trial,the petitioner took a somersault and led evidence to the effect that the moneywas kept in deposit with Ganda Singh, and that the petitioner cannot beallowed to prove a case other than the one that was set up by him in the peti-tion. Reference was made by him to an election case reported in GurbantaSingh v. Piara Ram Jaggu Ram and others ( 1 9 ) . Reliance is placed on theobservations made at page 617, the relevant part of which is as follows:—

"It is doubtful whether a petitioner, who, in an election petition patsforward allegations with regard to actual payment of money byway of illegal gratification to procure the withdrawal of the candi-dature of a rival candidate, can be allowed to prove at the trial that,in fact, no money was actually paid, but that only an attempt wasmade to make such a payment. The two allegations are not exactlythe same, and unless the petitioner applies for an amendment, andsuch an amendment is allowed to be made in the petition, we are c"the view that the petitioner is not entitled to propound a case at thetrial different from the one set up by him in the petition . . . "

In that case, the Bench, to which I was a party, did not actually believe th-evidence of two witnesses, with regard to the attempt at making paymentto the rival candidate and in view of that, it was hardly necessary in that caseto go into the question whether the petitioner could be allowed to prove anattempt, when in the election petition, he had put forward an allegation ofactual payment made. Again, the Bench did not decide the question andmerely expressed doubt whether the petitioner could be allowed to prove anattempt in the above-mentioned circumstances. N o doubt, it is generallywell settled now that no amount of evidence on a point, which is not in thepleadings, can be taken into consideration. (See Siddik Mahomed Shah v.Mt. Saran and others. ( 2 0 ) The head-note runs as follows:—

"Where a claim was never made in the defence presented, no amountof evidence can be looked into upon a plea, which was never putforward."

(19) A.I.R. I960 Punjab 614.(20) A.I.R. 1930 P.C. 57(1).

E.L.R.] TIRLOCHAN SINGN V KARNAli. SINGH AND ANOTHER 267

On behalf of the petitioner, however, it was vehemently urged that part (b)of issue No. 4 contains really a matter of detail, which the petitioner need nothave pleaded in the petition, because he could have just averred that negotia-tions took place, as a result of which, it was agreed by respondent No.lto pay a sum of Rs. 1500 for the construction of the Dharamshala. Whe-ther the money was left with "A" or " B " is not of much consequence. Inany case, he urged, that from the very beginning, when the first witness onthis issue was examined, the position taken up by the petitioner was that themoney was in fact deposited with Ganda Singh and this evidence was allowedto be brought on the record without any objection and the respondent hadample opportunity, which he did in fact utilise, for disproving this part ofthe story and that it cannot be said that the respondent had been taken bysurprise. In fact, he urged, both the parties went to trial mainly with regardto the question whether there had been any agreement between the Harijansand respondent No.l and secondly, whether the money was deposited withGanda Singh or not. Both the Harijan witnesses were cross-examined atlength as regards the part played by Ganda Singh and supply of bricks andother material by him. In this connection, he referred to Nagabai Animaland others v. B.SharmaRaoandothers,(21)inwhichPrrvy Council's decisionin Siddik Mahomed Shah v. Mt. Saran, (20) was duly considered and explained.One of the contentions before the Supreme Court in that case was "thatthe question of Us pendens was not raised in the pleadings and is not opento the plaintiff." With regard to the contention of the plaintiff that para 4of the plaint and para 5 of the reply statement meant to raise the plea of Uspendens, their Lordships observed as follows:—

"Even if the plaintiff meant by the above allegations to raise the plea ofUs pendens, he has not expressed himself with sufficient clearnessfor the defendants to know his mind, and if the matter had restedthere, there would be much to be said in favour of the applicant'scontention. But it does not rest there."

Their Lordships then went on to observe as follows:—

"The question of Us pendens was raised by the plaintiff at the very com-mencement of the trial on 8th March, 1967 when he went into thewitness-box and filled in his examination-in-chief Exhibit J. series...This evidence is relevant only with reference to the plea of Us pendens,and it is significant that no objection was raised by the defendantsto its reception.

On 13th March, 1947, they cross-examined the plaintiff on thecollusive character of the proceedings in Exhibit J. series, and fileddocuments in proof of it . . . .

We are satisfied that the defendants went to trial with full know-ledge that the question of Us pendens was in issue, had ample oppor-tunity to adduce their evidence thereon, and fully availed themselvesof the same, and that, in the circumstances, the absence of a specificpleading on the question was a mere irregularity, which resulted inno prejudice to them."

(21) A.I.R. 1956 SC. 533

(20) A.I.R. 1930 P.C. 57(1)

268 TIRLOCHAN SINGH V KARNAIL SINGH AND ANOTHER [VOL. XXXIV

Reliance was placed on the observations of Lord Dunedin in Siddik MahomedShah v. Ml. Saran,(20) that "no amount of evidence can be looked into upona plea which was never put forward." It was further observed:—

"The true scope of this rule is that evidence let in on issues on which theparties actually went to trial should not be made the foundationfor decision of another and different issue, which was not presentand to the minds of the parties and on which they had no opportu-nity of adducing evidence. But that rule has no application to acase where parties go to trial with knowledge that a particularquestion is in issue, though no specific issue has been framed there-on, and adduce evidence relating thereto."

As stated above, there can be no manner of doubt that the respondent wasnot taken by surprise and from the moment the first witness on this questionwas examined to the end of the trial, the respondent fully knew the casethat he was required to meet. On behalf of the respondent, it is contendedthat what is sought to be proved in this case is altogether different from thespecific issue settled and without the petitioner getting the pleadings and theissue amended, no finding can be given by the Court, which runs counter lothe case set up by the plaintiff and actually put in issue. Having given mybest consideration to the point, I feel that so far as issue No. 4(b) is concer-ned, the petitioner must be taken to have failed to prove the same and hecannot ask the Court to give a finding different from the pleadings in the peti-tion and the issue settled there, although as stated above, there is no mannerof doubt that the evidence ran contrary to the allegation in the plaint and thematter in issue was allowed to be led in without objection and no effort wasmade on behalf of the respondent to meet the case that was set up by thepetitioner at the trial.

It wa's, however, contended on behalf of the petitioner that merely be-cause he is held not to have proved part (b) of issue No. 4, and a findingcannot be given that in fact the money was kept in deposit with Ganda Singh,that would not in any way demolish his case on issue No. 4(a). His failureto prove issue 4(b) may be a matter to be taken into consideration for believ-ing or disbelieving the evidence led by him on issue No. 4(a), yet, this failureof his does not automatically entail the finding on issue No. 4(a) being givenagainst him. I feel there is a considerable force in this argument. Theallegations in para 15 of the petition, on which issue Nos. 4(a) and 4(b) havebeen settled fall into two distinct parts, first, that an arrangement was arrivedat by which Karnail Singh agreed to pay a sum of Rs. 1500 for the construc-tion of a Dharamsala in consideration of the Harijans voting for him, andsecondly, that in pursuance of this arrangement, money was deposited withManohar Lai, brick-kiln owner. There is no manner of doubt that if thesecond part is proved, that will afford strong corroboration of an arrangementhaving been arrived at. However, if the petitioner is unable to establish thesecond part of the story either because due to wrong information he gave adifferent story in the petition and due to the failure of his legal advisers toadvise him to have that part of the petition amended, or because the courtrefuses to allow the amendment, that would not necessarily mean that he mustbe held to have failed in establishing even the first part, if otherwise theevidence led with regard to the first part is sufficient to give a finding in his

(20) A.I.R. 1930 P.C. 57(1).

E.L.R.] B. N. PATEL V M. G. POLA AND ANOTHER 269

favour. In the present case, therefore, issue No. 4(b) must be found againstthe petitioner for his failure to lead any evidence in support thereof, yet sofar as issue No. 4(a) is concerned, in view of my discussion above, direct evi-dence of the Harijan witnesses Sunder Singh and Munsha Singh finds corrobo-ration from the circumstantial evidence and, therefore, this issue must befound in favour of the petitioner and the respondent No.l held guilty ofhaving committed the corrupt practice of "bribery" as denned in clause 'A'of sub-section (1) of Section 123 of the Representation of the People Act.

The result of my finding on issue No. 4(a), therefore, is that the petitionmust be accepted and the election of respondent No.l declared void and Iorder accordingly. In accordance with sub-clause (ii) of clause (a) of sub-section (1) of section 99, respondent No.l Karnail Singh is named as aperson proved to be guilty of the corrupt practice of bribery, as detailed above.

Munsha Singh and Sunder Singh on their own showing are also guilty ofcorrupt practice of bribery, as defined in sub-clause (b) of clause (B) of sub-section (1) of section 123, but they are not parties to this petition and I do notconsider that it will be desirable to further prolong the proceedings of thispetition by giving them a notice to appear before the High Court and showcause why they should not be named.

As regards the costs; the petitioner has failed on all other issues and themajor part of the evidence was led on those issues. I feel that it will be pro-per to leave the parties to bear their own costs and I order accordingly.

Notice to issue to Ganda Singh RW. to show cause why action be nottaken against him for giving false evidence on oath. Separate proceedingsto be started in this respect.

Petition Allowed

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

BHAILALBHAI NAROTTAMDAS PATELV.

MANGALDAS GORDHANDAS POLA & ANR.

(DIVAN, J.)

December 14 and 15, 1967.

Representation of People Act, 1951, SS. 22 (2), 100 (1) (d) (ii), (Hi),123 (1) - Receipt of void votes- rejection or refusal of votes- Evidence—Recounting - circumstances justifying order of - bribery - corruptpractice by person not an agent nor with consent of respondent - whetherrespondent liable for corrupt practice - Conduct of Elections Rules1961, Rules 2 (1) (j), 53, 56 Sub-Rule (2) (b) - Hand Book for ReturningOfficers -General Elections 1967, Instruction No. 17, Clauses (ri)and(o) - Failure to comply with - effect of.

270 B. N. PATEL V M. G. POLA AND ANR. [VOL. XXXIV

The petitioner challenged the election of the First Respondent to theState Legislative Assembly on.the ground that corrupt practices had beencommitted by him. It was urged that the First Respondent's agent K hadpaid at the rate of Rs. 3 per vote to electors at a polling booth and also paidother bribes; that more than 4,000 votes were wrongly held to be invalid;and that at the time of counting there was improper reception, refusal orrejection of votes.

HELD: Dismissing the petition,

The petitioner had not established that K was the agent of the First Res-pondent. The requirements of Section 100 (1) (d) (ii) were not satisfiedbecause K who committed the corrupt practice by payment or holding outpromises of bribes to voters had presumably done so in the interest of theFirst Respondent without his consent.

in view of th& failure on the part of the Assistant Returning Officer in. not checking the. work of preliminary sorting of votes by the Counting Super-visors and Counting Assistants as required under Rule 56 of the Conductof Election Rules, 1961 and under Clauses (n) and (-o) of instruction 17 ofHand Book for Returning Officers, General Elections, 1967, the possibilitythat all votes which should have been rejected as invalid, were not in fact sorejected, could not be ruled out. Primafacie there was thus wrongful recep-tion of votes for one or the other candidate and the Court therefore directeda recount of the votes by a Commission. As a result of the Commission'sreport, the petition was dismissed as not proved.

Election Petition No. 15 of 1967.

P. M: Raval, for the Petitioner.

S. M. Shah for Respondent No. 1,

JUDGEMENTDIVAN J.—The petitioner in this petition has - challenged the elec-

tion of the first respondent from Vaghodia State Legislative AssemblyConstituency, being Constituency No. 133. Vaghodia Constituency islocated in Baroda District. The date of the poll in this constituency wasFebruary 15, 1967 and the votes were counted and the result was declaredon February 22, 1967. The petitioner was the candidate put up by theSwatantra Party. The first respondent was the candidate put up by theCongress Party. The second respondent v/as the candidate put up by theJanta Parishad. When the votes were counted and the results were de-clared, it was found that the first respondent had secured 12,844 votes, thepetitioner had secured 12,704 votes and the second respondent had secured7,072 votes. More than 4,000 votes were held to be invalid by the Return-ing Officer. In this petition, the petitioner has prayed that the electionof the first respondent to the Gujarat State Legislative Assembly be declaredvoid. He has also asked for inspection of the ballot papers of this constituencyand for a recount after the inspection of the same and lastly for a declara-tion that the petitioner was the duly elected candidate from this consti-tuency if after the inspection and recounting of votes the petitioner is foundto have obtained more votes than the respondents.

E.L.R.] B .N. PATEL V M. G. POLA AND ANR. 271

There are two main grounds on which the petitioner has challenged theelection of the first respondent and has asked for a declaration that he him-self was the duly elected candidate from this constituency. GroundNo. 1 is that one Ganpatram Kashiram Kalal, a resident of Alva villagewhich is included in Vaghodia Constituency, had paid money at the rate ofRs. 3 per vote to the different voters whose votes were to be castat the polling booth at Alva, and the contention of the petitioner is thatthis amount of Rs. 3 per vote was paid by Ganpatram Kashiram Kalal toall those persons who had voted for the Congress Party candidate i.e.the first respondent. It is the petitioner's case as set out in the petitionthat Ganpat Kashiram Kalal had paid Rs. 3 to about 250 electors and fur-ther than a sum of Rs. 500 was paid to Ganpat Kashiram Kalal for doingthis work of paying Rs. 3 per vote and that Ganpat Kashiram had distribut-ed a total sum of Rs. 750 amongst the different voters. The petitioner hasalleged in the petition that the amount of Rs. 750 was paid by the returnedcandidate i.e. the first respondent and/or his agent and/or the said GanpatKashiram Kalal with the consent of the first respondent or his electionagent. The petitioner has further alleged that the result of the election,in so far as it concerned the first respondent, had been materially affectedby the aforesaid corrupt practice committed in the interests of the first res-pondent by Ganpat Kashiram Kalal. The second ground on which thepetitioner has challenged the election of the first respondent is that therewas improper reception or improper refusal or improper rejection of voteswith the result that the election in so far as it concerned the first respondenthad been materially affected by such improper reception, refusal or rejec-tion of votes. The main contention regarding this plea of improper rejec-tion, reception, refusal or reception of votes which were void is that whenthe counting was carried on at Vaghodia in the counting hall, pro-per facilities were not given to the counting agents of the candidatesto see the work that was being done by the counting assistants and count-ing supervisors at the different counting tables, and it is furthercontended that at one stage of the counting there was inadequatelight, further that there was some commotion inside the hall at onestage of the counting and in the confusion which resulted at thetime of that commotion, some improper reception or rejection of votes orreception of votes which were void had taken place and it has further beencontended that the counting staff itself decided whether a particular voteshould be treated as valid or doubtful and having decided whether a parti-cular vote was valid, the counting staff proceeded to treat the vote as forone or the other candidate. Thus, according to the petitioner, the deci-sion which should have been taken by the Returning Officer or the AssistantReturning Officer as to which votes should be rejected and which should betreated as valid was net taken by that responsible officer but was taken bythe counting assistants and the counting supervisors. The petitionerhas, therefore, urged on the ground of improper reception, improper rejec-tion and improper refusal of votes or reception of votes which were void thatthere should be an inspection and recount of the ballot papers in order toserve the interests of justice.

The first respondent in his written statement has taken several preliminaryobjections and so far as the merits of the case are concerned, the first res-pondent has denied that Ganpat Kashiram Kalal was working for the first

272 B.N. PATEL V M. G. POLA ANDANR. [VOL. XXXIV

respondent and he has further denied that the corrupt practice of briberyas defined in section 123(1) of the Representation of the People Act,1951, had been committed either by the first respondent or by his electionagent or by any worker of the first respondent with the consent of the firstrespondent or his election agent. The first respondent has also deniedthe various allegations set out in the petition regarding improper reception orrejection of votes or the refusal of any votes to the petitioner and he hasfurther contended that there was no reception of any void votes. The firstrespondent has also filed his recriminatory statement which is the Recri-minatory statement No. 6 of 1967 in this Court and in the recriminatorystatement the first respondent has contended that a large number of validvotes which were cast in favour of the first respondent were wrongly rejectedby the Assistant Returning Officer. The first respondent has contendedthat a great injustice was done to him by rejection of a large number of votescast in his favour and reception of votes which were invalid as valid votesin favour of the petitioner and that the grounds on which such rejectionof votes against the first respondent and reception of votes in favour of thepetitioner had been done had in fact never existed. It is further the con-tention of the first respondent that on a proper scrutiny and counting,the first respondent would be found to have secured a far large number ofvoles than the actual figure of 12,844 as shown in the result declaredby the Returning Officer and it is further the contention of the first res-pondent that if a proper scrutiny and counting of votes is carried out, thepetitioner would be found to have secured far lesser number of votes thanthe official declaration namely, 12,704. The first respondent has, there-fore, also asked for a scrutiny and counting of votes declared invalid by theAssistant Returning Officer and for a scrutiny and recounting of votes de-clared valid and in favour of the petitioner. On the pleadings, a preliminaryissue was framed by me on September 1, 1967, namely, whether the truecopies of the petition had been supplied by the* petitioner andwhether the petitioner had complied with the provisions of section81(3) of the Representation of the People Act, 1951 in this connec-tion. By my judgement dated October 5, 1967, I have held that the copywhich was supplied to the first respondent was substantially a true copythe petition as originally filed in the Court and that there was substantialcompliance with the provisions of section 81(3) of the Representation ofthe People Act and hence the Preliminary issue was answered against thefirst respondent. Thereafter on 6th November, 1967,1 settled the issue onthe merits and thereafter the lists of witnesses were filed by the petitioner andthe first respondent and the trial of the petition began before me on 6th De-cember, 1967. The only two points which arsie for my consideration broadlyspeaking are regarding the corrupt practice of bribery in the shape of Gan-pat Kashiram Kalal paying a sum of Rs. 3/- per vote to some of the votersat Alva polling booth and whether this was done with the consent of thefirst respondent or with the consent of the election agent of the first respon-dent. So far as this corrupt practice is concerned, I have also to considerwhether the result of the election, in so far as it concerned the first respon-dent, was affected in any manner by this alleged corrupt practice said to havebeen committed by Ganpat Kashiram Kalal. The second point that arisesfor my consideration is whether there was any improper reception, rejectionor refusal of votes either for the petitioner or for the first respon-dent and secondly whether there was reception of any votes which werevoid.

E.L.R.] B. N. PATEL V. M. G. POLA AND ANR. 273

I must make it clear that nowhere in the petition or in therecriminatory statement and further at no stage of" leading evidencebefore me has any attempt been made nor is there any attempt in the plead-ings nor has any attempt been made by leading evidence to show that anyvotes which were void in the sense of votes which the law would regard asnon est were received by the Returning Officer or by the Assistant Return-ing Officer. In my opinion, when the law speaks of receipt of void votesin section \00(l)(d)(iii) what is contemplated is that some votes which areotherwise are good and valid on the face of them but which are not votescast by the elector himself, for example, by somebody impersonating a deadelector or somebody impersonating an absentee elector or cases of thatkind would fall in the category of void votes. The ballot paper or the votingpaper on the face of it is a perfectly good document but because of othercircumstances which are averred and established, the Court is in a posi-tion to hold that those votes must be treated as non est. Therefore, I will pro-ceed in the course of this judgment on the basis that the allegations andevidence of the petitioner and the first respondent are directed only to theimproper reception, improper rejection and improper refusal of votes.

Going first to the allegation about the corrupt practice of bribery setout in section 123(1) of the Representation of the People Act, (hereinafterreferred to as the Act), the evidence which has been led on behalf of thepetitioner can be broadly divided into the following heads:—

(1) Ganpat Kashiram Kalal was a worker of the Congress Party andwas working on behalf of the first respondent at Alva.

(2) Before the poll, Ganpat Kashiram had gone round Alva and promis-ed different electors to pay them Rs. 3 per vote if they cast their votes forthe Congress Party candidate.

(3) Prior to the poll, Ganpat Kashiram Kalal had told the differentelectors that they should go to his house from the polling booth and ontheir showing the mark of indelible ink on their fingers as indicating thatthey had cast their votes he would pay them Rs. 3 per elector.

(4) Ganpat Kashiram Kalal in fact paid Rs. 3 per vote to several votersfrom Alva village and from Gulabpura and Bhadol which were also underthe polling booth at Alva.

(5) Ganpat Kashiram Kalal admitted before a gathering of the residentsof Alva village that he had distributed a sum of Rs. 250 iri all amongst thevoters of Alva.

(6) On the day previous to the day of the poll, Ganpat Kashiram Kalalhad gone to Vaghodia and there he had contacted the first'respondent atthe election office of the first respondent and in the presence of witnessPrabhatbhai Dharamabhai some money in cash was paid by the firstrespondent to Ganpat Kashiram Kalal.

From the evidence led under these different heads, the petitioner urges that

2 7 4 B. N. PATEL V. M. G. POLA AND ANR. [VOL. XXXJV

he has established that the corrupt practice of bribery was in fact commit-t ed by Ganpat Kashiram Kalal and further that it was committed with theconsent of the first respondent. In any event, it had been contended thatthis corrupt practice was carried on by Ganpat Kashiram Kalal in the in-terests of the first respondent and further that the election in so far as itconcerned the first respondent was materially affected by this corruptpractice and, therefore, the ground under section 100(l)(rf)(») is allegedto have been made out by the petitioner. Thus, the ground under section100(l)(b) and also the ground under section 100(l)(d)(») are both relied uponso far as the corrupt practice of bribery under section 123(1) of the Actis concerned.

(After considering the detailed evidence on the allegations about thecorrupt practice of bribery under Section 123(1) of the Act, the judgmentproceeded)

Since it is not established by the petitioner that Ganpat Kashiram wasthe agent of the first respondent, the requirements of section 100(l)(<5?) (»)are not satisfied because Ganpat Kashiram who committed the corruptpractice by holding out promises and who presumably did it in the interestof the first respondent, is not shown to be an agent of the first respondentin any manner and that ingredient of section 100(1 ){d)(ii) is not establishedfrom the facts as found to have been established by me. Under these cir-cumstances, the ground under section 100(l)(c/)(/7) will also not avail thepetitioner.

1, therefore, answer issue No. 1 in the affirmative so far as the offer topay money is concerned, and issue No. 2 in the negative as to both parts.

I will now take up the question of improper reception or improper re-jection or refusal of votes. The version of the petitioner as set out in theelection petition and also through his own evidence and the evidence of hiscounting agents is that while the counting was going on inside the countinghall at Vaghodia, after the ballot boxes were opened, the ballot papersfor the Lok Sabha Constituency were separated from the ballot papers forthe Gujarat State Legislative Assembly Constituency and the Assemblyvoting papers from each booth were taken to a separate counting table.At the counting table, two counting assistants and one Counting Supervisorwere sorting out the different voting papers of the different candidatesand if they felt any doubt about a particular voting paper, then the countingassistants and the counting supervisor were putting such voting paper in thebundle of doubtful votes. Therefore, according to the evidence of all thesewitnesses, the work of sorting out and deciding which voting paper shouldbe placed in the bundle of doubtful votes was done by the counting assistantsand counting supervisors. Various objections were being raised from timeto time by the counting agents as shown by the witnesses BhailalbhaiNarottamdas Patel, the petitioner, and Mukundrai Raichand Shah Vinu-bhai Dahyabhai Patel, Bhailalbhai Shankarbhai Patel, Shankarlal Gord-handas Panchal and Fulabhai Sukhlal Patel. Now the first respondent andhis witnesses Jivanlal Gordhandas Shah and Jethabhai Shanabhai Patelhave also deposed that this work of sorting out the different votes for thedifferent candidates was done by the counting assistants and counting

E.L.R.] B. N. PATEL V. M. G. POLA AND ANR. 275

supervisors. The first respondent has also examined Harshadari PranlalBhatt, the then Mamlatdar of Vaghod'ia, who was working as the AssistantReturning Officer at the time of the poll and at the time of the counting inthe hall at Vaghodia. It is the first respondent's version, and about thatthere is also the evidence of Harshadrai Pranlal Bhatt, that the ReturningOfficer and the Assistant Returning Officer had divided amongst themselvesthe work of counting votes which was going on inside the hall. The ReturningOfficer was attending to all work pertaining to Lok Sabha votes and theAssistant Returning Officer was attending to all work pertaining to theState Assembly votes. Bhatt has stated in his evidence that the scrutinyat his table was in respect of doubtful votes and no re-checking ofvotes which were treated as valid in favour of any particular candidatewas done at his table. He was merely scrutinising the votes treated asdoubtful votes on different counting tables. He was cursorily glancing throughthe bundles of votes sent up by the counting tables as votes for any parti-cular candidate. He has further stated in his cross-examination that hewould cursorily glance through the bundles of valid votes when the count-ing supervisor brought all bundles to him along with the ballot paper account,and that he had not seen even cursorily each and every ballot paper used forcasting votes in this constituency. He further admitted that when hscursorily went through the bundles of valid votes, he had not taken out asingle vote from the bundle of valid votes, in order to treat it as a doubtfulvote. Now, the same is the version which the first respondent has given in hisdeposition. According to the first respondent, at the table of the AssistantReturning Officer, scrutiny of only those votes which were treated as doubtfulvotes by the counting staff at different tables was carried out, and in hisdeposition he has further stated that from each counting table four differentbundles per each booth were brought to the Assistant Returning Officer'stable. There would be on; set of bundles for each candidate and one set ofbundle for doubtful votes. The Assistant Returning Officer used to scrutinisedoubtful votes and give his decision regarding each doubtful vote. Inthe light of the decision of the Assistant Returning Officer, the doubtfulvotes were treated as yotes for one or the other candidate or as invalid votes.The necessary adjustment of votes in the ballot paper account as furnish-ed by the counting supervisors for that particular booth would be made bythe Assistant Returning Officer in the light of his decision. After complet-ing this work for each booth, the voting papers would be kept aside booth-wise and a note would be made by making proper entry in the prescribedform regarding the votes secured by each candidate from a particular boothand also the number of invalid votes for that booth. No checking of thevotes treated as valid votes for a particular candidate by the counting staffat the tables was done at the table of the Assistant Returning Officer.

In view of this evidence of Bhatt, the Assistant Returning Officer, andthe first respondent, what I have to consider is whether there was any im-proper reception or rejection of votes or improper refusal of votes. Underthe Representation of the People Act, 1951, power to make rules has beenconferred upon the Central Government by section 169 and sub-section(1) of section 169 says that the Central Government may, after consultingthe Election Commission, by notification in the Official Gazette, make rulesfor carrying out the purposes of the Act. Under sub-section (2)(g) therules may provide for the scrutiny and counting of votes including casesin which a recount of the votes may be made before the declaration of th J

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result of the election. Acting under this power given by the Legislature,the Central Government has framed rules known as Conduct of ElectionsRules, 1961. Under rule (2)(j) of these rules "Returning Officer" includes anyAssistant Retruning Officer performing any functions he is authorised to per-form under sub-section (2) of section 22 of the Act. Under rule 56, provisionis made for the counting votes and the rule says that the ballot papers takenout of each ballot box shall be arranged in convenient bundles and scrutised,and sub-rule (2) provides under what circumstances the Returning Officershall reject a ballot paper. Sub-rule (6) says that every ballot paper which isnot rejected under rule 56 shall be counted as one valid vote. The schemeof rule 56, is that the decision as to whether a particular vote is valid orinvalid, that is whether it shall be counted for a particular candidate or shallbe rejected outright or shall be treated as invalid, has to be taken by theReturning Officer himself. For the purposes of the rules, the AssistantReturning Officer stands on the same footing as the Returning Officer and,therefore, as the rule stands, the decision whether a particular vote is validor invalid has to be taken by the Assistant Returning Officer himself ifhe is in charge of the counting of votes for a particular constituency. Asthe things have turned out in the instant case, the decision as to whether aparticular voting paper should or should not go before the Assistant Re-turning Officer was already taken at each counting table by the counting super-visors and the counting assistants. Tt is clear from the evidence of theAssistant Returning Officer Bhatt and of the first respondentthat the Assistant Returning Officer has applied his mind only to thosebundles of votes which were set apart at each table as doubtful votes. Noscrutiny or re-checking of votes which were treated as valid by. the countingassistants and the counting supervisors at the different counting tables hasbeen carried out by the Assistant Returning Officer. The result, therefore,is that though the Assistant Returning Officer has applied his mind to thevotes which were put up before him from the different counting tablesas doubtful votes, he has not applied his mind to the bundles of votes treat-ed as valid votes and as for one or the other candidate by the countingassistants and counting supervisors.

Pausing here for a minute, I may say that so far as the rules are con-cerned, the counting assistants and counting supervisors are unknown.Those designations are unknown to the Conduct of Elections Rules. Theonly reference .that can be found is in rule 53. That rule provides for ad-mission of persons to the place fixed for counting and the rule says thatthe Returning Officer shall exclude from the place fixed for all personsexcept such persons as he may appoint to assist him in the counting.It is under this rule which contemplates the Returning Officer appoint-ing some persons to assist him in counting that the counting assistants andcounting supervisors can be appointed by the Returning Officer and theymay assist him in the counting. The assistance in the work of countingmust be distinguished from assistance in deciding as to which votesshall be treated as votes for one or the other candidate and which votes shallbe treated as valid or invalid. The manner in which the counting wascarried on at Vaghodia clearly indicates that as regards the bundles of voteswhich the counting assistants and counting supervisors at different tablestreated as votes for one or the other' candidate, the Assistant ReturningOfficer has not applied his* mind at all.

E.L.R.] B. N. PATEL V. M. G. POLA AND ANR. 277

For the guidance of Returning Officers, the Election Commission hasissued Handbook for Returning Officers, General Elections, 1967, and inthat Handbook also instructions meant for the counting assistants and count-ing supervisors are set out at page 83. The most significant part so far asthese instructions are concerned is Instruction 17 at page 75 of the Hand-book. Clause (/) of the Instruction No. 17 says that as soon as the ballotpapers are distributed on the two sets of tables, the supervisors and thecounting assistants should sort them out candidate wise in the respectivecompartments of the tray according to the preferences recorded on the ballotpapers, and clause («) instructs the Returning Officer to make a test checkof the bundles of valid ballot papers, to see that they have been correctlysorted and do not contain any ballot paper which ought to be rejected orought to be placed in the bundle of ballot papers of the other candidate.Unfortunaltely, the word "test check" has been used by the Election Com-mission in this context, but it is clear from the rest of clause («) of Instruc-tion 17 that the Returning Officer has to see all the bundles of valid ballotpapers which the counting supervisors and counting assistants have sort-ed out candidate wise and the Returning Officer has to see that these voteshave been correctly sorted out by the counting assistants and countingsupervisors and that the bundles do not contain any ballot paper whichought to be rejected or ought to be placed in the bundle of ballot papersof the other candidate. Therefore, clause («) makes it abundantly clearthat the Returning Officer must give his decision in respect of each vote whichcomes out from the ballot box. He may for the purpose of sorting takethe assistance of counting supervisors and counting assistants but ultimatelyhe has to see that no bundle contains any ballot paper which ought to berejected, no bundle of valid ballot papers contains any ballot paper whichought to be rejected or ought to be placed in the bundle of ballot papers ofthe other candidate. This important work which must be done in respectof all the bundle of valid ballot papers has not been carried out by the Assis-tant Returning Officer Bhatt. Clause (o) of Instruction 17 further makes itclear that after completing the scrutiny as contemplated by clause (n), theReturning Officer has to place in the bundles of the appropriate candidatesthose doubtful votes which he has held to contain valid votes in favour ofthat candidate. Those doubtful ballot papers which the Returning Officer hasrejected should be placed in the bundle of rejected ballot papers. Afterscrutinising all the bundles in the packet and making the necessary trans-fers in accordance with his decisions, the Returning Officer has to revise theentries in Part II of the Ballot Paper Account—not by overwriting orscoring out the supervisor's figures but by making the necessary plus andminus entries after those figures and intialling them and he has also to sign theBallot Paper Account. This makes it clear that the Asst. ReturningOfficer must apply his mind though he may do so after the preliminary sort-ing out has been done by the counting assistants and counting supervisors,but ultimately he must apply his mind at one stage or the other before finallysaying that a particular candidate has secured a particular number of votesfrom a particular polling booth. The rules required that the decision asto which votes are valid and which votes are invalid has got to be takenby the Returning Officer which includes the Assistant Returning Officer.Tt is true that looking to the large number of votes which are likely to be casteven in a State Legislative Assembly election, the Returning Officer by theforce of circumstances is compelled to take assistance of subordinate count-ing assistants and counting supervisors. But that assistance can only be

278 B. N. PATEL V. M. G. POLA AND ANR. [VOL. XXXIV

in the work of counting, as the statutory rules, the Conduct of ElectionsRules, 1961, stand. He cannot take assistance in making up his mind orin deciding whether a particular vote is valid or invalid. Since in theinstant case, the Assistant Returning Officer has not applied his mind toeach bundle of valid votes and has not satisfied himself that none of thebundles of valid votes of the different candidates contained any invalid voleand further has not satisfied himself that no bundle contained a vote whichshould have been treated as a vote for another candidate, this action on thepart of the Assistant Returning Officer is a clear indication that the personauthorised to decide the question of validity or invalidity of votes has notdecided that question so far as Vaghodia constituency is concerned. Thecounting assistants and counting supervisors have given those decisionsat the time of preliminary sorting and after that preliminary sorting wascarried out candidate-wise and the votes for different candidates were arrang-ed in bundles, mind has not been applied by the duly authorised person tosee whether any of the bundles contained any vote which should havebeen treated as invalid or rejected and secondly whether any bundle contain-ed any particular ballot paper meant for another candidate. Under thesecircumstances, it is clear that prima facie there was a wrongful receptionof votes for one or the other candidate since the person duly authorised inthat behalf has not exercised his mind, and secondly prima facie there -wasimproper rejection of votes, improper in the sense that all the votes whichshould have been rejected by the Returning Officer, the only authorisedperson in that behalf, have not been rejected by him, and from the procedurefollowed in this constituency there is a possibility that votes which shouldhave been treated as rejected votes have been treated by the subordinatesas valid votes for one or the other candidate.

The petitioner and Ins counting agents have deposed before me abnutwrong decisions given at the different counting tables. They have describedXhs manner in which these wrong decisions were given by the counting assis-tants and counting supervisors. They have also deposed about speedingup of the work of counting towards the latter part of the counting in thecounting hall when what are known as the sixth, seventh and the eigrvh,rounds were being carried on. I may explain that in the counting haileight tables were set apart for counting votes for the State Legislative Assem-bly and there were sixty-four booths in all. At a time one table was dealingwith one booth and, therefore, one round of counting would dispose of thework of counting of votes cast at eight polling booths. After all the count-ing tables completed their respective work for one set of eight polling booths,another round for another set of eight booths would start at these eighttables. The grievance which has been made before me is that during the sixth,seventh and the eighth rounds, the work of counting was speeded up verymuch with the result that the counting agents of the petitioner were not ableto find out and locate all the doubtful votes or all wrong decisions givenby the counting assistants and counting supervisors. No complaint inthis regard appears to have been made to the Assistant Returning OfficerBhatt who was in charge of the counting tables for the State LegislativeAssembly votes. The most peculiar part in this connection is that thoughaccording to Bhatt's evidence, after the counting of votes was overand the total figures were made up, Chari, the Returning Officer, askedthe candidates and the agents as to whether anybody wanted a recount, the

E.L.R.] B.N. PATEL V. M.G. POLA AND ANR. 279

petitioner who was behind the first respondent only by 140 votes and thoughas many as 4000 votes were treated as invalid did not ask for a recount ascontemplated by law. The rules contemplate that a recount has to be askedfor in writing setting out the reasons why the recount is being asked, andno such written application for recount was made at the time. Moreover,all the counting agents and the petitioner himself purport to say that theywere raising objections before Chari whereas in fact, the objections shouldhave been taken before Bhatt, the Assistant Returning Officer who was incharge of the work of counting of the State Legislative Assembly votes. If theevidence regarding what actually happened in the counting hall in theshape of the evidence of the first respondent and Bhatt had not been there,I would have been extremely reluctant to grant a recount in this case. Butin view of the fact that the evidence of the first respondent and the AssistantReturning Officer Bhatt goes to show that the procedure contemplated bythe rules was not followed and the work of treating as valid votes was doneby unauthorised persons, namely, the counting assistants and countingsupervisors, it is clear that there was prima facie wrongful reception of voteand the possibility that all the votes which should have been rejected as in-valid were not in fact so rejected cannot be ruled out. Under these cir-cumstances, I have ijome to the conclusion that a general recount of allthe votes cast in this constituency must be granted. In view of the factthat the first respondent has filed a recriminatory statement and also ledevidence and prayed for a recount of the votes, the recount of the votes willbe done in order to find out who is the candidate who has secured the highestnumber of votes in this constituency. I will, therefore, appoint a Commis-sioner, whose name I will designate later on, to go through the bundlesof ballot papers. The Commissioner will offer proper opportunity to the advo-cates of the parties to inspect the ballot papers and to urge their objections,if any, before him regarding any of the ballot papers. The petitioner andthe first respondent will deposit a sum of Rs. 750 each in the office on orbefore 19th December 1967 and after the amount is so deposited, I willpass orders regarding the appointment of the Commissioner.

The issue No. 3 will, therefore, be answered as follows :

There was prima facie improper reception and rejection of votes. Thequestion whether the result of the election in so far as it concerned the firstrespondent has been materially affected would be decided after the reportof the Commissioner is received and considered by the Court.

The question of relief will also be decided upon at that stage.

Similarly, on the issues on the recriminatory statement,, so far as issu eNo. (1) is concerned, I hold that there was prima facie wrongful rejactio nof votes. Tssue No. (2) will be decided after the report of the Commissione ris received, Issue No. (3) not necessary.

The question of relief will be decided after the report of the Commis-sioner is received.

Costs and further directions reserved.2 EC/71-19

280 B.N. PATEL V, M.G. POLA AND ANR [VOL. XXXIV

The Commissioner to carry out his work in the light of the followingdirections :

The Commissioner to follow rule 56 of the Conduct of Election Rules1961, in deciding which votes should be treated as invalid. Instructionsfor counting as set out in the Handbook for Returning Officers at page75 Instruction No. 17—shall be followed in so far as they are applicableand so far as the pocket of each booth is concerned, the Commissioner shallkeep in a separate bundle the votes about which there is any dispute betweenthe rival candidates. Boothwise and total figures of votes secured by eachcandidate and the votes treated by the Commissioner as invalid shall alsobe mentioned in the report. Under no circumstances will the sealed packetsof marked Lists of Voters be made available either to the Commissioner orto the advocates of the parties. The advocates to be permitted to takedown the serial numbers of different ballot papers at the time of takinginspection, if they so desire.

[ 22nd February, 1968]

In this matter, by my Judgement, dated 15th December, 1967, I haddisposed of most of the issues on merits and had passed an order refer-ring the question of recount to a Commissioner appointed by me. MissNiranjana Parikh, Advocate, was appointed the Commissioner and recountof all the votes cast in this Constituency was carried out before her and shehas submitted her report, dated February, 2, 1968. As a result of the Re-port of the Commissioner, dispute was still outstanding between the partiesas regards some of the votes and the decision regarding each of those dis-puted votes was to be considered by the Court and accordingly for nearlyfive hours the objections and arguments were heard from both the sidesbefore me in connection with five out of the numerous booths in thisConstituency. To-day the further hearing and the arguments rearding theremaining booths of this Constituency was to continue and the matter wasfixed on board before me for further hearing of the matter as regards the re-count; but when the hearing was resumed today, Mr. Reval, on behalf of thepetitioner, stated that in view of the results of the recount as disclosed bythe proceedings before the Commissioner and by the recounting of votes sofar carried out before the Court, the petitioner did not wish to press theissue of recount any further. Thereupon, Mr. S. M. Shah, on behalf ofthe first respondent, stated that he did not wish to press the issue of recountarising on recrimination as that issue no longer survives in view of thestatement just now made by Mr. Ravel. Therefore, it necessarilyfollows that the issue of recount based on the allegation of improper recep-tion and rejection of votes will have to be decided against the petitioner sofar as the allegations of the petitioner are concerned and no relief can begranted so far as that issue is concerned on the recriminatory statement.Since all the issues, the burden of proving which lay upon the petitioner,are answered against the petitioner and the remaining issue regarding therecount has not been pressed by him, the petition must fail. In the result,this Election Petition fails and is dismissed with costs.

So far -as the question of costs is concerned, the Commissioner will bepaid Rs. 1,625 as her remuneration, a sum of Rs. 375 will be paid to the

E.L.R.] B.N. PATEL V. M.G. POLA AND ANR 281

Superintendent concerned, who attended upon the Commissioner, a sumof Rs. 75 will be paid to the Nazir of this Court and a sum of Rs. 25 willbe paid to the peon who attended at the proceedings before the Commis-sioner. Thus an aggregate amount of Rs. 2,100 will have to be paid in res-pect of the proceedings before the Commissioner. By my order, datedDecember 15th. 1967, I had asked the petitioner and the first respondentto deposit Rs. 750 each towards thexosts of the Commissioner and by mysubsequent order, I have directed each side to deposit a further sum of Rs.400/-. Thus, each side has deposited in all Rs. 1,150; and the aggregateamount of Rs. 2,300 is available for meeting the costs of the Commissioner.Out of this aggregate amount of Rs. 2,300, Rs. 2,100 will be disbursed aspointed out above in connection with the costs of the Commission, and thebalance of Rs. 200 will be refunded in equal proportion to the first res-pondent and the petitioner. Mr. Shah very strongly urged before me thatthe first Respondent should be paid, as part of his costs, the amount ofRs. 1100 that had to be spent by the first Respondent in connection withthe proceedings before the Commissioner. But this contention cannot beaccepted. So far as the costs of the entire proceedings are concerned, inmy opinion, the reference to the Commissioner and also the proceedingsbefore the Commissioner were necessitated as much by the allegationsof the petitioner as by the allegations in the recriminatory statement. Underthese circumstances, it is but fair that so far as the costs arising out of theissues of recount are concerned, they should be borne equally by the peti-tioner and the first respondent. As regards the other costs, the hearingof the main petition prior to the delivery of the judgment of December 15,1967, had lasted for nearly 31 hours before me; and most of the time was takenin connection with the issues regarding the alleged commission of corruptpractice by the first respondent. Therefore, it is but fair that the petitionershould pay the costs of hearing prior to my judgment, dated December,15,1967. The petitioner will pay the taxed costs of the first rspondent andwhile taxing the costs the Advocates fees for the first respondent will be fixedat Rs. 1800 (Rupees One Thousand Eight Hundred). The recriminatorystatement is also disposed of as it no longer survives. There will beno order as to costs of the Recriminatory Statement.

Petition Dismissed.

IN THE HIGH COURT OF JUDICATURE AT PATNADURGA SINGH

V.JAWAR HUSSAIN

(R. J. BAHADUR, J.)

December 15, 1967

Representation of the People Act, 1951—ss. 36(2), 36(5) proviso—Nomination paper, rejection of on ground that oath as required byConstitution of India Art. 173 was not made before scrutiny—If Re-turning Officer has power to give time to rectify defect.

The petitioner, an elector, challenged the election of the respondent onthe ground that when the scrutiny of the nomination papers was taken up

282 DURGA SINGH V, JAWAR HUSSAIN [VOL. XXXIV

by the Returning Officer, a representation was made to him that one N hadnot taken the oath of allegiance as required under the Constitution of India;that he was prepared to take the oath of allegiance if some time were allowedto him and that instead of allowing some time to N on his representation,the Returning Officer rejected N's nomination papers on the ground thatoath or affirmation as required under Art. 173 of the Constitution had notbeen made before the scrutiny. It was contended that under sub-section (5)of s. 36 of the Act, the Returning Officer should have exercised his discretionas clearly he took a wrong view of the law and for that reason the rejectionof the nomination papers was illegal and improper.

Held :(i) On the evidence of the Returning Officer and the orders passed by

him, he was right in rejecting the nomination papers of N. From his evidenceit was clear that the Returning Officer had pointed out the requirement ofoath or affirmation to N two days before the scrutiny. The evidence of theReturning Officer also showed that N had not made any request to him be-fore rejection.

(ii) The Returning Officer has no power to allow time suo motu and onlysuch power is given to him as is provided in sub-section (2) of s. 34 of the Act.Under the proviso to sub-section (5) of Section 36, time could only be allowedfor rebuttal and not for remedy of any defect. The Returning officer couldnot have permitted N to rectify the defect which was undoubtedly substantialunless he had postponed the scrutiny of the nomination papers of «N. Suchpostponement would be in contravention of sub-section (5) of s. 36 of the Act.

Shiv Shankar Kanodia v. Kapildeo Narain Singh, Election Appeal No.4 of 1965; distinguished. Rattan Anmol Singh v. Atma Ram, A.I.R. 1954S.C. 510; and Hariram Singh v. Kamtaprasad Sharma, A.I.R. 1966 M.P.253;

Election Petition No. 7 of 1967.K. D. Chatterji, Jagdish Chandra Sinha, Nakuleshwar Prasad and Suren-

dra Kumar Sinha, for the Petitioner.

Kanhaiya Prasad Verma and Kamla Kant Prasad, for the Respondent.

JUDGMENT

BAHADUR, J.—In the General Elections held for the State Assembly inFebruary, 1967, the respondent, Jawar Hussain, was returned from JeeradeiConstituency in the district of Saran to the Bihar Legislative Assembly(Vidhan Sabha). This election petition has been filed by Durga Singh, anelector, challenging the election of the respondent. The election was held asper the following schedule :

(i) Dates of filing nomination papers . . . 13-1-1967 to20-1-1967.

(ii) Date of scrutiny of nomination papers . . 21-1-1967(iii) Last date of withdrawal of candidature . . 23-1-1967.(iv) Date of poll 17-2-1967.(v) Date of counting of votes 23-2-1967.

(vi) Date of declaration of result of the election. . 23-2-1967.

E.L.R.] DURGA SINGH V. JAWAR HUSSAIN 283

2. The respondent and eight others had filed their nomination paperson different dates for election from the aforesaid Jeeradei Assembly Consti-tuency. Two persons, namely, Misri Sah and Mosin Sah, withdrew their cand-idatures and the nomination papers of Neyamtulla Ansari were rejected, sothe contest was between six remaining candidates. The respondent belongedto the Congress Party; Sri Hridayanand Singh, who has been examined in thecase as P.W. 4, belonged to Jan Kranti Party and one Jaleshwar Prasadbelonged to Swatantra Party. Neyamtulla Ansari had filed two nominationpapers on 19-1-1967 before the Returning Officer, A. K. Sarkar, Sub-divisional Officer of Siwan, who has been examined on behalf of the respondentas R.W. 1. As a result of the scrutiny the Returning Officer rejected both thenomination papers of Neyamtulla Ansari on 21-1-1967 on the ground thathe had not until the time of scrutiny taken oath or solemn affirmationas required under Article 173(a) of the Constitution. Thus, the contest wasbetween six remaining candidates, and the respondent having secured thelargest number of votes was accordingly declared elected. Within 45 days ofthe date of the election of the returned candidate, namely, on 6-4-1967,the petitioner presented this election petition in this Court for a declarationthat the election of the respondent is void on the ground that the nominationpapers of Neyamtulla Ansari had been improperly rejected by the ReturningOfficer on 21-1-1967.

3. Petitioner's case is that when the scrutiny of the nomination paperswas taken up by the Returning Officer, a representation was made to himthat as Neyamtulla Ansari had not taken oath of allegiance, as requiredunder the Constitution of India, he was prepared to take the oath of allegia-nce, if some time were allowed to him. Instead of allowing sometime to Ansarion his representation, the Returning Officer rejected his nomination paperson the ground that oath or affirmation, as required under Article 173 of theConstitution, had not been made before the scrutiny. The petitioner's casefurther is that Ansari immediately thereafter filed an application before theReturning Officer on the same date, namely, 21-1-1967, pointing out that atthe time of scrutiny he had informed the Returning Officer that he wasready and willing to take the required oath if some time were allowed tohim, but instead of allowing him time the nomination papers were rejectedand that Neyamtulla Ansari was even then prepared to take the oath ofallegiance. The petitioner has on these facts urged that, on account of im-proper and illegal rejection of the nomination papers, Neyamtulla Ansaricould not take part in the election and the electors of the constituency, in-cluding the petitioner, were deprived of their rights to vote for Ansari, whowas the Mukhiya of the Gopalpur Gram Panchayat within the jurisdictionof the same constituency, and, who was a popular figure of that constituencyand who would have in all probability been elected by a large number ofvotes. The petitioner has, therefore, prayed that the election of the returnedcandidate, namely, Jawar Hussain, should be declared void under the provi-sions of the Representation of the People Act (hereinafter referred to as theAct).

4. The respondent's case is that the petitioner was neither a candidatefor the election from Jeeradei Assembly Constituency nor was he a proposerof any candidate, and, as such, he was not present at the time of filing of thenomination papers or at the time of scrutiny of those nomination papers.The petitioner was, therefore, not aware of the facts and the circumstances

284 DURGA SINGH V. JAWAR HUSSAIN [VOL. XXXIV

of the case. His further case is that Neyamtulla Ansari neither took oath norfiled the form of oath, as required under Article 173 read with Schedule III(vii) of the Constitution, along with his nomination papers, and that on19-1-1967, the Returning Officer informed Ansari the time, date and placeof the scrutiny and gave him a cyclostyled form of oath under ScheduleIII (vii) of the Constitution and advised him to take the oath or solemn affir-mation under Article 173 of the Constitution before scrutiny of the nomina-tion papers. Ansari received the form of. oath on 19-1-1967. The ReturningOfficer and the Assistant Returning Officer were always available to adminis-ter and receive oath but Ansari did not prefer to take oath and file the formof oath even at the time of scrutiny of the nomination papers. Respondent'sfurther case is that Ansari did not even offer to take oath when the scrutinyof the nomination papers was taken up and, accordingly, after scrutiny ofhis both nomination papers on 21-1-1967, the Returning Officer rejected thenomination papers on the ground that Ansari was not qualified under Article173 of the Constitution, as he had not taken the required oath. The respon-dent has challenged the statement of the petitioner in paragraph 5 of hispetition and has stated that it is wrong and after thought, as it was neverrepresented or told or prayed by or on behalf of Ansari for allowing anytime for taking the requisite oath. The question, therefore, of allowing timefor taking oath did not arise because the form of oath had already been sup-plied to Ansari and the Returning Officer was there to administer the oath.The respondent's case further is that the scrutiny of all the nomination papersof all the candidates was completed by the Returning Officer at 12.45 P.M.and even at the close of the scrutiny Ansari did not do any thing to take oathof allegiance. The candidates and their proposers thereafter went away andthe Returning Officer also retired. The whole thing was thereafter plottedby one of the candidates, namely, Jaleshwar Prasad, for his future interestand an application was filed to make out a ground in future in case JaleshwarPrasad was defeated in the election. Accordingly, a petition with false state-ment was filed on the same date, namely, 21-1-1967, at 1.45 P.M., beforethe Returning Officer. It was wrongly stated therein that the oath ofallegiance was not taken by mistake, though clearly it was not taken withthe full intention as it had been plotted earlier, because, Ansari was neverprepared to take oath of allegiance and he never actually prayed for time atthe time of scrutiny.

5. The following issues were framed for determination in this case :—

1. Is the Election petition liable to be dismissed for non-complianceof the provisions of sections 81, 82 and 117 of the Representationof the People Act, 1951?

2. Is the Election petition not duly verified according to law and liableto be dismissed in consequence thereof?

3. Were the nomination papers of Sri Neyamtulla Ansari improperlyrejected ?

4. Is the election of the respondent void?

FINDINGS

6. Issue Nos. 1 and 2 : These issues at the time of hearing of the casewere not pressed on behalf of the respondent.

E.L.R.] DURGA SINGH V. JAWAR HUSSAIN 285

7. Issue Nos. 3 and 4 : The only question, therefore, which arises in thiscase is whether the nomination papers of Neyamtulla Ansari were improperlyor illegally rejected by the Returning Officer. It is not disputed that if thisissue were decided as alleged by the petitioner, then the election of the res-pondent must be declared to be void.

8. Counsel for the parties are agreed that the sole question to be decidedis a very short one and there is no dispute that the provisions of Article 173of the Constitution had to be complied with. There is also no dispute thatthere was no oath on the nomination papers of Ansari up to the time when hisnomination papers were taken up for scrutiny on 21-1-1967, by the ReturningOfficer and, therefore, there was disqualification under Article 173 of theConstitution. The only controversy between the parties is as to whether theReturning Officer at the stage of scrutiny, should require the candidate tocomply with the provisions of Article 173 or debar him even if he is preparedto take oath or affirmation.

9. Sub-section (2) of section 36 of the Act provides the grounds uponwhich the Returning Officer is entitled to reject the nomination papers ofa candidate and the relevant portions of the section are as follows:—

"(a) that on the date fixed for the scrutiny of nominations the candidateeither is not qualified or is disqualified for being chosen to fill theseat under any of the following provisions that may be applicable,namely:—

Articles 84, 102, 173 and 191 (Part II of this Act, and sections 4 and14 of the Government of Union Territories Act, 1963)."

At the time of the scrutiny, therefore, the Returning Officer had to decideas to whether Ansari was not qualified or disqualified for being chosen tofill the seat under Article 173 of the Constitution. It will be useful to refer tosection 32 of the Act also which provides :

"Any person may be nominated as a candidate for election to fill a seatif he is qualified to be chosen to fill that seat under the provisionsof the Constitution and this Act or under the provisions of theGovernment of Union Territories Act, 1963, as the case may be."

It is, therefore, manifest that the Returning Officer has to decide as to whethera candidate, who had filed the nomination paper, had fulfilled the qualificationsof a person qualified to be chosen to fill a seat in the State Legislature underArticle 173 of the Constitution, in other words, the Returning Offic r hadto find out whether the petitioner was a citizen of India, not less than 25years of age, and had made and subscribed before a competent authority oathor affirmation according to the form set out for the purpose in the ThirdSchedule.

As already stated, there is no dispute that when the Returning Officertook up the scrutiny of the nomination papers of Ansari, then it was foundthat until that stage Ansari had not made and subscribed the requisite oath oraffirmation. Ansari, therefore, up to that stage did not fulfil one of the essen-tial qualifications for membership of the legislature and, it was the Returning

2 8 6 DURGA SINGH V. JAWAR HUSSAIN VOL. XXXIV

Officer's duty to reject Ansari's nomination paper under Clause (a) ofsection 36(2) of the Act, as quoted above.

10. Mr. K. D. Chatterji, appearing on behalf of the petitioner, has urgedthat the rejection of the nomination papers of Ansari was illegal, as he wasbound to take his oath when he offered to take the oath after the order ofrejection had been passed. Learned counsel's contention is that the matteris now beyond controversy and is concluded by an unreported Bench decisionof this Court in Shiva Shankar Kanodia v. Kapildeo Narain Singh (ElectionAppeal No. 4 of 1965) dated the 17th August, 1966, to be dealt with later.Mr. Chatterji has, therefore, contended that it is unnecessary to look intothe evidence of the petitioner or his witnesses examined on his behalf. He hassubmitted that the decision of this case must, therefore, depend upon theappreciation of the evidence of the Returning Officer and on the applicationof the view of law taken by the Bench decision, mentioned above.

11. Mr. K. P. Varma, appearing on behalf of the respondent, who hastaken me through the entire evidence, has, on the other hand, contendedthat the petitioner knows nothing about the case and could not have beenpresent at the time of scrutiny. Further, the petitioner himself has not reliedon Ansari to prove his case because he was not one of those who were citedas witnesses or examined in the case. The petitioner was neither a proposernor an election agent of any candidate and he has only been set up by Jale-shwar Prasad, one of the defeated candidates. Learned counsel's submissionis that the evidence of the Returning Officer should be accepted and that theBench decision of this Court has absolutely no application to the facts ofthis case and as such the petition should be rejected.

12. Mr. Chatterji's contention is that even though Ansari had not madeand subscribed the requisite oath or affirmation when scrutiny of his nomi-nation papers was taken up, yet it was open to him under the law to complywith this requirement in course of the scrutiny of the nomination papers.In this connection learned counsel has contended that under sub-section (5)of section 36 of the Act the Returning Officer should have exercised his dis-cretion, as clearly he took wrong view of the law and for that reason the re-jection of the nomination papers was illegal and improper.

13. Sub-section (5) of section 36 of the Act is in the following terms:—

"The returning officer shall hold the scrutiny on the date appointed in.this behalf under clause (b) of section 30 and shall not allow anyadjournment of the proceedings except when such proceedings areinterrupted or obstructed by riot or open violence or by causesbeyond his control :

Provided that in case an objection is raised by the returning officer oris made by any other person the candidate concerned may be allo-wed time to rebut it not later than the next day but one followingthe date fixed for scrutiny, and the returning officer shall record hisdecision on the date to which the'proceedings have been adjourned."

It is urged by Mr. Chatterji that the order passed by the Returning Officeron the nomination papers (Exts. 4 and 4/1) are in these words :

E.L.R.] DURGA SINGH V. JAWAR HUSSAIN 287

"Nomination paper scrutinized. Oath or affirmation has not been madeby the candidate as required under the Constitution of India. Assuch his nomination paper is rejected."

This shows that the Returning Officer appreciated the correct position inlaw. Further, learned counsel has referred me to the order dated the 21stJanuary, 1967 (Ext. 5) of the Returning Officer passed on the petition ofAnsari, which may be usefully reproduced below in extenso :

"21-1-1967:—Scrutiny held. The nomination papers have been rejectedfor the grounds mentioned in the orders on the nominationpapers.

(Sd. Illegible).

21-1-1967."

Later—A petition has been filed by the candidate to allow him totake oath and to reconsider the orders passed in scrutinyof his nomination papers.

The candidate had been advised vide order sheet dated19-1-1967 i.e at the time of filing of nominations to take oathor affirmation before scrutiny. The Asstt. Returning Officerwas available throughout for the purpose and only after8.30 A.M. today he was deputed outside the Hqrs. forurgent official duties. I was myself available in office from8.30 A.M. The candidate could have very well taken oathor affirmation before scrutiny.

"Orders have been passed on the petition that theorders in scrutiny cannot be reviewed. The petition mayhowever be placed on the record.

(Sd/- Illegible).21-1-1967."

14. In my opinion, there is no substance in the contention raised on behalfof the petitioner. I find from the evidence of the Returning Officer that hehas stated that he rejected the nomination papers of Ansari because oathor affirmation had not been subscribed before the scrutiny, as, in his view,the absence of oath or solemn affirmation was a disqualification. He hasfurther stated that he had advised Ansari at the time of his filing the nomi-nation paper to take oath of allegiance before scrutiny. He has also statedthat he rejected the nomination papers because the same were not accompa-nied with the oath of allegiance before passing the order of rejection. He hasclearly stated that he did not think necessary at the time of scrutiny thatAnsari should take the oath. He merely told him that he ought to havetakenthe oath of allegiance before the scrutiny. It further appears from his evidencethat Ansari did not tell him any thing before he passed his order rejecting thenomination papers on the ground that there was no oath of allegiance. Fromhis evidence it is, therefore, clear that the Returning Officer had pointed outthe requirement of oath or affirmation to Ansari two days before the scrutiny,

288 DURGA SINGH V. JAWAR HUSSAIN [VOL. XXXIV

namely, when the nomination papers had been filed on 19-1-1967. The evi-dence of the Returning Officer also shows that Ansari had not made anyrequest to him before rejection. His evidence also finds support from the evi-dence of the respondent. It is not possible to accept the evidence of SudamaPandey (P.W. 1) or Hridayanand Singh (P.W. 4) who was one of the candi-dates, as quite clearly they appear to have suppressed the truth. But quiteapart from the evidence of these witness, there is another difficulty in accept-ing the contention of learned counsel because the proviso to sub-section (5)of section 36 of the Act clearly shows that the candidate concerned may beallowed time to rebut but not to remedy any defect at the time of scrutiny.In my opinion, the Returning Officer has no power to allow time suo motuand only such power is given to him as is provided in sub-section (2) ofSection 36 of the Act. The claim made in the petition (marked 'Y' for identi-fication) filed by Ansari before the Returning Officer was that he (Ansari)had prayed for time. But in the evidence the petitioner has introduced anew case that the absence of oath by Ansari was due to mistake and that hewas prepared to take the oath. In other words, there was no case that Ansarihad prayed for time. Under the proviso to sub-section (5) of section 36 ofthe Act time could only be allowed, as already stated, for rebuttal andnot for remedy of any defect. This view finds support from a decision of theSupreme Court in Rattan Anmol Singh V. Ch. Atma Ram (A.I.R. 1954Supreme Court 510). In that case various provisions of the Act and the Elec-tion Rules, 1951, were considered and while dealing with section 36 of theAct their Lordships have observed as follows:—

" Section 36 is mandatory and enjoins the Returning Officer,to refuse any nomination when there has been 'any failure to com-ply with any of the provisions of Section 33 "

"The only jurisdiction the Returning Officer has at the scrutinystage is to see whether the nominations are in order and to hear anddecide objections. He cannot at that stage remedy essential defectsor permit them to be remedied" It is true he is not to reject anynomination paper on the ground of any technical defect whichis not of a substantial character but he cannot remedy thedefect. He must leave it as it is. If it is technical and unsubstantialit will not matter. If it is not, it cannot be set right."

15. On the authority of the above decision, the view taken by the Return-ing Officer is in conformity with the provisions contained in sections 33and 36 of the Act. The purpose of scrutiny is to determine whether a candi-date, who had been nominated as such for the election, was qualified to bechosen to fill a seat in the legislature. Obviously the Returning Officer couldnot have accepted the nomination of Ansari when he found that he had nottaken the requisite oath or affirmation and, therefore, at the stage when theReturning Officer took up the scrutiny of Ansari's nomination, he had nooption but to reject it on the ground that until that stage the petitioner wasnot qualified to be chosen to fill a seat in the State Legislature. The ReturningOfficer could not have permitted Ansari to rectify the defect, which was un-doubtedly substantial unless he had postponed the scrutiny of the nominationpapers of Ansari. If the Returning Officer had adjourned, as is suggested onbehalf of the petitioner that he should have, then quite clearly under sub-section (5) of section 36 of the Act, he would have been wholly unjustified

E.L.R.] DURGA SINGH V. JAWAR HUSSAIN 289

in adjourning the proceeding relating to Ansari's nomination papers forthis purpose. The proceedings could only have been adjourned on the groundof being interrupted or obstructed by riot or open violence or by any causebeyond the control of the Returning Officer. It was quite clearly the duty ofthe Returning Officer to consider the nomination papers of Ansari as theystood, and to decide whether he should accept or reject them, but he couldnot postpone his decision one way or the other in order to enable him to rectifysubstantial defect iivhis nomination. I have already quoted the orders passedby the Returning Officer on the nomination papers as also in the order sheet,which also find support from his evidence.

16. On a scrutiny of the evidence of the Returning Officer and on perusalof the orders passed by him, I feel satisfied that the Returning Officer wasright in rejecting the nomination papers of Ansari. Sub-sections (2) and (6)of Section 36 of the Act envisage two stages in the process' of scrutiny. Inthe first stage the Returning Officer has to decide the objection to the nomi-nation and to reject it on any of the grounds mentioned in sub-section (2).In the second stage, the Returning Officer has to record on the nominationpapers his decision of accepting or rejecting the same and if he has rejectedthe nomination paper, then he has to record a brief statement of reasons forsuch rejection, which had been done by the Returning Officer (vide Exts.A, A/1 and 5).

17. As Mr. Chatterji has not referred me to any evidence in this connection,apart from the evidence of the Returning Officer and a Bench decision of thisCourt, it is not necessary to deal with them. But I am not inclined to accepthis contention that it was open to Ansari to take the requisite oath evenafter the Returning Officer had decided to reject the nomination paperson the date fixed for scrutiny. The view that I have ventured to take findssupport from a decision in Hariram Singh v. Kantaprasad Sharma (A.I.R.1966 Madhya Pradesh, 255), where precisely the interpretation of Article173 of the Constitution, as amended by the Sixteenth Amendment, has beenmade and their Lordships have in paragraph 23 of the Report observed asfollows:—

"Under section 32 of the Act—

'Any person may be nominated as a candidate for election to fill a seatif he is qualified to be chosen to fill that seat under the provisionsof the Constitution and this Act.'

Under Article 173 of the Constitution a person shall not be quali-fied to be chosen unless he makes and subscribes before some personauthorised in that behalf by the Election Commission an oath oraffirmation according to the form set out for the purpose in theThird Schedule. This form says : 'I having been nominatedas a candidate to fill a seat in the Legislative Assembly 'The form of the oath shows that it has to be subscribed to or affir-med on being nominated, which apparently conflicts with the provi-sions of section 32 of the Act, which provide that in order to be quali-fied to be chosen to fill a seat within the meaning of Article 173 ofthe Constitution the oath or affirmation has to precede the nomina-tion. In our opinion, the conflict is more apparent than real. Section

290 DURGA SINGH V. JAWAR HUSSAIN [VOL. XXXIV

32 of the Act deals with the situation which finally emerges on thenomination of a candidate being accepted. Prior to that varioussteps in the election process have to be gone through beginning with thefiling of a nomination paper before the Returning. Officer as requiredby section 33, its scrutiny under section 36, and its final acceptanceor rejection under sub-section (6) thereof. The form of the oath oraffirmation shows that it has to be subscribed to or affirmed on beingnominated, which expression in the context in which it has been usedmeans when the candidate, either in person or through his proposer,delivers to the Returning Officer in the manner and within the timeprescribed a nomination paper completed in the prescribed form andsigned by the candidate and by an elector of the constituency asproposer. It is the presentation of the nomination papers under section33 which creates an occasion for the making of oath or affirmationin terms of Article 173 of the Constitution. In this context the lan-guage of section 36(2) (a) of the Act is quite instructive. It says thatthe Returning Officer may reject a nomination if on the date fixedfor the scrutiny of nominations, the candidate either is not qualifiedor is disqualified for being chosen to fill the seat under any of thefollowing provision that may be applicable, "namely, Articles 84, 102,173 and 191". It would be observed that qualification of a candidateto fill a seat in terms of Article 173 of the Constitution has to beenquired into with reference to the date fixed for scrutiny of nomi-nations, and consequently it is on that date that the require-ments of Article 173 as regards the required oath or affirmationmust be satisfied. We, therefore, do not think that it is correct tosuggest that a nomination paper which is unaccompanied with therequired oath or affirmation as prescribed by Article 173 of the Con-stitution is an invalid nomination of a candidate who is not quali-fied to fill a seat in the Legislative Assembly of the State."

It is, therefore, clear that the qualification of Ansari to fill a seat in terms ofArticle 173 of the Constitution had to be enquired into on the day of scrutinyof nomination, namely, on 21-1-1967, and when the Returning Officer foundthat the requirements of Article 173 with regard to the requisite oath oraffirmation had not been satisfied, he was right in rejecting the nominationpapers of Ansari.

18. It also appears to me from the evidence of the Returning Officer thatthe case now set up by the petitioner that Ansari had ample time cannotbe accepted to be true. If in fact Ansari had asked for any time, then there isno reason why the Returinng Officer should not have made any endorsementon the nomination papers or in the order sheet to this effect. If what is sug-gested on behalf of the petitioner is correct, then it does not stand to reasonwhy Ansari would have taken no immediate action when his petition wasrejected and instead he would have filed a petition after sometime. Theevidence of the witnesses examined on behalf of the petitioner shows thatthere is conflict in their evidence about the actual statement made by Ansarito the Returning Officer. They are giving different versions of the case oftaking time or asking for time. It does not find support from any of the wit-nesses examined on behalf of the petitioner. On the other hand, the Return-ing Officer has given his evidence in straight forward manner and there isno reason why it should not be accepted. For these reasons I am satisfied

E.L.R.] DURGA SINGH V. JAWAR HUSSAIN 291

that the nomination papers of Ansari were rightly rejected by the ReturningOfficer on the ground that he did not fulfil the qualification for being chosento fill a seat in the State Assembly since he had not subscribed the requisiteoath or affirmation as required under Article 173 of the Constitution, eitherbefore the scrutiny of the nominations or even on the day of scrutiny at thetime he took them up for consideration.

19. There is no substance in the contention raised on behalf of the peti-tioner that the Returning Officer should have given opportunity to Ansarito comply with the provisions of Article 173 of the Constitution. Learnedcounsel's contention that the point is concluded by a Bench decision of thisCourt in Kanodia's case has RO merit, because it is distinguishable on facts.It is true that their Lordships have held that the oath prescribed under Article173 of the Constitution could be taken even after the scrutiny of the nomina-tions and before the preparation and publication of the final list of contestingcandidates envisaged by section 38 of the Act. Their Lordships observed asfollows :—•

"There will necessarily be a time lag between the date on which, afterthe scrutiny, the first list of valid ly nominated candidates is noti-fied and the date on which the list of contesting candidates is pub-lished. A person whose nomination paper has successfully passedthrough the scnitiny and is included in the list notified by the Return-ing Officer under sub-section (8) of section 36, can only be said tohave been validly nominated. The prescribed form of oath underarticle 173 will conform to that stage, which will spread fromthat date to the date when the list of contesting candidates is pub-lished under section 38, because during that period a person can saythat he has been validly nominated for the election and that will bein keeping with the text of the oath."

Ultimately their Lordships held :

"Even though all the above alternative contentions advanced for the ap-pellant cannot be accepted, his appeal will still succeed becausehe took oath immediately after the scrutiny of his no mination paperwas over and he was found to be a validly nominated candidate.That; in my view, is a time included within the period, during whichthe prescribed oath can be taken by a candidate. The view taken bythe Tribunal to the contrary cannot be sustained. The acceptance ofthe nomination paper of the appellant by the Returning Officer atthe scrutiny was not improper."

20. The facts of the present case are, therefore, clearly distinguishablefrom the facts of Kanodia's case and, as such, the view taken by their lord-ships cannot be of any assistance to the petitioner in the present case. InKanodia's case the candidate had taken the requisite oath, though he hadnot done so before the scrutiny of his nomination was taken up, but hehad taken oath immediately after scrutiny of his nomination paper was overand he was found to be a validly nominated candidate. In the present case,Ansari had not taken the requisite oath at all before the prescribed authorityeither before or after scrutiny of his nomination was taken up. In my judg-ment, therefore, the decision of Kanodia's case does not decide the point

292 DURGA SINGH V. JAWAR HUSSAIN [VOL. XXXIV

arising in this case nor is it authority for the proposition which has fallenfor consideration in the present case. ,1, therefore, hold that the decision inKanodia's case can have no application to the present case.

21. On a consideration of all the facts and circumstances arising in thecase, 1 am of opinion that there is no merit in this election petition and, there-fore, I decide the issues framed in the case as follows:—

(i) Issue Nos. 1 and 2 are decided in favour of the petitioner.

(ii) Issue Nos. 3 and 4 are decided against the petitioner. I, therefore,hold that the nomination papers of Neyamtulla Ansari were pro-perly and legally rejected and, as such, the election of the respondentis not fit to be declared as void.

22. Accordingly, this election petition fails and is dismissed with costs.Hearing fee Rs. 250/- only.

Petition Dismissed.

IN THE HIGH COURT OF MADHYA PRADESH AT JABALPURLAXMAN PRASAD VAIDYA

V.

GANGADHAR YADAORAO TAMASKAR AND OTHERS(SURAJBHAN GROVER, J . )

December, 19, 1967

Representation of the People Act, 1951, Ss. 82, 8.3, Sub-Section (1)—Affidavit—Omission of some items in the petition which do not dealwith facts of corrupt practice—Whether fatal—S. 117 Security depositreceipt in different form—Whether fatal—Corrupt practice—Burdenof proof-—Requirements of Election Law—Respondent's failure tospecifically or by implication deny the allegations—Effect of-—Ballotpapers issued are not accounted for—Whether attracts Section 100(1)(d) (Hi)—Vague and general allegations—Vague allegations of impro-per rejection of valid votes and improper acceptance of invalid votes—Whether comes within the scope of Section 83(1) (a)—Plea for inspec-tion and recount of votes—Evidence—Requirements of law—ReturningOfficer made a party on allegations of bad faith, negligence and pro-priety— Whether petition liable for dismissal for misjoinder of parties.

The petitioner, a defeated candidate, challenged the election of the firstrespondent to the Madhya Pradesh Assembly on the grounds, inter alia,that there was improper reception or rejection of votes; and that the firstrespondent or his agents, with his consent, had committed corrupt practices,which had materially affected the result of the election. The petitionerfurther prayed for an inspection and recount of votes. The first respondentcontested and denied the allegations.

E.L.R.1, L. P. VAIDYA V. G. Y. TAMASKAR AND OTHERS 293

HELD : Dismissing the petition:

(i) In the copy of the affidavit supplied to the respondent, non-men-tioning of some paras of the petition, which do not deal with the facts ofany corrupt practice, does not attract Section 83(a) and (b) of the Act andsuch omission is not fatal to the petition.

Dwarkaprasad Mishra {Pandit) v. Kamalnarain Sharma, 1964 M.P.L.1682; Murarka Radhey Sham Ram Kumar v. Roop Singh Rathore and others,A.I.R. 1964 S.C. 1545; Ch. Subbarao v. Member Election Tribunal Hydera-bad and others, A.I.R. 1964 S.C. 1027 and Dr. Anup Singh v. Shri AbdulGhani and others, A.I.R. 1965 S.C. 815; referred to.

(ii) When a receipt of security deposit has been filed which was not inaccordance with the amended form made by the High Court Rules, the wrongform of the receipt is not fatal to the petition since it complies substantiallywith provisions of Section 117 of the Act.

Chandrika Prasad Tripathi v. Shiv Prasad Chanpuria, 21, E.L.R. 172and Kamaraja Nadar v. Kunju Thevar and others, 14 E.L.R. 270; referred to.

(iii) The statutory requirements of Election Law must be strictly observ-ed since it is a purely statutory proceeding unknown to the common law andthe court possesses no common law powers. The petitioner has to provethe corrupt practices alleged by him against the respondent. The petitionercannot claim his allegation as proved on the ground that the respondenthas not specifically or by necessary implication denied any point or his denialsimpliciter and the burden of proof is on the petitioner to prove his allega-ti ons.

Jagannath v. Jaswant Singh, 9 E.L.R. 231; Harish Chandra v. Trilok.Singh, 12 E.L.R. 461; Smt. Sarla Devi v. Birendar Singh A.I.R. 1961, M.P127; Dr. Jagjit Singh v. Gyani Kariar Singh, A.I.R. 1966, S.C. 773; BhagatSingh v. Jaswant Singh, A.I.R. 1966, S.C. 1861; Didar Singh Chhada v. SohanSingh, A.I.R. 1966 Punjab 282; Govindram v. Gulab Rao, A.I.R. 1949, Nag.394; Kishan Singh v. Bhanwarlal, 1966, E.P.L. J. 563; The Union of Indiav. Pandurang Kashninath More, A.I.R. 1962, S.C. 630; and Jagjit Singh v.Gyani Kariar Singh, A.I.R. 1966, S.C. 773: Jagdev Singh v. Pratap Singh,A.I.R. 1965 S.C. 183; Abdul Majeed v. Bhargavan, A.I.R. 1965 Kerala 18and Lalsing v. Vallabhdas, A.I.R. 1967, Gujarat 62; referred to.

(iv) If all the ballot papers that had been issued to the voters had notbeen accounted for, it does not bring the case within the purview of Section100(l)(d)(iii) of the Act.

Champa Devi v. Jamuna Prasad, 15 E.L.R. 443; referred to.

(v) Vague or general allegations that valid votes were improperly re-jected or invalid votes were improperly accepted could not serve the pur-pose of Section 83(1) (a) of the Act. The petitioner has to make out a primq

facie case for an inspection of the ballot paper or for a recount of votes;there should be sufficient evidence on record to show that any viola-tion of the Rules has in fact taken place and there should be evidence toconclude that it has in any way materially affected the result of the election.

294 L. P. VAIDYA V. G. Y. TAMASKAR AND OTHERS [VOL. XXXIV

Inayatullah v. Diwanchand, A.T.R. 1959, M.P. 58; Keshaoprasad v. A.D.Mani. Doabias Election Cases 133; Hukamsingh v. Banwarilal Bipra, A.I.R.1965, All. 552; Brij Sunder v. Shri Ram Duti, A.I.R. 1944, Raj. 99; Ram-sewak v. Hussain Kamil Kidwai, A.I.R. 1964, S.C. 1249; Jagjit Singh v.Kartar Singh, A.I.R. 1966, S.C. 773; Martin Bum Ltd. v. B.N. Bannerjee,A.I.R. 1958 S.C. 79; Buckingham & Carnatic Co. Ltd. v. The workers ofthe company, 1952 Lab. A.C. 490; referred to.

(vi) When a Returning Officer has been made a party and there are alle-gations of bad faith, negligence and lack of propriety, the petition is notliable to be dismissed under Section 86(1) and for non-compliance of Sec-tion 82 of the Act on the ground of his being an unnecessary party to anelection petition.

Dwigendra Lai Sen Gupta v. Hare Krishna Konar, A.I.R. 1963, Calcutta,1218; followed.

Vidyacharan Shukla v. G.P. Tiwari, Dist. Judge, Member Election Tri-bunal and others, 1963, M.P.L. J. 688; Murarka Radhey Shyam Ram Kumarv. Roop Singh Rathore and others, A.I.R. 1964 S.C. 1545; and Har Swampand another v. Brij Bhushan Saran and others, A.I.R. 1967, S.C. 836; referredto.

Election Petition No. 31 of 1967.

R. K. Pandey and I. S. Mishra for the Petitioner.

Y. S. Dharmadhikari, M. L. Chansoria, G. D. Agarwal and W. Y. Rajim-wale for Respondent No. 1.

ORDER

SURAJBHAN GROVER, J. :—This is an Election Petition under Sec-tions 80 and 81 of the Representation of People Act, 1951 (hereinafter calledthe Act) by Shri Laxman Prasad Vaidya, a defeated candidate of the Con-gress from the Bemetara Constituency, to challenge the election of respon-dent No. 1, Shri Gangadhar Yadavrao Tamaskar, an Independent candi-date, who was declared elected on 22-2-1967, praying that the election ofrespondent No. 1 be declared void and the votes cast be ordered to be scru-tinised and re-counted and after rejecting such of them as are invalid underRule 56(2) and (3) of the Conduct of Election Rules, 1961 and if it is foundthat the petitioner has secured more votes than respondent No. 1, he may bedeclared elected. The respondent No. 1 has secured 12,319 and the peti-tioner 12,024 votes respectively.

2. All the five respondents who had filed their nomination papers hadgiven their first preference for the symbol 'rising sun', but the 'rising sun'symbol was a free symbol in the last Assembly election and according tothe toss between respondent No. 1 and respondent No. 3, Shri Brijraj Singhwas allotted this symbol having won the toss. Respondent No. 1, thoughhe had also given his first preference for the 'rising sun' symbol, relinquishedhis right and got the 'Bicycle' symbol, which was his second choice.

E.L.R.] L. P. VAIDYA V. G. Y. TAMASKAR AND OTHERS 2 9 5

3. The petitioner has alleged in his petition that respondent No. l,hisagents and workers with his consent have committed corrupt practices,which have materially affected the result of the election and they are as givenbelow:—

(i) That Yuvraj Singh, respondent No. 3, had started his election worksome months before the election and canvassed for symbol 'risingsun', thinking that it still continued to be the symbol of the RamRajya Parishad, as it was in the 1962 election, but having knownafterwards that it was a free symbol and all the respondents havinggiven their first choice for it got discouraged and gave out that hewill withdraw from the contest. Respondent No. 1 taking advan-tage of this situation went many a time to his house between 20-1-1967and 23-1-1967 and ultimately prevailed upon him not to withdrawfrom the election on 21-1-1967 and for that purpose he promisedto provide him with a free jeep for his election campaign, with theresult that respondent No. 3 decided to contest the election;

(ii) That on 19-2-1967 respondent No. 1 went to village Behara to can-vass for himself and he was told by the Harijan voters of the villagethat they had already decided to vote for the candidate who willget the parapet wall of their well repaired. Respondent No. 1agreed to this proposal and paid Rs. 100/- to one Patwari S/o. JhaduSatnami for the purpose of repairing the well with a view to inducethe voters to vote for him and to refrain from voting for the peti-tioner;

(Hi) That at Devada polling-booth on 20-2-67 one Harijan, Hiramanby name, touched the well situated within 100 meters oTthe pollingbooth by drawing water therefrom at the instance of the canvassersof respondent No. 1. The caste-Hindus got annoyed at this withHiraman and one Laxminath, who was the worker of the petitioner,as if all this was done by the petitioner. It is alleged that Mr. Ram -bharose, Bulakiram and Jogiram, a polling agent of respondentNo. 1, took advantage of the situation and falsely gave out that thshas happened when the Congress has still not won the election andif the Congress candidate wins it your women folk could be moles-ted by the Satnamis. Jogiram also took out a bundle of currencynotes from his pocket and showed it to the persons gathered theretelling them that in case they vote for respondent No. 1, he wouldarrange to get a new well constructed;

(iv) That on 19-2-1967 respondent No. 1 went to village Ninwa to thehouse of one Gaya s/o. Rahanch and paid him Rs. 10/- for induc-ing Gaya and the members of his family to vote for him;

(v) (a) That on 20-2-1967 one Rajendra Gupta, a polling agent of res-pondent No. 1, and Dr. C. P. Agarwal, his election workerwent to village Boria and arranged with the one Halal for hiringcarts to transport voters from his village to the polling stationat Behara and 40 persons were thus taken to the polling stationin bullock-carts;

(b) That a large number of voters from this village were going tothe polling booth to vote, but Rajendra Gupta falsely told them

2 EC/71—20

296 L. P. VAIDYA V. G. Y. TAMASKAR AND OTHERS [VOL. XXXIV

that the Congress had arranged a transport for them and whyare they going on foot. In the meantime he asked Phulchandto go there and send the Congress vehicle. Phulchand on hisreturn informed those voters at about 5 P.M. that there wasno arrangement for the vehicle, with the result that these voterscould not go to vote on account of this false statement madeby Rajendra Gupta;

(vz) (a) That one criminal case against Attarsingh under the Prohi-bition Act was pending in the Court of Shri Mehre, a Naib-Tahsildar and Magistrate at Bemetara. Sajjansingh, an in-fluential person of Bemetara and who was a supporter of thepetitioner in 1962 election, is a relation of Attarsingh. ShriB.B. Bajpai Advocate, Bemetara, a friend and an active workerof respondent No. 1, took Sajjansingh on 8-2-1967 to ShriMehre's house and he was assured all help in connection withthat criminal case and it was done at the instance of respon-dent No. 1, Sajjansingh was then asked to canvass for respon-dent No. 1 and which he ultimately did;

(b) Similarly, a criminal case against one Uderam, a Leader ofthe Kalars, was pending in the Court of Shri Mehre and ShriMehre asked Uderam to work for respondent No. 1;

(c) Shri Mehre was also attending the private election meetingsof respondent No. 1 in the house of Shri Ramkumar Tiwari,Advocate, Bemetara, in order to further the prospects of res-pondent No. l's election.

(vii) That one Lakhanlal Mishra, Head Master of Government PrimarySchool, Shinderi, canvassed for respondent No. 1 with his consentfor a fortnight before the election and even after his posting as apolling officer there he continued his canvassing work and a com-plaint to this effect was made;

(viii) That respondent No. 1 himself, his agents and workers made a falsepropaganda in the Constituency that the Congress is the sinneragainst mother cow and distributed pamphlets, with the result thatit has materially affected the result of respondent No. 1, as a largenumber of voters, who would have voted otherwise for the peti-tioner have either voted for respondent No. 1 or not voted at all;

(ix) That there has been a non-compliance of the provisions of the R.P.Act, 1951 and the Rules made thereunder and they are:

(i) that about 100 persons had already assembled in the compoundof the polling booth at Basni before 4.45 P.M. and out of these asmentioned in the petition 70 persons were not allowed to vote anda written complaint to this effect was made by 17 persons. Thus,there has been a violation of the mandatory provision of Rule 43of the Conduct of Election Rules, 1961 and S. 62 of the Act. It isfurther alleged that on 20-2-1967 at Chandnu polling booth whenthe polling had already stopped and the ballot boxes had been seal-ed, the Presiding Officer had broken open the seal at the request ofRamavatar alias Nakchedupiasad, polling agent of respondent

E.L.R.] L. P. VAIDYA V. G. Y. TAMASKAR AND OTHERS 297

No. 1, to allow Dukhitram Kotwar of Chandnu to cast his voteand a written complaint about it was made to the Presiding- Officer;

(x) That on 20-2-1967 the Presiding Officer at Behara polling boothhad broken the seals of one ballot box when it had been alreadysealed and there was a breach of the mandatory provision of theConduct of Election Rules;

(xi) That the poll at Behara polling booth was conducted in a leisurelymanner with the result that 100 persons who had gone to the poll-ing booth to cast their votes could not do so;

(xii) (a) That at Bemetara booth No. 99, 687 ballot papers were issuedto the voters, but at the time of counting 684 ballot papers werefound. On 3-2-1967 two ballot papers were found inside thetable in a School, which were deposited with the police station.It has also been further alleged in para 14(6), (7) & (8) of thepetition that the ballot papers were found missing at 9 moredifferent polling booths and there is no account of 196 ballotpapers. A grievance is also made in the final statement pre-pared by the Presiding Officer that the ballot papers were foundwith a seal of Blue colour, which was not issued by the Dis-trict Election Officer, Durg, and those ballot papers should havebeen rejected—

(b) The petitioner has also alleged that on 22-2-1967 he made anapplication for recounting of the votes as many ballot paperswhich ought to have been rejected were treated as valid votes,but it was rejected and the Returning Officer in rejecting theapplication has acted against Rule 63 of the Conduct ofElection Rules, 1961;

4. Respondent No. 1 contested the election petition and filed his writ-ten-statement. The rest of the respondents were proceeded exparte. Thename of respondent No. 6 was deleted from the array of respondents by myorder dated 27th July, 1967.

5. Respondent No. 1 has denied all the allegations of corrupt practicesmade against him. As regards the allegation No. 1, he averred that he didnot go to the house of respondent No. 3 as alleged by the petitioner andnever promised him to provide with a jeep for his election compaign in casehe did not withdraw. He has also denied having made any other officerof any gratification to him not to withdraw and ultimately he did not with-draw from the contest. It is also denied that this constitutes a corruptpractice under Section 123(l)(a)(d) of the Act. He has denied having gone

•to village Behara and giving of Rs. 100/- to one Patwari for the repairs ofthe well meant for the Harijan community as alleged by the petitioner toinduce the voters to vote for him and refrain from voting for the patitioner.He has also denied that any incident regarding the well in the polling boothat village Devada as alleged by the petitioner took place. He said that nofalse statement was made either by Dr. Rambharose or his polling agentBulakiram or Jogiram as per allegations of the petitioner and Jogiram didnot take out a bundle of currency Notes from his pocket and gave an assu-rance that he will get another well constructed. It is also denied that Jogi-

298 L. P. VAIDYA V. G. Y. TAMASKAR AND OTHERS [VOL. XXXIV

ram acted with the consent of the answering respondent or committed anysuch corrupt practice as alleged by the petitioner. The answering respon-dent has denied having gone to village Ninwa on 19-2-1967 and giving ofRs. 10/- to one Gaya for inducing him as well as the members of his familyto vote for him. Respondent No. 1 has also denied having gone to Berlavillage before 20-2-1967 with Rajendra Gupta, Jogiram, Dr. C.P. Agarwalor Dr. Rambharose. It is further averred that no carts were secured byRajendra Gupta on payment of Rs. 50/- for the purpose of transporting ofvoters from that village to the polling station Behara. It is further deniedthat Rajindera Gupta had made a false statement to the voters that a trans-port had been arranged by the Congress to transport the voters to the pollingstation. He has further averred that the aforesaid persons were neitherasked by him either to arrange for the transport for the voters or any furtheracts, as alleged by the petitioner. It is denied that" Shri B.B. Bajpai, Advo-cate, is a friend of respondent No. 1 and further that he is a fast friend ofShri Mehre, Naib-Tahsildar and Magistrate Bemetara, It is also deniedthat respondent No. 1 with Shri B.B. Bajpai went to his house Sajjansinghin the presence of Mohansingh, a petition-writer of Bemetara, to use hisservices on the ground that they wilt help him in connection with a Criminalcase pending against Attarsingh. It is also denied that on 3-2-1967 ShriB.B. Bajpai and Sajjansingh had gone to the house of Shri Mehre with aview to ask him that he should work for respondent No. 1. As regardsUderam, it is denied that Shri Mehre had asked him to work for respon-dent No. 1 and, not for the petitioner. He has also said that Shri Mehrenever attended any election meeting at the house of Shri Ramkumar Tiwariin order to further the election prospects of respondent No.l. It is not ad-mitted that Shri Lakhanlal Mishra, Head Master of the Government Pri-mary School Sinderi, has canvassed for respondent No. I. As regardsthe propaganda and attack on the Congress, policy on cow-slaughter, theanswering respondent has denied this allegation and said that no such pro-paganda was made either by him or by his agents or any of his workers withhis consent. The issuance as well as the distribution of the pamphlets isalso denied and it is further said that the particulars of the distribution arevague. The answering respondent has also said that he had no knowledgeas to whether there was any pamphlet published byjthe Ram Rajya Parishadin the name of style of 'SWAMI KARPATRDI MAHARAJ' and he hadno connection with any such publication. He has further said that neitherany corrupt practice was practised by respondent No.l as alleged againsthim, nor any corrupt practice has materially affected the result of the elec-tion. The other allegations made by the petitioner as regards the non-compliance with the provisions of the Act or Rules made thereunder arealso denied. He said that no case for general or partial re-count is madeout without disclosing any ground and the counting was done properly andaccording to the Rules. The other objections raised by respondent No. 1arethat the petition has not been properly presented as required by S. 81

of the Act and the deposit has not been made in conformity with S. 117 oft e Act and further the petition is bad for misjoinder of parties as the Re-

turning Officer, who was never a candidate at the election, has been joinedas a party, and, therefore, the petition is liable to be dismissed summarilyunder S. 86(1) of the Act. It is also averred that the affidavit filed by thepetitioner is not in conformity with the provisions of S. 83 read with Rule94 (a) and Form 25 and, therefore, the allegation regarding corrupt practicecannot go for trial. He has also said that the verification of the petition

E.L.R.] L. P. VAIDYA V. G. Y. TAMASKAR AND OTHERS

is defective and is not according to law.

299

6. On the pleadings of the parties, the following issues were framed:—

ISSUES FINDINGS

1. Is the petition not presented as required by S.81of the R.P. Act, 1951, and what is its effect?

2. Is the deposit not made as required by S.of the Act, and if so, what is its effect?

117

3. Is the petition had for misjoinder of partiesbecause the Returning Officer, who was not acandidate at the election has been joined as aparty, and does the petition deserve, to be dis-missed u/s 86(i) of the Act for non-complianceof the provisions of S. 82?

4. Is the affidavit filed with the petition not inconformity with the provisions of S. 83 readwith Rule 94(A) and Form 25, provided bythe R.P. Act, and what is its legal effect?

Decided in favour ofthe petitioner.

Decided in favour ofpetitioner.

Decided in favour ofpetitioner.

Decided in favour ofthe petitioner.

5. Is the verification of the petition not in accor- Petitioner directed todance with Order 6, R. 15 C.P.C. and if so, what verify the petitionis its effect? according to O.6, R. 15

(2) CPC.

6. Did respondent No. 1 go to the house of ShriYuvrajsingh, respondent No. 3, several timesbetween 20-1-67 and 23-1-67 and was it on21-1-67 that he promised to provide a jeep forhis election campaign free, provided he didnot withdraw from the contest, and if so,whether it constituted a corrupt practice underSection 123(l)(A)(d) of the R.P. Act, 1951.

7. Whether respondent No. 1 went to the villageBehara (polling booth No. 23) on 19-1-67 andgave Rs. 100 to Jhadu Patwari on being toldby the Harijan voters that they would vote forthe candidate who would stand the repairs oftheir well, and if so, does not it amount to acorrupt practice u/s 123 (l)B(b) of the R.P. Act,1951.

8. (a) Whether Hiraman Harijan touched thewell situated within one hundred metersof the polling booth on 20-2-1967 at thenstance of the canvassers of respondent

No. 1, on the polling day, at village

Decided in favour ofrespondent No. 1.

Decided in favourrespondent No.l.

of

Decided in favour ofrsjpondent No.l.

300 L. P. VAIDYA V. G. Y. TAMASKAR AND OTHERS [VOL. XXXIV

Devada, and whether the Caste Hindus gotannoyed and did Dr. Rambharose Parga-niha, worker of the respondent No. 1 andBulakiram, a polling agent for that boothunder the words given in para 10(111) ofthe petition, and whether the Caste Hindusgot annoyed, and did not cast their votesfor the petitioner, corrupt practice u/s123(1) and (4) of the R.P. Act ?

(b) Whether Jogiram taking advantage of thesituation took out a bundle of currencyNotes from his pocket and said that hewould get another well constructed ifthey voted for respondent No.l, with theconsent of respondent No. 1. and does itamount to a corrupt practice under S. 123of the R.P. Act ? •

(c) Whether respondent No. 1 had gone tothe house of one Gaya son of Rahanchand paid him Rs. 10 and induced himand the members of his family to vote forhim, and if so, what is its effect ?

(d) Whether Rajendra Gupta of the villageBehara was, at polling booth No.173, thepolling agent of the respondent No. 1 andDr. C. P. Agarwal, his election worker,and they visited village Boria on 20-2-67and paid Rs. 50 to one Halal, son ofBodhan for transporting 40 voters ofhis village to the polling centre No. 73, asalleged in para. 10 (v) of the petition, anddoes it amount to a corrupt practice with-in the meaning of S. 123, R.P. Act ?

9. Whether Rajendra Gupta falsely told thevoters of the village Boria that Congress vehi-cle was coming to fetch them and that nosuch vehicle will be coming and, wasthis a false statement to his knowledge whichresulted in many voters refraining from votingas by then it had already become 5 P.M. anddoes this amount to a corrupt practice u/s.123 (5) and 123(2) of the R.P. Act?

10. (a) Whether Shri B.B. Bajpai, Advocate, afriend of respondent No. 1 is a fast friendof Shri Mehre, Tahsildar and Magistrate,and whether any case against Shri Attar-singh, a close relation of Sajjansingh,was pending under the Prohibition Act,

Decided in favourof respondent No. 1.

Decided in favour ofrespondent No.l.

Decided in favour ofRespondent No.l.

Decided in favour ofrespondent No.l.

Decided in favourrespondent No. 1.

of

E.L.R.j L. P. VAIDYA V. G. Y. TAMASKAR AND OTHERS 301

FINDINGS

Decided in favour ofrespondent No.l.

Decided in favour ofrespondent No.l.

Decided in favour of-respondent No.l.

ISSUES

and whether Shri Bajpai and respondentNo. 1 had gone - to the house of ShriSajjansingh and talked to him, and if so,what is its effect ?

(b) Whether Shri Mehre asked Sajjansinghon 8-2-67 at his house in the presence ofShri Bajpai and Sajjansingh while ShriMohansingh was waiting outside for themnot to vote for respondent No.l and if so,with what effect?

11. Whether Shri Mehre at the instance of ShriBajpai asked Uderam, the Leader of Kalarsand resident of Nagadha, to work for res-pondent No.l. when a criminal case against

. him was pending in his Court?

12. (a) Whether Shri Mehre attended the privateelection meeting of respondent No.l in thehouse of Shri Ram Kumar Tiwari, Advo-cate, to further the election prospects of res-pondent No. 1 and took active part inthis and does this amount to a corruptpractice u/s. 123 of the R.P. Act, 1951 ?

(b) Whether Shri Lakhanlal, Head Master ofGovernment Primary School Shinderi(polling booth No. 39) was canvassinga fortnight before the election for res-pondent No. 1 with his consent, and whetherthe petitioner made a complaintabout it to S.D.O. Bemetara, on 9-2-67,and again a complaint to the AssistantReturning Officer on 19-2-67 and also asimilar complaint to the Divisional Edu-cation Officer on 19-2-67 and what is itslegal effect?

13. Whether Shri Mehre was canvassing for res- Decided in favour ofpondent No.l in the Shinderi Booth in the respondent No.l.capacity of Polling Officer and persisted in itafter being warned by the Presiding Officer onthe written report of the petitioner and doesthis amount to a corrupt practice u/s. 123 of theR.P. Act?

Decided in favour ofrespondent No.l.

14. (a) Whether respondent No.l formed a partyand Ram Rajya Parishad candidate, res-pondent No. 3 in Bemetara constituency,made an attack on the Congress policy

Decided in favour ofrespondent No. 1.

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on the cow-slaughter, with his agents andworkers, and branded the Congress assinner against mother cow and wasthis a false statement and constituted acorrupt practice u/s. 123 of the R. P. Act ?

(b) Whether with the consent of respondentNo.l. respondent No.3, got the pamphletswith the headings "HATHYARON KOVOTE DEKAR PAP DE BHAGI NABANE". "CONGRESS SARKARBADALO', MAHATMA JI KE PRANSANKAT ME" and "GO-HATHYA-RON KO VOTE NA DEN, PUJYAKARPATRIJI MAHARAJ KA SAN-DESH", distributed and does its con-tents constitute a false statement underSection 123 of the R.P. Act. 1951?

15. Whether the corrupt practices alleged to becommitted by the respondent No. 1 materiallyaffected the result of the election and what isthe legal effect?

Decided in favour ofrespondent No. 1.

Decided in favour ofrespondent No. 1.

Decided in favour ofrespondent No. 1.

Decided in favour ofrespondent No. 1.

16. Whether at Basni polling booth No. 43 thePresiding Officer did not allow 70 persons tovote as the chits given to them by the Patwariwere unsigned by the Presiding Officer as de-tailed in para 14(1) of the petition, and whethertwo complaints made by Chaitram and Sunder-lal were not accepted by the Presiding Officerand was there a violation of the provisions ofRule 43 and 62 of the Conduct of ElectionsRules, 1961 ?

17. Whether the Presiding Officer in Chandnupolling booth, on 20-2-67, allowed Chandnu'sKotwar to vote in the circumstances men-tioned in para 14(i) of the petition while break-ing the seal of the ballot box at the instance ofthe polling agent of the respondent No.l, afterit was sealed inspite of protests, and does thisamount to violation of Rule 43 of the Con-duct of Elections Rules, 1961?

18. Whether the Presiding Officer opened the sealof the ballot-box in the circumstances men-tioned in para 14(111) of the petition, at Poll-ing Booth No. 4. a Berla on 20-2-67, afterit was once sealed by tthe polling agents of thecandidates and what is its legal effect?

19. Whether 100 people including Bhola and Decided in favour of

Decided in favour ofrespondent No. 1.

E.L.R.] L. P. VAIDYA V. G. Y. TAMASKAR AND OTHERS 303

Lalkhan could not vote at the polling booth. of Berla (Booth No. 64) on account of the inac-

tion of the Presiding Officer and what is itseffect?

20. Whether there was any tempering with theballot-box as detailed in para. 14(V) of the peti-tion and is the election rendered void on thisaccount?

21. Whether one ballot paper at the time of count-ing in 9 polling stations as detailed in para.14(VI) of the petition was found missing ineach of the polling station and what is itseffect?

22. Is the final statement in Form No. 16, Part I,lacking materially in the information as regardsthe issue of 196 ballot papers bearing serialNos. 12999 to 13193 and 13200?

23. Whether there was a breach of any Rule of theConduct of Elections Rules, 1961, as detailedin para. 14(VIII) of the petition, and what is itseffect?

24. Whether there was breach of the Rules 55(3),58(1) and 56(2) of the Conduct of ElectionsRules, 1961, as detailed in para. 14(IX) ofthe petition and has it materially affected theresult of the election?

25. Is the petitioner entitled to recount or in thealternative recount of rejected ballot papersin the circumstances mentioned in para. 15 ofthe petition ?

26. Whether paragraphs 10(111), lO(yill), 13 to15 and 18 of the election petition, lack inmaterial particularly and so are liable to bestruck off ?

respondent No. 1.

Decided in favour ofrespondent No. 1.

Decided in favour ofrespondent No. 1.

Decided in favour ofrespondent No. 1.

Decided in favour ofrespondent No. 1.

Decided in favour ofrespondent No. 1.

Decided in favour ofrespondent No. 1.

The petitioner wasasked to supply thenecessary particularsvide order dated27-7-1967.

7. The preliminary issues Nos. 1,2, 3,4 & 5 were decided by my orderdated'15-7-1967 and issue No. 26 was decided by my order dated 27-7-67.

8. Issue No. 6

The allegation concerning this issue is contained in para. 10(1) of thepetition and in short it is that respondent No. 3 Yuvrajsingh, who was aRam Rajya Parishad Party candidate, started his propaganda for the 'risingsun' in the jeep on which the words 'SANMARG' were painted, some timebefore the election and after filing his nomination paper and before its with-drawal he came to know that the 'rising sun' symbol is a free symbol and

304 L. P. VAIDYA V. G. Y. TAMASKAR AND OTHERS [VOL. XXXIV

perhaps he may not be allotted the same. He got discouraged and it isalleged that respondent No. 1 took advantage of this situation and went tothe house of respondent No. 3 on 21-1-1967 and requested him not to with-draw and in lieu promised a jeep for his election campaign and the ultimateresult of it was that he did not withdraw and contested the election. Res-pondent No. 1 in para. 4 of his statement has denied that respondent No. 3was having his election propaganda many months before the election andhe also denied that respondent No. 3 got discouraged that he may not getthat symbol and further denied that he went to the house of respondent No.3 between 20-1-1967 to 23-9-1967 and also on 21-1-1967 and promised thathe would provide him with a jeep for his election campaign, provided he didnot withdraw. He, however, admitted that the 'rising sun' symbol was a freesymbol in the last 1967 Assembly elections.

9. Before discussing the evidence on record as regards the corruptpractices alleged in the petition it will be proper to recapitulate certain well-established principles in this behalf which govern the decision of the electiondisputes and they are as under:

(;) the charges of corrupt practices are criminal in character and theallegations relating thereto must be sufficiently clear and precise tobring home the charges to the candidate;

(7i) success of a candidate, who has won at the election, should not belightly interfered with and any petition seeking such an interferencemuch conform to the requirements of law; and

(Hi) one of the essentials of the Election law is, also to. safeguard thepurity of the election process and to see that people do not get electedby corrupt practice;

(See Jagannath v. Jaswant Singh:^) and Harish Chandra v. TrilokiSingh:(2) It is also necessary to keep in mind the observations of theSupreme Court in Jagannath v. Jaswant Singh(x) to the effect that the statu-tory requirements of the Election, Law must be strictly observed and thatan election contest is not an action at law, or a suit in equity, but it is pure-ly a statutory proceeding unknown to the common law, and the Court pos-sesses no common law powers. In the light of the principles enunciatedabove, it is to be seen how far the petitioner has succeeded in proving thecorrupt practices alleged by him against the respondent.

10. Shri R. K. Pandey, learned counsel for the petitioner, in the courseof his arguments has invited my attention to the provisions of Order 8 Rule5 C. P. C. and contended that respondent No. 1 wherever either specificallyor by necessary implication has not denied any fact alleged against him inthe petition, it should be taken as admitted and in support of his conten-tion has cited the rulings reported in Smt. Sarla Devi v. Birendra Singh(3),Dr. Jagjit Singh v. Gyani Kartar Singh(4), Bhagat Singh v. Jaswant

(1) 9 E.L.R. 231.(2) 12 E.L.R. 461.(3) A.I.R. 1961 M.P. 127.(4) A I R . 1966 S.C. 773.

E.L.R.] L. P. VAIDYA V. G. Y. TAMASKAR AND OTHERS 305

Singh{s), Didar Singh Chheda v. Sohan Singh(6), Gobindram v. Gulab Rao{Kishore Singh v. Bhanwarlal)(J). It is not necessary to discuss this aspect of thecase very elaborately as the matter is clinched by the rulings of the SupremeCourt. It is true that the whole object of the pleadings is to bring the partiesto an issue and the Rules relating thereto as contained in Order 6, C.P.C.,were meant to prevent the issue being enlarged so that the parties may bebrought to definite issues and thereby to diminish expense and delay especial-ly as regards the amount of testimony required on either side at the hearing.Order 8 Rule 5 C.P.C. is very clear and it says that "every allegation of factin the plaint, if not denied specifically or by necessary implication, or statedto be not admitted in the pleading of the defendant, shall be taken to be ad-mitted except as against, a person under disability"; provided that the Courtmay in its discretion require any fact so admitted to be proved otherwisethan by such admission. The importance of this Rule lies in the fact thatthose facts which are admitted by an adverse party need not be proved asadmissions itself being a proof and no other proof is necessary. But thereis a proviso to this Rule and according to it, it is left to the discretion of theCourt to require any fact so admitted to be proved otherwise than by suchadmission. It has also to be noted as laid down by their Lordships of theSupreme Court in The Union of India v. Pandurang Kashinath More(s)that when the allegations made are of a general nature, the answer naturallywill be of the same nature and the petitioner will not be heard to make anygrievance on this account. The complete answer to the argument of ShriPandey is given by the Supreme Court in paragraphs 25 and 26 of a casereported in Dr. Jagjit Singh v. Gyani Kartarsingh(4), which I would like toquote in extenso:

"We are not impressed by this argument. In considering the questionas to whether the strict rule of pleadings prescribed by Order 8 R. 5, appliesto election proceedings with all its rigour, we must bear in mind the fact thatthe charge like the present is in the nature of a criminal charge and the pro-ceedings in respect of its trial partake of the character of quasi-criminal pro-ceedings. It is true that S.90 of the Act provides that subject to the provi-sions of this Act and of any rules made thereunder, every election petitionshall be tried by the Tribunal, as nearly as may be, in accordance with theprocedure applicable under the Code of Civil Procedure, 1908, to the trialof suits. This provision itself emphasises the fact that the whole of theCivil Procedure Code is not fully applicable. What the section providesis that the proceedings should be tried "as nearly as may be" according tothe Code of Civil Procedure. If the contention raised by Mr. Garg is accep-ted at its face value, it may logically lead to this consequence that if a re-turned candidate does not controvert the allegations made by the petitionerin his election petition alleging the commission of a corrupt practice by thereturned candidate, a finding would have to be made in favour of the peti-tioner without any evidence at all. In other words, the question is : cana corrupt practice prescribed by S. 123(4) of the Act be held to be provedmerely on the ground that no specific denial has been made by the returnedcandidate in his written-statement in that behalf ? In considering this point,

(4) A.I.R. 1966 S.C. 773(5) A.I.R. 1966 S.C. 1861(6) A.I.R. 1966 Punjab 282(7) 1966 M.P.L.J. 563(8) /.I.R.1962 S.C. 630

306 L. P. VAIDYA V. G. Y. TAMASKAR AND OTHERS [VOL. XXXIV

we cannot overlook the fact that the onus to prove the essential ingredientsof S.I23(4) is on the petitioner, and so, it would be for him to prove that thestatement is false, and that the other requirements of the section aresatisfied. Having regard to the nature of the corrupt practice which is pres-cribed by S. 123(4), we are not prepared to hold that the strict rule of plead-ings prescribed by Order 8, Rule 5 of the Code can be blindly invoked inelection proceedings of this type."

Their Lordships further observed that "besides, it is plain that there isa proviso to 0.8, R. 5 which, in terms, confers jurisdiction on the Courtthat even if a fact can be deemed to be admitted by virtue of the said rule,it may nevertheless be proved otherwise than by such admission. This pro-viso clearly shows that even in civil proceedings to which the Code applies,it is open to the Court to exercise its discretion and require a party to provea fact even though an admission of the said fact by the opponent can beinferred by the strict application of 0.8, R.5; and that is precisely what theTribunal has done in the present case. When this question was argued be-fore the Tribunal, it examined the arguments urged by both the parties andheld that in the interests of justice, it was necessary to allow respondentNo.l to lead evidence in rebuttal; and it is in the light of the evidence ledby respondent No.l that the Tribunal made its finding on this issue againstthe appellant and the said finding has been confirmed by the High Court.Therefore, -we do not think that the points of law raised by Mr. Garg inrespect of this charge really assist him to challenge effectively the correct-ness of the findings recorded by the Courts below".

11. In the instant case, looking to the pleadings of the parties, evensupposing that respondent No.l somewhere in the written statement hasnot specifically denied any point or his denial simpliciter, it was not consi-dered proper to have taken that point to be as proved by only such denial.The reason for this is obvious that the Election Petition contained allega-tions of corrupt practices and violations of certain Rules and the burdenof proof was on the petitioner to prove them and this is why the issues wereframed and the parties have led their evidence regarding them. The Rulingcited by Shri Pandey as reported in Bhagwat Singh v. Jaswant Singh{5), hasno application to the instant case. In that case their Lordships of the Su-preme Court observed that where a claim has been never made in the defencepresented no amount of evidence can be looked into upon a plea which wasnever put forward. This was a case of adoption and no defence was raisedregarding the custom of adoption, even though the issues were framed andthe parties led evidence, but it was not looked into. This case was decidedon facts of its own and is distinguishable and will not help the petitioner.

12. The petitioner in order to prove this issue has examined himself asP.W.I, Rameshwarsingh alias Jhulu (P.W.2) and Brijrajsingh (P.W.3). Inrebuttal, respondent No.l has examined himself as R.W.I.

[After considering the evidence sd on issue No. 6 regarding the allega-tions that the first respondent promised to provide the third respondentwith a jeep if he did not withdraw from the contest and thus the first respon-dent committed a corrupt practice under Section 123(l)(A)(d) of the Act,the judgement proceeded:]

(5) A.I.R. 1966 S.C. 1361 ~ ~~~

E.L.R.] L. P. VAIDYA V. G. Y. TAMASKAR AND OTHERS 307

Looking to the evidence of the petitioner as discussed above, I find it tobe unreliable and it does not prove the corrupt practice as alleged by thepetitioner and the result, therefore, is that this issue is decided in favour ofrespondent No. 1.

13. Issue No. 7

The allegation as regards this issue is given in para 10 (II) of the petitionand it says that respondent No. 1 himself went on 19-2-1967 to villageBehara at Satnamipara and asked Satnamis to vote for him. He was toldin reply that the Satnamis have decided to vote for a candidate who will gettheir well repaired. Respondent No. 1 agreed to this proposal and gaveRs. 100/- to one Patwari s/o Jhadu Satnami for the repairs of the well inorder to induce the Satnamis to vote for him and to refrain from voting tothe petitioner. Respondent No.l has denied in para 5 of his written state-ment having gone there and having paid Rs. 100/- to one Patwari Satnamifor the repairs of the well, as alleged against him. He has of course saidthat he does not know whether there are two wells, one for the caste-Hindusand the other for the Satnamis in Behara village. The petitioner in orderto prove this issue, has examined himself as P.W.I and two more witnesses,Patwari Satnami (P.W. 7) and Jhulu (P.W. 8). Respondent No.l in rebut-tal, has examined himself as R.W. 1, and Shri B.B. Bajpai Advocate as R.W. 6.

[After considering the evidence on issue No. 7 regarding the allegationthat the first respondent paid Rs. 100/- for the repairs of the well in villageBehara on the promise that Satnami voters would vote for him, the judg-ment proceeded:] . . . . . . .

* * *

Respondent No. 1 is an Advocate of about 19 years standing and he canbe credited with this much of sense that he will not give on mere askingRs. 100/- to Patwari Satnami for the repairs of a well, which is a Janpad orGovernment well. It also requires consideration that Patwari Satnamiand Jhulu have placed themselves in the petition of an accomplice andunless there is a corroboration of their evidence in material particulars byan independent evidence, the giving of a bribe by respondent No. 1 is notproved. On the other hand, I find both of them to be unreliable and thepetitioner has failed to prove this allegation and its result is that this issueis decided in favour of respondent No.l.

14. Issue No. 8{a) & (b)

Issue No. 8(a) & (b) being connected issues, are taken up together. Theallegation as regards these issues is contained in para No. 10 (III) of thepetition, and it consists of two parts: Firstly, that one Hiraman Satnami,at the instance of the convassers of respondent No.l, who are said to beJogiiram and Bulakiram, touched the well at Devada village on 20-2-1967,which was meant for the caste-Hindus. The well is said to be situated with-in 100 metres of the polling booth'. The result of it was that the caste-Hindusbecame angry and Dr. Rambharose, a worker of respondent No. 1 andBulakiram and Jogiram, taking advantage of this situation put an oil onthe fire by saying that the Congress has got this well touched even beforethe election is won and after winning the election, the honour of their wives

308 L. P. VAIDYA V. G. Y. TAMASKAR AND OTHERS [VOL. XXXIV

and daughters will be in danger. The second part consists in showing byJogiram of a bundle of currency Notes by saying that he would get anotherwell constructed in case they vote for respondent No. l's cycle symbol.It is also said that they were asked to convey this by Shri Gangadhar Tamas-kar, respondent No.l, and the result of this false statement and inducementaccording to the petitioner was that he was deprived of the votes of theHindus which otherwise would have gone to him.

[After considering the evidence on issues No. 8 (a) and (b) on the allega-tions that the first respondent caused the well at village Devada to be touchedby the Harijans and thus annoyed the Hindu voters from voting for thepetitioner and that the first respondent's worker showed a bundle of notesto the villagers promising a new well provided they voted for the respondent,the judgement proceeded:]

It is also worthy of note that Ex.P/6, the final result of the election, showsthat respondent No.l got 139 votes from this polling booth,while the peti-tioner received 190 votes. Taking all these facts into consideration, firstly,that no report having been made to the Presiding Officer, the well was notmeant solely for the Hindus, there being no evidence that there was a cons-piracy by respondent No. 1 or any of his election agent or any other personwith his consent to get the well touched by Hireman and the evidence regard-ing the bundle of Notes shown by Jogiram not being convincing, go to showthat the petitioner has failed to prove this corrupt practice--See JagdevSingh v. Pratap Singh (9) Abdul Majeed v. Bhargavan (10) and Lalsing v.Vallabhdas (ll). In the result issue No. 8 (a) and (b) is decided in favourof respondent No.l. '

[After considering the evidence (Paras 15 to 27 of the judgement) onissues Nos. 8(c), 8(d), 9 to 20 (allegations contained in these issues are de-tailed in para 6 supra of the judgement) the court holding that the petitionerhad failed to prove all these allegations and having decided in favour of therespondent, the judgement proceeded.]

* * *

28. Issue No. 21

The allegation concerning this issue is contained in para 14(VI) of thepetition and it is to the effect that at 9 polling stations named therein, oneballot paper at the time of counting was found less. The respondent No.lhas denied this allegation and said that the allegations are vague. The peti-tioner has only filed after the close of arguments, certified copies of formNo. 16 of polling stations—Baregaon, Raveli, Deorbija, Lawatara, Behara,Bhainsa and Andu to show that one ballot paper was found less than thetotal number of ballot papers issued. It is true that ordinarily when a votergets a ballot paper he is expected to cast his vote. The fact that all theballot papers that had been issued to the voters have not been accounted

(9) A.I.R. 1965 S.C. 183.(10) A.I.R. 1963 Kerala 18.(11) A.I.R. 1967 Gujarat 62.

E.L.R.] L. P. VAIDYA V, G. Y. TAMASKAR AND OTHERS 309

for, does not bring the case within the purview of S.100(l)(d)(iii) of theR.P. Act, as it is possible that the voters who had taken their ballot papersmight not have made use of it. See Champa Devi v. Jamuna Prasad(12).Further, it is not known and cannot be said that those seven votes, if cast,would have been gone in whose favour, but even assuming for arguments'sake that they would have been polled in favour of the petitioner, it has notin anyway materially affected the result of the election and the issue isdecided in favour of respondent No.l accordingly.

Issue No. 22

29. The allegation regarding this issue is contained in para 14(VII) of thepetition. Respondent No.l has simply denied this allegation and said thatit is vague. The petitioner has only deposed that on seeing Ex. P/4, he cansay that 196 ballot papers are not accounted for. This does not appear tobe correct. On perusal of Ex. P/4 it is found that 543 ballot papers wereissued and there was an account of 542 ballot papers and it appears thatone ballot paper was found missing. Shri Pandey has not been able toshow how Ex. P/4 shows that 196 ballot papers were found missing. It isnot necessary that ballot papers in serial numbers should be supplied to thepolling stations. No proper account of the missing ballot papers, as alleg-ed, is produced before the Court, so much so that no officer concerned hasbeen produced as a witness to prove this allegation. The result, therefore,is that this allegation is not proved and this issue also is decided in favourof respondent No. 1.

Issue No. 23

30. The allegation regarding this issue is contained in para 14(VIII) of thepetitioner and it is to the effect that the District Election Officer, Durg hadsupplied red-ink pad with seal, but some of the ballot papers contained aseal of the blue colour. This allegation is denied by respondent No. 1 inpara 22 of his written statement. He has said that the ink which was issuedwas only used and moreover this has no relevancy, with the result of theelection. The petitioner has not led any evidence to prove this issue, andShri Pandey has rightly conceded this. This issue, therefore, stands deci-ded in favour of respondent No. 1.

Issue Nos. 24 and 25

31. It will be proper to take up issue Nos. 24 and 25 together, beingconnected ones. The allegations concerning these issues are in paras 14(IX) and15 of the petition. The petitioner has alleged that at the time of counting,10 tables were placed with one supervising officer and 4 or 5 counting clerks,who handled one polling box at a time and only one counting agent of eachcandidate was allowed by the Returning Officer. The District ReturningOfficer (Collector) was sitting in the centre of these camps, which were arrang-ed for counting purposes and the difficulties experienced were as givenbelow:—

(/) That seals of the polling boxes were not verified and seen by theReturning Officer himself in the presence of the counting agents

(12) 15 E.L.R. 443

3 1 0 L. P. VAIDYA V. G. Y. TAMASKAR AND OTHERS [VOL. XXXIV

of the candidates and the polling boxes were directly supplied by thepeons on each table, so-there was a non-compliance of Rule 55(3)of the Conduct of Elections Rules, 1961;

(ii) That the votes were not arranged serially in order to verify thecorrectness of the numbers of the voting papers used at the time ofpolling with the number of votes found in the ballot boxes openedat the time of counting. On this account the petitioner has saidthat it is not possible for him to say as to what extent the votingpapers were not found in the ballot boxes and according to himthere was a non-compliance of Rule 58(1) of the Conduct of Elec-tions Rules, 1961;

(Hi) That the Returning Officer did not scrutinise the rejected ballotpapers himself, but he simply relied on the reports of his sub-ordinates and thus, there was a breach of Rule 56(2);

32. In para 15 of the petition the petitioner has alleged that on 22-2-1967at the time of counting of votes a large number of ballot papers were rejectedon grounds not mentioned in Rule 56(a) of the Conduct of Elections Rules,1961 and many ballot papers which ought to have been rejected were treatedas valid votes and the petitioner applied to the Returning Officer for a general,re-count, but the application was rejected. Respondent No.l has resistedthese allegations as the ground that the arrangement made by the ReturningOfficer for the counting of votes was proper and according to the Rules,and the petitioner himself was present there, but he did not raise any objec-tion. He has also said that the ballot boxes were duly sealed and all theseals were checked by the candidates and their counting agents in the pre-sence of the Asstt. Returning Officer and no defect was noticed there. Hehas denied all the other allegations and further said that there was no non-compliance of any of the Rules as alleged by the petitioner and it is deniedthat a large number of ballot papers were rejected on the grounds not men-tioned in Rule 56(a) of the Conduct of Elections Rules, and as the petitioner'sapplication for a re-count was made without any reason, it was properlyrejected.

33. After the close of the arguments Shri Pandey, learned counsel forthe petitioner, filed an application for inspection and production of ballotpapers giving therein some arguments and rulings in support thereof, al-though he argued the Election Petition at length and fully. Shri Dharma-dhikari has also filed a reply to this application giving his reasons that nocase for inspection of ballot papers is made out. Shri Pandey has conten-ded before me that as some of the ballot papers at the time of counting werefound missing, the ballot boxes of the two polling booths were found tam-pered with and the other reasons as mentioned in the petition, if consideredtogether, there is a prima facie case made out by the petitioner for an orderfor inspection of ballot papers and re-count. He has cited in support ofhis contention the rulings reported in A.I.R. 1959 M.P. 58 (Inayatullah v.Diwanchand(13); Keshaoprasad v. A.D. Mani(14); Hukamsingh v.

(13) A.I.R. 1959 M.P. 58(14) 1961 Doabia's Election Cases 133

E.L.R.] L. P. VAIDYA V G. Y. TAMASKAR AND OTHERS 3 1 1

Banwarilal Bipra (1S); Brij Sunder v. Shri Ram Dutt (16); Ram Sewak v.Hussain Kamil Kidwai (17) and Jagjitsing v. Kartarsingh (4.) Shri Dharma-dhikari, on the other hand, has urged before me that 'there is no evidenceon record to show that one ballot paper at each of the nine polling stationsas alleged by the petitioner was found missing, and no satisfactory evidencehas been produced to prove that any ballot box was tampered with and noobjection about the counting process or the breaking of the seal of the ballotbox was taken at any time before the Returning Officer and further the peti-tioner has not alleged in his petition any of the grounds for miscountor there was any error and also no grounds have been mentioned thatany of the ballot papers were wrongly rejected and there is no prima faciecase made out for inspection of the ballot papers and a re-count. He hasalso urged that there is no evidence to show that the result of the electionhas been in any way materially affected. He has also cited in support ofhis contention the rulings reported in Dr. Jagjitsingh v. Kartar Singh (4)and Ram Sewak v. Hussain Kamil Kidwai (17).

34. The question now arises for decision is whether there was any breachof the Conduct of Elections Rules, 1961 as alleged by the petitioner and whe-ther on the allegations set out above, the petitioner has made out any casefor inspection of the contents of the ballot papers. In order to decide thisquestion it will be relevant to refer to some of the relevant Rules of the Con-duct of Elections Rules. Rule 52 deals with the appointment of countingagents as provided in S. 47 of the Act. Rule 53 deals with the admissionto the place fixed for counting, and Rule 53(3) provides that the Return-ing Officer shall decide which counting agent or agents shall watch thecounting at any particular counting table or group of counting tables. Rule54 deals with the maintenance of secrecy of voting. Rule 55 deals withscrutiny and opening of ballot boxes. Rule 55(2) provides that before anyballot box is opened at a counting table the counting agents present at thattable shall be allowed to inspect the paper seal or such other seal as mighthave been affixed thereon and to satisfy themselves that it is intact. It isfurther provided in Rule 55(3) that the Returning Officer shall satisfy him-self that none of the ballot boxes has in fact been tampered with and Rule55(4) provides that if the Returning Officer is satisfied that any ballot boxhas in fact been tampered with, he shall not count the ballot papers containedin that box and shall follow the procedure laid down in S. 58 of the Act inrespect of that polling station. Rule 56 provides the counting of votesand according to this Rule the ballot papers taken out of each ballot boxshall be arranged in convenient bundles and scrutinised. Rule 56(2) pro-vides that the Returning Officer shall reject a ballot paper:—

(a) if it bears any mark or writing by which the elector can be identi-fied, or

(b) if to indicate the vote, it bears no mark at all or bears a mark madeotherwise than with the instrument supplied for the purpose, or

(15) A.I.R. 1965 All, 552(16) A.I.R. 1964 Rajasthan 99(17) A.I.R. 1964 S.C.(18) A.I.R. 1966 S.C. 773

2 EC/71—21.

3 1 2 L. P. VAIDYA V G. Y. TAMASKAR AND OTHERS [VOL. XXXIV

(c) if votes are given on it in favour of more than one candidate, or

(d) if the mark indicating the vote thereon is placed in such manner asto make it doubtful to which candidate the vote has been given, or

(e) if it is a spurious ballot paper, or

(/) if it is so damaged or mutilated that its identity as a genuine ballotpaper cannot be established, or

(g) if it bears a serial number, or is of a design, different from the serialnumbers or, as the case may be, design, of the ballot papers autho-rised for use at the particular polling station, or

(/?) if it does not bear the mark which it should have borne under theprovisions of sub-rule (1) of Rule 38;

Rule 56(3) provides that before rejecting any ballot paper under sub-rule (2), the Returning Officer shall allow each counting agent presenta reasonable opportunity to inspect the ballot paper but shall not allow himto handle it or any other ballot paper. According to Rule 56(4), the Re-turning Officer shall endorse on every ballot paper which he rejects the letter'R' and the grounds of rejection in abbreviated form either in his ownhand or by means of a rubber stamp and shall initial such endorsement. Rule57 deals with the sealing of used ballot papers. Rule 60 provides the count-ing to be continuous and Rule 63 deals with re-count of votes and states asunder :—

R. 63 (1) "After the completion of the counting, the Returning Officer shallrecord 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 hisabsence, his election agent or any of his counting agents may applyin writing 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 Officer shalldecide the matter and may allow the application in whole or in partor may reject it in toto if it appeals to him to be frivolous or un-reasonable.

(4) Every decision of the Returning Officer under sub-rule (3) shallbe in writing and contain the reasons therefor.

(5) If the Returning Officer decides under sub-rule (3) to allow a re-count of the votes either wholly or in part, he shall,

(a) do the recounting in accordance with Rule 54A, Rule 56 orRule 56A, as the case may be;

E.L.R.] L. P. VA1DYA V G. Y. TAMASKAR AND OTHERS 313

(b) amend the result sheet in Form 20 to the extent necessaryafter such recount; and

(c) announce the amendments so made by him.

(6) After the total number of votes polled by each candidate has beenannounced under sub-rule (1) or sub-rule (5), the Returning Officershall complete and sign the result sheet in Form 20 and no appli-cation for a recount shall be entertained thereafter :

Provided that no step under this sub-rule shall be taken on the comple-tion of the counting until the candidates and election agents present at thecompletion thereof have been given a reasonable opportunity to exercisethe right conferred by sub-rule (2)."

35. Now, it is required to be seen whether the petitioner has been ableto prove infringement of any of the Rules mentioned above. The petitionerhas examined himself and one Ravishankar Mishra (P.W. 19) in supportof this issue. Respondent No.l in rebuttal, has examined himself as R.W. 1and Shri B. B. Bajpai, Advocate (R.W.6). The petitioner, in para 19 of hisstatement, has deposed that as the counting of ballot papers of nine consti-tuencies was taken up on one day, so the counting of ballot papers was de-fective, with the result that the Returning Officer was not in a position tosee whether the seal of the particular ballot box was broken or not and hehad to believe on what the counting supervisor said. He also made a grie-vance that one counting agent was allowed to sit on one table, while therewere 3 or 4 counting clerks on that table and the counting agent thus couldnot supervise the counting of ballot papers properly and the counting oneach table was done simultaneously and all the counting clerks were doingat the same time. The counting agent was, therefore, not in a position toobject regarding the invalid ballot papers. According to him the ballotpapers which should not have been rejected, were rejected and the ballotpapers of respondent No. 1, which should have been rejected were not re-jected. He has said for the first time in his statement that his ballot paperswere counted in the account of respondent No. 1. He had filed an appli-cation before the Returning Officer, but that was rejected. It will be perti-nent to mention here that the petitioner has not said in his petition that hisballot papers were counted in the account of the respondent No. 1. Whathe had said is that on account of the breach of certain Rules many ballotpapers which ought to have been rejected were treated as valid votes. Itis quite clear from the perusal of the petition that no ground has been madeout that some of the ballot papers were wrongly bundled. It is also worthyof note that though the petitioner in para 15 of the petition has said that hehad filed an application before the Returning Officer, which is Annexure A,but it was rejected; no such application has been produced before thisCourt. The petitioner has only filed the order of the Returning Officer re-jecting the application made by him. The Returning Officer in rejecting theapplication passed an order ride Ex. P/5, and para 2 of it, is as given below:—

"I may mention here that the counting has been done very carefully andi n the presence of the candidate and his counting agents. The countingagents have been taking note of the progress of the counting at every stage

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of the counting. I have also continued to supervise the counting alongwith the Additional Collector, who is also the Assistant Returning Officerof the Constituency, as well as Shri S.B.L. Saxena, Deputy Collector-cwm-Assistant Returning Officer. The doubtful ballot papers have been sub-jected to rigorous examination by the* Assistant Returning Officer quitefrequently with the help of a magnifying glass. A number of ballot paperswhich I saw were being rejected have been rightly rejected by the AssistantReturning Officer. At no stage of the counting was even one complaintmade or any doubt raised in respect of the manner or the efficiency of thecounting. Even the candidate himself has failed to give any reasons whyhe requests for a recount which itself speaks of the fact that the candidatehimself has no complaint against the counting itself. He presumably feelsthat it would be advisable if a recount is made. Such a request based on nogrounds is obviously unreasonable. The request of the applicant deservesto be turned down under sub-rule (3) of Rule 63 of the Conduct of Elec-tions Rules, 1961."

36. It is clear from the order that the petitioner was unable to give anyreason for his request for recounting, but it appears that he only felt it ad-visable that a recount should be made. If para 36 of the petitioner's cross-examination is perused, it completely belies whatever grievance he has madein his petition for the violation of the Rules alleged by him. He has admit-ted that he was present at the time of counting, though not at all times,but from 8 A.M. to 1 P.M. There were nine counting agents of his on eachtable and he himself was doing the job of a counting agent and no com-plaint either oral or in writing was made by him or any of the counting agentsat the time of counting. It is true that it may not be possible to give thenumbers of the ballot papers rejected in making out a case for a recountin the petition, but so much so the petitioner has even not said approximate-ly how many ballot papers of his were rejected on what grounds. He hasnot said in his petition that there was any possibility of his ballot papersbeing counted in the account of the respondent No.l. Ravishankar Mishra(P.W.19) in paras 2 and 3 of his statement has said how the counting arrange-ment was made and his evidence also is not of any help to the petitioner.He has also admitted that no objection or any complaint orally or in writingwas made as regards the process of counting. He has said that the sealof one of the ballot boxes of Chandnu polling booth was found broken,but that matter has been dealt with in the relevant issue and the petitionerhas not been able to prove it. On the other hand, respondent No. 1 in para13 of his statement has very clearly stated about the arrangement made bythe Returning Officer at the time of counting and it is as given below:—

"The counting of votes was done at Durg. For this purpose a pendalwas created in the Collector's office and the Returning Officer was sittingon the dias in the centre of the pendal and different camps were set up fordifferent constituencies. Before the counting work started for any Consti-tuency all the ballot boxes concerning that Constituency were before theReturning Officer near the dias and from there they were brought to therespective Constituency camp for counting purpose and they were arrangedthere. The Returning Officer came there when the petitioner, agent of therespondent No. 3 and I were present. The Returning Officer asked us thatall the ballot boxes concerning our Constituencies are there and we should

E.L.R.] L. P. VAIDYA V G. Y. TAMASKAR ANU OTHERS 3 1 5

see that their seals are intact. We inspected the ballot boxes as regardstheir outer seals and they were found intact. Then they were delivered accor-ding to the polling booth number on their concerning table. There were10 tables, so far as I remember. One Mr. Saxena, an Asstt. ReturningOfficer, was incharge of counting. There were 3 counting clerks on behalfof Assembly and the similar number for the Parliamentary seat on eachtable and there was one election supervisor on each table. There were alsoan agent on behalf of each candidate except Brijrajisingh, respondent No. 2.The petitioner, agent of respondent No. 3, myself and one of my agentsMr. B. B. Bajpai, were sitting on the table of Shri Saxena. When theboxes were sent to the table concerned, the inner seal was shown to the per-sons present there after breaking open the outer seal. After seeing theinner seal intact, when no objection was raised, then the inner seal was bro-ken and the boxes were opened. After opening it the ballot box was shownto the persons present there, so that no ballot paper remained inside the box.After it the sorting of Parliamentary ballot papers and Assembly ballot paperstook place. For the Assembly seat there was one tray divided into diffe-ren; compartments for each candidate and there was one compartment forrejected ballot papers. The counting clerks were arranging the ballot papersaccording to their symbols and the ballot papers were kept with the faceup so that the symbol was clearly visible in order to avoid any mistake. Therejected ballot papers before they were kept in the compartment, they wereshown to the respective agents of the candidates. When there was nodifference of opinion then the rejected papers are kept in the compartmentconcerned. If there was any dispute regarding any ballot paper, it wastaken before Mr. Saxena, Asstt. Returning Officer, and he after scrutinisingit and showing to the respective candidates used to give his final decision.So far as 1 know there was not a single wrong rejection of a ballot paper.After this all the rejected ballot papers were used to be sent to Shri Saxenafor putting his seal. After this seal was put then the ballot papers used togo on the concerning table for being bundled up. After counting on eachtable, the counting account statement was sent to Shri Saxena along withthe bundled ballot papers. When this all was going on the petitioner wassitting on the table of Shri Saxena. We also were having a round there tosupervise the work. 1 had 10 counting agents on 10 tables and one Mr.Bajpai was extra with me. The petitioner had also counting agent on eachtable and 1 cannot say whether he had any extra counting agent. No ob-jection either oral or in writing was raised on behalf of any candidate at thetime of counting.''

37. Shri B. B. Bajpai (R.W.6) has stated that he was a counting agentof respondent No. 1 and was also present at the table of the Asstt. Return-ing Officer. He said that no complaint about the counting process was madeto" the Asstt. Returning Officer. Chapter VIII of the Hand-Book forReturning Officers (General Elections 1967—Election Commission of India1966) deals with the procedure of counting of votes and it will be unnecessaryto mention any instruction. It is quite clear that the candidates were allow-ed as many counting agents as there were counting tables for counting ofVOLSS polled at the election and one more to watch the counting atthe Returning Officer's table and the tables arranged were also in accordancewith the instructions. According to respondent No.l's evidence, as re-produced above, it is clear that the Returning Officer himself had seen theseals of the ballot boxes; and he asked the petitioner as well as respondent

3 1 6 L, P. VAIDYA V G. Y. TAMASKAR AND OTHERS [VOL. XXXIV

No.l and the agents of other candidates present to see whether the seals wereintact and they all inspected and found that the outer seals of the ballot boxeswere intact, and afterwards they were opened for counting purposes. It isalso said that when the boxes were sent to the tables concerned the inner sealwas shown to the persons present there after breaking open the outer sealand no objection was raised. Thereafter the inner seal was broken and theboxes were opened. Respondent No. 1 has also stated the procedure asregards the rejected ballot papers and it is not necessary to repeat furtherwhat he had said. I am, therefore, of the view that the petitioner has notbeen able to prove that there was any violation of the Rules as alleged by him.

38. The question as regards the re-count has been the subject of nume-rous decisions of different High Courts and Shri Pandey has also cited manyrulings, but J, however, consider it necessary to deal with only two rulingsof the Supreme Court and if any other ruling is found relevant for the deci-sion on this question, it will also be considered. The case reported in A.I.R.1964 S.C. 1249 (Ram Sewak v. Hussain Katnil Kidwai) is the leading caseon the subject, wherein their Lordships of the Supreme Court have veryclearly observed that the inspection of ballot papers and recount cannot beclaimed as a matter of right or on mere asking, but it may be a ground insuitable cases provided the two conditions are fulfilled:—

(i) That the petition for setting aside an election contains an adequatestatement of the material facts on which the petitioner relies in sup-port of his case; and

(ii) That the Tribunal is prima facie satisfied that in order to decide thedispute and to do complete justice between the parties inspectionof the .ballot papers is necessary.

Their Lordships- have further observed that an order for inspection ofballot papers cannot be granted to support vague pleas made in the peti-tion not supported by material facts or to fish out evidence to support suchpleas. The case of the petitioner must be set out with precision suppor-ted by averments of material facts. To establish a case so pleaded an orderfor inspection may undoubtedly, if the interests of justice require, be gran-ted. But a mere allegation that the petitioner suspects or believes thatthere has been an improper reception, refusal or rejection of votes will notbe sufficient to support an order for inspection. In paragraph 8 of thejudgement their Lordships have made a reference to the relevant Rules andhave observed in para 9 of the judgement as under:—

"There can therefore be no doubt that at every stage in the process ofscrutiny and counting of votes the candidate or his agents have an opportu-nity of remaining present at the counting of votes watching the proceedingsof the Returning Officer, inspecting any rejected votes, and to demand arecount. Therefore a candidate who seeks to challenge an election on theground that there has been improper reception, refusal or rejection of votesat the time of counting has ample opportunity of acquainting himself withthe manner in which the ballot boxes were scrutinized and opened, and thevotes were counted. He has also opportunity of inspecting rejected ballotpapers, and of demanding a re-count. It is in the light of the provisions of

E.L.R.] L. P. VAIDYA V G. Y. TAMASKAR AND OTHERS 3 1 7

S.83(l) which require a concise statement of material facts on which thepetitioner relies and to the opportunity which a defeated candidate had atthe time of counting, of watching and of claiming a re-count that the appli-cation for inspection must be considered."

39. This question came up again for consideration before their Lord-ships of the Supreme Court in Dr. Jagjit Singh v. Giani Kartarsingh(4) where-in their Lordships have observed in para 32 of their judgement that S.83(l)(a) of the Act requires that an election petition shall contain a concise state-ment of the material facts on which the petitioner relies; and in every case,where a prayer is made by a petitioner for the inspection of the ballot boxes,the Tribunal must enquire whether the application made by the petitionerin that behalf contains a concise statement of the material facts on whichhe relies. Vague or general allegations that valid votes were improperlyrejected, or invalid votes were improperly accepted, would not serve thepurpose which S.83(l)(a) has in mind, An application made for the ins-pection of ballot boxes must give material facts which would enable theTribunal to consider whether in the interests of justice, the ballot boxesshould be inspected or not. In dealing with this question, the importanceof the secrecy of the ballot papers cannot be ignored, and it is always to beborne in mind that the statutory rules framed under the Act are intendedto provide adequate safeguard for the examination of the validity or invalidityof votes and for their proper counting. It may be that in some cases, theends of justice would make it necessary for the Tribunal to allow a party toinspect the ballot boxes and consider his objections about the improperacceptance or improper rejection of votes tendered by voters at any givenelection, but in considering the requirements of justice, care must be takento see that election petitioner do not get a chance to make a roving orfishing enquiry in the ballot boxes so as to justify their claim that the retur-ned candidate's election is void. We do not propose to lay down any hardand fast rule in this matter; indeed, to attempt to lay down such a ralewould be inexpedient and unreasonable."

40. The petition of the petitioner suffers from both the infirmities. Thepetitioner has in para 15 of his Election Petition only said that many ballotpapers, which ought to have been rejected were treated as valid votes and alarge number of ballot papers were rejected on grounds not mentioned inRule 56(a) of the Conduct of Elections Rules. These are all vague allega-tions. The petitioner has not been able to say as to what was the groundnot mentioned in Rule 56(a) of the Rules on which many ballot papers wererejected. He has not been able to say approximately how many ballotpapers were thus rejected and further, he has neither filed nor proved a copyof the application to show as to on what grounds he wanted the ReturningOfficer to recount the ballot papers. Therefore, I am clear in my mind thatas laid down by their Lordships of the Supreme Court, these are vague orgeneral allegations that valid votes were improperly rejected or invalid voteswere improperly accepted and could not serve the purpose which S.83(l)(a) of the Act has in mind.

41. Now, as regards the question whether the petitioner has been ableto make out a prima facie case either for an inspection of the ballot papers

(4) A.I.R. 1966 S.C. 773.

318 L. P. VAIDYA V G. Y. TAMASKAR AND OTHERS [VOL. XXXIV

or for a re-count, their Lordships of the Supreme Court have in MartinBurn Ltd., v. B.N. Banerjee (18) which was an appeal against the decisionof the Labour Appellate Tribunal of India arising out of an applicationmade under S.22 of the Industrial Disputes (Appellate Tribunal) Act, 1950,observed in para 27 of the judgment as to what a prima facie case is and itis as follows:—

"The Labour Appellate Tribunal had to determine on these materialswhether a prima facie case had been made out by the appellant for thetermination of the respondent's service. A prima facie case does not meana case proved to the hilt but a case which can be said to be established inthe evidence which is led in support of the same were believed. Whiledetermining whether a. prima facie case has been made out the relevant consi-deration is whether on the evidence led it was possible to arrive at the con-clusion in question and not whether that was the only conclusion whichcould be arrived at on that evidence. It may be that the Tribunal consi-.dering this question may itself have arrived at a different conclusion. It has,however, not to substitute its own judgment for the judgment in question.It has only got to consider whether the view taken is a possible view on theevidence on the record. (See.. Buckingham & Carnatic Co., Ltd., v. TheWorkers of the Company') (19)

42. As aforesaid, the petitioner has not been able to prove, as decidedin the relevant issue, that the seal of any one of the ballot-boxes was foundbroken. It is true that at Bametara polling station three ballot papers werefound less than the total number of ballot papers isssued, and on other sevenpolling stations, one ballot paper was found less than the total number ofballot papers issued; but the possibility cannot be ruled out that some ofthe voters having got the ballot papers, might not have cast their votes.This may sometime be one of the grounds for consideration of a re-countof the votes, but this by itself, is not a sufficient ground for the purpose.The ruling cited by Shri Pandey, as reported in Brij Sunder Sharma v.Shri Ram Dutt (16) has no application to the facts of the present case, be-cause in that case in addition to missing of ballot papers there were otherallegations on which it was considered necessary to re-count the ballot papers.In the instant case not only the petition lacks in material particulars as re-gards the allegation for the purpose of a re-count, but no prima facie caseis also made out.

43. Judged in the light of the observations made by their Lordships ofthe Supreme Court. I find it difficult to hold that the petitioner has madeout any case for re-count of votes. On the contrary, I feel that this is verylikely that the petitioner has been tempted to raise this objection becausethere was a small majority of votes by which respondent No. 1. has wonthe election; which he hopes to reserve in his favour by an examinationof the ballot papers. Further more there is no evidence on record to show

(18) A.I.R. 1958 S.C. 79.(19) (1952) LAB A.C. 490.(16) A.I.R. 1964 Rajasthan 99.

E.L.R.] L. P. VAIDYA V G. Y. TAMASKAR AND OTHERS 3 19

that any violation of the Rules has in fact taken place and if assuming thatthere was such one, then there is no evidence to conclude that it has in anyway materially affected the result of the election. For the reasons afore-said, both these issues are decided in favour of respondent No. 1.

44. The result, therefore, is that this Election Petition is dismissed withcasts. The petitioner shall pay the costs of respondent No.l. Counsel's feeRs. 750/- The respondent No.l. shall be entitled to realise his costs fromthe amout of the security deposited by the petitioner.

Petition dismissed.

ORDER

Dated, July 27, 1967

(On preliminary issues).

Issue Nos. 1 and 4:—

SURAJBHAN GROVER J.—It would be proper to take up theseissues together being connected ones and the arguments on both are heardtogether. Shri Dharmadhikari, the learned counseL for respondent No. 1has argued that S. 81 of the R. P. Act, 1951 (here-in-after called the Act)deals with the presentation of the election petitions and S. 81(3) of the Actrequires that every petition shall be accompanied by as many copies there-of as there are respondents mentioned in the petition, and every such copyshall be attested by the petitioner under his own signature to be true copyof the petition. He has also taken me through section 83 of the Act andits proviso which says that where the petitioner alleges any corrupt practice,the petition shall also be accompanied by an affidavit in the prescribed formin support of the allegation of such corrupt practice and the particularsthereof, and it is also further prescribed that any schedule or annexureto the petition shall also be signed by the petitioner and shall be verified inthe same manner as the petition. His contention is that the copy of theaffidavit which is supplied to him does not mention the allegations madein para 10 of the petition. He has also urged that in the copy of the affi-davit which he has presented before me, 10(14) is mentioned instead of 10(III), and further there is no verification in this affidavit as regards para 11of the petition. According to him as the provisions of section 81 of theAct have not been complied with, and the copy of the affidavit given to him notbeing a true copy, and there also being omissions of paras 10 and 11as aforesaid, the election petition deserves to be dismissed as provided inS. 86 (1) of the Act, and in support he has cited the rulings in Dwarkaprasad Mishra {Pandit) v. Kamalnarain Sharma, Advocate, Raipur (20),Murarka Radhey Sham Ram Kumar v. Roop Singh Rathore andothers(2').

(20) 1964 M.P.LJ. 682.

(21) A.I.R. 1964 S.C. 154.

320 L. P. VAIDYA V G. Y. TAMSAKAR AND OTHERS [VOL. XXXIV

Ch. Subbarao v. Member, Election Tribunal, Hyderabad and others(2 2) and Dr. Anup Singh v. Shri Abdul Ghani and others (2 3).

2. Shri R. K. Pandey, the learned counsel for the petitioner on theother hand has admitted that para 10 in the copy of the affidavit suppliedto the respondent 1 is omitted due to a clerical mistake and regarding para11 of the petition, no affidavit was necessary as that is a general paragraphwherein it has been mentioned that the corrupt practices alleged againstthe respondent no. 1 have materially affected the result of the election, andthat being not a statement or allegation of corrupt practice, no affidavit wasnecessary on that account. He has also said that as regards the affidavitform No. 25 has been substantially complied with and it is not necessarythat every word of the form no. 25 should be mentioned. He has alsoagreed to supply another correct copy to the respondent.

3. Chapter II deals with the presentation of the election petition. Sec-tion 80 provides that elections cannot be called in question but only byan election petition in accordance with the provisions of this part. S. 81deals with the presentation. S. 82 prescribes the parties and S. 83 dealswith the contents of the petition and S. 84 concerns with the relief and S. 86with the trial of the petitions. Form no. 25 is the prescribed form for fil-ing an affidavit as regards the commission of the corrupt practices andtheir particulars. Rule 94-A of the Conduct of Elections Rules, 1961 (here-in-after called the Rules), says that the affidavit referred to in the provisoto sub-section (1) of section 83 shall be sworn before a magistrate of thefirst class or a Notary or a Commissioner of Oath and shall be in form No.25. According to this form, the petitioner is required to say which of thestatements accompanying the election petition about the corrupt practicesand its particulars are true according to his knowledge and which of themare true to his information. On a perusal of the affidavit filed by the peti-tioner, with the petition, it is clear that it substantially complies with therequirements of law and it is not fatal to the petition.

4. Now the only question remains for decision is, whether the non-mentioning of Para 10 and Para 11 in the copy of the affidavit supplied tothe respondent No. 1 is fatal to the petition.

5. It is to be borne in mind that para 10 of the petition is in general termsand says that the corrupt practices committed by respondent No. 1 hisagents and workers have materially affected the result of the election. Similari s t h e c a s e w i t h p a r a n o . i l . Both the paragraphs do not deal with thefacts of any corrupt practice and section 83(a) and (b) of the Act will thusnot come into play. It will suffice to say that the ruling in Dwarkaprasad

'Misra (pandit) v. Kamalnarain Sharma, Advocate, Raipur (20), will not applyto this case as contended by Shri Dharmadhikari, as there is no absence

(22) A.I.R. 1964 S.C. 1027.(23) A.I.R. 1965 S.C. 815.(20) 1964 M.P.L.J. 682.

E.L.R.] L. P. VAIDYA V. G. Y. TAMASKAR AND OTHERS 321

of affidavit disentatling the petitioner for enquiring into the corruptpractices concerned.

6. As said above, in the copy of the affidavit, subparagraphs of para10 are mentioned but there is a typing mistake that instead of para 10 (III)the digits 10 (14) have been mentioned. The Supreme Court, in the rul-ing cited above , has held that if there is a substantial compliance of Sec-tion 81(3) of the Act, it is not fatal to the election petition and this being thecase here, I hold accordingly. See also Dwarkdprasad Mishra {Pandit) v.Kamalnarain Sharma Advocate, Raipur(20)

7. The result therefore, is that the petition does not incur dismissal un-der section 86(1) of the Act and I allow the petitioner to supply a correctcopy of the affidavit to the respondent No. 1 and both these issues are decid-ed accordingly.

Issue No. 2:—

8. Shri Dharmadhikari has urged that rule 5 of the rules framed by theHigh Court relating to the election petitions says that every election peti-tion shall be accompanied by a receipt signed by the Cashier of the Courtthat an amount of Rs. 2000/- has been deposited as security for costs of thepetition in accordance with the rules of the High Court. Rule 8, Chapter12 of the High Court Manual says that receipt for the amount shall be givenin form XXII-6L while the receipt obtained by the petitioner is in formM. P. T. C. -6 and as it is not in accordance with the provisions of S. 117of the Act, the petition should be dismissed under section 86(1) of the Act.The objection of Shri Dharmadhikari has no force. Form No. XXII-61was cancelled and the present form—M. P. T. C.—6 was introduced videN. P. Treasury Code, Vol. 1, which came into force on 1st September, 1955.So, the receipt filed by the petitioner is on a proper form.

9. It is true thatrule 8 of ths Chapter XII of the High Court Manual docsnot mention form M. P. T. C.—6 which was introduced in 1955, but thatwill not in any way affect the position so far as the filing of the receipt isconcerned. (See Chandrika Prasad Tripathi vs. Shiv Prasad Chanpuria(24) and Kamraja Nadar's case (25). In the aforesaid rulings, their Lord-ships of the Supreme Court held that section 117 of the Act should notbe strictly or technically construed and that a substantial compliance withits requirement should be treated as sufficient in the eye of law. In the in-stant case, the receipt supplied is on the correct form though the concern-ing rule of the High Court Manual has not been amended accordingly. I,therefore, hold that the receipt filed, is proper and not fatal to the electionpetition and the issue, is, therefore, decided in favour of the petitioner.

Issue No. 3:—

10. Shri Dharmadhikari has argued that respondent no. 6 Shri R. K.Pandey, Collector-cum-Returning Officer, Durg, could not be a party within

(20) 1964 M.P.LJ. 682: A.I.R. 1966 S. C. 436.(24) 21 E.L.R. 172.(25) 14 E.L.R. 270.

322 L. P. VA1DYA I'. G. Y. TAMASKAR AND OTHERS [VOL. XXXIV

the meaning of S. 82 of the Act, and it is not a case where a party couldbe joined but was wrongly joined and according to him the election peti-tion deserves to be dismissed under section 86(1) of the Act for non-comnpli-ance of the provisions of S. 82 of the Act. In support he has cited the rulingsin Vidyacharan Shukla v. G. P. Tiwari, District Judges, Member, ElectionTribunal and other's (26) Murarka Radhey Shy am Ram Kumar v. Roop SinghRathore and others (21) and Har Swamp and anothery. Brij Bhushan Saranand others (27).

11. Shri R. K. Pandey, the Learned counsel for the petitioner on theother hand, urged that respondent no. 6 though not a necessary party, isa porper party and joining him in this election petition is not fatal to thepetition and in support he has cited the ruling in Dwijendra Lai Sen Guptav. Hare Krishna Koner (28).

12. This contention of Shri Dharmadhikari has also no force. Accord-ing to section 82 of the Act, the petitioner shall join as respondents to hispetition:——

(a) where the petitioner claims a further declaration that he himselfor any other candidate has been duly elected all the contesting can-didates other than the petitioner, and where no such furtherdeclaration is claimed all the returned candidates,

and

(b) any other candidate against whom the allegations of corruptpractices are made in the petition.

" candidate" is defined in section 79 (b) of the Act. It is not contest-ed that the Returning Officer is not a candidate S. 86 (1) enjoins the HighCourt to dismiss an election petition which does not comply with the pro-visions of Sections 81, 82 or 117 of the Act.

13. In the instant case, it is not that a necessary party according to S.82 has not been made a party to the election petition, but it is a case wherethe Returning Officer is made a party. In Murarka Pandey Shyam RamKumar v. Roop Singh Rathore and others (21) has been laid down that whereunnecessary party to an election petition is added, it is not a case whichamounts to a breach of the provisions of S. 82 and no question of dismiss-ing the petition arises.

14. It does not make any difference whether it is a case where a partycould be joined but has wrongly been joined or a case where the party couldnot be joined and has been made a party, and I am not impressed by thedistinction which Shri Dharmadhikari has tried to draw between the twopositions. I respectfully agree with the learned judges of the High Courtof Calcuttta in Dwijendra Lai Sen Gupta v. Hare Krishna Koner (28) that

(26) 1963 M.P.L.J. 688.(21) A.I.R. 1964 S.C. 1545.(27) A.I.R. 1967 S.C. 836.(28) A.I.R. 1963 Cal. 218.

E.L.R.] L. P. VAIDYA V. G. Y. TAMASKAR AND OTHERS 323

in a suitable case where there are allegations of bad faith, negligence andthe propriety against the Returning Officer, though he is not a necessaryparty he may be joined as a proper party.

15. In the instant case, the respondent 6 is being proceeded ex parteduring the proceedings, and there are allegations against him about hisnegligence and it will be seen later on whether the material particulars areproperly supplied or not and whether those allegations will be allowed tobe retained or struck off. That question would of course be decided atthe relevant time, but at present it cannot be said that because of the addi-tion of respondent No. 6 as a party to the petition, it deserves to be dismiss-ed. Suffice it to say that the ruling in Vidya Charan Shukla v. G. P. Tiwari,District Judge, Member Election Tribunal, and others (26) does not supportthe contention raised by Shri Dharmadhikari. The case of Har Swarupand another v. Brij Bhushan Saran and others (27) is also not a caseinpoint, and the result therefore is that this issue is also decided in favourof the petitioner.

Issue No. 5:—

16. Shri Dharmadhikari has not pressed this issue. Section 83(c) of theAct says that the petition shall be signed by the petitioner and verified inthe manner laid down in the Code of Civil Procedure for the verificationof the pleadings. Or 6, r. 15(2) of the Code says that the person verifyingshall specify by reference to the numbered paragraphs of the pleadingswhat he verifies-from his own knowledge and what he verified upon theinformation received and believed to be true. The verification of this peti-tion is not according to this provision. This defect can be removed inaccordance with the principles of the Code and it does not attract the provi-sions of S. 86 (1) of the Act. I, therefore, direct that the petitioner shallverify the petitione according to Order 6, rule 15(2) of the Code of CivilProcedure within 3 days on payment of Rs. 50/- as costs and this issueis decided accordingly.

IN THE HIGH COURT OF JAMMU & KASHMIR

KACHO MOHD ALI KHAN

V.

SHRI KUSHOK BAKULA

(J. N. BHAT, J.)

December 21, 1967

Security deposit-Candidate tendering correct amount-Returning Officermistakenly asking candidate to deposit lesser amount-If substantialcompliance with s. 34 of the Representation of the People Act, 1951Section lS--Unopposed candidate if contesting candidate-Therefore ifbound to file account of election expenses within 30 days.

(26) 1963 M.P.L.J. 688.(27) A.I.R. 1967 S.C. 836.

324 KACHO MOHD. ALI KHAN V. SHRI KUSHOK BAKULA [VOL. XXXIV

The petitioner challenged the election of the respondent who was returnedunopposed from the Parliamentary constituency of Ladakh in the Stateof Jammu and Kashmir. It was alleged in the petition that (i) under s. 34of the Representation of the People Act, 1951, the respondent was bound todeposit Rs. 5000/- as security deposit but he deposited only Rs. 250/- andtherefore his nomination was improperly accepted by the Returning Officer;(ii) the respondent did not file an account of his election expenses within30 days of his election; and (iii) the respondent committed corrupt practicewithin the meaning of s. 123 (2) and (7) of the Act in that he, a Ministerof State for Ladakh Affairs in the outgoing Ministry, by virtue of his in-fluence, manipulated the transport system in such a manner as to preventone person, who was a serious rival to the respondent, from reaching Lchin time to file the nomination papers.

HELD:

(/) The nomination paper of the respondent had been properly accepted.The respondent was the only candidate who had put in his nominationpaper. In the circumstances there was no disqualification apparent on thenomination form nor was any discorvered much less was any objection takenby any body to the nomination. Besides, in this case, the Returning Officerunder a mistaken notion of law and in his ignorance impressed upon therespondent inspite of the latters resistance that only Rs. 250/- was the secu-rity money necessary to be deposited. The respondent had substantiallycomplied with the terms of s. 34 of the Act.

Durga Shankar Mehta v. Thakur Raghuraj Singh and Others, 9 E.L.R.494; S. M. Banerji v. Sri Krishna Agarwal, 22. E. L. R. 64; followed.

Soowalal v. P. K. Chaudhry and Ors. 21 E. L. R. 137; Udainath Singhv. Jagat Bahadur Singh and Ors., 5 E.L.R. 199; Jagdish Singh v. RudraDeolal and Ors. 8. E. L. R. 311; Raghunath Misra v. KishoreChandra Deo. Bhanj and Ors., 17 E. L. R. 321; Lakhan Lai'Mishra v. Tribeni Kumar and Ors. 3 E. L. R. 423; Mahadeo v. BabuUdai Partap Singh and Others, A. I. R. 1966 S. C. 824; Lai Shyam Shahv. V. N. Swami 16 E. L. R. 74; Devasharan Sinha v. Sheo Mahadev Prasadand Ors., 10 E. L. R. 461; Dr. Narayan Bhaskar Khare v. Election Commis-sion of India, 13 E. L. R. 112; referred to.

Rhedoy v. Koylash, 13 W. R. (F. 13) 3; Barri Madhub Mitter v. Mat-ungini Dassi, 13 Calcutta 104 (F. 13); referred to.

(ii) In the present case there was no contest and no expenses were act-ually incurred. Section 53 Of the Act clearly makes a distinction betweencontested and uncontested elections. To a candidate who has been return-ed unopposed the term contest cannot at all apply. Therefore the respon-dent on plain reading of s. 78 of the Act was not bound to lodge the accountof his election expenses before the district election officer within 30 daysof the election; and his failure to do so would not result in any disquali-fication for him or in setting aside hii election.

E.L.R.] KACHO MOHD. ALI KHAN V. SHRI KUSHOK BAKULA 325

(Hi) There was no evidence to prove the corrput practice said to havebeen committed by the respondent.

Election Petition No. 2 of 1967.

Ishwar Singh for the Petition.

B. R. Dhawan and S. P. Gupta for the Respondent.

JUDGMENT

This is an election petition under Chapter II of the Representation ofthe People Act, 1951 (hereinafter referred to as the Act) challenging theelection of the respondent to the Lok Sabha, who was returned unopposedto the Parliamentary Constituency of Ladakh from the State of Jammu& Kashmir. The allegation in the Petition are that the Petitioner is anelector of the Ladakh Parliamentary Constituency and is registered as avoter unde No. 387 in the Electoral Roll of village Pashkum, Patwar HalqaPashkum of the Kargil Assembly Constituency falling within the LadakhParliamentary Constituency and is an elector within the meaning of the Act.The respondent paid a security deposit of Rs. 250/- whereas he had to de-posit Rs. 500/- for contesting the Parliamentary Constituency. The Re-turning Officer at the time of scrutiny of the nomination paper of the respon-dent on 21st Jaunary, 1967 should have rejected the nomination paper ofthe respondent but he improperly accepted it. By this imporper acceptanceof the nomination paper of the respondent, the result of the said election,in so far as it concerns the said returned candidate, has been materiallyaffected. The further grounds taken in the petition are that the declaration ofthe respondent as duly elected under section 53(2) of the Act, required the res-pondent to lodge with the District Election Officer an account of his electionexpenses within 30 days from the date of his election. This th6 respondenthas failed to do. Neither the respondent nor his election agent has kepta separate and correct account of all expenditure incurred in connectionwith election as required under section 77 of the Act. The respondentfurther took recourse to corrupt practices within the meaning of section123, sub-section (2) and (7) of the Act. The facts and circumstances con-stituting corrupt practices are given in para No. 10 of the petition. It ismentioned therein that the respondent was a Minister of State for Ladakhaffairs in the outgoing Ministry. The respondent exercised considerableinfluence over the officers in Ladakh . On the 14th of Jaunary 1967 a noticewas issued in Ladakh and Kargil that the last date for filing the nomina-tion papers for the Ladakh Parliamentary Constituency was fixed as 20thJanuary 1967 upto 3. P. M. The entire district of Ladakh being snow-bound, the means of transport from Kargil to Leh, which is a distance ofabout 150 miles, is by bus only which is owned and controlled by theGovernment. There was only one bus running from Kargil to-Leh. Therespondent as a Minister for State controlling the entire affairs of Ladakh,managed that the bus be delayed to ensure that no person from Kargil couldreach Leh in time to file his nomination paper. The bus was ordinarilyexpected to leave Kargil for Leh on the 14th of January, 1967. It wasgot delayed at Kargil on one pretext or other till 19th January 1967 fore-noon. Normally the bus having started on the' 19th fore-noon fr6m Kar-gil should have reached Leh on the fore-noon of 20th January 1967. The

326 KACHO MOHD. ALI KHAN V. SHRI KUSHOK BAKULA [VOL. XXXIV

majority of electors of Kargil head decided to support Sheikh GulamRaza S/o Mehdi of Village Shelikche, Tehsil Kargil, who was a registeredvoter at serial No. 947 in the Electoral Roll for the said Assembly/LadakhParliamentary Constituency pertaining to Patwar Halqa Poen. The saidSheikh Gulam Raza with his proposers namely Haji Gulam Ali S/o Mussaand Gulam Ali S/o Habib UUah Khan who were registered voters in thisconstituency left by this bus for the purpose of filing the nomination papersof the said Sheikh Gulam Raza. After the bus left Kargil, one Agha SyedIbrahim Shah S/o Syed Kazim Shah managed to send a message over thetelephone to the respondent at Leh intimating to him of the departureof the said three persons. This Agha had tried to avoid the departure ofthe said three persons but has failed. He is closely associated with the res-pondent, both belonging to the Congress Party. On receiving this informa-tion from the said Agha. the respondent took advantage of his position asa State Minister in charge of Ladakh affairs and his political influence sentpolice personnel to intercept the bus to ensure that the three persons mention-ed above could not reach Leh before the scheduled time i. e. 3 P. M. on the20th of Jaunary 1967. When the bus reached Bazgo, which is at a distanceof about 26 miles from Leh, late in the evening on 19th January, 1967, thesaid police personnel reached the spot and stopped the bus. At the instanceof the said police personnel, the driver of the bus, Ghulam Mohd. Shalla cons-pired to delay the bus on account of some mechanical defect in the vehicle.After the said driver met the police, he came back into the bus and taking thebus a little further pretended that the bus could not move further on accountof some mechanical defect. The driver of this bus went in the jeep of thepolice personnel to Leh on the pretext of getting help for the bus. Thesaid driver returned from Leh with a mechanic on the after-noon of 20thJanuary, 1967 and after pretending to have the bus repaired, proceededtowards Leh and reached Leh at 5. P. M. on 20th of January 1967, when thetime for filing the nomination paper had expired. Because of these activi-ties, the nomination papers of Sheikh Gulam Raza could not be filed. Thepeople of Kargil felt strongly agitated on realising the game played by therespondent, and sent telegrams protesting against the said conduct of the res-pondent to various high dignatories including the Dy. Commissioner, Leh,who is the District Election Officer also. As the time had expired, no actionwas taken and the respondent was declared elected. The election is there-

fore liable to be declared void, which may be done and necessary consequ-ential orders may also be passed. An affidavit in support of the allegationsof the corrupt practices has also been filed along with the petition.

In the objections filed by the respondent, it is stated that the petitionerhas no right to present this petition. The respondent appeared before thecompetent authority for the deposit of Rs. 500 but the respondent wastold by the said officer to deposit only Rs. 250 and the same wasdeposited, under orders of the authority. The respondent presen-ted Rs. 500 as security deposit to the authority. The electionhas not been materially affected nor is there any mention in thepetition of how the election has been materially affected. The peti-tioner had nowhere alleged that in case the nomination paper of the res-pondent was rejected, any other person would have submitted his nominationpaper. The allegations as contained in paragraph 4 of the petition arevague as no details have been given. The allegations with respect to failingto file and maintain election expenses account have been denied. Further

E.L.R.] KACHO MOHD. ALI KHAN V. SHRI KUSHOK BAKULA 327

it is not shown by the petitioner as to how the non-furnishing of thethe election expenses accounts has materially affected the election. Therespondent has not incurred any expenditure in this behalf, ras he was notopposed by any candidate but was elected unopposed. In reply to para No.10-A it is stated that all the facts except that the respondent exercised con-siderable influence over the Government officers in Ladakh are incorrect.The allegations of alleged corrupt practices are vague and have not beenverified separately.

On these pleadings of the parties, the following issues were framed on28-5-1967:—

1. Is the Petitioner an elector in the Ladakh Parliamentary Consti-tuency? O. P. P.

2. If issue 1 is proved, is the petitioner not competent to file this peti-tion? O. P. D.

3. (a) Was the respondent directed to deposit Rs. 250 only as secu-rity deposit by the Returning Officer? O. P. D. '

(b) If so, what is its effect on the present petition? O. P. D,

4. As the respondent had been returned uncontcsted, was it not nece-sary for him .to furnish any election expenses within the prescrib-ed period of 30 days after the date of his election ? O. P. D.

5. Was the bus running between Kargil and Leh detained and delayedat Kargil on one pretext or the other till 19th January, 1967 FN withthe manipulation of the respondent? O. P. P.

6. Were Sheikh Ghulam Raza S/o Mehdi of village Shelikche, TehsilKargil, a prospective candidate for this constituency, Haji GulamAli S/o Musa R/o Village Khas Kargil and Gulam Ali S/o Habib UllahKhan R/o village Khas Kargil travelling by this bus to file the nomi-nation papers of Sheikh Ghulam Raza on 19-1-1967 before theReturning Officer at Leh? O. P. P.

7. Was it manoeuvred by the respondent through the police pesonnelat Leh that the bus should not reach Leh before 3. P. M. on 20thJanuary, 1967? If so, how? O. P. P.

8. If issue No. 5, 6 and 7 or anyone or more of them are proved inthe affirmative has the result of the election been materially affect-ed thereby ? O. P. P.

The petitioner produced the following witnesses in support of his case.

Giresh Chander, Shri Ghulam Raza, Ghulam Mohammed Shalla,driver Bus No. 236 JKA, and the petitioner appeared as his own witness.The respondent produced Mohammad Abdulla Abas, S. H. O. Police sta-tion Leh, Chuni Lai Greaser, Govt. Transport Workshop, Leh, Ghulam2 EC/71—22

328 KACHO MOHD. ALI KHAN V. SHRI KUSHOK BAKULA [VOL. XXXIV

Rasul, Booking Manager, Transport Department, Leh, Chewang RigzanElection Naib-Tehsildar, Shri Sonem Wengyal, Shri Giresh Chander,Tushi Rigzan, and appeared as his own witness.

In rebuttal Shri SonamNarbo, Returning Officer was examined as awitness by the petitioner on 20-10-1967. Arguments in this case were heardon 14-11-1967. After going through the file and the record, I thoughtnecessary to re-examine Shri Sonam Narbo. He was recalled and it tookhim a long time to appear again and ultimately he was again re-examinedon 14-12-1967. I need not deal in extense with the statements of differentwitnesses produced by the parties. While discussing different issues, therelevant statements of the witnesses produced by either side would be men-tioned.

So far as issue No. 1 is concerned, the petitioner has discharged the onusof proof of this issue. Giresh Chander who appeared twice, once as wit-ness for the petitioner and second time as witness for the responent, hasproduced the record of the Chief Election Officer and it is proved from hisstatement that the petitioner is a registered elector under No. 387 as appearsin the Electoral roll produced, which is marked Ex. P. W. 1/1. The parent-age of the petitioner was corrected from Mohammad Akber Khan to KachoMohd. Akbar Khan. This evidence is not rebutted by the respondent.Therefore, issue No. 1 is held to be proved in favour of the petitioner.

Issue No. 2

Issue No. 1 has been held to be proved and in my opinion this secondissue should be decided against the respondent; because the respondenthas not shown anything why when the petitioner is a registered electorof the said Parliamentary constituency, his petition is not competent. Undersection 81 of the Act any elector can present an election petition witnin 45days from the date of the election of the returned candidate. Therefore,the petitioner is fully competent to present the election petition.

Issue No. 3

This issue is split in two parts (a) and (b). This is an important issuein the case. So far as the factual part of this is concerned, which is thesubject matter of part (a) of this' issue, the following witnesses have beenexamined. The burden of proof of this issue was upon the respondent.The respondent's case is that he went with Rs. 500 security money to theReturning Officer, Sonam Narboo. Mr. Sonam Narboo told him the onlyRs. 250 was the requisite security deposit. On the insistence of the res-pondent the Returning Officer again told him that only Rs. 250 was theamount required for the security deposit. On further insistence of therespondent the Returning Officer consulted the book and directed ths res-pondent to deposit Rs. 250 only as the security deposit which he did. Thisstatement in all its details is corroborated by Tashi Rigzan who was theproposer of the respondent, Sonam Wangyal who was present at the timeof presentation of this nomination paper of the respondent and even byChewang Rigzan who was the Election Naib-Tehsildaf of the Constituency,working with the Returning Officer. These gentlemen further depose that

E.L.R.] KACHO MOHD. ALI-KtfAN V. SHRI KUSHOK BAKULA 329

on the insistence of the respondent that he would deposit Rs. 500 as thesecurity money which he actually placed before him, the Returning Officerconsulted a book namely the Jammu and Kashmir Representation of thePeople Act and then impressed upon the respondent that the law requiredonly Rs. 250 as the security deposit. This was done by the respondentin obedience to the orders of the Returning Officer. In rebuttal the peti-tioner produced Mr. Sonam Narboo who stated that he did not advice ordirect the respondent to deposit only Rs. 250. The respondent had deposit-ed the security money with the Election Naib-Tehsildar, Chewang Rigzan.He had no talk with the respondent about the security deposit. He reliedon his Naib-Tehsildar Chewang Rigzan who was an experienced man andat the time of scrutiny, he enquired of the Election Naib-Tehsildar whethereverything so far as the nomination paper of the respondent was concerned,was in order and on his replying in the affirmative, he accepted the nomina-tion paper of the respondent. The respondent was the only candidate whohad filed his nomination paper and therefore he was declared elected. Asalready stated when I went through the record of this case, I came acrosssome papers from the election file which necessitated my re-examining thisgentleman Mr. Sonam Narboo, the Returning Officer. I have not theleast doubt in my mind that the story as put forward by the respondent isthe correct version of the episode of the deposit of the security money. Thisversion is corroborated by the witnesses above-mentioned. There is fur-ther intrinsic evidence to indicate that the version of the respondent inthis behalf is correct, and that of Mr. Sonam Narboo is wrong. The amountof Rs. 250 seems to have been paid to Mr. Sonam Narboo himself as theReturning Officer who may have given it to Chewang Rigzan Election Naib-Tehsildar. On the election file there is a letter by this Returning Officer,Mr. Sonam Narboo addressed to the Treasury Officer, Leh, which has beenexhibited as C3 where by this Returning Officer sends a sum of Rs.250 to the Treasury Officer to be deposited as security deposit of the res-pondent. This letter is admitted by him and it was to prove this letterthat the witness was recalled. There are further two documents on theelection file, one is a telegram from the Deputy Commissioner, Ladakh,Leh to the Chief Election Officer whose telegraphic address is 'Election'at Jammu demanding the Central Representation Peoples Act because therewas some controversy about the amount of the security deposit requiredfor the Parliamentary Constituency. The relevant portion of this telegramis as under:—

"Under section 45 J & K Representation People Act Deposit candidatesLegislative Assembly Constituency Repees Two hundred and fiftyAAA Central Representation People Act not supplied to this office

AAA kindly signal amount deposit candidates for Parliamentaryconstituency quoting Section and Act."

This telegram is the office copy of a telegram and is dated 3rd April, 1967.In reply to this telegram the Chief Election Officer sends a telegram to theDeputy Commissioner, Leh, which was received by him on 11th April,1967 and it recites:—

"Election manual India already posted registered vide 14399 28thJauuary, 67 stop vide section thirty-four Representation People Act1951 deposits for Parliamentary election Five hundred rupees."

330 KACHO MOHD. ALI KHAN V SHRI KUSHOK BAKULA [VOL. XXXIV

This document is exhibited as C2. It was to prove these three documentsthat I had the necessity of recalling Mr. Sonam Narboo. Mr. Mukerji, thethen Deputy Commissioner, Leh is stated to be somewhere in Calcuttawhose whereabouts are not clearly indicated.

It was argued before me that the Returning Officer mala fide misinform-ed the respondent and directed him to deposit only Rs. 250 as the securitydeposit whereas he offered more than once Rs. 500 as security deposit.T am not prepared to go to this length. What is clear from the recordis that the Returning Officer had not received the Representation of PeopleAct of India, 1951 by the 20th of January, 1967, or even by the 21st of Jan-uary, 1967 when the nomination paper of the respondent was filed beforehim or scrutiny of the same was done. The only book that was available withthe Returning Officer was the J & K Representation of People Act. Thatclearly laid down a deposit of Rs. 250. The Returning Officer believing thatlaw to be applicable to the case of the respondent directed him to depositonly Rs. 250 while the respondent was pressing for depositing Rs. 500 assecurity deposit and had actually placed this amount before the ReturningOfficer. Mr. Sonam Narboo had no alternative, although he is belied by hisown document in this behalf, to state that he had no talk with the respondentabout the security deposit. He further confessed that he did not knoweven upto the time he made the statement in the court what the actualamount was that was required to be deposited under the law. He had todeny the talk or even the receipt of the security deposit of Rs. 250 becauseotherwise he would be faced with the awkward position as to why he accept-ed the nomination paper of the respondent when the security deposit wasnot properly paid by him. Therefore my finding on part (a) of this issueis that the respondent offered Rs. 500 as the security deposit to the Return-ing Officer and even placed this amount before the Returning Officer butultimately deposited only Rs. 250 with the Returning Officer on this accountunder the advice, and guidance and direction of the Returning Officer. Therespondent has done what any other prudent man would have done underthe circumstances in that far flung area where there is no legal practitionereven. The Returning Officer was the final authority on the matter. Part(b) of this issue will be discussed by me later when I discuss the legal aspectof this case.

Issue No. 4

This issue is factual as well as legal. I will take up this issue after I discussissues Nos. 5, 6, and 7 which are issues of fact. These three issues are inter-linked and they form the subject matter of the so called corrupt practicesresorted to by the respondent.

Issue No. 5

About this issue there is no evidence except that of Ghulam Raza whoalleges that he was a prospective candidate for this election, with regardto the subject matter of this issue. We do not know whether the bus wasdue to leave on the 14th. No question has been put in this behalf to thedriver of the bus Ghulam Mohd. Shalla who was the petitioner's witnessand favourably inclined towards him.

E.L.R.] KACHO MOHD. ALI KHAN V. SHRI KUSHOK BAKULA 331

On the other hand this Ghulam Mohammad Shalla who is absolutely afalse witness otherwise does not support the petitioner at all in this part ofthe case. According to this driver 16th and 17th of January 1967 were the daysof his halt at Kargil. The bus had to leave for Leh on the 18th of January,1967 but the Manager made the bus to leave on the 19th of January, 1967instead of 18th. Some Hajies were booked for this bus for the 19th. There-fore in view of my other remarks pertaining to this witness's statement, Ithink this issue is not at all proved by the petitioner.

Issue No. 6

According to Ghulam Raza, Haji Ghulam Nabi and Kacho MohammadAli had accompanied Ghulam Raza to propose him for this constituency.Haji Ghulam Nabi has not been produced. Kacho Mohammad Ali isperhaps the petitioner but the witness clearly states that he did not accom-pany this Ghulam Raza to Leh. In the election petition it is stated thatGhulam Raza was accompanied by one Haji Gulam Ali and another GulamAli. The driver Ghulam Mohd. Shalla only mentions Ghulam Raza andHaji Ghulam Ali as among others the passengers who travelled by his busJKA 236. There are contradictory statements about the companionsof Ghulam Raza travelling by this bus for the purpose of nominating thisGhulam Raza for this constituency. This story of Ghulam Raza travel-ling for filing this nomination paper and other incidents connected with thesame appear to me to be an after thought because if it were correct thisGhulam Raza or his prospective proposer should have raised a hue and cryat any time about the malpractices committed by the respondent. Accord-ing to Ghulam Raza and even Ghulam Mohammad Shalla, Ghulam Razaaccompanied by other friends whatever their names, reached Leh at 5 P. M.on the 20th of January 1967. They could have taken some step s toventilate their grievances and complained about this so called conspiracyand treatment metted out to them. But nothing was done. On the otherhand we find in the election petition [parailO(f)] that on realising the gameplayed by the respondent in preventing the said persons is filing the nomina-tion papers in opposition, the people of Kargil felt strongly agitated andimmediately sent telegrams protesting against the said conduct of the res-pondent to various high dignatories including the Deputy Commissioner, Lehwho is the District Election Officer. But nothing of the sort has been broughtout in evidence and no telegrams or any other protests have been producedor even hinted at during the proceedings in this case. The maximum thatcan be held in favour of the petitioner so far as issue No. 6 is concerned,is that Ghulam Raza was travelling by this bus from Kargil to Leh. Hehas not proved at all that Ghulam Raza had gone to file the nominationpaper and for that purpose was accompanied by Haji Ghulam Ali S/o Musaand Gulam Ali S/o Habib Ullah Khan.

Issue No. 7

In support of this issue the only statement is that of Ghulam MohammadShalla, driver. This driver, as I remarked earlier, is a liar and no reliancecan be placed on his statement as he is contradicted in almost all the parti-culars brought out in his statement in favour of the petitioner. Accord-ing to this witness he started with 19 passengers in his bus from Kargil toLeh on the 19th of January, 1967. By the evening of that day he reached

332 KACHO MOHD. ALI KHAN V. SHRI KUSHOK BAKULA [VIL. XXXIV

a place near Bazghu. The Hajies who were travelling by this bus insistedthat the driver should take them same day to Leh as they had to leave fromthere next morning for Bombay. When the bus reached Baker curve, it wasdark, a jeep with' lights off came in the opposites direction and when itcame near the bus they asked the driver to stop. A police constable emerg-ed from the jeep and took aside the driver. The police constable told himto stop there for the night and so that the bus reaches Leh next day at 5 P.M.That was his order. A constable was made to stay in the bus. Theystayed for the night at Bazghu and there under the instructions of the HeadConstable, the driver told the passenger that the bus had gone out of orderand could not proceed. The constable did not permit him to go beyondBazghu. He went by a jeep which was coming from Khalsi to Leh wherehe stayed for the night, met the S. H. O. and the S. H. O. told him not toreach Leh before 5. P. M. He came back to Bazghu at 2. P. M. Then hepretended to set right some wheel of the bus and then carried the passengersand reached Leh at 5. P. M. on the 20th of January, 1967. The person whohas detained the bus was Sikh. The constable who was made to stay in thebus, his name is Mohammad Hussain. Mohammad Abdulla Abbas is S. H. O.,Leh. There is department of transport also in Leh. He approachedthe Works Manager of the department in Leh who deputed one ChuniLai fitter with the driver. The bus was all right but Chuni Lai also preten-ded to set right the bus. He opened the wheel and then refitted it. There is noother evidence to support the statement of this witness. The respondenthas produced Chuni Lai Greaser in the transport workshop at Leh. Accord-ing to this witness, Chuni Lai, this Ghulam Mohammad Shalla, drivernever complained that the police had detained the bus. On the other handthe driver reported that the bus had gone out of order. He was directedby the Head Mechanic to accompany the driver to Bazghu. He actuallywent on spot. The oil-seal of the bus was wrong. The drum of the buswas full of oil. It took Chuni Lai two hours to set right the bus. The bus wasreally defective. There was no policemen on spot nor did any passangercomplaint against the driver. The other witness of the respondent GhulamRasul is the Booking Manager of Leh. According to him this GhulamMohammad Shalla came to him and told him that his bus had gone outof order. He directed Chuni Lai to go with him. The driver never com-plained that the police had detained his bus. Mohammad Abdulla AbbasS. H. O., Leh also has been produced by the respondent. According tohim he was S. H. O., Leh in January, 1967. Ghulam Mohammad Shallanever complained to him that his bus had been stopped by the police cons-table. There was no Sikh constable under him in that Thanna. Fromthese statements it is clear that the story put by the petitioner in his peti-tion which he tried to get corroborated by Ghulam Mohammad Shalla,driver, is false and has been contradicted by the evidence of Chuni Lai,Mohammad Abdulla Abbas and Ghulam Rasul. Further there is nothingin the evidence produced on behalf of the petitioner that the respondenthad anything to do directly or indirectly with either stopping the bus atBazghu or influencing any police or other officers to act as suggested by thepetitioner. In the total absence of any indication of any connection bet-ween the respondent and this alleged episode the petitioner has miserablyfailed to prove this issue No. 7.

These are my findings on issues of fact. I will now before discussingpurely legal issues, take up issue No. 4 which is both an issue of fact and

E.L.R.] KACHO MOHD. ALI KHAN V. SHRI KUSHOK BAKULA 333

Law. The respondent has stated that he did present the account of elec-tion expenses as required under law. Further he has stated that he incur-red no expenses. There is some correspondence on the election file aboutthe controversy relating to the submission of accounts by the respondent.The respondent has filed an account of election expenses but it cannot b esaid with any amount of certainty whether he has filed the account of elec-tion expenses within the prescribed period of 30 days of the declaration ofhis result. But according to me that controversy is not material so faras this issue or its effect on the election petition is concerned. Section 100of the Act mentions the grounds for declaring any election to be void. Itconsists of two sub-parts. The second sub-part starts with (d) non-furnishing ofelection expenses by itself is not a ground for invalidating the election butClause (iv) of sub-section (d) of this section says that "by any non-compliancewith the provisions of the Constitution or of this Act or of any rules ororders made under this Act an election can be held void. "But this is sub-ject to the condition that the result of the election, so far as it concernsthe returned candidate was materially affected. It is argued thatunder section 78 of the Act it was necessary for the respondent to lodgewith the District Election Officer the account of the election expenses with-in 30 days of his declaration as elected. That he has not done, and there-fore his failure to do so is a non-compliance with the provisions of this Act.But as I said it must be shown by the petitioner that this non-compliancehas materially affected the result of the election. The respondent wasreturned uncontested to this Parliamentary constituency. He has statedthat he has not incurred any expenses. Even if he did not file the accountsof expenses within the requisite period nothing has been shown or evensuggested how the result of the election has been materially affected. Thisprovision apart from other limitations, which shall be discussed later,has been enacted to furnish the accounts of the election expenses to theproper authorities so that it can be ascertained whether there has been anycorrupt practice committed by the candidate in incurring expenses on prohibi-ted items or in excess of the maximum prescribed under the rules. But inthis case there was no contest and no expenses were actually incurred. Sothe result of the election could not possibly be materially affected. Thatis one aspect of this issue.

In my opinion this objection of the petitioner can be disposed of summarilyas baseless. Section 77 of the Act enjoins upon every candidate to keep aseparate and correct account of the expenditure incurred by him in connectionwith his election. Section 78 of the Act makes the lodging of the accountof the election expenses with the District Election Officer obligatory onlyfor the contesting candidate and not for all candidates. The word 'con-testing candidates' is not separately defined in the Act but section 38 of theAct more or less gives the definition of the word 'contesting candidates'.It says immediately after the expiry of the period within which candi-datures may be withdrawn under sub-section (1) of section 37, the ReturningOfficer shall prepare and publish in such form and manner as may be pre-scribed a list of contesting candidates, that is to say candidates who wereincluded in the list of validly nominated candidates and who have notwithdrawn their candidature within the said period. This obviously meansthat candidates who have filed their nomination papers can be deemed tobe contesting candidates only if they persist to remain as such after thedate fixed for the withdrawal of the candidature. That means till that

334 KACHO MOHD. ALI KHAN V. SHRI KUSHOK BAKULA [VOL. XXXIV

time a candidate is not deemed to be a contesting candidate. The rules8, 10 and 11 of the Election Rules also may be perused in this behalf. Sec-tion 53 of the Act clearly makes a distinction between contested and uncon-tested elections. The word 'contest' in its etymological sense indicatesa setting of one person or thing against another in a hostile or competingway. The word connost resistance, opposition and conflict. To acandidate who has been returned unopposed, the term contest cannot atall apply. Therefore the respondent on a plain reading of section 78 ofthe Act was not bound to lodge the account of the election expenses beforethe District Election Officer within 30 days of the election and his failureto do so, would not result in any disqualification for him or in settingaside his election. The purpose of the Section 78 also is the same as indicat-ed already namely to safeguard against incurring unauthorised expenditureor expenditure beyond the permissible limits with the sole object of keep-ing the process of election free from corrupt practices. Therefore this issueNo. 4 is decided in favour of the respondent.

The main contest in this election petition is with respect to 'issue No.3 part (b). To understand the significance of this issue let me briefly summa-rise the arguments of the learned counsel for the parties. The argumentof the learned counsel for the petitioner is that under section 34 of the Actthe respondent was bound to deposit Rs. 500 as security deposit. Admitt-edly he has deposited only Rs. 250 therefore under this very sectioni.e. 34 he shall not be deemed to be duly nominated for election. His nomina-tion paper has been improperly accepted by the Returning Officer. Heshould therefore be unseated. His further argument was that the resultof the election has been materially affected because Ghulam Raza was go-ing to contest the election. He had been deprived of that opportunity.Apart from the fact whether the story of getting the bus stopped throughthe intervention and at the instance of the respondent, it is proved thathe started for contesting this election. He had not reached Leh for thisreason or that. If the respondent is unseated that gentleman and otherswill have an opportunity to contest the election and it cannot be said at thistime whether the respondent or anyone of his prospective opponents wouldwin the election. Therefore the result of the election has been materiallyaffected. This is the crux of the argument of the learned counsel for thepetitioner. On the other hand the learned counsel for the respondent hasargued that this is not a case of improper acceptance of the nominationpaper. The security deposit was made. When the papers came for scru-tiny before the Returning Officer, no objection was raised as to the insuffi-ciency of the security deposit. In fact the respondent was the only candi-date who had filed the nominated paper. On the face of the nomination paperno disqualification was apparent and no objection was taken. Thereforethe acceptance of the nomination paper by the Returning Officer was not im-proper but proper. It was further argued that even if the nomination paperof the respondent had been rejected by the Returning Officer, the processof election would still continue under section 53 of the Act and the electioncould be only concluded after somebody had been duly declared to be elec-ted. Till that time the election would not be concluded, and thereforethere was no question of the result of the election having been materiallyaffected. Further it was argued that nothing has been shown by the peti-tioner that due to this improper acceptance of the nomination paper of therespondent, even if it is conceded that it is improperly accepted, there is

E.L.R.] KACHO MOHD. ALI KHAN V. SHRI KUSHOK BAKULA 335

no suggestion even in the evidence of the petitioner that the result of theelection has been materially affected. A further argument was advancedthat the respondent had offered and placed before the Returning OfficerRs. 500 as security deposit. The Returning Officer had accepted onlyRs. 250 being according to his lights the amount required under law tobe deposited by the respondent. If the Returning Officer had rejected thenomination paper of the respondent he could have filed an election petitionand on this order of the Returning Officer the election petition of the res-pondent would have succeeded. I will examine all these arguments ofthe learned counsel for the parties separately.

The last argument of the learned counsel for the respondent does notappeal to me as sound. If the Returning Officer had rejected the nomina-tion paper of the respondent and he were to bring an election petition whichwould succeed that by itself would not lead to the inference that the nomina-tion paper had been properly accepted. Legally the rejection might havebeen improper. The acceptance nonetheless may be equally improper. Thelaw on improper acceptance of nomination paper has been the subject matterof many authorities of different election Tribunals, High Courts and theSupreme Court. Before the amendment of 1956 in the Representation ofPeople Act improper rejection and improper acceptance of the nominationpaper were on the same footing and were covered by section 100(c). In bothcases if the result of election were materially affected by either improperacceptance or rejection of a nomination paper the election would be set aside.But the amendment of 1956 places the two under different categories. Nowunder the amended section improper rejection of a nomination paper is byitself a ground without proving anything further for setting aside the elec-tion. Section 100(c) may be perused in that behalf. But the improperacceptance of the nomination paper can be a ground for setting aside theelection if the result of the election in so far as it relates to the returned can-didate, has been materially affected. Therefore in such cases it has furtherto be proved that due to the improper acceptance of the nomination paper,the result of the election has been materially affected. It has been held in anumber of authorities that this proof must be given by the petitioner thoughit is a very difficult matter to prove. See 21 E.L.R. 137 and 5 E.L.R. 199.It has been further held that whether the result of the election has beenmaterially affected is essentially a question of fact. See 8 E.L.R. 311, 17E.L.R. 321 and 3 E.L.R. 423. The Supreme Court in the case of VashistNarain Sharma Vs. Devchand and others 10 E.L.R. 30 has further laiddown three tests (1) where the candidate whose nomination was improperlyaccepted had secured less votes than the difference between the returned can-didate and the candidate securing the next highest number of votes: (2)where the person referred to above secured more votes: and (3) where theperson whose nomination has been improperly accepted is the returned can-didate himself.

So far as the third case is concerned, they have held that it shouldbe deemed that the result of the election was materially affected (page 31of the report). The same observations are reported in AIR 1966 SupremeCourt 824. In this case according to the argument of thejearned counsel forthe petitioner no further proof of the result of the election having been mate-rially affected is necessary as it is the returned candidate whose nomination

336 KACHO MOHD. ALI KHAN V. SHRI KUSHOK BAKULA [VOL. XXXIV

paper has been improperly accepted. The argument of the learnedcounsel for the respondent, as indicated already is that the nominationpaper of the respondent has been properly accepted. There is no questionof its having been accepted improperly. He has based his argument on twoauthorities viz., 9 E.L.R. 494 and 22 E.L.R. 64. In the former case theSupreme Court has held if the want of qualification of a candidate does notappear on the face of the nomination paper or the electoral roll, and noobjection is raised to his nomination the Returning Officer has no otheralternative but to accept the nomination and the acceptance of the nominationcannot in such a case be held to have been 'improper' within the meaning ofsection 100(l)(c), even though the Election Tribunal finds subsequentlyafter enquiry that the candidate whose nomination was accepted was notreally qualified under the constitution to be chosen as a member of theLegislature. The election cannot be declared wholly void in such a case onaccount of the improper acceptance of a nomination u/s 100(l)(c) but thecase is one of 'non-compliance' with the provisions of the Constitution. . . . "In the latter case i.e. 22 E.L.R. 64 so far as this point is concerned, it hasbeen held that when the candidate appears to be properly qualified on theface of the nomination paper and if no objection is raised on that ground be-fore the Returning Officer the acceptance of the nomination must be deemedto be a proper acceptance. It has been further held that it is open to thepetitioner to question the validity of the election U/s 100(l)(d)(iv) on othergrounds namely, that the candidate whose nomination was accepted was notqualified at all or could not be deemed to be duly nominated as a candidatefor the reason that he did not comply with the provisions of section 33(3)of the Act. The learned counsel has further argued that U/s 34 of the Act thecandidate who has not made the requisite deposit of the security moneyshall not be deemed to be duly nominated for election. The same is thelanguage of the section 33(3) which refers to a candidate who has held anyoffice or has been dismissed and the period of five years has not elapsed sincethe dismissal, such person shall not be deemed to be duly nominated as acandidate unless his nomination paper is accompanied by a certificate issuedin the prescribed manner. . . . " Here also such a candidate shall not bedeemed to be duly nominated in the absence of a certificate. Similarlyargued the learned counsel there was no apparent error in the nominationpaper and there was no objection taken by anybody to the validity of thenomination paper. Therefore on the authority of Durga Shankar Mehtaand S. M. Banerji cases (reported as 9 E.L.R. 494 and 22 E.L.R. 64) theacceptance of the nomination paper of the respondent shall be deemed to beproper. In the former case the candidate was below 25 years of age and assuch could not stand for election. In the latter case the disqualification ofthe candidate was among other things u/s 33(3) of the Act. There are otherauthorities also on the point which may be referred as under:—

16 E.L.R. 74, is a decision of the Bombay High Court.

17 E.L.R. 321 is a decision of the Orissa High Court.

5 E.L.R. 1-99 is a decision of the Election Tribunal, Rewa.

7 E.L.R. 235 is a decision of the Election Tribunal, Ludhiana.

E.L.R.] KACHO MOHD. ALI KHAN V. SHRI KUSHOK BAKULA 337

In 10 E.L.R. 461 the Tribunal went so far as to say that the result of theelection cannot be held to be materially affected by any improper accept-ance of a nomination paper unless it is proved that if this nomination hadnot been accepted the result of the election would have been substantiallydifferent from what it was i.e., that the returned candidate would not havebeen returned and a different candidate would have succeeded at the elect-ion. Further argument of the learned counsel for the respondent in this behalfhas been that it has not at all been proved as it could not be that the resultof the election has been materially affected. According to him the respondentwas the only candidate who had filed his nomination paper. If his nomina-tion papers were rejected the process of election would continue till somebodywould have been declared as elected candidate. For this proposition heplaced reliance on the case of Dr. Narayan Bhaskar Khare Versus ElectionCommission of India reported as 13 E.L.R. 112. In that case their Lordshipshave held that:—

"The word 'election' occurring in article 71 means the entire electionprocess culminating in a candidate being declared elected and doubtsand disputes arising out of or in connection with any of the stagesof such completed election have to be inquired into and decidedby this court which, in point of time, must necessarily be after thecompletion of the entire process compendiously called the election."(Pages 121 and 122 of the report).

According to the counsel if the nomination paper of the respondent hadbeen rejected there would be new nomination papers invited and this electionwould be deemed to have come to an end only after somebody had beendeclared an elected candidate. There is much force in all these argumentsof the learned counsel for the respondent. On the basis of the propositionsof law laid down in the above authorities it can be safely held that the nomi-nation paper of the respondent has been properly accepted.

The respondent was the only candidate who had put in his nominationpaper. In the circumstances of the case there was no disqualificationapparent on the nomination form nor was any discovered much less was anyobjection taken by anybody to the nomination. Therefore in terms of 9E.L.R. 494 and 22 E.L.R. 64 the nomination paper of the respondent hadbeen properly accepted.

Apart from these arguments the matter can be viewed from a differentangle altogether. In this case it has been held by me all that can be cons-trued in favour of the petitioner is that Gulam Raza travelled by bus number236 JKA from Kargil and was bound for Leh. It has not been provedaccording to me that he was going to contest this election. Therefore theonly candidate who had thought of standing for this election was the respon-dent who actually filed his nomination paper before the Returning Officer.He went with the requisite amount of security deposit and actually offeredto and placed before the Returning Officer a sum of Rs. 500 as securitydeposit. The Returning Officer under a mistaken notion of law and in hisignorance impressed upon the respondent inspite of the latter's insistence,that only Rs. 250 was the security money necessary to be deposited. Itis in evidence of the witnesses produced by the respondent namely Tashi

338 KACHO MOHD. ALI KHAN V. SHRI KUSHOK BAKULA [VOL. XXXIV

Rigzan, Sonam Wangal, Chewang Rigzan and the respondent that therespondent offered Rs. 500 to the Returning Officer as the security money.Tashi Rigzan and Sonam Wangal and the respondent definitely state thatRs. 500 was presented as security by the respondent to the ReturningOfficer. Chewang Rigzan the Election Naib Tehsildar who was workingwith Mr. Narboo the Returning Officer stated that the Returning Officerdirected him to receive only Rs. 250 as the security amount, being theproper amount of security which the witness took and issued a receipt there-fer. Therefore all that the respondent was required to do under the law hadbeen done by him. He had even placed the money before the ReturningOfficer. Under sub-section 2 of section 34 any sum required to be depositedunder sub-section 1 of that section should be either deposited or caused to bedeposited with the Returning Officer in cash or a receipt should be producedbefore him showing that the money has been deposited in the Reserve Bankof India or in the Government Treasury. In this case the amount wasactually placed before the Returning Officer who directed his Naib Tehsil-dar to receive only Rs. 250 therefrom, which was done by the Naib Tehsildarwho also issued a receipt for the same. In my opinion the respondent hassubstantially complied with the terms of Section 34 of the Act and thereforehe is not to blame at all. It has been held in numerous authorities even thatof the Supreme Court that there must be substantial compliance with theprovisions of Section 34 of the Act and too much of technicality should notbe insisted upon. Though those decision namely 21 E.L.R. 172, 21 E.L.R.54 and 22 E.L.R. 86 etc. are in a different context but the principle laid downin these authorities can be safely invoked in the present case. There wassubstantial compliance by the respondent with the provisions of Section 34of the Act in so far as he actually placed before the Returning Officer a sumof Rs. 500 as security deposit. In substance to use the language of thesection he deposited the amount with the Returning Officer.

The action of the respondent is fully protected by the oft quoted maximof 'Actus Curiac neminem gravabit' i.e. act of court should do no harm tothe litigant. In this case it was only the act of the Returning Officer that re-sulted in the return of Rs. 250 to the respondent out of Rs. 500 thus mak-ing his security deposit short by Rs. 250. Authorities for this propositionof law can be cited and they are numerous. A few cases may be mention-ed :—

1. Rhedoy V. Koylash 13 W.R. F.B. page 3 (Full Bench).

2. Bani Madhub Mitter V. Matungini Dassi 13 Calcutta, 104 (FullBench).

This maxim has been applied to the acts of public servants also apart fromcourts. Sir Barnes Peacock in the Privy Council case reported as MakhumLai Panday Versus Shah Koondun Lai 2 LA. 210 remarked:—

"Now, considering that the registration of all conveyances of immoveableproperty of the value of Rs. 100 or upwards is, by the Act, rendersdcompulsory, and that proper legal advice is not generally accessible topersons taking conveyances of land of small value, it is scarcely rea-sonable to suppose that it was the intention of the Legislature that

E.L.R.] KACHO MOHD. ALI KHAN V. SHRI KUSHOK BAKULA 339

every registration of a deed should be null and void by reason of anon-compliance with the provisions of Section 19, 21 or 36 or othersimilar provisions. It is rather to be inferred that the Legislatureintended that such errors and defects should be classed under thegeneral words "defect in procedure" in section 88 of the Act, so thatinnocent and ignorant persons should not be deprived of their pro-perty through any error oj inadvertence of a public officer on whomthey would naturally place reliance."

In a recent case, reported as AIR 1966 Supreme Court 1631, the SupremeCourt held that when in a pre-emption decree the decreeholder was directedto deposit by a certain date the pre-emption money and the deposit was madewithin time, but less by one Rupee, which mistake was due to the error on thepart of the officer of the court in filling the challan, that the mistake shouldbe rectified and the parties should not be made to suffer.

The respondent therefore cannot be punished for any of error committedby the Returning Officer in calculating the security deposit required for theParliamentary Constituency seat.

The result is that the present petition fails and is dismissed with costsCounsel's fee Rs. 300.

An intimation of the substance of the decision of this case shall be com-municated to the Election Commission, to the Speaker of the Lok Sabha andan authenticated copy of the decision shall also be sent to the Election Com-mission.

Petition Dismissed.

IN THE HIGH COURT OF JUDICATURE AT MADRAS

S. T. ADITYANV.

T. MARTIN

(KAILASAN, J.)

December 21, 1967

Representation of the People Act, 1951, ss. 123, 123(3,4), 123(7)Expl. (I)—Corrupt practice—"Agent" in Explanation (I) to Section123(7), Meaning of-—Election petition—Legal requirements of—Whether particulars of persons who actually committed corrupt practiceare required to be given—Burden of proof—Corrupt Practice—Peti-tioner's liability to discharge—Definition of "classes" in Section153^4) of the Penal Code—Provisions of Section 123(3/1) of the Act-Scope of—Attack on a political party—Whether corrupt practice underSection 123(3/().

340 S. T. ADITYAN V. T. MARTIN [VOL. XXXIV

The petitioner challenged the election of the respondent alleging interalia that the respondent, and with his consent his agent, committed variouscorrupt practices under Section 123(3) and Section 123(3A) of the Act andthat the respondent caused to be printed and circulated three election pam-phlets imputing unchastity to the women of the Nadar caste and unsocialpractices to the business section of the Nadar community, and thus promot-ing class hatred. The respondent denied the allegations.

HELD : Dismissing the petition,

(i) The word 'Agent' in Explanation (I) to Section 123(7) is given a res-tricted meaning in that it excludes a person who had acted with the know-ledge, but not with the consent of the candidate.

The Vigan Case, Reports of Election Petitions in Great Britain and Ire-land, Vol. IV, P. II; Bhagwan Datt Shastri v. R. P. Gupta, E.L.R. IX p. 448Marti Gopal Swami v. Abdul Hamid Choudhury, E.L.R. Vol. 19 1959 p. 175;referred to.

(ii) Though it is not incumbent on the petitioner to give the names ofthe witnesses relating to the corrupt practices, the names of the persons whoactually committed the corrupt practices are required to be given in law.Further, the burden of proving that the respondent or with his consent, hisagent, distributed the objectionable pamphlet" is on the petitioner and itmust be established beyond reasonable doubt by clear and unambiguousevidence.

Mohan Singh v, Bhanwarlal, A.I.R. 1964 S.C. 1366; S. Kandaswamy v.S.B. Adityan, 19 E.L.R. 260; Gangi Reddy v. Anjaneya Reddy, 22 E.L.R. 261;and Guru Govinda Basu v. Shankari Prasad Ghosal and Ors. 23 E.L.R. 356;referred to.

(iii) In order to come within the mischief of Section 123 Sub-Section(3A) there must be promotion of or attempt to promote, feelings of enemityor hatred between different classes of the citizens of India on grounds ofreligion, race, caste, community or language; and the object of the impugnedpamphlet would not result in creating hatred between the Nadar commu-nity and the D.M.K. Party.

(iv) A political party is not a class of citizens falling within the definitionof "classes" in Section 153(A) of the Penal Code, which definition is more orless in similar terms to the provisions of Section 123(3A) of the Representa-tion of the People Act, 1951, and which is not wide enough to include a poli-tical party; an attack on that party would not amount to a corrupt practiceunder the above section.

Kultar Singh v. Mukhtiar Singh, A.I.R. 1965 S.C. 141; Ramanbhai v.Dabhi Ajit Kumar, A.I.R. 1965 S.C. 669; referred to.

K.G. Zahidi v. State, 1964 All. Law Journal, Vol. 62, P. 545; dissentedfrom.

E.L.R.] S. T. ADITYAN V. T. MARTIN 341

Narayan Vasudev Phadke v. Emperor, A.I.R. 1940 Bombay 379; Jonna-lagadda Ramalingayya and Others v. Emperor, A.I.R. 1936 Mad. 835;Emperor v. Muniben Kara, I.L.R. 57 Bom. 253 and Zamindar NewspaperLahore, In re A.I.R. 1934 Lahore 219; referred to.

ELECTION PETITION NO. 7 OF 1967.

JUDGMENT

KAILASAN, J.—This petition is filed by Thiru S. T. Adityan, a candi-date who contested at the election to the Madras Legislative Assemblyfrom the Sathankulam constituency held on 18th February 1967, prayingfor declaration of the election of the respondent, Thiru T. Martin to bevoid. In the election, the petitioner was the candidate on behalf of theDravida Munnetra Kazhagam and secured 26,845 votes while the respondentwho was the candidate on behalf of the Congress Party secured 31,143votes and was declared elected. One other candidate, Thiru Poovalingam, alsocontested and secured 1,317 votes. There were 2,361 invalid votes. Thegrounds on which the election of the respondent was challenged in this peti-tion, were three in number. It was contended that the respondent and, withhis consent, his agents, committed corrupt practices under Section 123(3)and S. 123(3A) of the Representation of the People Act, 1951 (here-in-after referred to as the Act). Secondly, it was alleged that the election isliable to be set aside on the ground of commission of corrupt practices underSection 123(6) of the Act. Thirdly, it was alleged that the nomination of therespondent was improperly accepted.

The allegation of the commission of corrupt practices under Section123(6) of the Act is that the respondent spent more than the prescribedamount for his election but in his return of election expenses, showed onlyRs. 1,624.60 paise as his expenses and that he suppressed most of his expensesincurred or authorised by him. The petitioner listed some items as havingbeen spent by the respondent but not accounted for. In the written state-ment, the respondent denied the allegation and stated that the return ofexpenses Hied by him is a true and a correct one. He also denied the allega-tion that he had spent various amounts, but did not account for them,as alleged in the petition. On these pleadings, issue No. 10, as to whetherany expenses were incurred by the respondent under the various headsenumerated in the said issue, and if so, what amounts were so spent, wasframed. During the trial, the petitioner submitted that he was not pressingthis issue. This issue, therefore, need not be considered.

The allegation that the nomination of the respondent was improperlyaccepted was based on the ground that the respondent is voter from a cons-tituency different from Sathankulam, and that he did not file along with hisnomination paper, nor produce before the Returning Officer at the time of thescrutiny, a copy of the electoral roll of that constituency or a relevant partthereof or a certified copy of the relevant entry in such roll. The respondentdenied this allegation in this written statement and submitted that his nomi-nation paper was validly accepted by the election officer on these pleadingsissue No. 12, as to whether the copy of the electoral roll produced by the res-pondent before the Returning Officer was not properly certified copy and

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and whether the nomination of the respondent was improperly accepted andwhether the acceptance of the nomination of the respondent had materiallyaffected the result of the petitioner, was framed. During the trial, the peti-tioner gave up this issue and stated that he was not pressing it. This issueis, therefore, found against the petitioner. The respondent did not presshis objection to the form of the petition and, therefore, issue No. 12, may alsobe left out of account.

The only ground of attack that remains is whether the respondent isguilty of corrupt practices under section 123(3) and S. 123(3A) of the Act.According to the petitioner, in Sathankulam constituency about 75 per centof the voters are Nadars by caste, and though several of them were convert-ed to Christianity, they preserved the caste and identified themselves asNadars. The respondent himself is a Nadar by Caste, though he is a Chris-tian. It is the case of the petitioner that the respondent caused to be printedthree election pamphlets, which will be referred to in detail later, and hadthem circulated widely within Sathankulam constituency. These pamphletsreproduced certain articles from "Nathigam" a Tamil weekly, wherein it wasalleged that prominent leaders of the Dravida Munnetra Kazhagam likeThiru C. N. Annadurai and Thiru M. Karunanidhi and their followers im-puted unchastity to the women of the Nadar Caste, and unsocial practicesto the business section of the Nadar community, and threatened that theNadars will be deported or banished. These pamphlets, it is alleged, wereprinted and distributed by the respondent and his agents and other personswith his consent. The allegations were also repeated by the respondent,and by others with the consent of the respondent, by announcement over themicrophone on the 15th and 16th February, two days before the elections.The petitioner also stated that the respondent authorised Nasi Nadar of theYouth Congress Committee, Sathankulam, K. Sakthival Nadar and P.Subbiah Nadar of Dalavoipuram to publish the pamphlet, Ex. P-7, in thecase. It was further alleged that the respondent authorised one AnthonyRajiah of Pothakalan Valai to print and publish the pamphlet Ex. P.16,and one Karthikeyan of Kumuttikottai to print and publish the pamphlet, Ex.P. 17. According to the petitioner, these pamphlets were widely distributed insome places mentioned in the petition and the contents of the pamphlets werealso announced through microphones on the 15th and 16th of February,1967. The result of the publication of the three pamphlets and their widecirculation, it is alleged, is that the Nadar community who formed the majo-rity of the voters in the constituency got prejudiced against the DravidaMunnetra Kazhagam, and voted for the Congress Party. The result of theelection so far as the respondent is concerned had been materially affected bypromotion and attempted promotion of feelings of class enmity or hatred bythe respondent's agents, and more than 5000 voters of the Nadar caste whowould have otherwise voted for the petitioner, turned against the petitionerand voted for the respondent.

The respondent denied the various allegations regarding the printing,publishing and distribution of the pamphlets and stated that he neverpublished them himself or allowed his agents or other persons to print, pub-lish or distribute the pamphlets. He denied that he authorised KasiNadar, Sakthivel Nadar, Anthoni Rajiah and Karthikeyan to print or pub-lish any of the pamphlets and also denied that the contents of them were

E.L.R.] S. T. ADITYAN V. T. MARTIN 343

announced through microphone. Issues Nos. 2 to 9 relate 'to the pleadingsreferred to above and may be considered together.

The election of the returned candidate is liable to be declared void underSection 100(1) (b) of the Act, if the High Court is of opinion that any corruptpractice had been committed by a returned candidate or his election agentor by any other person with the consent of a ' returned candidate or hiselection agent. The election of the returned candidate is also liable to beset aside under Section 100(l)(d)(ii) of the Act if, in the opinion of the HighCourt, the result of the election, in so far as it concerned a returned candidate,had been materially affected by any corrupt practice committed in theinterests of the returned candidate by an agent other than his election agent.The learned counsel for the petitioner in the course of his arguments conced-ed that he was unable to substantiate his attack under Section 100(1) (d)(ii).It is, therefore, to be considered whether the election is liable to be declaredvoid under Section 100(l)(b) of the Act.

Section 123 of the Representation of the People Act, 1951 enumeratescorrupt practices. We are concerned with Sections 123(3) and S. 123(3-A)of the Act. Section 123(3) provides that an appeal by a candidate or hisagent or by any other person with the consent of a candidate or his electionagent to vote or refrain from voting for any person on the ground of his reli-gion, race, caste, community or language in furtherance of the prospects ofthe election of that candidate, or for prejudicially affecting the election ofany candidate, will be a corrupt practice. Section 123(3A) provides thatpromotion of or attempt to promote, feelings of enmity or hatred betweendifferent classes of the citizens- of India on grounds of religion, race, caste,community, or language, by a candidate or his agent or any other personwith the consent of a candidate or his election agent for the furtherance oftiie prospects of the election of that candidate or for prejudicially affectingthe election of any candidate would be a corrupt practice.

A large volume of oral and documentary evidence was let in, by the peti-tioner to substantiate the charge, and by the respondent to repudiate it.At the outset, it "has to be considered whether the pamphlets were in factprinted and published during the elections. Exs. P-7, P-16 and P-17 are thepamphlets, the publication and distribution of which are said to amountto corrupt practice. Ex. P-12 is a pamphlet issued on behalf of the petitioneras a counter to the notice Ex. P-7. So far as Exs. P-16 and P-17 are con-cerned, the petitioner has not examined the printer or the publisher of pam-phlets. The persons who are alleged to have published the pamphlets,Exs. P-16 and P-17, Anthony Rajiah and Karthikeyan, have not been exa-mined. The only evidence let in relates to distribution. The two witnesseswho speak to distribution of Ex. P-16 is P.W. 2 and P.W. 19 and that ofEx. P-17, P.Ws. 11 and 19. P.W. 2 is Samuel Nadar who was admittedlythe booth agent of the petitioner. According to him, when he was goingon a cycle to Pettaikalanvilai in the bazaar, one Arogaya Vathiyar wasdistributing Ex. P-7 and Ex. P.-16 on 17-2-1967. The witness was involvedin a case of illicit imigration to Ceylon and was convicted and fined Rs. 5/-by a Court. The witness is very much interested in the petitioner, as accord-ing to his own admission, he was looking after the election work of thepetitioner. In the circumstances, much reliance cannot be placed on his2EC/71—2*

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oral testimony regarding the distribution of Ex. P-16. The only otherwitness who speaks to the distribution of Ex. P-16 is P.W. 19. According toP.W. 19, he received copies of Exs. P-16 and P-17 which were distributed.The witness, P.W. 19, admittedly worked for the petitioner was intimatewith the Secretary of the Dravida Munnetra Kazhagam in that region.Though an objectionable pamphlet was distributed, he did not inform eitherthe Secretary or the petitioner about the distribution. He is an interestedwitness and the evidence of P.Ws. 2 and 19 cannot be accepted for establish-ing the distribution of the pamphlets, especially when the printer of the j a m -phlet and the person who is alleged to have published the pamphlet havenot been examined.

The distribution of Ex. P-17 is sought to be proved by the oral evidenceof P.Ws. 11 and 19. The evidence of P.W. 19 has already been referred andthe witness is found to be interested in the petitioner. P.W. 11 is one Arumu-gha Nadar, a resident of Padukkapattu Village. According to him, thoughon prior occasions he voted for the Congress, as the Congress People whowere running the Government failed to get supply of water to the tank inwhich he was interested, he wanted the Dravida Munnetra Kazhagam to winso that it could get water for the tank. He stated that he was given a noticewhich he identified as Ex. P-17. The witness admitted that his own son wasthe polling agent for the petitioner and P.W. 11 was convicted in a criminalcase and was released on probation. The allegation as to distribution of thepamphlet, Ex. P-17, cannot be accepted on the unsatisfactory oral testimonyof P.Ws,. 11 and 19. In fact, the learned counsel for the petitioner did notpress the allegation of distribution of Exs. P-16 and P-17.

The most important pamphlet is Ex. P-17. The pamphlet is in Tamil,and may be translated as follows :—

"D.M.K. Orators who talk ill of the Nadar Community."Dear Sir,

Our hearts are wounded when members of the D.M.K. talk illof a particular community at their dais. It is but natural for anyone ina democratic country to become a Member of that political party in thepolicies of which he had belief, and it is in that manner people belongingto various communities have become members of D.M.K.

But D.M.K. leaders and orators, without understanding this truth,talk ill of the members of the opposite party in different constituenciesand thereby they dishonour the very society which yielded them.

Some time ago, it was published in the Daily "Murasoli" by Karuna-nidhi that the Nadar community is a body of tappers and small shop-keepers, under the impression that thereby they are dishonouring Kama-raj, as a result of which the entire Nadar community got enraged.

Similarly our country is aware that the prominent members of thatparty talked in disrespectful language against the people belonging toAdidravida community, vannia community, Dhobi community and weav-er community. While so, even now whenever the D.M.K. members

E.L.R.] S. T. ADITYAN V. T. MARTIN 345

address in public meetings in Saidapet constituency, they never get downfrom their dais without talking ill of Nadar community. Since severalpersons of the Nadar community here are working hard for the victoryof Congress in this constituency, the D.M.K. orators stating that they areattacking them, in truth talk ill of the society itself.

There was a meeting of the D.M.K. party at Kodambakkam Road,the 97th division. The orator of that meeting one Mr. Mani addressed.He talked in such a manner that it appeared as if he was only instigatinga big class hatred and commotion :—

If the electorate of Saidapet bring victory to Annadurai and Karuna-nidhi, the first resolution in the Assembly by the D.M.K. would be todrive out from this country the entire Nadar community as refugees toother foreign lands. In this country, the Nadar community lives as abig plunderers. If you want to drive out this plundering mob as prison-ers, please support the "Rising Sun". This is the synopsis of his speech.

Besides this Mani, on 6-2-1967 at Jones Road, Saidapet, one Kuli-thalai Muthukrishnan addressed to D.M.K. meeting. His speechmade us boil in anger. He spoke as follows :—

"The Nadars leave their place and come to Madras. They leavetheir wives in their places itself. There cannot be a worse speech thanthis. JHe has wantonly said the words—"leaving their wives in theirplaces just to create a bad and disgraceful impression in the mindsof people. Persons who heard the same are well aware of the mean-ing. Persons who are born in good families had their own bitterness inhearing the same. Some of the members of the D.M.K. applauded whenit was said that the Nadars leave their wives in their places itself.

In fact, those words infuriated us. If the D.M.K. Party continuesto attack the society, we fear that as in the past, big class rebellion wouldarise and several lives would be sacrified.

There are also many Nadars in the D.M.K. Party also. Yet, it isnot proper on their part to openly talk ill of the Nadar communityin this manner in the dais. Therefore, we warn that if the Governmentfails to enquire into this matter and take necessary actions, the conse-quences would be serious.

Published by,K. Sakthivel Nadar,P. Subbiah Nadar,Dalavapuram, Sathankulam,P.O.

Published in the weekly.Edition "Nathigam"Dated 10-2-1967,Ratna Press, Sathangulam, 15-2-1967".

346 S. T. ADITYAN V. T. MARTIN [VOL. XXXIV

The pamphlet, Ex. P-7, is a reproduction of a publication in "Nathigam"dated 10-2-1967 and it is stated to have been published by K. SakthivalNadar and P. Subbiah Nadar of Dalavapuram. [After considering the evi-dence regarding the impugned publication (Ex. P-7) in "Nathigam" dated10-2-1967, the judgment proceeded/]

Having established that the objectionable notice, Ex.P-7 was printed,published and circulated at the time of the election, the attempt of the peti-tioner was to prove that the respondent himself and through his agents caus-ed the distribution of the pamphlets. The learned counsel for the petitionerconceded that there is no evidence that the respondent printed or publishedor caused to be printed or published, Ex.P-7. The endeavour of the peti-tioner was to establish firstly that Thiru T. Martin himself was a party tothe distribution or in any event consented to the distribution of the pamphletby Kasi Nadar referred to as Visu Kasi who was a prominent worker in theCongress Party, and that, Visu Kasi should be deemed to be an agent ofthe respondent.

Explanation (1) to Section 123(7) of the Act provides that the expression'agent' in S.123 includes an election agent, a polling agent and any personwho is held to have acted as an agent in connection with the election withthe consent of the candidate. Section 99(2) of the Act enacts that the word"agent" in Sections 99 and 100 will have the same meaning as in Section 123.It is submitted on behalf of the petitioner that Thiru T. Martin, stood asa candidate of the Congress Party and as the Congress Party was conductingthe election of Thiru Martin, the Congress Party should be construed asan agent of the candidate, Thiru Martin. It is contended that as Visu Kasiis one of the prominent workers of the Congress Party, all his acts shouldbe construed as that of the candidate himself. The liability of a candidatein election for the acts of his agent is wider than his liability under the cri-minal or civil law of agency. Halsbury's Laws of England, Third Edition,Volume 14, page 169, specifies the liability of the candidate for the acts ofthe agent as follows :

"Once the agency is established, a candidate is liable to have his electionavoided for corrupt or illegal practices committed by his agentseven though the act was not authorised by the candidate or wasexpressly forbidden."

The reason for this extended liability is stated by the learned author as.if the agents were permitted to play foul and the candidate should have allthe benefit of the foul play without being responsible for it in the way oflosing his seat, great mischief would arise.

Rogers on Elections, Vol. II, 20th edition, at page 388, states the positionthus:—

"A candidate at an election professedly seeks an office of trust for thebenefit of the public; the public, therefore, is the party mainly in-terested, nor is it too much to require that, in seeking to obtain

E.L.R.] S. T. ADITYAN V. T. MARTIN 347

such an office, the candidate should employ trust worthy agentsand become responsible for their conduct. Besides, it is not to beexpected that any express directions to bribe, treat, unduly influenceelectors, or any distinct recognition of such acts if done,—such aswould be required in an ordinary inquiry before a Court of Law—could usually be brought home to candidates. If the principles ofagency, therefore, held by Courts of law were not relaxed in theconsideration of election petitions, the very object of the inquirywould be defeated."

Tn THE VIGAN CASE, ( l) Justice Bewen, commenting on the harsh-ness of the rule, observed as follows:—

"No doubt, it may seem hard to persons who are not conversant withthe law, that a man should lose a valuable position, and the dignityit gives, on account of the conduct of somebody who has perhapsdisobeyed orders; but it has been pointed out over and over againthat, hard as it may appear to the ignorant and uninitiated, this lawis the purest, justice and common sense."

The Supreme Court had occasion to consider the scope of implied agencyin election cases. The appellant before the Supreme Court Bhagwan DattSastri [BHAGWAN DATT SHASTRIv. R.P. GUPTA] (2) and one Achuta-nand contested for a seat in the House of the People and the State Assemblyrespectively as candidates of the Socialist Party. A finding was recordedthat motortrucks belonging to Achutanand were used for carrying the votersto the polling booth. The plea on behalf of Bhagwan Datt Sastri, the can di-date for the Lok Sabha, was that the connection of the use of the truckswith the prospects of the candidature of the appellant is not established andthat at any rate, the link of agency between the appellant and Achutanandalong with his workers had not been established. The Supreme Court onthe facts held that it cannot be said that the Election Tribunal was not justi-fied in holding that the carrying of the voters to the polling station in thetrucks of Achutanand was with the connivance of the appellant who was aparty candidate and that it was not unreasonable to impute to the candi-date the knowledge of the work done by his party in his area and to imputethe consequent connivance on his part. Taking note of the important ques-tion of agency in cases of election run on party lines, the Court did not dealwith that aspect in that case, but observed that the doctrine of agency inelection matters and the exact scope and effect of the statutory definitionof a "agent" may require to be carefully considered by the Court in a propercase. Thus, the question of liability of a candidate standing on behalf ofa party for the acts of the party was left open by the Supreme Court.

It may be noted that the Supreme Court in the above case was referringto Section 79(a) of the Representation of the People Act, which defined an"agent" as a person including the election agent, a polling agent and a count-ing agent and any person who, on the trial of an election petition or of anoffence with respect of any election, is held to have acted as an agent in con-nection with the election with the knowledge or consent of the candidate.

(1) Reports of Election Petitions in Great Britain & Ireland, Vol. IV P. 11.(2) E.L.R. Vol. XI 1955-56, P. 448.

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Under the amended Act of 1961, the word "agent" is given a restricted mean-ing in that it includes an election agent, a polling agent and any person whois held to have acted as an agent in connection with the election with theconsent of the candidate. The amended Act excludes from the defini-tion of "agent" a person who had acted with the knowledge, but not with theconsent of the candidate.

In Nani Gopal Swami vs Abdul Hamid Choudhury (3) the Assam HighCourt held that political party and its prominent members, who set upthe candidate, sponsor his cause and work to promote his election, maybe aptly called the "agent" of the candidate" for election purposes. In casesin which the candidate stands on behalf of a political party and th e politicalparty conducts the electioneering work and the candidate gets the benefitof such a campaign, it is reasonable to presume that the party and its pro-minent members acted as "agents" of the candidate and they had the candi-date's implied consent.

The petitioner's case is that Kasi Nadar who is referred to as Visu Kasiin the evidence was solely in charge of the election work for the CongressParty in Sathankulam Constituency and that he should be deemed to haveacted with the consent of the respondent. It is the case of the petitioner thatVisu Kasi was the person who took delivery of 4,000 copies of the objection-able pamphlet, Ex. P-7, and distributed the same during the elections. TheCongress Party had set up Thiru K. T. Kosalram as the candidate for theTiruchendur Parliamentary Constituency. Sathankulam Assembly Consti-tuency was one of the constituencies included in the Parliamentary Consti-tuency. The Congress Party was supporting its nominess, Thiru K. T.Kosalram for the Parliament and the 1 st respondent for the assembly seat,and the Party was carrying on a common campaign for both the candidatesin the constituency. That Visu Kasi took prominent part in the electioneer-ing v/ork on behalf of the Congress Party is made out from the documentaryevidence produced in the case. During the election, several pamphlets wereprinted and distributed supporting the Congress Party candidates. Ex. P-lis a pamphlet issued on behalf of the Congress Party announcing the openingof an election office at Sathankulam. The declaration Ex. P-l(a) regardingthis pamphlet is signed by Visu Kasi. Ex. P-l and P-l(a) were sent by P.W.Ito the Chief Electoral Officer and they are found in the file, Ex.P-26. Ex. P-2 isan election pamphlet issued by the Congress Party announcing a meeting to beaddressed by the Parliamentary Candidate Thiru K. T. Kosalram and therespondent, Thiru T. Martin. The declaration regarding this pamphlet,Ex. P-2(a) is signed by Visu Kasi and Ex. P-2 and Ex. P-2(a) were sent byP. W. 1 to the Chief Election Officer and those two documents are foundin Ex. P-26. Ex. P-3 is another pamphlet issued in the name of Visu Kasiand the declaration Ex. P. 3(a) is signed by Visu Kasi. Ex. P-3 and P-3(a)are found in Ex. P-26. Ex. P-4 is another pamphlet issued by Visu Kasisupporting the Congress Party candidates issued on behalf of the TownYouth Congress, Sathankulam. Ex. P-6 is another pamphlet issued by theYouth Organisation, Sathankulam and the declaration, Ex. P. 6(a) is signedby Visu Kasi. That Ex. P-l and P-2 were published by Visu Kasi and theywere distributed, is admitted by R. W. 1 Thirumal, the witness examined onbehalf of the respondent. Ex. P-20 is also another notice issued by Visu Kasi

(3) E.L.R. Vol, 19, (1959), P. 175.

E.L.R.] S. T. ADITYAN V. T 'MARTIN 349

on behalf of the Congress Party. Ex. P-38 is another pamphlet issued onbehalf of the Congress Party by Visu Kasi and a copy of Ex. P-38 was sentby P. W. 1 to the Chief Electoral Officer and it is found in the file, Ex. P-26.R. W. 1 also admitted that Visu Kasi was making arrangements for meetingsfor both the candidates. Further, R. W. 1, also admitted that a cycle pro-cession was taken to boost the prospects of both Thiru K. T. Kosalram andThiru T. Martin, on behalf of the Congress Party. According to R. W. 1,the cycle procession was intended to be taken on 15-2-1967, but was post-poned due to rain on that date, and the procession was arranged to starton the 16th. The witness also admitted that Visu Kasi informed personsthat the proposed procession will take place on the 16th February 1967.The cycle procession was accompanied by a jeep and in that jeep, one SoundaraPandiyan a prominent worker for the Co'ngress Party and Visu Kasi went.The several pamphlets referred to above, the declarations signed by VisuKasi for the publication of such pamphlets and their being found in the file,Ex. P-26, which was in the custody of the Electoral Officer, clearly provethat Visu Kasi was taking a prominent part in the electioneering campaignconducted by the Congress Party.

According to the respondent, Visu Kasi though a Congressman, wasworking only for Thiru K. T. Kosalram the congress candidate for theParliamentary seat. The respondent stated that one Ganesa Pandi, a pro-minent member of the Congress in the Sathankulam Constitutency appliedfor a Congress ticket and his application was supported by Thiru K. T.Kosalram. But the Congress Party gave the ticket to Thiru T. Martin andtherefore, Ganesa Pandi was disappointed and filed his nomination as aDravida Munnetra Kazhagam candidate, which he withdrew subsequently.The rejection of Ganesa Pandi's application for the assembly seat disappoint-ed Thiru K. T. Kosalram and it is stated that Thiru K. T. Kosalram and hisfollowers Ganesa Pandi and Visu Kasi worked only for the Parliamentarycandidate and not for the respondent. According to R. -W. 1, with a viewto create an impression that he was working for the Congress Party, VisuKasi was pretending to support the respondent, Thiru T. Martin; but in fact,he worked only for Thiru K. T. Kosalram. The evidence of the respondentwho examined himself as R. W. 2 is that Visu Kasi was only working forThiru K. T. Kosalram and some of the voters who he had contacted duringhis election campaign, informed him that Visu Kasi canvassed only ThiruK. T. Kosalram. In view of the convincing documentary evidence in thecase, viz., the pamphlets printed and distributed by Visu Kasi supporting thecandidature of both the candidates, and the signing of the declaration formswhich were found in the file, Ex. P-26, it is clearly established that Visu Kasiwas working for both the candidates who stood on the Congress Tickets.As the respondent himself admitted that he was a stranger to the constituencyand apart from his door-to-door canvassing, the other electioneering workwas carried on by the Congress Party and prominent congress members,he would be answerable for all the acts of the prominent members of theparty.

[After considering the evidence as to the allegations in the petition thatVisu Kasi was working for Thiru Martin, the respondent, and the said VisuKasi published the impugned publications and he and other workers distri-buted the pamphlets at the instance of the respondent at Sathankulam andUdangudi, the constituency of the respondent, the judgment proceeded :]

350 S. T. ADITYAN V. T. MARTIN [VOL. XXXIV

It would be seen that P. Ws. 2, 3, 4, 13, 18 and 19 have implicated ThiruMartin as being a party to the distribution or to distribution taking placein his presence and at his instance. The allegations in the petition regardingthe distribution by Thiru Martin is found in paras 15, 17, 19, 21 and 22.In para 15 it is stated that the respondent had full knowledge of the printingand the distribution of the three pamphlets, and with the knowledge of suchprinting, he consented to his agents and other persons distributing the pamph-lets. In para 17, it is stated that many thousands of copies of the said pamph-lets were distributed by the respondent and his agents and other personswith his consent, in para 19 it is stated that the respondent authorised KasiNadar to print and publish the pamphlets and in para 21 it is stated that KasiNadar and other members of the Youth Congress Committee distributedthe said pamphlets. In para 22, if is stated that the respondent made copiesof the said pamphlets available for distribution at the election offices atSathankulam and Udangudi, and the notices were distributed at the saidoffices. Apart from the allegation in para 17 that thousands of copies ofthe said pamphlets were distributed by the respondent and his agents,there is no specific allegation that Thiru Martin distributed the pamphletshimself or had them distributed through particular persons in his presence.As stated by the witnesses if the distribution took place openly after a meetingin the presence of Thiru Martin or that the notices were handed over byThiru Martin for distribution or were openly distributed from a jeep equip-ped with a loud speaker while Thiru Martin was moving in another jeep, it isonly reasonable to expect that all these facts and the names of persons thatdistributed the pamphlets would have been prominently mentioned in thepetition, the plea of the petitioner that if names of persons are given theywill be transferred which will be of no avail as the names of persons who dis-tributed and thereby committed corrupt practices should be mentioned inthe petition.

Section 83(l)(b) of the Representation of the People Act, 1951 requiresthat an election petition shall set forth full particulars of any corrupt practicesthat the petitioner alleges, including as full a statement as possible of thenames of the parties alleged to have committed such corrupt practices and thedate and place of the commission of each of such practice. As the objectionto the maintainability of the petition on the ground that particulars as re-quired under the said sub-section was not given was withdrawn by the res-pondent, it is unnecessary to consider that aspect. But in appreciating theoral evidence of the witnesses, it is only reasonable to ask the question asto why the names of the persons who actually distributed the notices andthereby committed corrupt practice should not have been mentioned in thepetition. This objection is particularly valid when the allegation of thewitnesses is that the returned candidate himself was present and he himselfdistributed or abetted the distribution of the pamphlets. As already point-ed out, P. W. 20, the petitioner states that he was aware of such distributionin the presence of or at the instance of the respondent. If the petitioner'sevidence on this aspect is true, there is no explanation at all for not complyingwith the provisions of section 83(l)(b) of the Act for the failure to mentionthe names of the parties who were alleged to have committed the corruptpractice, especially when it is now contended that it was the returned candi-date who committed the corrupt practice. From the total absence of speci-fic allegation as to the returned candidate distributing the pamphlet or havingit distributed in his presence or at his instance, the oral evidence regarding

E.L.R.] S. T. ADITYAN V. T. MARTIN 351

the part ascribed to the returned candidate and the part alleged 'to have beenplayed by the persons regarding the distribution of the pamphlets are liableto be rejected. In the circumstances, I am unable to accept the evidenceof the witnesses who speak to the distribution of the pamphlet, Ex. P. 7, inthe presence of or at the instance of Thiru Martin.

In Mohan Singh v. Bhanwarlal (4) the Supreme Court held :

" the onus of establishing the corrupt practice was undoubtedlyon the person who set it up, and the onus was not discharged onproof of mere preponderance of probability, as in the trial of a civilsuit: the corrupt practice must be established beyond reasonabledoubt by evidence which was clear and unambiguous."

The learned counsel for the petitioner referred to the decision of this Courtin S. Kandaswamy v. S. B. Adityan (s) : wherein it is held that in particularcircumstances, it may not be possible to furnish the particulars as enumerat-ed in 83(1) of the Act. The Court also expressed its view that it is not necessaryto disclose the nature of the evidence which the petitioner is to let in. Reliancewas placed in Gangi Reddy v. Anjaneya Reddy (6) where the Supreme Courtheld that the onus would shift to the respondent to prove the circumstances,if any, to dislodge the assertions made by the petitioner. My attention wasdrawn to another decision of the Supreme Court in Guru Govinda Basicv. Shan Kari Prasad Ghosal and others (7) wherein it was observed that theTribunal was in error in discarding evidence by characterising the groupsof witnesses as interested in favour of the respondent 2 or embittered againstthe Congress. All these decisions relied on would not be of any avail tothe petitioner. As already stated, the oral evidence is not convincing.Though it is not incumbent on the|petitioner to give the names of the witnessesrelating to the corrupt practices, the names of the persons who actuallycommitted the corrupt practice are required to be given in law. Further,the burden of proving that the petitioner or with his consent, his agent,distributed the objectionable pamphlet is on the petitioner and it must beestablished beyond reasonable doubt by clear and unambiguous evidence.I am not satisfied that the petitioner has succeeded in proving his case beyondreasonable doubt as required by law.

The next question that is to be considered is whether the distribution wasby Visu Kasi or at his instance. The evidence on this aspect is given byP. Ws. 5, 18, and 19. According to P.W. 5 while he was going to the PostOffice, he happened to pass through Visu Kasi's shop, that a boy by nameAsafAli employed in Visu Kasi's shop was distributing notices and he (theboy) gave him a copy of the notice. As already stated, P. W. 5 is one of thestaunch supporters of the petitioner and his evidence is highly interestedand cannot be safely acted upon. The evidence of P. W. 18 is that when hemet Visu Kasi and Thiru Martin in the election office, notices were being

4 A.I.R. 1964 S.C. 1366.5 19 E.L.R. 260.6 22 E.L.R. 261.7 23 E.L.R. 358.

352 S. T. ADITYAN V. T. MARTIN ^ [VOL. XXXIV

distributed and that he was given thirty copies of the notice. The evidenceof P. W. 18 regarding the distribution of Ex. P. 7 has been rejected. I amunable to accept the evidence of P. W. 18 that there was any distributionof notice, much less in the presence of Visu Kasi. The other witness whospeaks to the distribution at the instance of Visu Kasi is P. W. 19 George.This witness also is highly interested in the petitioner. According to thiswitness, Visu Kasi and Thiru Martin were present when these notices weredistributed during the cycle procession. The evidence of this witness regard-ing distribution in the presence of Thiru Martin has already beenrejected and there is no reason for accepting his testimony implicating VisuKasi. The evidence let in by the petitioner connecting Visu Kasi with thedistribution of Ex. P. 7 is very weak and unconvincing and cannotbe accepted. The petitioner sought to establish that the notices were distri-buted by Visu Kasi in his shop and other places. In the petition at para 21,the allegation against Visu Kasi is that Kasi Nadar (Visu Kasi) and othermen of the Youth Congress Committee distributed the pamphlet in Sathan-kulam and other places within the constituency with the knowledge andconsent of the petitioner. According to the evidence, it is not the case ofthe petitioner that it was Asaf Ali, who is a servant of Visu Kasi, who dis-tributed the pamphlet in Visu Kasi's office. There is no mention of the nameof Asaf Ali in the petition. In the absence of specific pleading that the dis-tribution was by Asaf Ali at the instance of Visu Kasi, the unreliable, slenderand interested evidence of the witnesses impleading Visu Kasi as the personwho distributed the pamphlets or caused them to be distributed throughAsaf Ali or some other, cannot be accepted. The petitioner has failed toestablish his case beyond all reasonable doubt.

It was contended on behalf of the petitioner that Sakthivel and Subbiahare Congressmen and they had Ex. P. 7 printed and distributed. As thedistribution of Ex. P. 7 had been proved, it was submitted that it should bepresumed that Sakthivel and Subbiah distributed the pamphlet for the bene-fit of the Congress candidate. It is true that the petitioner has established thatths pamphlet, Ex. P. 7 was distributed in the constituency before the electionand that Sakthivel and Subbiah placed the orders for printing and they tookdelivery of the pamphlets. It is for the petitioner to prove that Sakthiveland Subbiah were Congressmen and it was with the consent, express orimplied, of the respondent that they distributed the pamphlets. That Sakthi-vel and Subbiah are Congressmen is sought to be proved by the evidence ofP. Ws. 1, 5, 19, and 20. The evidence of P. W. 20, the petitioner is purelyhear say that it cannot advance his case. The petitioner has stated that hedoes not personally know about Sakthivel and Subbiah. P. W. 1, the printerof Ex. P. 7, stated that he had seen them walking on the road, and that when-ever there was a congress meeting, they were at the meeting. When askedas to which party Sakthivel and Subbiah belonged, he stated that he did notknow. This evidence of the witness does not advance the case of the petitionerany further. P. W. 5 and P. W. 19, as already stated, are highlyinterested in the petitioner and no reliance can be placed upon their testi-mony. It was strongly urged on behalf of the petitioner that if Sakthiveland Subbiah were not congressmen, they would not have taken the troubleof printing the pamphlet paying the charges and having them distributed.While it appears that the pamphlets were printed, and paid for bySubbiah and Sakthivel, and were also, distributed, there is very little evidence

E.L.R.] S. T. ADITYAN V. T. MARTIN 353

for coming to the conclusion that they were Congressmen, or that they dis-tributed with the consent, express or that implied, of Thiru T. Martin.It is no doubt true that the distribution of Ex. P. 7 is against the interest ofthe Dravida Munnetra Kazhagam, and very probably the distribution waswith a view to help Thiru Martin in the election. In the Parliamentaryconstituency, the Congress candidate was opposed by a Swathantra Partycandidate and there was no Dravida Munnetra Kazhagam candidate in theParliamentary constituency. The attack against the Kazhagam candidatein Sathankulam constituency would have helped the chances of the respon-dent's success. But there is no acceptable evidence that Sakthivel and Sub-biah were congressmen or that the distribution was with the consent, expressor implied, of Thiru Martin. On an analysis of the oral evidence adduced,I am unable to accept the case of the petitioner that the distribution of thepamphlets was by the candidate or by Visu Kasi or with the consent, expressor implied, of Thiru Martin or Visu Kasi. It has also not been proved thatSakthivel and Subbiah are Congressmen or that they distributed the noticeswith the consent, express or implied of Thiru Martin.

Certain documents, Ex. P. 44 to P. 47 were filed for the purpose of showingthat there were disturbances during the elections and that one Shailat onbehalf of the Congress Party made some objectionable speeches and com-plaints were made about the unruly behaviour of the Congress Party. Itis unnecessary to consider these documents as, they do not relate to any ofthe issues framed.

The contention that Ex. P. 7 is an objectionable notice and the publicationand the distribution of it amounts to a corrupt practice under section 123(3)and 123(3A) of the Representation of the People Act, 1951 may now beconsidered. A translation of Ex. P. 7 has already been given in the judgment.The pamphlet is a reproduction of an article that appeared in a Tamil weekly'Nathigam' on 10.2.67. That article was printed and published by Sakthiveland Subbiah. It is stated in the pamphlet that people's feelings are hurtby the members of the Dravida Munnetra Kazhagam teaching the peoplebelonging to a particular caste. It also stated that persons belonging toseveral castes are members of the Kazhagam, and forgetting this fact, theKazhagam leaders and speakers talk ill of the members of the oppositeparty in various constituencies and thereby they dishonour the very societyto which they belonged. The pamphlet proceeds to state that sometimeago it was published in 'Murasoli' by Thiru Karunanidhi that the Nadarcommunity is a body of tappers and small shop-keepers under the impres-sion that thereby they are dishonouring Thiru Kamaraj, as a result of whichthe entire Nadar community got enrage,d. The article proceeds to make thatit is well-known that prominent members of the Dravida Munnetra Kaz-hagam talked in disrespectful language against the people belonging toAdidravida community, vannia community, dhobi community and weavercommunity and even now in Saidapet constituency, in the meetings convenedby the Dravida Munnetra Kazhagam, the speakers invariably attack theNadar community. As several persons belonging to Nadar communitywere working in the constituency for the success of the Congress, the pamph-let reads, that on the pretext of attacking the Nadar community as a whole.The article proceeds to refer to the speech by one Mani in a meeting at 97thdivision, bakkam and states that the speech was objectionable and was likely

354 S. T. ADITYAN V. T. MARTIN [VOL. XXXIV

to lead to class hatred as the speaker stated that if the voters of the Saidapetconstituency returned the D.M.K. candidates, the two leaders of the Kazha-gam, Thiru Annadurai and Thiru Karunanidhi, by their very first resolutionwould drive out the Nadar community from the country. It proceeds tostate that the speaker stated that the Nadar community is a band of decoitsand that they should be sent out as prisoners, and for this purpose, the'Dra-vida Munnetra Kazhagam should be supported. It again refers to a meet-ing on 6-2-67 at Jones Road, Saidapet wherein one Muthukrishnan ofKulithalai made an objectionable speech. He stated that the Nadars leavetheir wives in their villages and come to Madras. The article proceeds toexplain the implication of the reference to Nadars leaving their wives in thevillages. The article proceeds to state that this agitated them and that thiskind of speeches insulting a community would lead to disturbances amongstcommunities resulting in loss of life. The article states that there are severalNadars in the Kazhagam. But in spite of that, their talking abusively of theNadar community is not wise. In the circumstances, the article concludes,that if the Government did not enquire of take steps, the consequences wouldbe serious.

The plea on behalf of the petitioner was that such speeches were notmade by the Dravida Munnetra Kazhagam leaders. On behalf of therespondent, it was not contended that the speeches were in fact made, fortheir contention was that these pamphlets were never published and distri-buted within the constituency. In the circumstances, it may be takenthat the alleged speeches were not made and the pamphlet were publishedreproducing the article from 'Nathigam' without verifying its truth. Thequestion is whether the article would fall within the mischief of section 123(3)or 123(3A) of the Act.

Section 123(3) provides that an appeal by a candidate or his agent or byany other person with the consent of a candidate or his election agent tovote or refrain from voting for any person on the ground of his/eligion,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 nationalflag or the national emblem, for the furtherance of the prospects of theelection of that candidate or for prejudicially affecting the election of anycandidate would be a corrupt practice. In this case, the respondent, thereturned candidate did not appeal to vote for himself on the ground of hisreligion, race, caste, community or language. Ex. P. 7 is not an appealby the respondent that persons should vote for him because he is a Christianor that he is a Nadar. There is no reference to the religion or caste of therespondent or that the voters should not vote to the petitioner because of hiscaste. What is suggested is that as the Dravida Munnetra Kazhagam leaderswere alleged to be making speeches derogatory of the Nadar community.Nadars who would read the pamphlet would get prejudiced and they wouldnot vote for the Dravida Munnetra Kazhagam. It is far fetched to say thatthe in tention-of publishing Ex. P. 7 was to aid the respondent as he is a Nadar,though indirectly, Thiru Martin might have had some benefit. It cannotbe said that the object of the pamphlet was to benefit Thiru Martin becauseof his community. As already stated, the attack was against the D. M. K.Party leaders who were alleged to have insulted the Nadar community.It is significant to note that the article states that the D.M.K. leaders were

E.L.R.] S. T. ADITYAN V. T. MARTIN 355

also attacking other communities like Dhobies, weavers, Adi Dravidas,vannias, etc. A reading of the entire article would show that the attackwas against the D.M.K. party as its leaders and speakers were indiscrimi-nately attacking these communities.

Particular reference is made to the Nadar community and it is statedthat the community was insulted by the speakers making derogatory obser-vations against the Nadars. The effect of such an article may be to dis-suade the voters belonging to the Nadar community from voting for theD.M.K. candidate. But this would not amount to the candidate appealingfor votes on the ground of religion or caste or prejudicially affecting theelection of the candidate by appealing to their religion or caste. The attackby the D.M.K. leaders on communities varies with the constituencies. Itdepends upon the community of the opposing candidate. But the publica-tion of this pamphlet, the object was not to create enmity between the com-munities, but to discredit the D.M.K. Party. The principle that will haveto be applied in construing an election pamphlet is settled and stated bythe Supreme Court in Kultar Singh v. Mukhtiar Singh (8) :

"The document must be read as a whole and its purport and effect deter-mined in a fair, objective and reasonable manner

Political issues which form the subject matter ofcontroversies at election meetings may indirectly and incidentallyintroduce considerations of language or religion, but in deciding thequestion as to whether corrupt practice has been committed underSec. 123(3), care must be taken to consider the impugned speechor appeal carefully and always in the light of the relevant politicalcontroversy".

The Court further observed:

"So long as law does not prohibit the formation of such parties and infact recognises them for the purpose of election and parliamentarylife, it would be necessary to remember that an appeal made bycandidates of such parties for votes may, if successfu 1 , lead to theirelection and in an indirect way, may conceivably be influenced byconsideration of religion, race, caste, community or language. Thisinfirmity cannot perhaps be avoided so long as parties are allowedto function and are recognised though their composition may bepredominently based on membership of particular communities orreligions."

In Ramanbhai v. Dabhi Ajitkumar (9) the observations in Kultar Singh v.Mukhtiar Singh (8) were reiterated and it was stated that an election litera-ture should neither be judged strictly nor taken literally. All the greaterreason therefore, that the Courts ought not to read more in such literaturethat what appears on its face. Reading the pamphlets, Ex. p.7, in the light

(8) A.I.R. 1965 S.C. 141.(9) A.I.R. 1965 S.C. 669.

356 S. T. ADITYAN V. T. MARTIN [VOL. XXXIV

of the observations of the Supreme Court in the two cases referred to above,it cannot be said that the pamphlet in any way offends S. 123(3) of the Act.There is no appeal to vote or not to vote on the basis of religion or caste.On the other hand, the purport of the pamphlet is that the D.M.K. leadersand speakers were irresponsible in attacking various communities and thatpersons should not vote for the party.

The next question is whether the pamphlet will fall within the mischiefof Section 123(3A) of the Act. Section 123(3A) of the Act reads that thepromotion of, or attempt to promote, feelings of enmity or hatred betweendifferent classes of the citizens of India, on grounds of religion, race, caste,community or language, by a candidate or his agent or any other personwith the consent of a candidate or his election agent for the furtherance of theprospects of the election of that candidate or for prejudicially affecting theelection of any candidate would be a corrupt practice. In order to comewithin the purview of the section, there must be promotion of or attempt topromote, feelings of enmity or hatred between different classes of the citizensof India on grounds of religion, race, caste, community or language. Asalready pointed out, the object of the pamphlet was not to create hatred -bet-ween different classes. On the other hand, the object was to create hatredtowards the D.M.K. Party by the Nadar community. The pamphlet wouldnot result in creating hatred between the Nadar community on the one sideand the rest of the communities on the other, as the theme of the pamphletis that the D.M.K. leaders were attacking several communities without anyjustification. One of the requirements of the section is that an attempt tocreate hatred between different classes of citizens should be made, and thisrequirement is not satisfied. It may be that the Nadar voters who comeacross the pamphlet would be prejudiced against the D.M.K. Party, but thatfact would not amount to an attempt to promote class hatred, as no othercommunity is involved. Realising the difficulty, it was urged on behalf ofthe petitioner that the pamphlet attempted to and in fact created hatredbetween Nadars and the D.M.K. Party which should be regarded as a classfor the purpose of this section. On behalf of the petitioner, reliance was

placed on the decision of the Allahabad High Court in K.G. Zahidi v. State(lO)wherein the Court took the view that a distinct political party can be placsdamong "classes" as contemplated by Section 153(A) of the Indian PenalCode. The Court was construing the word "classes" in Section 153(A)of the Penal Code. The learned Judge disagreed with the view taken by theBombay High Court in Narayan Vasudev Phadke v 'Emperor (11) that the word'classes' in Section 153(A) of the Penal Code is used in a restrictive sense asdenoting a collection of individuals or groups bearing a common and ex-clusive designation and also possessing common and exclusive characteristicswhich may be associated with their origin, race or religion. The learnedJudge of the Bombay High Court was also of the view that none of the groupsbased on materialistic or economic conceptions could claim both exclusiveand common characteristic, which in his opinion constituted the essentialquality of the class mentioned in Section 153(A) I.P.C. In JonnalagaddaRamalingayya and others v. Emperor (12) this Court took the view that the

(10) 1964 All L.J., Vol. 62, P. 543.(11) A.I.R. 1940 Bom. 379.(12) A.I.R. 1936 Mad. 835.

E.L.R.] S. T. ADITYAN V. T. MARTIN 357

Zamindars, mill-owners and land-owners formed a sufficiently ascertainedclass for the purposes of Section 4(1) (d) of Press Act.

Section 153(A) I.P.C. was amended in the year 1961. The section beforethe amendment made punishable any person who promoted or attemptedto promote feelings of enmity or hatred between defferent classes of citizensof India. As amended in 1961, the section reads that whoever promotedor attempted to promote feelings of enmity or hatred between differentreligious, racial, or language groups or castes or communities on grounds ofreligion, race, language, caste or community or any other ground whatsoeveror committed any act which is prejudicial to the maintenance of harmonybetween different religious, racial or language groups or castes or communi-ties, and which disturbed or is likely to disturb the public ^tranquillity,shall be punishable. The amended section refers to promotion or attemptedpromotion of hatred between different religious, racial, or language groupsor castes or communities. The class that is referred to in the amended sectionis religious, racial or language groups or castes or communities, while beforethe amendment, the word 'class' had a wider connotation as it includeddifferent classes of citizens of India. Section 123(3A) of the Representationof the People Act is similar' to Section 153(A) of the Indian Penal Codebefore it was amended which made punishable promotion or attempted pro-motion of feelings of enmity or hatred between different classes of citizensof India. As the term "different classes of citizens of India" is not restric-tive as in the amended S. 153(A) of the Indian Penal Code, the section iswider in its scope and may include classes like Zamindars, working class,employers, etc. But I am unable to agree with the view of the AllahabadHigh Court that the word "classes" in Section 153(A) of the Indian PenalCode is wide enough to include a political party.

In Emperor v. Muniben Kara (13) the Court held that the expression'capitalists' was too vague a phrase to denote a definite and ascertainableclass so as to come within Section 153(A) of the Indian Penal Code beforeits amendment, which is more or less in similar terms with the present Section123(3A) of the Representation of the People Act. The Court held, theword "classes" within S. 153(A) included any definite and ascertainableclass of His Majesty's subjects although the classes may not be divided on racialor religious grounds. The test laid down in the decision is that the classmust point to a well-defined and readily ascertainable group of HisMajesty's subjects and that some element of permanence or stability in thegroup would have to be present, before any attempt to excite enmity againstthat group can be made. A class of citizens can only be an ascertainable orwell-defined group of citizens. A political party cannot come under thisdefinition, because they are not a class of citizens. A political party cannotbe said to an ascertainable well-defined permanent group or class of citi-zens. Any such construction holding that a political party is a class of citizenswould go against the principle of democratic elections, for, the attempt inelections by each party is to present itself in a better light than the otherparty, and in doing so, a certain amount of bad feelings, perhaps amountingto enmity and hatred, cannot be ruled out. I do not think it was ever inten-ded to make an attack on a political party, a corrupt practice coming with-

(13) I.L.R. 57 Bom. 253.

358 S. T. ADITYAN V. T. MARTIN [VOL. XXXIV

in the mischief of Section 123(3A) of the Act. I am unable to accept the con-tention that the D.M.K. party is a class, and as such an attack on that partywould amount to a corrupt practice under Section 123 (3A).

Reference was made to the decision in Zamindar Newspaper, Lahore,In re (14) wherein it is held that police force is a class. I do not think thatthe decision would be helpful in deciding the question at issue.

The findings on the contested issues may now be recorded :

Issue No. 2 : The petitioner has not proved that the respondent causedto be printed the three pamphlets referred to in para 8 of the petition, orany one of them.

Regarding issue No. 3, the rinding is that the petitioner has not provedthat the respondent authorised Kasi Nadar (Visu Kasi), Sakthivel or Subbiahto print or publish Ex. P. 7. It has not been proved that the respondentauthorised Anthony Rajiah or Karthikeyan to print and publish Ex. P. 16and P. 17.

Regarding issue No. 4, I find that the petitioner has not proved that therespondent distributed or caused to be distributed or consented to the dis-tribution of copies of Exs. P. 7., P. 16 and P. 17.

Issue No. 5 : It has not been satisfactorily established that Kasi Nadardistributed the pamphlets at Sathankulam from 15th to 18th of Februaryor on any one of those days with the consent, express or implied, of the res-pondent.

Issue No. 6 : This issue is also found against the petitioner.

Regarding Issue No. 7, my view is that a political party cannot be consi-dered as a 'class' for the purpose of Section 123(3) or 123(3A) of the Re-presentation of the People Act.

Issue No. 8 : The result of the findings on the previous issues is that therespondent had not committed or consented to the commission of corruptpractice as specified in Section 123(3) and 123(3A) of the Act, and therefore,this issue is found against the petitioner.

Issue No. 9 : The petitioner did not press the contention that the resultof the election would have been materially affected by the alleged corruptpractices. It has also not been proved that any one of the agents of thepetitioner distributed the pamphlets. The petitioner has failed to establishthat the respondent printed or caused t& be printed or distributed or causedto be distributed any of the objectionable pamphlets. It has also not beenproved that Visu Kasi got printed or distributed or got distributed any ofthe pamphlets. As the petitioner has not succeeded in proving that therespondent or any one of his agents or persons, with his consent, express orimplied, distributed the pamphlets, the petition will have to fail. The peti-tioner also has not proved that Sakthivel Nadar and Subbiah who printed

(14) A.I.R. 1934 Lahore 219.

E.L.R.] S. T. ADUYAN V. T. MARTIN 359

Ex. P.7 are congressmen or that they acted as the agents of the respondent.But it may be recorded that the petitioner has succeeded in proving that thepamphlet Ex.P.7 was distributed before the elections in the constituency andthat a counter notice Ex.P. 12 was also distributed on behalf of the petitioner.The petitioner has also succeeded in establishing that Visu Kasi (Kasi Nadar)was an agent of the respondent.

In the result, the petition is dismissed. The respondent is entitled to hiscosts. Advocate's fee is Rs. 500/.

Petition Dismissed.

IN THE HIGH COURT OF PUNJAB AND HARYANA ATCHANDIGARH

DR. AMAR NATH VERMAN & ANR.V.

DEV RAJ ANAND & ORS.

(A. N. GROVER, J.)

December 22, 1967

Representation of the People Act, 1951—Section 123(3), (3,4)—Appeal to religion—what is—Sikh symbol 'Khanda' if constitute appealto religion—"classes" in (3A) does not mean political parties—Section123(1)—Donation by Minister out of discretionary fund on the eveof election—When can constitute corrupt practice.

The election of the first respondent was challenged on the ground that(i) his agents with his consent published a hand bill by which an appealwas made in the name of religion to Sikh voters to vote for respondent 1and use was made of the Sikh religious symbol 'Khanda' for the furtheranceof his election; that the hand bill was distributed with a view to provokingfeelings of enmity and hatred between different classes of citizens on theground of religion and (ii) that the respondent, a Minister, committed corruptpractice within the meaning of Section 123(1) inasmuch as he made a donationor grant out of his discretionary fund on the eve of the election. Dismissingthe petition,

HELD : Before the amendment of Section 123(3) by Act 40 of 1951,the language employed banned a general appeal to vote or refrain fromvoting on the ground of religion, etc. But by the amendment the purposeof the appeal was narrowed down. It is only when the electors are askedto vote or not to vote because of the particular religion of the candidatethat a corrupt practice would be deemed to be committed under Section123(3). No such appeal is to be found in the offending poster in this case.2EC/71—24

360 DR. A. N. VERMAN AND ANOTHER V. D. R. ANAND AND OTHERS [VOL. XXXIV

A symbol stands for or represents something material or abstract; inorder to be a religious symbol there must be a visible representation of athing or concept which is religious. By inscribing the symbol 'Khanda'or any other symbols which are ordinarily used by the Sikhs it cannotbe said that use was made of a religious symbol or an appeal was made toit in the sense in which it is used in Section 123(3) of the Act. The evidencedisclosed that 'Khanda' is used in invitation cards because it is consideredto be auspicious. The word "classes" in clause (3A) of section 123 cannotmean political parties.

Kultar Singh v.Mukhtiar Singh, A.I.R. 1965 S.C. 141; Jagdev Singh Sidhantiv. Pratap Singh, A.I.R. 1965 S.C. 183; Shankaragauda v. Sirur Veerabhadappa,A.I.R. 1963 Mysore 81; Ghayur AH Khan v. Keshav Gupta, 16 E.L.R. 154,Rattan Singh v. Devinder Singh, 7 E.L.R. 234; Ramanbhai Ashabhai Patelv. Dabhi Ajit Kumar Fulsinji, A.I.R. 1965 S.C. 669; Shubnath Deogramv. Ram Narain Prasad, A.I.R. 1960 S.C. 148; and Karan Singh v. JamunaSingh 15 E.L.R. 370; referred to.

(ii) The motive or intention for making a donation or grant has to bejudged from all facts and circumstances and if it can be established that theobject was dishonest or corrupt in the sense of winning support in elections,then even a charitable donation or grant would become bribery and thusconstitute corrupt practice. In the present case the sole motive and objectof the respondent in giving the donation was not to further the cause of hiselection or to canvass support in that behalf.

Bankabehari Dass v. Chittaranjan Naik, A.I.R. 1963 Orissa 83; SankaraGowda v. Maniappa, 9 E.L.R. 101; and Khadar Sheriff v. Muniswamy,A.I.R. 1955 S.C. 775; referred to.

Abnash Chand v. Om Prabha Jain, E.P. No. 19 of 1967 decided Nov.16, 1967 (Punj.); distinguished.

Election Petition No. 26 of 1967.

G.P. Jain with J.V. Gupta; and G.C. Garg, for the petitioners.

Rajinder Sachar with Mohinderjit Singh Sethi for Respondent No. 1.

S. S. Mahajan for respondent Nos. 4 and 5.

P. N. Joshi, respondent No. 2, in person.

JUDGEMENT

GROVER, J.—This is a petition challenging the election of RespondentNo. 1, a returned candidate from the Ambala Cantonment Assembly Consti-tuency. This Constituency was called upon to elect a member by meansof a notification dated 13th January, 1967. The last date for filing the nomina-tion papers was 20th January 1967, and the date for scrutiny and withdrawalwere 21st January, and 23rd January, 1967, respectively. The polling tookplace on 19th February, 1967. The result was declared after the counting

E.I..R.] DR. A. N. VERMAN AND ANOTHER V. D. R. ANAND AND OTHERS 361

on 21st February, 1967. Respondent No. 1 who stood as a candidate fromthe Congress Party, polled 11,343 votes whereas Respondent No. 2 whowas set up by the Jan Sangh Party, got 10,845 votes. It is unnecessary tomention the votes polled by Respondents 3, 4 and 5 who were the other con-testants.

The present petition has been filed by two of voters from the Consti-tuency. The relevant pleadings will be'noticed while disposing of the issues.It may be mentioned that six issues were framed on the merits out of whichissue No. 4 was not pressed at the time of the arguments.

Issue No. 1 runs as follows :—

"Whether Respondent No. 1 has committed the corrupt practice underSection 123(3) as mentioned in paragraph 17?"

It was alleged in that paragraph that Santokh Singh and others named inAnnexure 'G' (which is the English translation of a hand-bill) who werethe agents of Respondent No. 1 and who acted with his consent and theconsent of his election agent, published that hand-bill, caused its display anddistribution during the period 15th February, 1967 to 19th February, 1967,by which an appeal was made in the name of religion to Sikh voters to votefor Respondent No. 1 and use was made of the Sikh religious symbol'Khanda' for the furtherance of his election and for prejudicially affectingthe interests of the other respondents. There was similar allegation withregard to the poster Annexure 'H' which contained the symbol of Khandaand flags and the words 'EK Onkar Satgur Parshand' on the top. Theposition is the same with regard to Annexure T . The allegations relatingto Annexure \T apart from the use of religious symbol 'Khanda', were thatit contained an appeal in the name of the religion and further that it wasdistributed with a view to provoking feelings of enmity and hatred betweendifferent classes of the citizens of India on the ground of religion. It maybe mentioned that a good deal of argument has centred on the mattersraised relating to Annexure 'J' which was published in the name of SantokhSingh, President, Shri Guru Singh Sabha, Ambala Cantt.

In his written statement, Respondent No. 1, denied that the corruptpractices alleged in paragraph 17 had been committed. It was denied interalia that Santokh Singh and others mentioned in the offending poster werethe agents of the answering respondent or that any use was made of anyreligious symbol for the purpose of his election or for prejudicially affectingthe interests of other contestants. It was even denied that 'Khanda' wasthe religious symbol of Sikhs. It was maintained that the poster 'J' did notpromote any feelings of enmity or hatred between different classes of citizensof India on the ground of religion.

As regards Annexure 'J' two questions required determination. Thefirst is whether it was published and distributed by the agents of RespondentNo. 1 or by any other person with his consent and secondly whether itscontents fall within the mischief of clauses (3) and (3A) of Section 123of the Representation of the People Act, 1951. I consider it unnecessaryto decide about the publication and distribution, etc., of the other posters

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as alleged because Mr. Ganga Parshad Jain, learned counsel for the peti-tioners, hardly addressed any agruments in respect of the same, nor did heargue the matter of the use of religious symbols appearing on theseposters. It was Respondent No. 2 alone who laid a good deal of emphasison the use of the religious symbols in Annexure T apart from urging thepoints relating to appeal in the name of religion and promotion of feelingsof enmity and hatred between different classes.

The material parts of Annexure 'J' which is the translation of the posterin Punjabi Exhibit P. 10, may be reproduced :—

"The Sikh Sangat of Ambala Cantt., has come to know that SardarGurdial Singh has been made to stand only to assist the Jan Sangh. TheJan Sangh is. the greatest and the most fanatic opponent of the Sikhs.Just have a look at the most recent statements of the top leaders ofDelhi. Jathedar Avtar Singh Kohli Pardhan, Akali Dal, DelhiState, in a statement has appealed to the Sikhs that in the comingelection by a strong offensive they should bring about the total routof the Jan Sangh. Jan Sangh is the same party which has launcheda crusade against the Sikhs for the past some time. On 14th Marchin Chandni Chowk the followers of Jan Sangh by looting the shopsof the Sikhs, by attacking the Sikhs, and by burning the scootersand cars gave vent to their inimical feelings against the Sikh Com-munity. They did not stop there. The same day they attackedand threw stones*at the Gurdwara Sis Ganj, the place of the sacrificeof Guru Tegh Bahadur, the defender of the Hindu faith. In casethe brave Sikhs had not tried to intervene and stop them then whatmore they would have done is. hard to imagine. The same waythey behaved with the Sikhs in the Punjab. They threw the cigarettepackets in the sacred Sikh temples and in their sacred Sarovars.To injure the feelings of the Sikhs they made.attacks on Sikh religionand raised slogans that they would throw the Sikhs across Wagha.So far this party has not come in power. In case by our misfortunethey come to power they may attempt to go further even. Howthese people can be friends of the Sikhs who helped such a partywhich is the sworn enemy of the Sikhs. They are only concernedwith their own bread and butter. You should not fall a prey to thedesigns and deceit of these hypocrites, false leaders who are enemiesof the Sikhs. Do defeat the Jan Sangh. This can be made possibleonly in case we cast our votes in favour of Shri Dev Raj Anand andmake him successful so that Jan Sangh may be wound up".

P.W. 9 Kartar Singh Takkar, President of the Haryana Akali Dal(Master Tara Singh Group) deposed to the distribution of the various postersincluding Exhibit P. 10. According to him, Khanda is a religious symboland is generally to be found on most of the posters issued by Sikhs. P.W.11 Gurdial Singh (Respondent No. 4) who stood as a candidate from theAkali Dal (Master Group), also gave testimony about the posters havingbeen published and distributed during the election days. He himself securedonly about 1,200 votes. He did not know nor did he accompany anyonewho had got the posters including Exhibit P. 10 published and printed, buthe inferred from the circumstances that they must have been got published

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at the instance of Respondent No. 1. P. W. 19 Durga Parshad, who wasworking as a compositor with the Widwan Press, Ambala Cantt, stated thathe had composed the posters including Exhibit P. 10. According tohim Santokh Singh and Inder, son of Respondent No. 1 came to the pressfor getting the posters printed. As my note of the record shows, when thiswitness was questioned in cross-examination about Inder, son of RespondentNo. 1, he started prevaricating. Lai Chand petitioner who alone out of thetwo petitioners gave evidence and appeared as P.W. 30, stated apart fromother matters that Exhibit P. 10 was got printed by Santokh Singh, the ob-ject being to bring about differences between Hindus and Sikhs. In answerto a question put by Respondent No. 2 in cross-examination, he said that theallegations which had beer, made against the Jan Sangh Party in the posterExhibit P. !0 had a good deal of adverse effect on the minds of the Sikhelectors against the Jan Sangh candidate. When cross-examined by thecounsel for Respondent No. 1, he proceeded to say :—

"Santokh Singh had met me a day prior to the date of polling with theson of Respondent No. 1 and I casually enquired from him thecircumstances in which the poster had been printed and publishedand it was then that he told me about it. I did not enquire about theother posters because in this particular poster lot of things hadbeen said against the Jan Sangh Party and I was only interested infinding out about it. I did not tell my counsel when I gave ins-tructionsfor drafting of the petition about this matter."

R. W. 11 Gobind Ram Bahl who was the proposer of Respondent No. 1in the matter of election and was also his counting agent, has admittedthat R. W. Santokh Singh was giving some support to Respondent No. 1in his own way and that he got some posters printed and published duringthe election days but he could not say if they were the same posters whichhad been mentioned in the petition including Exhibit P. 10. R. W. 12Harbhajan Singh Bhalaya, the Honorary Secretary of the Northern IndiaChambers of Commerce and Industry, stated that a meeting of the Sikhswas held in the Sikh Kanya Pathshala in the month of January, 1967, forthe purpose of deciding in whose favour the members of the Sikh Commu-nity should vote. There were about 200 persons present there. SantokhSingh, President of Siri Guru Singh Sabha explained the object for which themeeting had been convened. Certain other speakers addressed the meetingand emphasised that the candidate who had been set up by the MasterGroup of the Akaii Dal was a mere dummy and it would^not be in the interestof the Sikhs to support the Jan Sangh candidate. Therefore, the Congress can-didate, Respondent No. 1 should be supported. All the persons presentthere expressed agreement about voting for Respondent No. 1. It was alsodecided that Santokh Singh should get leaflets and posters printed and pub-lished for that purpose and for carrying on the propaganda in favour ofRespondent No. 1. A sum of Rs. 300 was raised by subscriptions from thepersons present to defray ihe expenses relating to printing, publishing anddistribution of the posters. He admitted that the poster Exhibit P. 10 hadbeen got printed and was published by Santokh Singh although with regardto that poster he was not consulted. He refuted the suggestionthat the four posters including Exhibit P. 10 had been got printed andpublished by him and Santokh Singh at the instance and on the asking ofRespondent No. 1. R. W. 13 Santokh Singh gave a similar testimony about

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the meeting which was held in the Sikh Girls High School, Ambala Can-tonment on 29th January, 1967, as the previous witness R. W. 12 HarbhajanSingh Bhalaya. He admitted that Exhibit P. 10 had been got printed by him butstated that he had paid the printing charges and arranged for its distributionthrough workers to whom no payment was made. According to him, Res-pondent No. 1 had nothing to do with the publication or the distributionof that poster. He maintained that the posters which were issued, includ ingExhibit P. 10, were purely of political nature and the appeal contained thereinwas not on the religious grounds. He stated that the object in issuing theposter Exhibit P. 10 was that the Jan Sangh Party should be defeated atany cost and it was wholly incorrect that he wanted to incite the feelingsof the Sikhs. He could not say if the posters in question came to the n oticeof Respondent No. 1. He denied that he was a counting agent ofRespondent No. 1 when confronted with Exhibit P. 16 which was the formby which he had been appointed a counting agent of the aforesaid respondent,this witness said :—

"When I signed this form I was told that I would be the counting agentof Smt. Phul Vati. M. C. Jolly, P.W. told me this. I did not readthis form when I signed it. It is correct that in Exhibit P. 16, thename of Respondent No. 1, is mentioned for whom I was appointed asa counting agent".

At another place while his statement was recorded, a note was made byme, "the demeanour of this witness is mpst unsatisfactory". In answerto questions in cross-examination by Respondent No. 2, he said :—

"I do not remember if I ever sent copies of any of the posters ExhibitsP. 8, P. 9, P. 10 and P. 13 to Respondent No. 1 or ever mentionedabout them to him although I met him several times during theelection days; they even came to my shop. Neither he asked me nordid I tell him on all these occasions about the posters."

I would like to observe immediately that this witness struck me as altogetherunreliable and his statement also shows that his version cannot be acceptedas correct. Respondent No. 1 who appeared as R. W. 14 stated that henever asked Santokh Singh to publish posters including Exhibit P. 10nor did he pay him any printing charges for the same. In cross-examinationby Respondent No. 2 he admitted that he came to know of the aforesaid posteras also the other posters but stated that he did not consider it necessary toissue any contradiction relating to them. According to him Santokh Singhhelped him in 1962 and in 1967 also and his friends did work for him but theyworked independently of him. They wanted to defeat the Jan Sangh candi-date. Santokh Singh did not meet him for discussing the details abouthis election campaign or propaganda although he met Santokh Singh onfive or seven occasions during the election days. Once or twice he went tohis shop also. Santokh Singh met him even after he had come to know ofsome of the posters. As regards distribution of the poster Exhibit P. 10P.W. 21 Subash Chander was the sole witness produced by the petitioner.According to him he distributed posters for Respondent No. 1. Theseposters were similar to posters produced in the present petition includingExhibit P. 10. He got these posters from the Congress election office. Inder,

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son of Respondent No. 1, used to give them to him and he used to makepayment at the rate of Rs. 4 per day. In cross-examination, this witnessadmitted that he was working in the workshop of Hindusthan Model In-dustries where he was getting a salary of Rs. 125 per month. He had beenworking there for the last three or four months. Previously he had notbeen doing any work. He did not distribute posters for any other partyexcept the Congress. He admitted that the factory in which he was workingwas located in Hindu Maha Sabha Bhawan. It has been suggested that theMaha Sabha was supporting the Jan Sangh candidate. It may be mentionedthat the factum of distribution of the poster Exhibit P. 10 is not disputedby Mr. Sachar for Respondent No. 1, but he has assailed the version givenby P.W. Subash Chander in respect of taking the posters from Inder, theson of Respondent No. 1 and receiving any payment for distribution fromhim. The testimony of Subash Chander has not impressed me very muchand I do not consider that it would be safe to rely on it for connecting Inder,the son of Respondent No. 1 with the distribution of posters includingExhibit P. 10 and payment of charges relating thereto. There is hardlyany direct evidence worth the name which would connect Respondent No. 1with the publication and distribution of the poster Exhibit P. 10. Butit appears to me that the consent of Respondent No. 1 stands establishedby the facts and circumstances which stand proved by the statements ofSantokh Singh and Respondent No. 1. There can be no manner of doubtthat Santokh Singh who was actively espousing the cause of the aforesaidrespondent and even acted as his counting agent, was bound to have talkedto Respondent No. 1 about the publication and distribution of the posterExhibit P. 10. Indeed, Santokh Singh was so closely associated with Res-pondent No. 1 that after the result had been declared and a procession wastaken out, he alone went in a jeep with Respondent No. 1 (See SantokhSingh's statement in cross-examination by Respondent No. 2). WhenRespondent No. 1 has admitted that he met him several times during theelection days it is hardly possible to accept that they talked about othermatters and the publication and distribution of the posters was kept sucha close secret by Santokh Singh that it was never touched or discussed. Iam unable to accept the statement of Respondent No. 1 that although heand Santokh Singh had met after he had come to know of some of the afore-said posters, yet he did not feel the necessity of asking him anything aboutthem. Such a conduct is wholly abnormal and unnatural. It is well-knownthat normally the supporters of candidates at elections wish to either takecredit for what they do for the candidates or they discuss all aspects of thevarious means of propaganda mutually. I have no hesitation in holdingthat during their meetings, Respondent No. 1 and Santokh Singh must havetalked and discussed about the poster Exhibit P. 10.

Mr. Sachar has relied on Abdul Majeed (Meera Sahib) versus Bhargavan(Krishnan) Member, Legislative Assembly and other, A.I.R. 1963 Kerala18, for the view that consent of the candidate or his election agent to thecommission of the corrupt practice referred to in section 123(4) meansconsent to the act of publishing and is, therefore, anterior to it. If it couldbe established from the circumstances that the candidate had knowledgeof the fact that a particular article was going to be published and that thearticle contained matters which brought it within the mischief of the provi-sions of that section, and if he did not take any steps to stop publication,his consent to the publication might tte inferred. But from the fact that

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he had knowledge of the contents subsequent to its publication, no dutywas cast on him to go and publish some repudiation of the allegations con-tained in the publication. Any subsequent knowledge of the contents ofthat publication could not be relevant for the purpose of determining theconsent of the candidate prior to the publication. The Kerala Court dis-tinguished the decision in Bhagwan Datta Shastri versus Ram Ratanji Guptaand others, A.I.R. 1960 S.C. 200, in which it was observed :—

"It is not unreasonable to impute to the candidate the knowledge of thework done by his party in his area and to impute the consequentconnivance on his part."

With respect I am unable to apply the reasoning of the learned Kerala Judgesto the facts of the present case. In my opinion the observations of theirLordships can be oppositely applied and it seems to me that it would not beunreasonable to impute to respondent No. 1 the knowledge of the workdone by Santokh Singh who was one of his active party workers in so far asthe Sikh electors were concerned. I am unable to share the view pressedby Mr. Sachar that Santokh Singh was working entirely on his own becausehe was opposed to the Jan Sangh candidate and he was actively canvassingamong the Sikh electors for support to respondent No. 1 for that reasonalone. I would accordingly find that the publication and the distributionof the poster Exhibit P. 10 was with the connivance and consequentlythe consent of respondent No. 1.

The next question is whether the aforesaid poster falls within the mischiefof clauses (3) and (3A) of section 123 of the Act which read:—

"123(3). The appeal by a candidate or his agent or by any other personwith the consent of a candidate or 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 religious symbolsor the use of, or appeal to, national symbols, such as the nationalflag or the national emblem, for the furtherance of the prospects ofthe election of that candidate or for prejudicially affecting the electionof any candidate. (3A) The promotion of, or attempt to promotefeelings of enmity or hatred between different classes of the citi-zens of India on grounds of religion race, caste, community, orlanguage, by a candidate or his agent or any other person with theconsent of a candidate or his election agent for the furtherance ofthe prospects of the election of that candidate, or for prejudiciallyaffecting the election of any candidate."

Mr. Ganga Prashad has contended that Santokh Singh made an appeal tothe members of his community, namely, the Sikhs, on the gound of his religion.He had introduced a number of allegations against the Jan Sangh partywhich predominently consists of Hindus and had made an attempt to exacer-bate the feelings of the Sikhs to exploit them, on the ground that Sikh reli-gion and Gurdwaras would not be safe in the hands of the candidates returnedby the Jan Sangh party which meant mainly the Hindus. The gravamen ofthe charge, according to Mr. Ganga Prashad, is that a Sikh has made anappeal to his co-religionists in the name of his religion which did not mean

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the candidate's religion but the religion of the maker of the appeal, i. e.Santokh Singh. Alternatively it is contended that the appeal by SantokhSingh which was with the consent of respondent No. 1, was made to hisco-religionists to refrain from voting for respondent No. 2 who was thecandidate of the Jan Sangh party on the ground of his religion as that partyby necessary implication both from the point of view of its historical back-ground and composition consisted of the Hindus. Thus as appeal was madeto refrain from voting for respondent No. 2 on the ground of his religionwhich was Hinduism. I am unable to agree that a political party like theJan Sangh should be equated with Hinduism. What has been set out inthe offending poster is an invective against a political party which was alsocontesting the elections, namely, the Jan Sangh and it has certainly beenrepresented that its followers have been indulging in anti-Sikh activitiesin a large measure and had even attacked and thrown stones at the Gur-dwara Sis Ganj apart from throwing cigarette packets in sacred sikh templesand their sarovars. But however strong the words that have been used areagainst the members of the Jan Sangh party, a close reading of the entireposter leaves no manner of doubt that it is the Jan Sangh as a political partywhose activities are being condemned. Indeed, the background of the publica-tion of this poster is that Gurdial Singh respondent No. 4 had been put upas candidate by the Akali Dal (Master Group) and Santokh Singh tried torepresent that he had, as a matter of fact, been set up by the Jan Sangh partyto divert the Sikh votes from the candidate of the Congress party. SantokhSingh had also launched broadsides against the Jan Sangh with the object ofpersuading members of the Sikh community not to fall into the trap of theJan Sangh party by voting for Gurdial Singh. That is why it was stated inthe poster that by making Gurdial Singh stand, an attempt had been madeto deceive the Shromani Akali Dal and to being disgrace to Master Dalgroup. The poster ended up by saying that the Jan Sangh should be defeatedand that could be done only if votes were cast in favour of respondentNo. 1. I fail to see how any such poster can be regarded as contain-ing an appeal to vote or refrain from voting for any person on the groundof his religion. The word 'his' would in the context mean the religion of thecandidate and not the person making the appeal, as no votes can be castfor him nor can anyone be asked to refrain from voting for him. Indeedthe last result would flow if the argument of Mr. Ganga Parshad were to beaccepted that the work "his" means the religion of the person making theappeal with the consent of a candidate. It is some what interesting to notethat respondent No. 2 when questioned about the offending poster, stated thatwhen he read Exhibit P. 10, he felt that certain things had been said againstthe Jan Sangh party which were wholly unjustified. Even he did not under-stand the poster to contain any appeal on the gound of the religion of acandidate. In Kultar Singh versus Mukhtiar Singh, A.I.R. 1965 S.C. 141,an appeal was circulated on behalf of the Sikh resident of Singapore, Malayaand South East Asia which contained an exhortation that every Sikh voteshould go to representatives of the Akali Dal and a hope was expressed thatin that manner the honour of the Panth would be preserved. Referring tothe languages of section 123(3), Gajendragadkar C.J. observed on page143 :—

"It is thus plain that if it is shown that the impugned poster which theappellant is proved to have published and distributed at his election.meetings, contained an appeal to the voters of his constituency to

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vote for him on the ground of his religion, that would amount toa corrupt practice under section 123(3) of the Act "

It was further observed :—

"It is true that a corrupt practice under section 123(3) can be committedby a candidate by appealing to the voters to vote for him on theground of his religion even though his rival candidate may belongto the same religion. If for instance, a Sikh candidate were to appealto the voters to vote for him because, he was a Sikh and add thathis rival candidate, though a Sikh in name, was not true to thereligious tenets of Sikhism or was a heretic and as such outside thepale of the Sikh religion, that would amount to a corrupt practiceunder section 123(3)."

It was pointed out in this decision that in considering the question as towhether the distribution of the impugned poster constituted a corrupt prac-tice, it had to be borne in mind that the appellant in that case had been adopt-ed as its candidate by the Akali Dal party which was recognised as a politicalparty notwithstanding the fact that all its members were only Sikhs. Itwas well-known that there were several parties, which subscribed to diffe-rent political and economic ideologies but the membership of them was eitherconfined to, or predominantly held by, members of particular communitiesor religions. So long as law did not prohibit the formation of such partiesand in fact recognised them for the purpose of election, an appeal made bycandidates of such parties for votes might, if successful, lead to their electionand in an indirect way, might conceivably be influenced by considerationof religion, race, caste, community or language. That infirmity could notbe avoided so long as parties were allowed, to function and were recognisedthough their composition might be predominantly based on membershipof particular communities or religions. With regard to the offending posterin that case it was held that the word 'Panth' did not mean Sikh religion andso by distribution of that poster no appeal had been made by the appellantto his voters to vote for him because of his religion. Another passagewhich is noteworthy and which has some bearing on the present case maybe quoted in extenso (page 144) :—

"In reading such documents, it would be unrealistic to ignore the factthat when election meetings are held and appeals are made by candi-dates 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 expression in attacking one another, are all a partof the game; and so, when the question about the effect of speechesdelivered or pamphlets distributed at election meetings is arguedin the cold atmosphere of judicial chamber, some allowancemust be made and the impugned speeches or pamphlets must beconstrued in that light."

Another decision of their Lordships which throws light on the meaningof word 'his' as it appears in the first part of section 123(3), is Jagdev SinghSidhanti versus Partap Singh Daulta and others, A.I.R. 1965 S.C. 183. It

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has been laid down that the corrupt practice defined by clause (3) of section123 is committed when an appeal is made either to vote or refrain fromvoting on the ground of the candidate's language. It is the appeal to theelectorate on a ground personal to the candidate relating to his languagewhich attracts the ban. Therefore, it is only when the electors are askedto vote or not to vote because of the particular language of the candidatethat a corrupt practice may be deemed to be committed. If the word "reli-gion" is substituted in place of the word 'language', the result would be thatonly when the electors are asked to vote or not to vote because of the parti-cular religion of the candidate that a corrupt practice would be deemed tobe committed under section 123(3). No such appeal is to be found in theoffending poster in the present case. It may be mentioned that the presentclause (3) of section 123 was substituted in 1961 for the old clause by theAmending Act 40 of 1961. Before the substitution the clause was as fol-lows :—

"The systematic appeal by a candidate or his agent or by any other personto vote or refrain from voting on grounds of caste, race, communityor religion or the use of, or appeal to, religious symbols or the useof, or appeal to, national symbols such as the national flag or thenational emblem, for the furtherance of the prospects of that candi-date's election".

It is significant that before the amendment the language employed banneda general appeal to vote or refrain from voting on the ground of religion,etc. But by the amendment the purpose of the appeal was narrowed downto voting or refraining from voting for any person on the ground of thereligion, etc. In Shankaragauda v. Sirur Veerabhadappa A.I.R. 1963 Mysore81, it was observed that the mere circumstance that an appeal might happento be by Muslims or that it might happen to be addressed to Muslims, didnot by itself make it an appeal on grounds of caste, race, community orreligion. Even on the language of the provision in section 123 as it stoodbefore the amendment, Courts have been taking the view that even wherean appeal has been made to the members of a religion or community, itwould come within the mischief of section 123(3) only if the appeal wasmade on the ground of religion or community and not merely on the groundof commission of misdeeds or supposed misdeeds by the members of aparticular political party. {See for instance Ghayur AH Khar versus KeshavGupta 16 E.L.R. 154). There can be no manner of doubt, therefore, thatthe offending poster does not contain any appeal of the nature urged byMr. Ganga Parshad.

Respondent No. 2 has called attention to the use of religious symbolsin all the four posters which have been mentioned before and in particularthe poster Exhibit P. 10 which has formed the subject matter of discussionwith reference to the first part of clause (3) of section 123. It is maintainedby him that 'Khanda' is a religious symbol and by displaying it on the posteruse has been made of such a'symbol apart from an appeal to that symbol.He has referred to the evidence of the witnesses who deposed that 'Khanda'is a religious symbol of the Sikhs, e. g. statement of P.W. 9. Kartar SinghTakkar R. W. 13 Santokh Singh, however, stated that the symbol of'Khanda'was only an auspicious one and was used for political or religious work.

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It was used even on the invitation cards and other letters issued in connectionwith marriages, deaths, etc. He admitted in cross-examination that in theNishan Sahib of the Gurdwaras no other symbol could appear exceptthat of 'Khanda'. P.W. 9 Kartar Singh Takkar has admitted in his cross-examination that the Sikhs get the symbol of 'Khanda' printed on letter-heads and wedding cards, etc., because it is considered to be an auspicious'Shagan'. Even P.W. 4 Hari Singh Jachak, a witness of the petitioner,who is proprietor of Vidhwan Printing Press, admitted that he had printedseveral wedding cards, letter-heads, etc., for various social functions withthe mark of 'Khanda' which was to be found on the offending posters. InJagdev Singh Sidhanti v. Pratap Singh Daulta and others, A.I.R. 1965S.C. 183, it was held that 'Om' flag could not be called a religious' symbol.A symbol, according to their Lordships, stands for or represents some-thing material or abstract; in order to be a religious symbol, there must bea visible representation of a thing or concept which is religious. In RattanSingh v. Devinder Singh and others, 7 E.L.R. 234, the Election Tribunal,Ludhiana, expressed the view that the Nishan of Khanda, Chakar and twoKripans was not purely a religious symbol of Sikhs and could be used onmatters clearly secular and even by Hindus. It was a matter of commonknowledge that some of the letter heads of Sikh and Hindu gentlemen hadthese symbols embossed on them. According to the Tribunal, the merepresence of the symbol Khanda, Chakar and two Kirpans on the posterscould not be regarded as an appeal to the voters on the basis of religionand meant to convey the sense that any person not voting in favour of Pan-thik candidates would be rendered an object of divine displeasure or spiritualcensure. In Ramanbhai Ashabhai Patel v. Dabhi Apt Kumar Fulsinjiand others, A.I.R. 1965 S.C. 669, the allegation was that the successful candi-date and his agents had distributed leaflets and pamphlets in which theelection symbol of the candidate and his party was described as star 'Dhruva'with the characteristics associated with that star. Their Lordships foundno basis for saying that mere mention of the 'Dhruva' star would arousethe religious sentiments of Hindus amongst the electors. Referring toSidhanti's case it was said at page 673 :

"For according to the Upanishads it is from the primodial sound "Aum"that this phenomenal universe was projected and that this universeexists in and ultimately dissolves in "Aum". It is thus everythingincluding God or Ishwara and the Supreme Brahman. Accord-ingly "Aum" is sacred to the Hindus. But this Court has held thateven so, the use of pennants on which "Aum" was inscribed did notamount to use of or appeal to a religious symbol".

Reference was also made to an earlier decision in Shubnaih Deogramyf. Ram Narain Prasad, A.I.R. 1960 S.C. 148, where the question waswhether a 'Cock' was a religious symbol of Adibasis. It was found that itformed an integral part of the religious ceremonies which the Adibasis per-formed while worshipping some of their deities. The Jharkhand partyhad issued and distributed leaflets in verse wherein an appeal was made bya cock for the votes of the electorate. The majority of the Judges held thatthe leaflet contained an appeal to the voters on the ground of religion. Thisis what has been said in Ramanbhai's case on page 674 :

"The conclusion of this Court was based not upon the mere fact of the

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use of the symbol of cock but it was based upon the nature of theappeal for votes made by the cock

After referring to the nature of the appeal which was made in the leafletin the words of the cock, it was said on page 674 :

"According to this Court this, in substance, amounted to saying that itwould please the deities if they did so because the cock in its turnwas meant for sacrifice to the deities and it would displease themif they did not."

It was further observed on page 675 that the symbol standing by itself cannotbe regarded as an appeal in the name of the religion.

In the light of all the observations which have been made by the SupremeCourt, I find it difficult to hold that by inscribing the symbol of 'Khanda'or any of the other symbols which are ordinarily used by the Sikhs, it canbe said that use was made of a religious symbol or an appeal was made toit in the sense in which it is used in section 123(3) of the Act. The evidencein the present case is predominantly to the effect that 'Khanda is used onall kinds of social invitations and printed cards because it is considered tobe auspicious. The case decided by the Election Tribunal in Karan Singh v.Jamuna Singh, 15 E.L.R. 370, was directly on the point and I find no reasonnot to accept the view expressed in it as correct. I would accordingly holdthat no use was made of any religious symbol nor was any appeal made toit so as to bring the poster Exhibit P. 10 or even the other posters withinthe mischief of clause (3) of Section 123 of the Act. It will not be out ofplace to mention that Mr. Ganga Parshad who argued the case for the peti-tioners, did not seriously press the point relating to the use of a religioussymbol or appeal to it and confined himself mostly to the fi rst part of theargument which has already been noticed.

As regards Exhibit P. 10 falling within the ambit of clause (3 A) of theAct, I am unable to agree with Mr. Ganga Parshad that there is any attemptto promote feelings of enmity and hatred between different classes of citi-zens of India on grounds of religion, race, caste, community or languagewhich can be spelt out of the offending poster. I have already dwelt uponthe contents of the poster which show a vitriolic attack on the Jan Sangh asa political party. Keeping in mind the observations made by the SupremeCourt in Kultar Singh's case (Supra) I cannot hold even on theassumption that the Jan Sangh consists predominantly of Hindus, that theattack against that party as a political party can be equated with an attemptto promote feelings of enmity and hatred between Hindus and Sikhs as hasbeen suggested by Mr. Ganga Parshad. In the first place, it cannot beignored, and this I am saying with reference to the case of the petitionersunder clause (3) as well that Respondent No. 1 is a Hindu and is not a Sikhby religion. By asking the Sikh voters to vote for a Hindu is quite a differentmatter from asking a Sikh to vote for a Sikh candidate from which an appealon the ground of religion might be inferred. However, with reference toclause (3A), the true meaning of the words 'different classes' has to bedetermined. Surely 'classes' cannot mean political parties that are fighting

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elections in a democratic country. In Webster's New International Dic-tionary, the Roman historical background of the word 'Class' which hasbeen given very fully, illustrates its true meaning. It is stated there :

"(1) Any of the six divisions into which the Roman people were dividedunder the constitution ascribed to Servius Tullius. Five wereformed according to property, each to furnish a certain numberof equipped centuries to the army, while the sixth consisted of thosenot having property enough to warrant military equipment.

(2) A group of individuals ranked together as possessing the commoncharacteristics or as having the same status; as, the educated class;the middle or working classes.

(3)

(4) A group of persons, things, qualities or activities, having commoncharacteristics or attributes; a set; a kind, description, species, orvariety.

(5) A division, grouping, or distinction, as of goods or of accommodationon a steamer or train, based upon grade or quality, as goods of thesecond class; to travel first class.

It is possible for a political party or group to fall within one of the abovemeanings. But from the object and purpose of election law and the context,it is not possible to hold that the word 'classes' is used in the sense of politicalgroups or would include political groups. Mr Ganga Parshad hasnot been able to cite any authority in support of his contention, which mustbe repelled.

Issue No. 2 is in the following terms :—

"Whether Respondent No. 1 has committed corrupt practice underSection 123(1) as mentioned in paragraphs 18, 19, 20 and 23."

The arguments have been confined only to the allegations made in para-graphs 20 and 23 of the petition. In paragraph 20 it has been alleged that Go-bind Ram, an agent of Respondent No. 2 or a person acting with the consentof Respondent No. 1, approached the residents of Gowal Mandi near theRailway Station, Ambala Cantt. and in a meeting held on 16th February,1967 at 8.30 P.M. in that locality, promised that he would construct paccafloor space of concrete (with wall around) under the municipal water hydrantsituated in the said Mandi and would also get a pacca drain constructedconnected with the water hydrant which carried the rain water out of theMandi at his cost, for a consideration that they vote in favour of RespondentNo. 1. Pursuant to this declaration, Govind Ram got constructed the saidpacca floor between 16th and 19th February 1967, the entire cost of cons-truction of the floor space under the hydrant having been met by him with theconsent and at the instance of Respondent No. 1 or his election agent. Inhis written statement, Respondent No. 1 has denied the aforesaid allegations.

E.L.R.] DR. A.N. VERMAN AND ANOTHER V. D.R. ANAND AND OTHERS 373

It has been denied that Gobind Ram was an agent of the answering res-pondent. As regard the hydrant, the position taken up is that it was theproperty of the Cantonment Board and, therefore, the question of anyconstruction by any private person did not arise. P.W. 22 GirdhariLal,a milk vendor, living in the Railway Gowal Mandi, Ambala Cantonment,stated that four days before the polling was to take place a meeting washeld in that locality, which was attended by all the residents. GovindRam and certain other persons came to Chaudhri Phiku Ram who is oneof the prominent citizens of the locality, and a gathering was collected bet-ween 8 and 9 p.m. Gobind Ram asked the persons present to vote forRespondent No. 1 and held out an assurance in the presence of RespondentNo. (1) that all the necessary repairs to the water taps would be carried outif votes were promised in favour of the said respondent. The residentssaid that lot of things in their locality need repairs like water taps and drains,and whoever carried out the necessary repairs would win their support.Next day a Mistri and two labourers came and carried out the repairs to thewater taps as also to the platform under those taps. He admitted that thewater was being supplied by the Cantonment Board but stated that the taps,etc., had been installed by the local residents and not by the Board. Heproceeded to say :—•

"I di d not tell the facts deposed by me today to any one else before andit is for the first time that have narrated them today in Court."

P.W. 28 Ram Charan gave a similar statement. R.W. 6 Phiku Ram whowas produced by Respondent No. 1, also happened to be a resident of GowalMandi. According to him, Respondent No. 1 used to come along withGobind Ram and others to the Mandi for canvassing support but it wasincorrect that any one of the residents said that if the Thaija or Khura underthe water tap was repaired or reconstructed, then alone the residents of thelocality would vote for Respondent No. 1, nor did Gobind Ram say so.The water tap had been fixed by the Cantonment Board. Chaman Lai,an employee of the Cantonment Board, came during those days to set rightthe water pipes and some mason came from the Cantonment Board for re-pairing the Thara. R.W. 7 Behari Lai, a member and Vice-President of theCantonment Board, stated that he accompanied Respondent No. 1 and Go-bind Ram, as also certain other persons to Gowal Mandi during the days ofthe elections. There were water taps in the Mandi but the Thara beneaththe water tap inside the Mandi was not broken. He denied the allegationsmade by the witnesses of the petitioner that an offer was made that repairswould be effected to the Thara, or that such a demand was made by the resi-dents of that locality. R.W. 8 Gurdit Singh Executive Officer of the Canton-ment Board, stated that there was one hydrant in the Gowal Mandi. InFebruary, 1967, repairs had been done to the leaking pipeline and the plat-form below the hydrant was reconstructed. This was done frdm 6th to11th February, 1967, at a total cost of Rs. 30.75plus Rs. 20.70. ExhibitR. 2 was the copy of the estimate for repairs to the pipeline, Exhibit R. 3the copy of the completion report, Exhibit R. 4 the estimate of cost for dis-mantling and reconstructing the platform and Exhibit R. 5 was the copy ofthe completion report. The cost of these works was met out of the fundsof the Cantonment Board. In cross-examination he stated that a Chaudhrifrom the Mandi came and reported about the bad condition of the hydrantand the platform. This hydrant was inside the Ahata and not outside the

3 7 4 DR. A.N. VERMAN AND ANOTHER V..D.R. ANAND AND OTHERS [VOL. XXXIV

Mandi. According to him, there was one hydrant outside also towards theroadside, the road being called Cross-Road No. 12. He went to GowalMandi soon after February, 1967 and saw that the work had been completed.He denied as incorrect the suggestion that the documents produced by himrelated to the other water hydrant which was towards the railways, side.This answer appears to have been given under a misapprehension as GurditSingh was quite definite if his whole statement is examined that the repairswere done to the hydrant inside the Ahata. It was about that hydrant thatthe case of the petitioners was that it was at the instance of RespondentNo. 1, that the Thara underneath it was got repaired by Gobind Ram. R.W.11 Gobind Ram Bahl refuted the testimony given by the witnesses producedby the petitioner and denied that he had the platform under the water tapreconstructed or repaired in the manner alleged. Respondent No. 1 whoappeared as R.W. 14 stated that when he went to the Gowal Mandi accom-panied by Gobind Ram and others, he never offered to get the Thara underthe tap repaired, nor did Gobind Ram or any one from his side made anysuch offer as has been alleged. As a matter of fact, no such demand wasmade by any of the resident of the locality-.

Now according to the allegations made in paragraph 20 of the petition,the offer was made by Gobind Ram, etc. and effect was actually given to itby construction of a pacca floor beneath the Municipal Water Hydrantsituate in the Mandi. According to the two witnesses produced by thepetitioner the platform or the Thara underneath the water tap or hydrantwhich at the stage of arguments was admitted to be a Municipal Hydrant,was got constructed by the labour employed by Gobind Ram at the instanceof respondent No. 1. This evidence is belied by the testimony of R.W.8, Gurdit Singh, the Executive Officer, who produced all the relevant docu-ments which show that the said repairs or reconstruction of the Thara or theplatform had been done by the Cantonment Board. So far as P.W. 22,Girdhari Lai is concerned, there is a serious infirmity which may be noticed.According to him he never mentioned about the facts stated by him in Courtto anyone, before he gave evidence. It has not been explained how he cameto be cited as a witness. The evidence of the type which has been producedcan easily be procured and at any rate it has been amply rebutted by thestatement of the Executive Officer who struck me as an independent and dis-interested witness and the evidence given by the other witnesses producedby respondent No. 1. Thus the allegations contained in paragraph 20 havenot been proved.

In paragraph 23 of the petition, it has been alleged that Swami Kabarian agent or a person acting with the consent of respondent No. 1 or hiselection agent with a view to securing electoral support for respondentNo. 1 got installed two hand-pumps in the Dhey Colony between 6th and18th February, 1967. This was done with a view to inducing and securingthe votes of the members of the Dhey Community. The entire cost for theinstallation of these two hand-pumps was borne by respondent No. 1.Comparing the allegations made in this paragraph with those contained inparagraph 20, it is significant that no such allegation has been made thatrespondent No. 1 or persons acting with his consent actually made anyoffer to the voters residing in the Dhey Colony that they should cast theirvotes in favour of respondent No. 1 in consideration of the latter getting two

E.L.R.] DR. A. N. VERMAN AND ANOTHER V. D. R. ANAND AND OTHERS 375

hand-pumps installed in that colony. Respondent No. 1 in his writtenstatement denied the aforesaid allegation as also the allegation that SwamiKabari was his agent. It was denied that he or any one else with his consentgot installed two hand-pumps in the Dhey Colony or that the cost of theirinstallation was met by him. P.W. 23, Ram Simran, a shopkeeper of GheeMandi, Ambala Cantt, deposed that respondent No. 1 accompanied byBehari Lai and Swami Kabari came to the Mandi during the election day at1967. Piarey Lai and Kishori Lai who were the Chaudharis of the localitywere approached by them for collecting the residents out of whom there wereabout 200 electors. This happened eight or ten days prior to the dateof polling. After the residents had gathered, they were told by respondentNo. 1 that they should support his candidature. The persons present repre-sented that they were having lot of difficulty about water and it was necessaryto have hand-pumps for water installed. They further said that whoevergot the hand-pumps installed would win their support. Respondent No. 1told Swami Kabari to get two hand-pumps fixed. That was actuallydone three or four days before the date of polling. In cross-examinationhe stated that he was a partner in the bakery of Panna Lai who was a leaderof the Hindu Maha Sabha. According to this witness no one came duringthat time from the Jan Sangh party or other parties to his locality nor didthey come even earlier and convene any meeting. He did not mentionabout the facts stated by him to any one else on any previous occasion.P.W. 29 Kalu Ram gave a version similar to that of Ram Simran. Headmitted in cross-examination that the Chaudharis of the Dhey brotherhoodwere Kishori, Piara Lai and Krishna and that all kinds of political represen-tatives came to canvass support in that locality some days before the dateof polling. The residents of the locality laid emphasis on the same condi-tion, namely, getting the hand-pumps installed. He admitted that the sup-porters of the candidate sponsored by the Jan Sangh party came after the visitof respondent No. 1 but no mention was made to them about the assurancewhich.had been given by respondent No. 1. He agreed that no paymentwas made to the Mistries or workers who had installed the hand-pumpsin his presence nor did he know how much payment had been made to them.The witness produced by the respondent on this part of the case are R.W. 7Behari Lai, R.W. 8 Gurdit Singh, R.W. 9 Pishori Lai, R.W. 10 Piara Lai,and R.W. 11 Gobind Ram Bahl. R.W. 7 Behari Lai, a member and Vice-President of the Cantonment Board, Ambala Cantt., who gave evidenceabout the Thara in Gowal Mandi also deposed to what transpired on hisvisit to the Dhey Colony in the company of respondent No. 1, Gobind Ramand others. According to him, there were two hand-pumps fixed by thePanchayat in that colony and one had been installed by the CantonmentBoard. The hand-pumps which had been installed by the private persons,were either outside their cottages or in the passages. He admitted in cross-examination that he had been a supporter of the Congress candidates on pre-vious occasions also. R.W. 8 Gurdit Singh, Executive Officer of the Can-tonment Board, stated that there was a hand-pump of the Cantonment Boardin the Dhey Colony which was about 10 years old. There were other hand-pumps also outside the houses of the private house-owners which had beeninstalled by them. In cross-examination he stated that the haiid-pumpswhich had been installed by the private house-owners in that colony wereon lands which were managed by the Cantonment Board. He could notsay if there were two hand-pumps which had been installed by the Panchayatof the residents. R.W. 9 Pishori Lai, a taxidermist of Dhey Colony and one

2 EC/71—25

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of the Ghaudharis there, stated that respondent No. 1 and Gobind Ram,etc., came to his locality during the days of the election to canvass supportbut the residents did not lay down any conditions. At the time when theelections took place, there were about 10 pumps in the locality. One of themwas of the Cantonment Board, two had been fixed by the Panchayat of theresidents and the rest were all installed individually. No hand-pump hadbeen installed in his presence during the days of the election. In answerto questions in cross-examination by respondent No. 2, he stated that thereare two Dhey Colonies which are divided by a Katcha path. He lived inone and Kalu P.W. lived in the other. Simran did not have any shop ineither of the two parts of the colony. R.W. 10 Piare Lai another Chaudhariof the colony, gave statement similar to the one made by the previous wit-ness. According to him, Kalu P.W. was a resident of the other Mandi.He used to take water from his side before but a hand-pump had been fixedon his side as well. This happened about two years ago. He could not saywho had got that pump installed because he did not belong to that Mandi.There were about one hundred houses in the Mandi where he was living andabout 20 to 25 houses in the other Mandi. R.W. 11 Gobind Ram deniedwhat had been alleged in respect of the part played by him in the DheyColony and so did respondent No. 1 when he appeared as R.W. 14.

There are several features in the evidence led by both sides with regardto the alleged installation of the hand-pumps in the Dhey Colony during thedays of election which render the testimony given by the witnesses producedby the parties unconvincing and unreliable. Mr. Sachar has pointed outthat the most important and material witness was the Mistri, Atma Singh,who had originally been cited as a witness and who appeared only for theproduction of certain bill books which are marked 'L' and 'M' (relevantparts in these bill books were not got exhibited), but he was not put onoath and not examined as a witness. His testimony would have shownwhere the hand-pumps were installed and who defrayed the cost of the entirework. Swami Kabari had also been cited as a witness by the petitionersbut was not produced. It was suggested by Mr. Ganga Parshad that SwamiKabari actually is a close associate of respondent No. 1 and would not havegiven truthful evidence to support the case of the petitioners. It was forthe petitioners to prove the allegations and I am unable to hold thatP.W. 23 Ram Simran and P.W. 29 Kalu Ram have given convincing andreliable testimony. As stated before, P.W. 23 has stated that he nevermentioned about the facts stated by him in Court to any one else on anyprevious occasion. Lai Chand, one of the petitioners who appeared as P.W.30, did not indicate how he had come to know about this witness beforehe was cited as such. He made a general statement which was very vague.He stated that Amar Nath, his co-petitioner, had told him that he had collectedthe information through the party workers. Amar Nath did not cheeseto appear in the witness-box and throw any light on the matter. Moreover,P.W. 23 Ram Simran stated that no one came during the election days fromthe Jan Sangh party or other parties which is contradicted by the other witnessKalu Ram. From the material placed on the record I cannot find that theallegations contained in paragraph 23 of the petition have been established.Issue No. 2 consequently is decided against the petitioners and in favour ofrespondent No. 1.

E.L.R.] DR. A. N. VERMAN AND ANOTHER V. D. R. ANAND AND OTHERS 377

Issue No. 3 is as follows :—

"Whether respondent No. 1 has committed the corrupt practice undersection 123(1) (A) as mentioned in paragraphs 21 and 22 ?"

In paragraph 21, it has been alleged that respondent No. 1 who at thematerial time was a Minister for Printing and Stationery, offered on 23rdJanuary, 1967, to respondent No. 4 Gurdial Singh, another contestingcandidate (a block-maker) a contract from the Controller of Printing andStationery, for block making for Rs 5,000 as inducement in case he with-drew from the election. Further, respondent No. 1, his election agent oragents acting with his consent, made announcements from 16th to 18thFebruary, 1967, that respondent No. 4 had withdrawn from the contestin the election. These allegations have been denied by respondent No.1 and described as false. The petitioner produced two witnesses P.W.9 Kartar Singh Takkar and P.W. 11 Gurdial Singh (respondent No. 4).All that P.W. 9 stated was that on learning from Gurdial Singh that res-pondent No. 1 had offered a sum of Rs 5,000 to persuade him to withdrawfrom the contest, he condemned the aforesaid act or suggestion of respon-dent No. 1 publicly in speeches delivered on two occasions, one on 5thFebruary, 1967, and the other a week earlier. In cross-examination on be-half of respondent No. 1 he admitted that no talk took place in his presenceabout the alleged offer of respondent No. 1. He stated, however, that GurdialSingh spoke at both the meetings on 29th January, 1967; and 5th February,1967, mentioning this matter. In the complaint which was filed with the policeon 24th February, 1967, this fact was not mentioned. P.W. 11 Gurdial Singhmade the following statement :—

"I also issued the posters contradicting the statements made thereinto the effect that I had withdrawn from the contest. RespondentNo. 1 did sound me if I would withdraw on receipt of some amount,but no definite figure was mentioned. Kartar Singh Takkar thenin a speech mentioned this fact, but I did not dejiver any speech theremyself. I conveyed to Kartar Singh Takkar that respondent No.1 was trying to persuade me to withdraw on receipt of some money."

In answer to a question by respondent No. 2, he stated that respondentNo. 1 made an offer to him that he could either accept money or respondentNo. 1 could get him a contract for block-making.

While deciding another matter, I have not placed any reliance on thestatement of the aforesaid two witnesses of the petitioner. In any case, theallegations contained in paragraph 21 and the statements of the twowitnesses show a lot of contradictions and it is not possible to place anyreliance on their evidence.

The allegation in paragraph 22 is that on 23rd January, 1967, respondentNo. 1 made an offer to Ram Nath, respondent No. 3, a contesting candidateof a sum of Rs 10,000 in case he withdrew from the election. RespondentNo. 3 and his agents working with his consent at election meetings held atAmbala Cantt. publicly declared that respondent No. 1 had made theaforesaid offer. In paragraph 22 of the written statement the aforesaid

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allegations have been denied and it has also been stated that the respondentis not responsible for any alleged statement made by respondent or his agentsP.W. 14 K.V.S. Sud deposed that Ram Nath was a candidate of the TradeUnions of Ambala and his Union (of the Post and Telegraphs Department)was supporting him. On 25th or 26th January, 1967, he received a telephoniccall from Sham Sunder Dass, a member of the Ambala Cantonment Boardthat respondent No. 1 wanted to meet him in order to have a talk in thematter of persuading Ram Nath to withdraw. Sud arranged a meeting athis house between Ram Nath, respondent No. 1 Dev Raj Anand, HarishChander Bhatnagar, Gobind Ram, Sham Sunder Dass and Dr. Ram NathSareen, who all came with respondent No. 1. Apart from the other methodsof persuation, respondent No. 1 made an offer to compensate Ram Nath forthe expenses which he had incurred in the election campaign. He even saidthat he did not mind spending Rs 5,000 to Rs. 10,000. Ram Nath becameangry and said that he could not be purchased in that manner. Sud admit-ted that he^had been dismissed on July 10, 1967, on grounds of alleged absencefrom duty. He admitted that he was in Government service when the elec-tions took place in February, 1967 and was aware of the rules that Govern-ment servants were not expected to take part or participate in the matter ofcanvassing for any candidate. He further stated :—

"I had been told that a case had been registered against me with theSpecial Police Establishment at Ambala. I had not been told and,therefore, I cannot say whether the charges against me related tothe submission of bogus medical bills and drawing reimbursmentto the extent of Rs 500. I cannot recollect at this stage if there wasany Hira Lai, Store Keeper of the Co-operative Stores in the Postand Telegraphs Colony, Ambala Cantonment. It is possible thatI might have given a certificate to him of good character but I do notknow if he has been dismissed on charges of misappropriation.My wife did not take some industrial loan but I do not know ifany warrant for her arrest was issued."

He did not know who had filed the petition nor did he know the electionpetitioners whom he had never hold anything about the talk which tookplace at his house between respondent No. 1 and Ram Nath about the with-drawal. Sud did not create a particularly favourable impression on me asa witness and I am not prepared to hold in the absence of any corroborativepiece of evidence that any such offer was made to Ram Nath of the naturealleged. Issue No. 3 is consequently decided against the petitioner.

Issue No. 5 runs thus :—

"Whether respondent No. 1 induced persons mentioned in paragraph26 to assist him in his election by sanctioning a sum of Rs. 2,000on 20th November, 1966, and also on 6th February, 1967?"

In paragraph 26 of the amended petition, it has been alleged that res-pondent No. 1 who was a Minister holding of portfolio other than that ofEducation, while addressing a meeting on 20th November, 1966, at D.A.V.High Scho ol, Ambala Cantonment, asked the members of the managementSarvshri Mohan Lai, Bhoj Raj. Milkbi Ram, etc., and other persons including

E.L.R.] t>R. A.N. VERMAN AND ANOTHER V. D.R. ANAND AND OTHERS 379

Sarvshri Diwan Chand, Roshan Lai Lamba, Om Parkash Malhotra andGian Chand Saini, io assist him in his election and sanctioned Rs. 2,000from his discretionary fund for the School as an inducement to secure electoralsupport and thus committed a corrupt practice. The respondent in hiswritten statement has admitted that he had made a grant out of his discre-tionary fund in the sum of Rs. 2,000 to the D.A.V. High School, AmbalaCantonment. Such discretionary grants, according to him are given inthe usual course by Minister and there was no question of his having madeit for the purpose of getting any assistance in the election. It has beendenied that he asked the persons mentioned in paragraph 26 to assist him inhis election or that he sanctioned Rs. 2,000 from his discretionary fund asan inducement to secure electoral support. P.W. 24 Roshan Lai and P.W.25 Hardev Raj were produced in support of the aforesaid allegations.According to Roshan Lai, he attended the prize distribution ceremony of theD.A.V. High School, Ambala Cantonment, in his capacity as Manager ofthe Arya Girls High School. After the various items which had been pre-sented by the students had conlcuded M.C. Jolly, Manager of the schoolsaid that respondent No. 1 who was presiding over the function and was aMinister had been giving a lot of help to the school and that in future alsohe would continue to do so and that he should be helped during the comingelections. Respondent No. 1 thereafter gave a reply and also announcedthat he had granted a sum of Rs, 2,000 from his discretionary fund to theschool. He further said that if he was helped in the elections, he would givemore funds. In cross-examination this witness stated that he had been arrestedby the police in the year 1964 as a result of some hot words exchanged whiledrawing tap water but it was incorrect that he was arrested and convictedon a charge of gambling. He admitted that he had been fined Rs. 10 butcould not remember on what charge he had been convicted. He stated thathe only talked to Pt. Bhagwati Parshad, President of the Arya Samaj aboutwhat he had heard at the prize distribution function but no decision wastaken nor was any resolution passed by[the Arya Samaj by wayjof condemningthe Samaj taking up sides in the matter of election P.W. 25.

Hardev Raj stated that his son was student in the D.A.V. High School.On 20th or 21st November, 1966, he attended the prize distribution cere-mony. After the items which were to be presented by the students has con-cluded, M.C. Jolly introduced respondent No. 1 who was presiding over thefunction. Jolly said that the latter had been giving a lot of help and thathe had been a consistent patron of the school and that he should be suppor-ted in the coming elections. Respondent No. 1 in his reply mentioned thathe had sanctioned a sum of Rs. 2,000 out of his discretionary fund for theschool. M.C. Jolly thereupon requested responded No. 1 to sanction at leastRs. 2,100. The respondent then stated that for the time being he would makea grant of Rs. 2,000 but if he were to be re-elected he would make up thedeficiency. In cross-examination he stated that respondent No. 1 spokefor 15 to 20 minutes. In addition to what had been narrated before, res-pondent No. 1 said that the Haryana Ministry was fully united and wasdoing good work. The witness did not remember any other matter fromthe speech of respondent No. 1. He could not remember nor could he sayif respondent No. 1 had also stated that he was giving the amount in questionfor providing better facilities to the students of the school. RespondentNo. 1 produced two witnesses in rebuttal. R.W. 2 Dr. Milkhi Ram, a MedicalPractitioner of Ambala Cantt., who was Vice-President of the D.A.V. School

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managing committee during the material period, stated that he and the Head-master of the school made an appeal for the help and donations because theschool building was under construction, at the prize distribution functionof the school. Respondent No. 1 announced in the course of his speechthat he would grant a sum of Rs. 2,000 from his discretionary fund to theschool. He did not make any mention about the impending elections or seekany help for the same. M. C. Jolly was present but he could not rememberwhether Jolly spoke or not, Respondent No. 1 did not say to him or withinhis hearing to any one else that he expected support in elections from anyof the persons present and that was the reason for his making the donation.Respondent No. 1 did not even say that he would continue to serve thepublic if he remained the Minister in the same way as he had done hitherto-before. He denied the suggestion of respondent No. 2 that the annual func-tion and the prize distribution function of the School were accelerated toNovember, 1966, because of the coming elections which were to be held inJanuary or February, 1967, for the purpose of helping respondent No. 1.R.W. 3 Perma Nand Aggarwal, Headmaster of the D.A.V. High School,Ambala Cantt. deposed that respondent No. 1 who was the chief guest onthe occasion of the prize distribution, praised the work done by the schooland on the representation made to him by the management that the schoolbuilding was under construction and help was required in that behalf, heannounced that he would give a donation of Rs. 2,000 from his dis-cretionary fund. He never said anything about the coming elections.M. C. Jolly in his speech merely gave the history of the institutionand uttered certain words of welcome to the Chief Guest. Therewas no talk between respondent No. 1 or any of the persons presentin which anything was said about help or support to be given to respondentNo^ 1 during the general elections. He admitted that one of the inviteeswas Roshan Lai, Manager of the Arya Girls High School, Ambala Canton-ment. He had no knowledge whether M.C. Jolly was helping respondentNo. 1 during the elections. In 1961 or 1962, Shri Yash who was the DeputyMinister then had given a grant out of the discretionary fund to the extentof Rs. 2,500 although he had originally announced a grant of Rs. 5,000.Respondent No. 1 in his statement as R.W. 14 stated that every Ministerwas allocated a fund known as the 'discretionary fund'. As far as he couldremember, a sum of Rs. 50,000 was allocated to each Minister includinghimself for that purpose. The instructions were that the aforesaid fund wasto be utilised in the matter of educational institutions, hospitals or otherwork of public nature. The discretionary fund could be distributed allover the State. After the fund had been sanctioned by the Minister, thesame was scrutinised by the Finance Department as well as the DevelopmentDepartment. Unless they were fully satisfied that the grant had been madefor the purposes mentioned in the instructions, the matter was referred backto the Minister for reconsideration. Exhibit R. 6 was the list of the discre-tionary grants which were sanctioned by respondent No. 1 all over the State.Out of these the amounts which were sanctioned by him in his constituencytotalling Rs. 9,000 were contained in the list Exhibit R. 7. He denied thathe ever asked the members of the Managing Committee of the School or anyone else present at the function held on 20th November, 1966, that he shouldbe helped in the elections. He claimed that his sole object in making thegrant was to help the cause of the .institution. Respondent No. 1 washardly cross-examined on behalf of the petitioners with regard to this partof his statement. Respondent No. 2, however, cross-examined him on

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certain matters and he stated that he could not give the dates of the paymentof the grants mentioned in R. 6. He proceeded to say :—

"During the time of Sardar Partap Singh Kairon, I could not secure anygrants for institutions within my constituency because my re-lations with him were not good but my relations wth Shri Bhim SenSachar were quite cordial, but I did not get any grants sanctionedduring his time. My relations with Shri 3 Parbodh Chandra, theEducation Minister of Punjab, were very friendly during the Kaironregime".

The crucial question is whether respondent No. 1 made the statement attri-buted to him by the two witnesses produced by the petitioner canvassingsupport in the elections while making the grant from his discretionary fundto the school. So far as Roshan Lai is concerned, he did not strike me as areliable witness. It is quite obvious that he deliberately tried to supress thenature of the offence for which had been fined Rs. 10. It is difficult tobelieve that he had such a forgetful memory that he did not remember of theoffence for which he had been convicted. The second witness Hardev Rajappears to have been present at the prize distribution ceremony. But it issomewhat surprising that he only remembered about.the offending part ofthe speech delivered by respondent No. 1 and did not remember anythingelse except a little bit about the good work done by the Haryana Ministryalthough admittedly respondent No. 1 spoke for a fair length of time. Itis extraordinary that when a Minister is addressing students in a school,he should not say something by way of advice and guidance to them. Thereis also a contradiction between the exact statement attributed by him torespondent No. 1 and the once deposed to by the other witness Roshan Laiwho never stated anything about a request having been made by M.C.Jolly that at least a sum of Rs. 2,100 be sanctioned. The evidence of R.W.2, Dr. Milkhi Ram who is a responsible medical practitioner and avenerable gentleman of 86 years of age, fully contradicts the statement madeby Hardev Raj, I have not been persuaded by counsel to doubt the veracityof the statement of R.W. 2, Dr. Milkhi Ram. It is also noteworthy thatin paragraph 26 of the amended petition, the names of a number of personswho were present were mentioned including that of Roshan Lai Lambabut the name of P.W. 25 Hardev Raj does not find any mention there. Forall these reasons I am not inclined to hold that any such statement as hasbeen attributed to respondent No. ljwas made by him at the prize distributionceremony of the D.A.V. High School, held on 20th November, 1966, or thatthe words which have been attributed to M.C. Jolly, were uttered by himin the manner alleged or stated. The admitted fact remains that on the eveof the general elections, respondent No. 1 made a donation or grant of Rs.2,000 from his discretionary fund and it will have to be decided whetherthat fact coupled with the other facts and circumstances would be sufficientto attract the applicability of the provisions of section 123(1) (A) of theAct.

In paragraph 26 of the amended petition it has also been alleged thatwhile addressing the members of the management and the audience includingSunder Lai, Radhe Sham, Bal Mokand and Darshan Lai at a functionheld on 6th February, 1967, arranged by the Sanatan Dharam Institute for

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the Blinds, Ambala Cantt., respondent No. 1 asked the persons present tocast their votes in his favour and as an inducement he announced a donationof Rs. 2,000 out of his discretionary fund. The petitioner produced onlyone witness, P.W. 27, Shiv Sarup who stated that he was the PropagandaSecretary of the Bhartiya Bandhu Dal, Ambala Cantonment. At a functionheld in the Institute for Blinds on 6th February, 1967 at 11 A.M. Vaid KuiaNand, President of the Congress Committee, said in a speech in the presenceof respondent No. 1 that the institute was in need of funds. RespondentNo. 1 announced that he was giving a grant of Rs. 2,000 to the institute andthat he had been rendering service as a Minister and would continue to doso, if he was re-elected. Vaid Kula Nand was a supporter of and workedfor respondent No. 1 during the elections. He admitted that he had takenpart in the Gau Raksha Andoian in January, 1967. He did not know ifthe Jan Sangh party had actively sponsored that movement. Even thoughhe read vernacular newspapers, yet he did not know if Swami RameshwaraNand had organised the movement relating to the protection of cows. Hestated that Ved Parkash of Messrs Hargo Lai and Sons and Manager ofthe Institute for Blinds, spoke before the arrival of respondent No. 1. Hedid not say anything about giving support to him in the impending elections.Respondent No. 1 spoke for about 10 to 15 minutes. He praised the workof the institute apart from saying that he had always been rendering serviceto the public and would continue to do so if he was re-elected. He admittedthat respondent No. 1 did not make it a condition for making the grant thatvotes should be cast in his favour. He denied the suggestion that he wasgiving evidence against respondent No. 1 owing to his sympathies withthe Jan Sangh Party. R.W. 4 Ved Parkash, a parnter of Messrs Hargo Laiand Sons, manufacturers of scientific instruments and the Manager of theInstitute for Blinds stated that respondent No. 1 attended the annualfunction and prize distribution of that Institute on the 5th or 6th February,1967. He never said in his speech that he was giving a grant of Rs. 2,000and that he expected support in the elections from the persons present.According to him, there was no talk about the elections nor did respondentNo. 1 say that to anyone present that he should be helped in the elections.He was cross-examined about an inmate of the institute of the name ofRamesh Misra who had come to this Court to give evidence on one of thedates but who was not being permitted according to the petitioners to comeagain as his evidence could not be recorded on the previous date. VedParkash denied the suggestion made in the cross-examination that RameshMisra had been stopped from coming to Court under his instructions. R.W.Moti Parshad, Vice-President of the Sanatan Dharam Sabha, AmbalaCantonment, stated that the Institute for the Blinds which was being runby the Sabha had organised a function in February, 1967, which was attendedby respondent No. 1. According to him, nothing was said about the elec-tions by respondent No. 1 who only generally praised the work of the Insti-tute. He admitted that there had been a raid on his shop last year duringthe anti-hoarding drive, but refuted the suggestion that a shortage to theextent of 85 quintals was found in his stock, or that a shortage of 250 bagswas found in his sheller. Respondent No. 1 in his statement as R.W. 14said that it was in the end of December, 1966, that he got an invitationfrom the Institute for Blinds to attend its function which was to be held on6th February, 1967. While sanctioning the sum of Rs. 2,000 for the Insti-tute he did not say anything about the election nor did he say that he shouldbe given votes by the persons present. His object was merely to help the

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Institute and not to advance the cause of his election. The purpose forwhich the grant was made was covered by the Government instructions.The petitioners do not appear to have cross-examined him on this part ofhis statement. Respondent No. 2 only cross-examined him generally anddid not put any particular question in respect of the grant made to the Insti-tute for the Blinds.

In arguments, counsel for the petitioners as well as respondent No. 2have laid a good deal of emphasis on an allegation made in the petition(Civil Miscellaneous No. 156 of 1967) submitted to me during the trial inconnection with the unlawful and illegal pressure put on Ramesh Misra,a blind inmate of the institute who was present at the function where thegrant was announced by respondent No. 1. It was stated therein that RameshMisra had come to give evidence in this Court on 20th October, 1967, butthat on that day his evidence could not be recorded and when Misra wasapproached again to come to Chandigarh to give his evidence, he expressedhis inability to attend the Court and stated :—

"I wish to attend the Court today to appear as a witness and I approachedCh. Raghbir Singh, the Superintendent of the Blind Institute, buthe declined to give me permission and he has restrained me fromleaving the premises of the Institute to attend the Court and to goanywhere. From now onward I am bound down to attend thecollege even with an escort".

The prayer in this petition was that necessary steps be taken to make RameshMisra appear in this Court. I made an order on 23rd October, 1967, thatthe witness in question had not been summoned and there was no cogentground for granting the prayer. It was admitted before me that althoughhe had been cited as a-witness, yet he had not been summoned through Court.He appears to have been brought by the petitioners on 20th October, 1967,but his statement could not be recorded on that day. No prayer was madethat he should be bound down for appearance on the next date of hearing.In these circumstances, there was no question of granting the prayer madein the petition. I consider it altogether unsafe to accept the word of mouthof witness like P. W. 27 with regard to the statements made in a speech deli-vered many months ago particularly when such witnesses are of a type thatcan be produced at the beckoning of a party any time. Although the evi-dence produced by the respondent with regard to what happened at theinstitute is equally unimpressive, I am unable to find that any such state-ment as has been attributed to respondent No. 1, was made by him on 6thFebruary, 1967, while announcing the grant from his discretionary fund tothe institute. However, the fact that respondent No. 1 made such a grantonly some days before the poll was to take place, is a matter which willrequire careful consideration for seeing whether it would constitute a corruptpractice within the meaning of section 123(1)(A) in the light of other admittedor proved facts.

Mr. Ganga Parshad as also respondent No. 2 have argued that even onthe assumption that respondent No. 1 did not make any such statementsas have been alleged against him either at the prize distribution functionof the D.A.V. High School on 20th November, 1966, or at the Institute for

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the Blinds on 6th February, 1967, the sequence of events and the mannerin which the discretionary grants were made shows that the whole objectunderlying them was to further the prospects of his election by virtuallybribing the management of the institutions and by creating an impressionamong the persons present that respondent No. 1 was rendering great serviceto the cause of educational and charitable institutions which in the light ofhis announced intention to contest the election would have the effect tocanvassing support from him. It has been pointed out that admittedly res-pondent No. 1 had never made any donations or grants or given any otherkind of material help to these institutions. Respondent No. 1 became aMinister in the Haryana Government on 1st November, 1966 which officehe held upto 23rd March, 1967. There are 81 constituencies in the wholeof the State of^Haryana and it is pointed out by the counsel for the petitionersthat out of a total amount of Rs. 32,000 which he gave by way of discre-tionary grants from November, 1966 to 18th February, 1967, grants amount-ing to Rs. 9,000 were made to institutions in his own constituency. Noneof the grants was made after the date of polling even though respondentNo. 1 continued to remain a Minister and was in a position to give moregrants amounting to Rs. 18,000 till he gave up his office on 23rd March1967. Thus according to Mr. Ganga Parshad and respondent No. 2, theso-called grants or donations from the Government fund to the institutionswithin the constituency of respondent No. 1 were given in quick successionand the frequency increased with the advent of the date of polling. Thenthere is a marked gap between the date of the grant in favour of the D.A.V.High School, Ambala Cantonment which was made in November, 1966,and the next grant which was made on 28th December, 1966. The fundwhich was given to the Institute for the Blinds was quite near the date ofthe poll All these facts taken collectively indicate, so it has been argued,that the real and dominant intention of respondent No. 1, was to canvassvotes in his favour of and through at least all the persons connected withthe various institutions to whom the money was given.

Mr. Sachar, on the other hand, had contended that all the moneys whichwere distributed from the discretionary fund, were given to such institutionsas were deserving and each grant had to be scrutinised and approved officiallyin the manner to be found in the statement of respondent No. 1 which hasnot been challenged on the point. It has been suggested that after becominga Minister which was for the first time, respondent No. 1 became very busywith his official work and also there was lot of suspense and uncertaintyabout the political conditions with the result that he could not distributethe remaining amount of the money by way of grants. He says that theresult of the election was declared on 21st February, 1967, and on 10th March,1967, the Ministry was reconstituted. On 23rd March, 1967, however, themembers of the Congress party ceased to hold office with the result that res-pondent No. 1 was no longer a Minister. Within that short period, res-pondent No. 1 could not be expected to have devoted such attention to thedistribution of the balance that was left out of the discretionary fund. Hehas further laid stress on the fact that there is complete absence of evidenceabout the management of any institutions or the persons actively connectedwith them to whom grants were given being hostile to respondent No. 1so that it became necessary to placate them by making the grants. Reliancehas been placed on certain observations in Bankabehari Dass versus Chitta-ranjan Naik, A.I.R. 1963 Orissa 83, in which the question was whether the

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conduct of a candidate in giving certain moneys in charity was a noble,honest act or a corrupt practice of bribery. According to the learned OrissaJudges, motive was the most important factor and it had to be seen whetherthe person making the charity was doing it with a dishonest and corruptmotive. That necessarily would depend on facts of each particular case asalso upon many circumstances involving those of time, place, the personsby whom the charity was distributed and by whom it was received; whetherit has been given in pursuance of an accustomed course or whether it wasnovel and unprecedented; whether it was moderate or immoderate in amountand specially whether the persons to whom it was given were proper reci-pients. The learned judges felt that in such cases however pure the motiveof the charitable donor might be, if he be a candidate for the constituency,it was impossible to escape the conclusion that his acts of charity might oreven must, exercise some influence upon the mind of the voters; but whenno personal appearance, power of speech, manner of life or conduct in themanagement of the particular election must or might ingratiate himself inthe minds of the electors and so obtain an advantage over the opponent.The imminence of an election was an important factor to be taken intoconsideration in deciding whether a particular act of charity amountedto bribery. In the Orissa Case, however, the charity was of a differentnature and it consisted inter alia of an alleged promise to pay money as grati-fication towards the costs of a radio battery to library at Tauntara andsubsequent payment of money with which the battery was said to have beenpurchased, as also the supply of jeeps for the Sanskritika Kendra CulturalConference at Bari with the object of inducing electors to vote in favour ofthe donor. No such question as grant from a Minister's discretionary fundwas involved. It must be remembered that when a person proceeds to givemoney from his own pocket, he does expect same return for it unless hehas given it for the sole object of charity but when there is such a fund as aMinister's Discretionary Fund which can be disbursed and distributed toproper institutions or bodies, more or less, at the will of the Minister, it wouldnot be always easy to enter into his motives in making the grant in the absenceof numerous factors like the number of votes which are likely to be won incase the grant is made and whether the persons connected with the insti-tution either wield a lot of influence among the electors or are themselveselectors in large numbers. There may be other facts and circumstanceswhich might point to the only conclusion that the sole object was to canvasssupport in elections but in the present case the only matters that stand provedare that two grants were made from the discretionary fund of Rs. 2,000each, one in November, 1966 and the other in February, 1967. Noother factors have been established or proved. The second grant wascertainly very near the date of polling. But it is again a moot questionwhether that fact alone will establish beyond doubt that the intention ofrespondent No. 1 was corrupt or dishonest. Respondent No. 2 referredto Shankara Gowda versus Mariyappa and another, 9 E.L.R. 101, in whichit was said that though elections were not intended to prevent charity, thereshould be no influence on the electorate in the guise of charity for securingvotes when election was imminent. If the motive behind the charity wascorrupt, it would be a subtle form of bribery. Some of the cases decidedin England were considered. In Khader Sheriff versus Munnuswami, A.I.R.1955 S.C. 775, it has been observed that while it is meritorious to make adonation for charitable purposes, if that is, made at the time or on theeve of an election, it is open to the charge that its real object was to induce

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the electors to vote in favour of the particular candidate and that it shouldbe treated as election expenses. The famous dictum of Bewen J. in theVigan Case was referred as also that of Ridley J. in the Vingston Case. InHalsbury's Law of England, Volume 14, it has been stated in paragraph378, that bona fide charity has always been allowed. On the other Handwhat are called charitable gifts may be merely a specious'and subtle formof bribery. If a gift is charitable, it will not become bribery because of theuse made of it even if political capital is made out of it. In the foot-note,observation of Bramwell B. in the Windeser Case has been given accordingto which a man is not to refrain from doing that which he legitimately mighthave done on account of existence of a motive which by itself would havebeen an illegitimate motive. It is unnecessary to refer to other decisionsbecause the underlying principle which is to be found in all of them is thatthe motive or the intention has to be judged from all the facts and circum-stances and if it can be established that the object was dishonest or corruptin the sense of winning support in elections then even a charitable donationor grant would become bribery and thus constitute a corrupt practice. Ona consideration of the entire material which has been set out before, I amnot satisfied that the sole motive and object of respondent No. 1 in givinga sum of Rs. 2,000 to each one of the two institutions from the Minister'sDiscretionary Fund was to further the cause of his election or to canvasssupport in that behalf. In Abnash Chand versus Smt. Om Prabha Jain,Election Petition No. 19 of 1967, decided by Mahajan J. on 16th November1967, the distribution made by a Minister from the Discretionary Fundwas held to be a corrupt practice on the facts and circumstances of thatcase which are entirely distinguishable. I would accordingly hold that thecharge laid against respondent No. 1 of bribery in Issue No. 5 has not beenproved.

Issue No. 6 is in the following, terms :—

"Whether respondent No. 1 secured the assistance of the DivisionalSuperintendent Northern Railway Mr. Sawhney to assist him inthe furtherance of his election by holding a meeting of Railwayemployees and canvassing for their support on 11th January, 1967at the residence of respondent No. 1 ? If so, whether respondentNo. 1 has committed the corrupt practice within section 123(7)of the Act?"

It was alleged in paragraph 27 of the amended petition that the returnedcandidate and the persons working with his consent obtained or procuredthe assistance for the furtherance of his prospects at the election from aperson in the service of the Government belonging to the class of GazettedOfficers. The particulars relating to this corrupt practice as given are thatin a meeting of the Railway employees held during the election which had beenarranged by or at the instance of respondent No. 1 or persons working withhis consent, the said respondent secured the support of P. Sahai, GeneralManager, Northern Railway, who was accompanied by the DivisionalSuperintendent, Northern Railway, Delhi, whose name was stated to beSawhney. Both these officers visited Ambala Cantonment on. 1 lth January,1967. The Divisional Superintendent spoke on that day at 5 p.m. at theresidence of respondent No. 1 in his favour. Respondent No. 1 alsoaddressed the meeting. In his written statement, respondent No. 1 stoutly

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denied the allegations that he had secured the support of the General Mana-ger and the Divisional Superintendent as alleged. It was denied that ameeting was held on 11th January, 1967, at the residence of respondentNo. 1 where the Divisional Superintendent gave a speech supporting thecandidature of respondent No. 1 P.W. 16 Ishwar Chand, a clerk in the officeof the Head Train Examiner, Northern Railway, stated that on 1 lth January,1967, a meeting was held in the house of respondent No. 1. It had pre-viously been announced that a meeting would be held there at 5.30 P.M.which would be attended by the General Manager accompanied by otherrailway officers. Iswhar Chand attended that meeting. According to him,the General Manager came at 7 P.M. while the meeting was still going on.It had already been addressed by P.Ws. H.S. Bhalaya, Santokh Singh andGobind Ram. The General Manager sat down and did not speak butthe Divisional Superintendent addressed the audience and exhorted thepersons present to give maximum support in the election to respondentNo. 1. In cross-examination he admitted that he was not a member of anyof the Railway Union and did not attend any of the meetings held during thetime of elections in 1962. He further stated that since he happened to bea Government Servant, he was not particularly interested in politics norwas there any question of his giving support to any of the rival candidatein the elections. There were 150 to 200 persons who ultimately attendedthe meeting.

This is what he further said :—

"The Divisional Superintendent never said in so many words that theGeneral Manager wanted that the railway employees should supportrespondent No. 1, but whatever the Divisional Superintendentsaid was said in his presence which conveyedjthe impression^to everybody that whatever he was saying had the consent of the GeneralManager."

He admitted that he did not inform anyone else about what he saw andheard at the meeting as he did not feel the necessity of doing so. One of thepetitioners, Dr. Verman came to him in his office about two months priorto the date on which he got the summons to attend the Court and enquiredfrom him as to whether he had attended the meeting and what had trans-pired there, Dr. Verman did not know him before nor did he know Dr.Verman. He did not accept the suggestion that he was giving evidence infavour of the petitioners because he had been a supporter of the Jan Sanghparty for a long time. P.W. 26 Hira Lai, a dealer in scientific instruments,stated that a deputation of the dealers of scientific instruments waited uponthe General Manager and the Divisional Superintendent on 10th or 11thJanuary, 1967, and met them in the office of the Station Superintendent atabout 11 A.M. The General Manager heard the deputation for aboutfive minutes and then said that he had other engagements and that some otherappointment would be given. He enquired later from the Control Roomand was told that the General Manager and the Divisional Superintendentwould be going to the house of respondent No. 1 at 7 P.M. on 11th January1967. The members of the deputation went to the residence of respondentNo. 1 in the evening at about 6.45 P.M.He sawja meeting being held whichwas attended by about 150 to 200 railway employees. It was being addressedby Gobind Ram Behl who was canvassing support for the election of

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respondent No. 1. The Divisional Superintendent spoke and canvassedsupport for him in the presence of the General Manager. The deputationistsgave their memorandum to the General Manager which could not be donein the morning. When this witness was being cross-examined about hisassociation with Nem Chand of Messrs Jamboo Parshad and Sons who wasa Jan Sanghi, he gave unsatisfactory answeres and this is the note whichwas recorded by me :—•

"The demeanour of this witness is not satisfactory and he is not answeringquestions properly".

He did not know if Ved Parkash was the General Secretary of the ScientificGoods Dealers Association. He knew Messrs Hargo Lai and Sons who werethe biggest manufacturers of scientific goods, of which Ved Parkash wasa partner. Ved Parkash, according to him did not accompany the deputa-tion. He admitted that he did not belong to any association of dealers ofscientific goods. He claimed that he had gone with the deputation in hisindividual capacity and not on behalf of any organisation. The respondentsummoned Sahai, the General Manager of the Northern Railways as alsoSawhney who was the Chief Personnel Officer. Sahai was examined asR .W. I . He stated that during the-course of his annual inspection tourin January, 1967, when he was coming from Ludhiana to Ambala, he wasinformed that respondent No. 1 desired to meet him at Ambala.

On arrival at Ambala he and the Chief Personnel Officer, Sawhney wentto the residence of respondent No. 1 at about 5.30 P.M. He wasushered inside the drawing room along with Sawhney. No one else waspresent when he met respondent No. 1. No railway employee was presenteither outside or inside the residence of the said respondent. After spendinghalf an hour or so, he left along with Sawhney. He stated in categoricalterms that no meeting was held or addressed by Sawhney in his presenceat the residence of respondent No. 1. According to him, no deputationconsisting of dealers of scientific instruments met him at the residence ofrespondent No. 1. He stated that he never came to Ambala on the forenoonof 11th of January, 1967. After looking at Exhibit P. 7 he stated that themessage recorded in it was given by A.T.S., Ambala, who was accompanyinghim in the special train. Only one officer was to accompany him to therespondent's house and he could not say why it was mentioned in the messagethat three officers would be accompanying him. The reason why the timementioned in the message was 7.30 P.M. that the exact time of the arrivalof the special train was not known. In cross-examination by respondentNo. 2 he stated that he had not brought with him the T.A. Journal show-ing his tour programme but the exact time of the arrival of the special trainas could be checked from the records. He gave the timings of the arrivalof the special train at Ambala in detail. The special train first cameto Ambala on the 9th January, 1967 at 7 P.M. Overnight he and his partywent to Sirhind. On 10th January, 1967, the special train was betweenSirhind and Nangal. He denied that he was at Ambala on the 10th January,1967, or that any deputation of the dealers in scientific instruments couldhave met him on that day. He had been the General Manager of the Nor-thern Railways for the last two years and Sawhney had been working underhim during that period. He was not sure if Sawhney came from Rawal-pindi. Respondent No. 2 put certain questions about the reason why

E.L.R.] DR. A. N. VERMAN AND ANOTHER V. DR. ANAND AND OTHERS 389

respondent No. 1 wanted to see him. The answer given was that he wantedto discuss, and actually discussed with him, the difficulties experienced bypassengers entutaining from Ambala Cantonment and the crowded condi-tion of trains as also their not running punctually. He further stated thathe did not know at the material time that respondent No. 1 was standingfor election till he met him. In answer to a Court question, he stated thatalthough originally he came from Delhi but his family had settled down inU.P. long ago, and he had been educated at Allahabad. R.W. 11 GobindRam Bahl and R.W. 12 Harbhajan Singh Bhalaya denied having attendedany meeting at the residence of respondent No. 1 on 11th January, 1967.The respondent himself as R.W. 14 denied that any meeting of the railwayemployees was convened at his residence which was addressed by Sawhneyin the presence of Sahai, the General Manager. In cross-examination hestated that he did not know the General Manager previously nor had hemade any complaint to him on any prior occasion about the various mattersin connection with which he wanted to see him when the General Managerultimately met him. According to him, Sawhney did not come from Rawal-pindi. He further stated that on the morning of 11th January, 1967, he hadmet Surjeet Singh Chhatwal, a contractor on the Ambala CantonmentRailway Station who told him that the General Manager was coming. Res-pondent No. 1 asked him to speak to the Controller to convey his requestto the General Manager to come over and meet him. He got confirmationby a telephonic message from the Station Superintendent, Chauhan, thatthe General Manager would be coming at about 5.30 P.M. The GeneralManager came along with Sawhney when no one else was present.

Now Mr. Ganga Parshad and respondent No. 2 have sought, apartfrom relying on the witnesses produced by the petitioners, corroborationfrom the admitted visit of Sahai, the General Manager of the Northern Rail-way, to respondent No. 1 at his residence on 11th January, 1967. It hasbeen pointed out that the reasons which have been given both by Sahaiand by respondent No. 1 who were not known to each other beforefor having a meeting, are most unconvincing and cannot stand scrutiny.A great deal of emphasis has been laid on Exhibits P. 6 and P. 7. Accordingto the first document, the programme of the General Manager was that hewas to be in Ambala on 10th January, 1967, and after going to Sirhind, hewas to come back to that place. In Exhibit P. 7 the following special mes-sage was sent by the A.T.S. on 11th January, 1967, to Chauhan, StationSuperintendent, Ambala :—

"G.M. accompanying 3 other officers will go to the house of Shri DevRaj Anand by 7 or 7.30 P.M. Please inform him on Phone No.640, also arrange car to be ready by 6.30 p.m. at Ambala, andconfirm on phone".

The message which is said to have been received at 12.55 hours, was con-firmed and the party was informed by Chauhan. It has been urged thatthcie is a conflict and contradiction between the time given in the aforesaidtwo documents and the statement of Sahai as also his presence in Ambalaon 10th January, 1967. Sahai was cross-examined and the answers whichhe gave have already been stated. Counsel have also built up a good deal.of argument on the omission to produce Sawhney who was a very material

390 DR. A. N. VERMAN AND ANOTHER V. DR. ANAND AND OTHERS [VOL. XXXIV

witness for respondent No. 1 Sawhney had originally been summoned alongwith Sahai and was present on the date Sahai gave evidence. However, notime was left to record that statement of Sawhney on that day. He wasnot summoned for any later date and no request was made in that behalf.Mr. Sachar explained that Sawhney had to attend some official meetingand for that reason he could not be produced subsequently.

I would like to observe immediately that I am not completely satisfiedwith the statement of the respondent (1) with regard to the visit of the GeneralManager on 11th January, 1967, and there may be some unsatisfactoryfeatures even about the statement of Sahai, but it is for the petitioners toestablish the charge of currupt practice laid in paragraph 27 of the petitionbeyond doubt and the evidence which they have produced is altogetherunsatisfactory and unreliable. P.W. 16 Ishwar Chand did not strike meas a straight-forward witness and his statement on the whole is full of nume-rous infirmities. The most significant matter is that he did not informanyone about what he had seen and heard at the meeting or even that hehad attended the meeting. Dr. Verman did not appear in the witness-boxto depose how he came to know about this witness nor has any explanationbeen given on behalf of the petitioners as to how he came to be cited as awitness. Lai Chand Chopra, Petitioner No. 2 who appeared as P.W. 30stated.that he did not meet P.W. Ishwar Chand and it was the other petitionerDr. Verman who had met him. The other witness P.W. 26 Hira Lai createda very unsatisfactory impression on me by his demeanour when answeringquestions in cross-examination. Moreover, his statement about the meetingwith the General Manager on the morning of 11th January, 1967, is con-tradicted by Sahai. Some of the facts stated by the latter may not soundvery convincing particularly with regard to the object and the purpose forwhich the meeting between him and respondent No. 1 took place as aresult of his visit to the latter's house. But on the whole I see no reason todisbelieve him. I cannot see why he should have come forward and givenprejured evidence for the sake of respondent No. 1 with whom he couldpossibly have the connection or association. The suggestion of the counselfor the petitioners is that it was Sawhney who inveigled Sahai into a situationwhich was very awkward by taking him to the house of respondent No. 1while a meeting was taking place of the nature alleged by the petitioners.Finding himself in that situation, Sahai had no alternative but to say thathe did not see anyone else at the residence of respondent No. 1 when hewent to visit him. I see no reason why Sahai should not have stated thetruth in this respect if the real facts were as have been suggested by thecounsel for the petitioners. As regards the contradictions to be found betweenthe statement of Sahai and the contents of Exhibits P. 6 and P. 7 it is notpossible to draw any firm conclusion from the same. I do not understandwhy Sahai should have made a wrong statement with reagrd to the dateand time of his arrival at Ambala and other allied matters.

It was open to the petitioners to get the railway records produced fromwhich it could be established that the special train of the General Managerarrived at 7 p.m. and not at 5.30 p.m. as stated by Sahai. As regards theomission to produce Sawhney, I am not completely satisfied that the reasonswhich have been given are very convincing but at the same time the chargeof a corrupt practice with the standard of proof of satisfaction beyond

E.L.R.j DR. A. N. VERMAN AND ANOTHER V. DR. ANAND AND OTHERS 391

reasonable doubt cannot be established by omission to produce witnessesby the party against whom the charge has been laid. 1 would accordinglyhold that the corrupt practice alleged to have been committed undersection 123(7) of the Act has not been established. My conclusions ar^ asfollows :—

(1) (a) I would hold under issue No. 1 that the publication and distri-bution of the poster Exhibit P. 10 was with the connivance and the consentof respondent No. 1. The aforesaid poster and even any of the other postersdid not contain any appeal on the grounds of the candidate's religion. Nouse was made of a religious symbol nor was any appeal made to it so as toattract the applicability of section 123(3) of the Act. No corrupt practicewas, therefore, committed by respondent No. 1 as alleged under that pro-vision.

(b) The poster Exhibit P. 10 did not fall within the ambit of clause (3A)of section 123 of the Act. No corrupt practice was committed by respondentNo. 1 under that provision.

(2) Under Issue No. 2, I would find that no corrupt practice under sec-tion 123(1) in the matter of construction of a pacca floor or Thara undera water hydrant in Gawal Mandi near the Railway Station, Ambala Canton-ment, and the installation of two hand-pumps in the Dhey Colony, wascommitted by respondent No. 1, as alleged in paragraphs 20 and 23 of thepetition.

(3) On Issue No. 3, I would hold that respondent No. 1 has not beenproved to have committed any corrupt practice under section 123(1 )(A)in the matter of offering bribes to Gurdial Singh respondent No. 4 andRam Nath respondent No. 3 for withdrawing from the contest, as allegedin paragraphs 21 and 22 of the petition.

(4) On Issue No. 5, I would find that respondent No. 1 has not beenproved to have induced persons mentioned in paragraph 26 of the petitionto assist him in his election by making grants from the Minister's discre-tionary fund of a sum of Rs. 2,000 each to the D.A.V. High School, AmbalaCantt., on 20th November, 1966, and the Institute for the Blinds, AmbalaCantt., on 6th February, 1967, and therefore, no corrupt practice has beencommitted under section 123(1) of the Act in that behalf.

(5) I would decide Issue No. 6 against the petitioners and hold that thecorrupt practice alleged to have been committed by way of securing theassistance of the Divisional Superintendent, Northern Railways to assisthim in the furtherance of his election, has not been proved.

No other issue or point was pressed with the result that the election peti-tion fails and it is dismissed. But in view of some of the unsatisfactoryfeatures of the evidence given by respondent No. 1,1 would leave the partiesto bear their own costs.

Petition Dismissed.

2 EC/71—26

ELECTION LAW REPORTS

VOLUME XXXIV

I N D E X

SUBJECT

Affidavit—election petition—omission of some items in the petition not dealingwith facts of corrupt practice—effect of.

Laxman Prasad Vaiclya v. Gangadhar Yadaorao Tamaskar & Ors. (MadhyaPradesh H. C.) . . . . 292

Age—Proof in relation to election law.

RamBharosey v.JagannathSingh&Ors.(MadhyaPradeshH.C.) . . 135

Ballot papers—number issued not accounted for—effect of.

Laxman Prasad Vaidya v. Gangadhar Yadaorao Tamaskar & Ors. (MadhyaPradesh H.C.) 292

Bribery—gift for construction of Dharam Shala for Harijan Community on thepromise to sell the votes of the Harijans—Ingredients as to when a gift toa public purpose is a "Bribe" under Section 123(1).

Tirolochan Singh v. Karnail Singh and Ors. (Punjab & Haryana H.C.) . . 234

Burden of proof—Requirements of Election Law—Respondent's failure tospecifically or by implication deny the allegations—effect of.

Laxman Prasad Vaidya v. Gangadhar Yadaorao Tamaskar & Ors. (MadhyaPradesh H.C.) . . . . . . . . . . . 292

Burden of proof—Donation or contribution to Party funds whether attractsSection 123(1)(B)

Amarnath v. SardarLachman Singh &Others(Punjab&llaryana.'tl.C.) . 103

Burden of proof—Tainted evidence of persons who are in the nature of accomp-lices—whether corroboration of evidence necessary.

ShantaBaiTalpallikar v. D.Gopa!areddyandothers(Andh.PradeshH.C.) . 195

Candidate—elected unopposed—if bound to file account of election expenseswithin 30 days.

Kacho Mohammad AH Khan v. Sri Kushak Bakula, (Jammu & KashmirH.C.) 323

Conduct of Elections Rules, 1961, Rules 2(1) (j), 53, 56 sub-rule (2)(b).

Shri Bhailalbhai Narottamdass Patel v. Shri Mangaldas Pola and another( G u j a r a t H . C . ) 269

C o n d u c t of E lec t ions R u l e s , 1961 , R u l e 56—pleas f o r Sc ru t iny o f ba l lo t p a p e r s -m a t e r i a l fac ts , r e q u i r e m e n t s of.

Jai Singh \.RamKishan & Ors. ( P u n j a b & H a r y a n a H . C . ) . . . . 73

393

394

Contract—Outright purchase of Forest produce—if disqualifies—whetherattracts the "works" in Section 9-A.

Amamath v. Sardar Lachhman Singh & Others (Punjab & Haryana H.C.) 103

Contract entered into by Cooperative—Society—if could be deemed to be con-tract for member of Society.

Shivamurthiswamy Siddappayaswamy Inamdar v. Agadi Sanganna Andanappa(Mysore H.C.) - 1

Election expanses—return of—inclusion of items of printing, expenditure onimpugned posters and letters—implication of word "authorised" in Section77(1).

Jai Singh v. Ram Kishan&Ors. (Punjab & Haryana H.C.) . . . . 73

Electoral Roll—Electoral roll in Telugu and Oriya languages—those in TeluguRoll not in the Oriya roll—Polling Officers relying on Oriya Roll and prevent-ing those in Telugu Roll from voting—propriety of. Representation of thePeople Act, 1951 S. 123(l)(A)(b)—Corrupt Practice of offers of money tosecure votes—if proved.

KoIakaNilakanthamv. Atlanta Ram Majhi(On%sa.Y\.C.) . . . . 2 1 2

E v i d e n c e — P e r s o n s a l l e g e d t o h a v e c o m m i t t e d C o r r u p t p r a c t i c e s — I f c a n b ec o m p e l l e d t o g i v e e v i d e n c e .

Shivamurthiswamy Siddappayaswamy Inamdar v. Agadi Sanganna Anda-nappa . . . . . . . . . . . . 1

Evidence Act, 1872,—Section 78(6)—Requirements of Section—Non—compli-ance would render document in-admissible.

Shajqat Raiv. Phuman Singh & Others (Punjab and Haryana H.C.) . . 187

Evidence Act, 1872, Section 114, illustration (g)—Record of date of birth inschool register,—certificate of proof-validity of certificate.

Ram Bharoseyv.Jagannath Singh &Ors.(MadhyaPradesh H.C.). . . 135

Evidence Act, 1872, s. 114, illustration (e) Representation of the People Act,1951, s. 33(5)—Returning Officer accepting document without objection—presumption.

HarbhajanSinghv.Sagai'SinghS/.wrf/ya (Madhya Pradesh H.C.) . . 221

Evidence Act, 1872, Ss. 159 and 160.

Purshotamdas Ranchhoddas Patel v. Kantiprasad Jayshankar Yagnik andOthers (Gujarat H.C.) 160

Nomination papers—Requirements of s. 36, Act 43 of 1951.

Shanta Bai Talpalikar \, D. Gopalreddy and Others 195

Nomination paper—rejection of for not taking prescribed oath if ReturningOfficer has power to give time to rectify defect.

DurgaSinghv.JawarHussain(PaXr\&y\.C.) 281

Office of profit—Patwaris—Watandars if excluded from the operation of Section123(7). Mysore Village Officers abolition Act, 1961.

Shivamurthiswamy Siddappayaswamy Inamdar v. Agadi Sanganna Andanappa,(Mysore H.C), 1

395

Recounting—circumstances justifying order of—

Shri Bhailalbhai Narottamdas Patel v. Shri Mangaldas Pola and another

(Gujarat H.C.) 2 6 9

Recount of votes—plea for—evidence— requirements of law.

Laxman Prasad Vaidya v. Gangadhar Yadaorao Tamaskar & Others . 292

Religion—appeal to—what is—

Amamath Vermanand Anr,v. Dev Raj Anand and others. (Punjab & HaryanaH.C), 3 5 9

Religious Symbol—'OM' if religious Symbol—Section 123(3)—"his religion"meaning of—Evidence Act s. 65(a) "Person legally bound", meaning of.

Shivamurthiswamy Siddappayaswamy Inamdar v. Agadi Sanganna Andanappa(Mysore H.C.) 1

Religion—appeal in the name of—to sikh voters to support Panthak candidate—if undue influence.

Tirolochan Singh v.KarnailSingh and Ors. (Punjab & Haryana H.C.) . . 234

Representation of the People Act, 1951, Ss. 9A, 77, 123(4) and (6) Corruptpractice—Bribery—Burden of proof—Donation or contribution to* partyfunds whether attracts section 123(1)(B)—Outright purchase of forest produce—Whether a contract,—whether attracts 'the "works" in Section 9-A. Failureto maintain separate account of election expenses—whether a corrupt prac-tice under Section 123(6)—Absence of full particulars in the petition—Whether absence of jurisdiction—Whether causes material prejudice—amountpaid as deposit to a political party for a party ticket—forfeiture of the amountunder the rules of the party with expenses—Whether attracts Section 77.

Amarnathw. Sardar Lachman Singhandothers (Punjab and Haryana H.C.) . 103

Representation of the People Act, 1951, Ss. 9-A, 36,123(1) and (5)—Petitioner'sobjections at the time of scrutiny of nomination of the first respondent—Recording of decisions of the Returning Officer—Requirements of Section36—Corrupt practice—Burden of proof—Tainted evidence of persons whoare in the nature of accomplices—Whether corroboration of evidencenecessary.

Shanta Bai Talpalikarv. D. GopalareddyandOrs. (Andhra Pradesh H.C.) . 195

Representation of the People Act, 1951, Ss. 158, 34.

Kacho MohammadAH Khanv. Shri Kushak Bakula (Jammu & Kashmir H.C.) . 323

Representation of the People Act, 1951, Ss. 22(2), 100(l)(d)(ii), (iii)( 123(1)—Receiptof void votes—rejection or refusal of votes—Evidence—Recounting—circum-stances justifying order of—bribery—corrupt practice by person not an agentnor with consent of respondent—whether respondent liable for corrupt prac-tice—Conduct of Elections Rules, 1961, Rules 2(l)(j), 53, 56 sub-rule (2)(b)Hand Book for Returning Officers—General Election 1967, InstructionsNo. 17, Clauses (n) and (o)—Failure to comply with—effect of.

Shri Bhailalbhai Narottamdass Patel v. Shri Mangaldas Pola and anothir,(Gujarat H.C.) . , , 269

396

Representation of the People Act, 1951, Ss. 33, 37(1), 38--Indian Evidence Act1872, Section 114, illustration (g)—Record of date of birth in school register-certificate of proof—validity of certificate—Evidence of birth register notproduced—Inference under Illustration (g) under Section 114, of EvidenceAct,—Whether can be raised—Scrutiny of nomination papers—Withdrawalof nomination—Requirement under Election Law.

RamBharose v. Jagannath Singh and others (Madhya Pradesh H.C.). . 135

Representation of the People Act, 1951—Section 33(5)—"Produced" if Syno-nymous with "filed"

ffarbhajan Singh v.Sagar Singh Sisodiya (Madhya Pradesh H.C.) . . 221

Representation of the People Act, 1951—us. 36(2), 36(5) proviso—Nominationpaper, rejection of on ground that oath as required by Constitution of IndiaArt. 173 was not made before scrutiny—If Returning Officer has power togive time to rectify defect.

Durga Singh v.JawarHussian (Patna H. C.) 281

Representation of the People Act, 1951, Ss. 77(1), 78, 80A, 83(1), 123—Conductof Elections Rules, 1961, Rule 86—Place for scrutiny of ballot papers-material facts, requirements of—poster, how it is different from a singlepublication—letters by respondent seeking asistance of Government servants—Return "of Election expenses—inclusion of items of printing, expenditureof impugned posters and letters—whether consent implied—implication ofword "authorised" in Section 77(1)—Inaction by respondent to disassociatehimself from the posters—whether inference of tacit consent of the candidateestablished

Jai Singh v. Ram Kishan & others (Punjab & Haryana H.C.) . . . 73

Representation of the People Act, 1951, Ss. 100 (l)(b) and 123(2) and (3), Electionspeeches by religious leader in favour of a candidate—on grounds of reli-gion—caste-threat of divine displeasure—whether corrupt practice, statementof fact—statement of opinion—Distinction—Attack on personal character—Hand Bills—Criticism of a person's political or public activities—whethercorrupt practice—evidence of partisan—Whether permissible—electionpamphlets. Election meetings—notes recorded by Police Constables—recorded at meetings—Evidence—admissibility of—Indian Evidence Act,1872, Ss. 159 and 160.

Purshottamdas Ranchhoddas Patel v. Kantiprasad Jayashankar Yagnik andothers (Gujarat H.C.) 160

Representation of the People Act, 1951,JSs. 82, 83, Sub-section (1)—Affidavit-Omission of some items in the petition which do not deal with facts of corruptpractice—Whether fatal—Corrupt practice—Burden of proof—Requirementsof Election Law—Respondent's failure to specifically or by implica-tion deny the allegations—effect of—Ballot papers issued are not accountedfor—Whether attracts section 100(l)(d)(iii)—Vague and General allegations—Vague allegation of improper rejection of valid votes and improper acceptanceof invalid votes—whether comes within the scope of s. 83(l)(a)—Plea forinspection and recount of votes—Evidence—Requirements of law—Return-ing Officer made ajparty on allegations of bad faith, negligence and propriety—Whether petition liable for dismissal for misjoinder of parties.

Laxman Prasad Vaidya v. Gangadhar Yadaorao Tamaskar & others (MadhyaPradesh H.C.) 292

Representation of the People Act, 1951 S. 123(1) (A)(b).

Kalka Nihkantham v. Atlanta Ram Mashi and others (OrissaH. C.) . . 221

397

Representation of the People Act, 1951—Corrupt Practice—Section 123(1)(3)(7)—Office of profit—Patwaris—If excluded from the operation of Section123(7)—Mysore Village Offices Abolition Act, 1961—Watandar if office ofprofit—Evidence—Persons alleged to have committed corrupt practice—Ifcan be compelled to give evidence—Religious Symbol—'OM'if religioussymbol—Section 123(3)—"his religion" meaning of—Evidence Act S. 65(a) "Person legally bound", meaning of —"Post under the government",meaning of—Contract entered into by Cooperative Society and if could bedeemed to be contract for member of Society.

Shivamurthiswamy Siddappayaswamy Inamdar v. Agadi Sanganna Anda-nappa, (Mysore H.C.) . . . . . . . . . .

Representation of the People Act, 1951, Sections 123, 123(1), 123(2) and 123(1)(B)(b)—Corrupt Practice—Evidence of accomplice whether requires corro-boration—Abettor—Gift for construction of Dharamshala for HarijanCommunity on the promise sell to the votes of the Harijans—Ingredientsas to when a gift to a public purpose is a "bribe" under Section 123(1)—Appeal to Sikh voters to support Panthak candidate—Whether amounts toundue influence under Section 123(2).

TirlochanSinqh v.KarnailSinghandanother (Punjab &Haryana H.C.) . . 234

Representation of the People Act, 1951—Section 123(3), 3(A)—Appeal—toReligion—what is—Sikh Symbol "Khanda" if constitutes appeal to reli-gion—"classes" in 3(A) does not mean political parties—Section 123(1)—Donation by Minister out of discretionary fund on the eve of election—when can constitute corrupt practice.

Amamath Verman and Am. v. Dev Raj Anand and Ors. (Punjab & HaryanaH.C.) 359

Returning Officers—Handbook for—1967 Elections—effect of non-compliance wi thinstructions No. 17 clauses (n) and (o).

Sim Bhailalbhai Narottamdas—Paiel v.^Shri Mangaldas Pola and another(Gujarat H.C.) 2«>

Security deposit—candidate tendering correct amount—Returning Officermistakenly asking candidate to deposit lesser amount—if substantial com-pliance with s. 34 of the Representation of the People Act, 1951, section18—unopposed candidate if contesting candidate—therefore if bound tofile account of election expenses within 30 days.

Kacho Mohammad AH Khan v. Shri Kushok Bakula, (Jammu & KashmirH.C.) 323

KiGIPRRND-2EC/71Sec.V-20-124l-l,000