G. Mehrotra, J.
1. This is an appeal against the decision of the Election Tribunal, setting aside the election of the appellant. The appellant and the respondent stood as candidates for Tarabari--L. A. 41 constituency in the Kamrup district in the last general election to the Assam Legislative Assembly held on 6-3-1957. The respondent was a nominee of the Congress party and the appellant was the nominee of the Proja Socialist Party. The results were admittedly declared on 9-3-1957 and the appellant was declared to have secured 12759 votes and the respondent got 12535 votes. The appellant therefore leads by a majority of 224 votes. The results were duly published in the Assam Gazette Extra Ordinary dated 29-3-1957.
The respondent also claimed to be an elector of the Barpeta constituency from Barpeta town. The respondent thereafter brought the present petition challenging the election of the appellant inter alia on the ground that due to corrupt and irregular practice committed by the opposite party and his agents extensively throughout the constituency, the results of the election were materially affected and that there were some irregularities committed due to the non-compliance of the mandatory provisions of law which materially affected the results of the election. The election of the returned candidate was thus liable to be set aside. It was also claimed by the respondent that he should be duly declared elected. A number of irregularities and non-compliances with the mandatory provisions were alleged by the respondent in his petition and corrupt practice was asserted to the effect that the appellant made extensive communal propaganda.
2. The Tribunal gave a finding against the respondent on the allegation of corrupt practices. He found that the respondent failed to establish that the appellant carried out extensive communal propaganda. As regards the alleged non-compliance of the mandatory provisions, the Tribunal held many of the irregularities alleged not to have been proved. The ground on which the election of the appellant has been set aside is mainly that in spite of the notified polling centre at Tangaliapara Lower Primary School in Tangaliapara village the votes were recorded at a different centre known as Chakabausi Lower Primary School of Chakabausi village which is in the Barpeta constituency.
This non-compliance, according to the finding of the Tribunal, resulted in materially affecting the results of the election. The Tribunal also refused to grant relief to the respondent that he should be declared as duly elected. The decision of the Tribunal is therefore mainly based upon the findings on issues Nos. 1, 2 and 7, which are as follows, in favour of the respondent:
'(1) Whether Tangaliapara Lower Primary School which was notified as the venue of polling station No. 27 was shifted from its original place to a place outside the Tarabari Constituency between the dates of such notification and the actual polling, and as such voting of the voters notified to be taken under that polling station was taken at Chakabausi Lower Primary School in the Barpeta constituency?
(2) Whether polling station No. 27 Tangaliapara Lower Primary School was shifted to another site without the previous sanction and approval of the Election Commission?
(7) Whether there were illegalities and irregularities in the conduct of the election? If so, was the result of the election materially affected thereby?'
3. Issue No. 7 was partly found in favour of the respondent and partly against him. Cross-objection has also been filed on behalf of the respondent on the ground that the corrupt practices alleged by him have been established and that he was entitled under Section 101 of the Representation of the People Act to a declaration that he had been duly elected. Apart from filing the cross-objection the respondent has also tried to support the decision of the court below on the ground that the irregularities, other than those found in favour of him have also been established by evidence on record.
We would however first deal with the appeal filed on behalf of the returned candidate. Mr. H. Goswami, who appears for the appellant has vigorously challenged the findings of the Tribunal, both on questions of fact and law. His first contention is that in the circumstances of the case, there is no non-compliance with the mandatory provisions of the Representation of the People Act or rules framed thereunder. The election was held at the polling station which was notified and there was no change of the polling station.
The parties knew that Tangaliapara Lower Primary School had been shifted to Chakabausi Lower Primary School at Chakabausi village. Secondly he contended that the respondent failed to prove that the results of the election have been materially affected by the change of the venue, if at all, of the polling. It is not disputed that the polling took place in a Lower Primary School in village Chakabausi. It is also not disputed that there was once a Lower Primary School in village Tangalianara. It is also admitted that the election for the Barpeta constituency was held in this very school earlier on 25-2-1957.
4. The extracts of the list of polling stations which was published have been filed as Exhibits 4 (1) and 4 (2). In the polling centre list of L. A. 41 Tarabari, constituency--in the column showing the site for polling centre Tangaliapara venture lower primary school has been mentioned and the serial number of this polling centre was shown as 27, the area comprising the polling centre as shown in Col. 5 of the list consists of villages Dihi, Lehi, Salmarapathar, Niz-poura and Tangaliapara.
In this list, the distance from the polling centre of the various villages comprising the polling centre are mentioned and the distance of Tangaliapara village is described as within polling centre. The description clearly points out that the Tangaliapara venture lower primary school mentioned as the polling centre for the constituency is the Tangaliapara lower primary school situate in the village Tangaliapara. This is also clear from the fact that the distances of the various other villages comprising this polling centre tally with the actual distance of these villages from the lower primary school in village Tangaliapara.
As we have already pointed out, it is not disputed that there was a lower primary school in village Tangaliapara, Another circumstance which points to the conclusion that in the notification publishing the list of the various centres, Tangaliapara lower primary school building situate in village Tangaliapara was different from Chakabausi lower primary school in village Chakabausi is the fact that in the list of the polling centres for Barpeta constituency, Chakabausi lower primary school is shown as the polling centre for that constituency and is described to be situated in village Chakabausi.
It is therefore clear that the notification contemplated two different primary schools as the polling centres for the two different constituencies. In the circumstances, when the polling admittedly took place in the lower primary school in village Chakabausi, it took place at a place different from the one mentioned in the list of the polling centres published under Section 25 of the Representation of the People Act.
One of the arguments contended for was that the election of Tarabari constituency was rightly held in the village primary school Chakabausi as in fact the Tangaliapara lower primary school was located in that building and may be that the mistake was committed in describing this very school in the list of the polling centres in Barpeta constituency as Chakabausi lower primary school and not as Tangaliapara lower primary school, though located in the building in the village of Chakabausi. We do not think that there is any force in this contention.
That the two notifications referred to two separate buildings is quite clear from the distances given in the list of the various villages comprising this polling station from the polling centre. The serial number of the polling centre has also been separately numbered. It cannot therefore be said that there was only a mistake of description in the polling centre list of Barpeta constituency and identity of the two polling centres was not different.
5. The next line of argument of the appellant's counsel is that Tangaliapara lower primary school having been shifted to Chakabausi lower primary school building in village Chakabausi before the 2nd January, when the list of the centres is said to have been forwarded by the local authorities to the Election Commissioner, Assam and when the list mentions Tangaliapara venture lower primary school as the centre for Tarabari constituency, it refers to the school of this name which was functioning in the building in Chakabausi Village.
As the fact that the school had been shifted to the building in Chakabausi village was known to the authorities when the list was forwarded, they could not have referred to the old building of Tangaliapara lower primary school in village Tangaliapara in the list. This entry therefore referred to Tangaliapara lower primary school functioning in the building situated in Chakabausi village. The finding of the Tribunal is that the school was shifted subsequent to the publication of the list,
6. The petitioner-respondent in his statement has corroborated the facts which says set out in the petition--para 7A. He has stated that he had visited Tangaliapara school about 15 days prior to the polling and had seen the school in its original place although on the date of polling he did not visit the centre. He has also stated that between Chakabausi village and Tangaliapara, there is a big embankment road and has further deposed that the shifting was done after the notification publishing the list of the centres. (After considering the oral evidence given by P. Ws. 2, 21, 23, 34 and 27, his Lordship proceeded:)
7. The appellant in his statement before the Tribunal denied the fact that the polling was held at a centre different from one notified. But from the evidence of the witnesses produced on behalf of the respondent petitioner, it is clear that the Tangalaipara lower primary school was shifted from its old site to the new building in village Chakabausi, a few days before the election of Barpeta constituency held on the 25th February. There is no reason to disbelieve the statements of these witnesses. The enquiry reports also support the contention of the petitioner-respondent.
The appellant has not been able to point out any circumstance to show that the school was shifted from its old site to the building in village Chakabausi prior to the 2nd January, 1957. In view of the clear description in the list published under Section 25 of the Representation of the People Act, the fact whether the school was shifted to the building in village Chakabausi prior to the 2nd January, 1957 or not will not be very material. But as we have already referred to the evidence on the record, the respondent has in our opinion succeeded in establishing the fact that the school was shifted to the building in village Chakabausi sometimes in February, 1957.
If the school was shifted to the village Chakabausi building in February and if the notification referred to the Tangaliapara old school building, the polling centre was admittedly changed and the fact that the villagers pointed out to the officers who were deputed to conduct the polling on the date of election that Tangaliapara school had been shifted to its new building in Chakabausi village and acting upon that they held the poll in the village Chakabausi will not in any way affect the contention of the respondent. The next question in this connection will be what is the effect of the change of the polling centre on the date of the poll and what provisions if any of the Representation of the People Act were violated on that account.
8. Section 25 of the Representation of the People Act--hereinafter called the Act--provides that the Returning Officer for each constituency shall, with the previous approval of the Election Commission, provide a sufficient number of polling stations for such constituency and shall publish in such manner as the Election Commission may direct, a list showing the polling stations so provided and the polling areas for which they have respectively been provided. The polling station thus has got to be notified in accordance with the direction of the Election Commission.
In the present case, it is not disputed that the notified list contained the description of the polling centre as Tangaliapara lower primary school. The poll took place at Chakabausi lower primary school in village Chakabausi, The election thus was held at a polling station which was not published as directed by the Election Commission and it was in substance non-compliance with the provisions of Section 25. Section 57 of the Act provides as follows:--
'(1) If at an election the proceedings at any polling station provided under Section 25 or at the place fixed under Sub-section (1) of Section 29 for the poll are interrupted or obstructed by any riot or open violence, or if at an election it is not possible to take the poll at any polling station or such place on account of any natural calamity or any other sufficient cause, the presiding officer for such polling station or the returning officer presiding over such place, as the case may be, shall announce an adjournment of the poll to a date to be notified later, and where the poll is so adjourned by a presiding officer, he shall forthwith inform the returning officer concerned.
(2) Wherever a poll is adjourned under Sub-section (1), the returning officer shall immediately report the circumstances to the appropriate authority and the Election Commission, and shall, as soon as may be, with the previous approval of the Election Commission, appoint the day on which the poll shall recommence, and fix the polling station or place at which, and the hours during which the poll will be taken, and shall not count the votes cast at such election until such adjourned poll shall have been completed.
(3) In every such case as aforesaid, the returning officer shall notify in such manner as the Election Commission may direct the date, place and hours of polling fixed under Sub-section (2).'
Under Clause (1) of Section 57 if it was not possible to take the poll at Tangaliapara lower primary school as the school had been shifted to Chakabausi lower primary school in village Chakabausi, it was mandatory for the Presiding Officer to adjourn the poll. There was thus non-compliance with provisions of Section 57, of the Act inasmuch as the Presiding Officer failed to adjourn the poll. It is not disputed that if the polling station is proved to have been shifted after the publication of the list of the polling centres from Tangaliapara lower primary school to Chakabausi lower primary school, there would be non-compliance with the provisions of Section 57 of the Act.
9. The serious contest was about the fact of the shifting of the school and as we have already pointed out, in substance the allegation was that the school having already shifted to Chakabausi village before the publication of the list, the list when it referred to Tangaliapara lower primary school, it referred to the one in village Chakabausi where it had shifted and not the old site in village Tangaliapara. We have already held on consideration of the evidence that the school shifted subsequent to the publication of the list and that there were two different schools in the two villages, namely Tangaliapara and Chakabausi.
On this finding, there was a clear non-compliance with Sections 25 and 57 of the Act. Section 100(1)(d)(iv) of the Act provides that the election of the returned candidate will be declared void if the non-compliance with any provisions of the Act or the rules or orders made thereunder has materially affected the results of the election. The main point therefore to be considered is whether the said non-compliance materially affected the results of the election or not.
On this point, the argument of the counsel for the appellant is that the total votes in this centre are 640. Out of this only 481 were polled. The appellant secured 418 votes at this centre and the respondent secured 63 votes. Only 359 voters did not cast their votes. The respondent could not have secured all the remaining votes numbering 359. The difference between the two candidates was of 224 votes and out of the remaining 359, having regard to the percentage of the actual poll, it could not be expected that the respondent would have secured more than 224 votes. It is therefore contended that non-compliance has not materially affected the results of the election.
10. The next argument is that the burden of proving the fact that the results have been materially affected by non-compliance is on the petitioner-respondent. The allegation made by him in the petition was that about 200 voters who had gone to the site of the old school in Tangaliapara had to come back without being able to cast their votes and unless the petitioner-respondent succeeded in establishing the fact that more than 224 voters could not caste their votes due to the change of the polling centre, he cannot succeed.
In order to prove that the results have been materially affected by the non-compliance, it was not essential for the petitioner in our opinion to have produced actually more than 200 voters to depose that they were prevented from casting then votes on account of the change. If the petitioner has produced witnesses who have deposed that due to the change of the centre at the last moment, they were prevented from casting their votes and a large number of other persons also could not do so, there is no guarantee that other people might not have been prevented from casting their votes due to the change, though the witnesses who have come to depose might not have actually seen them going back without casting their votes. It is quite possible that a large number of others were equally misled as the persons who have actually come to the witness box and deposed about it.
11. The petitioner-respondent examined two witnesses in support of the allegation on this point. P.W. 46 Nedo Mandal has stated that as Bagribari Mouza where he resided in village Tangaliapara was erroded by Brahmaputra, he removed to Helocha of Pokowa mouza about 3 years before the date of election, A number of families have shifted and in the last election, he was instructed by both the candidates that the poll was to take place at Tangaliapara school. The people were to vote there and he also went and saw no crowd at the place at Tangaliapara as there was no polling. On enquiry he came to know that votes were taken at Chakabausi school. He then went there, but by the time he reached, the poll had closed.
12. The next witness is Naian Sk--P.W. 47, He has stated that his village had been erroded, so he shifted to Kirkirapam which is about 17 miles from Tangaliapara. He has received letters from both the parties to the effect that the poll would take place at Tangaliapara lower primary school, where on previous occasions the poll took place. On the date of the poll, he along with others came to the polling booth; they were about 120 in number, but could not cast their votes as there was no polling there. He met some other people also who also could not cast their votes for similar reasons. He then went to Tarabari.
13. The petitioner therefore has succeeded in proving that the voters were prevented from casting their votes due to the last moment change of the polling centre. How many people actually were unable to caste their votes no doubt cannot be ascertained from the materials on the record, but it can also not be presumed that out of the remaining votes, only a certain percentage of voters would have cast their votes. In these circumstances, it cannot be said that the plaintiff-respondent has failed to establish that the result have been materially affected by the, non-compliance.
14. Reliance was placed on the case of Vashit Narain Sharma v. Dev Chandra, reported in AIR 1954 SC 513. Particular reference was made to the following observation of the report at page 515 :--
'These words (the result of the election has been materially affected) seem to us to indicate that the result should not be judged by the mere increase or decrease in the total number of votes
secured by the returned candidate but by proof of
the fact that the wasted votes would have been
distributed in such a manner between the contesting candidates as would have brought about the
defeat of the returned candidate.'
In that case eight candidates had filed their nominations to the Legislative Assembly. Three with
drew and the contest was amongst the remaining
five. A petition was filed by the electors challenging the election of the returned candidate. It was
also prayed that the respondent No. 2 who had
secured next highest vote should be declared elected.
The ground on which the election was challenged was that the nomination of respondent No. 4 was improperly accepted by the Election Officer. The Tribunal found that his nomination was wrongfully accepted and the results of the election had been materially affected by the wrongful acceptance of the nomination and therefore set aside the election. In the Supreme Court, the returned candidate filed an appeal and it was held that the respondents-petitioners failed to prove that the results have been materially affected by the improper acceptance of the nomination.
It was not disputed in that case and it cannot be disputed here that the burden of proof that the improper acceptance of a nomination materially affected the results of the election or that non-compliance with any of the provisions of the Act materially affected the results of the election, lies upon the petitioner. It is a question of fact which is to be proved by evidence and the onus lies upon the petitioner. In that case one of the arguments advanced was that if the votes secured by the candidate whose nomination bad been wrongfully accepted be added to the votes of the candidate who had secured the next highest vote, he would have secured higher votes than the returned candidate and the results were thus materially affected by the wrongful acceptance of the nomination.
It was in this connection that the following observation was made by the Supreme Court:--
'While it must be recognized that the petitioner, in such a case is confronted with a difficult situation, it is not possible to relieve him of the duty imposed upon him by Section 100(1)(c) and hold without evidence that the duty bas been discharged. Should the petitioner fail to adduce satisfactory evidence to enable the Court to find in his favour on this point, the inevitable result would be that the Tribunal would not interfere in his favour and would allow the election to stand.'
It was also observed
'that the casting of vote depends upon a variety of factors and it is not possible for any one to predicate how many or which proportion of the votes will go to one or the other of the candidates'.
It was therefore held that it was not a proper approach to add the votes received by the candidate whose nomination was wrongfully accepted to that of the next highest candidate. Each case will depend upon its own facts 'and circumstances and no exhaustive test can be laid down for holding when the results have been materially affected by non-compliance of the provisions of the act or rules. In the present case, there was non-compliance with the rules inasmuch as file poll was held at a different place than the one already notified; this non-compliance has certainly materially affected the results of the election inasmuch as the number of votes in that constituency was 640 and odd and the difference between the two candidates was only of 224. The facts of the case referred to above are therefore distinguishable.
15. In the case of Hari Vishnu Kamath v. Ahmed Ishaque, reported in (S) AIR 1955 SC 233, it was held that it must be first shown by the petitioner that there had been improper acceptance or refusal of a vote which is void or non-compliance with the provisions of the Constitution or of the Representation of the People Act or any rules made under that Act and that it must further be shown that as a consequence thereof, the result of the election had been materially affected. The two conditions are cumulative and must both be established and the burden of establishing them is on the petitioner.
In that case a number of voters were wrongly given a different ballot paper and their votes were counted in favour of the returned candidate. It was held by the Supreme Court that these votes should have been legally rejected and as such there was non-compliance with the mandatory provisions of the rules. If these votes were deducted from the total votes received by the returned candidate, he would not have received the highest votes and as such it was held that the results were materially affected by the non-compliance with the provisions of Rule 47.
The respondent's counsel relying upon this case argues that if the votes received by the appellant at this polling centre are deducted from the total votes received by him, the appellant cannot be said to have secured the highest number of votes and thus the results of the election were materially affected by the non-compliance of Sections 25 and 57 of the Act. Whether those votes could be regarded as void and thus should have been rejected at the time of counting or not, need not be decided; it is enough to point out that it is a factor which could be taken into consideration in coining to the conclusion whether the results of the election have been materially affected by the non-compliance with the provisions of Sections 25 and 57 inasmuch as the poll took place at a place which was not duly notified. In our opinion, therefore, the decision of the Tribunal setting aside the election of the returned candidate is perfectly correct.
16. Coming to the cross-objection filed by the opposite party, the main contention raised by the respondent is that the Tribunal was not right in holding that the corrupt practices alleged by the respondent were not established.
17. Section 98 of the Act provides that at the conclusion of the trial of an election petition the Tribunal shall make an order dismissing the election petition or declaring the election of all or any of the returned candidates to be void and the petitioner or any other candidate to Lave been duly elected. Section 101 provides that if any person who has lodged a petition has in addition to calling in question the election of the returned candidate claimed a declaration that he himself or any other candidate has been duly elected and the Tribunal is of opinion (a) that in fact the petitioner or such other candidate received a majority of the valid votes or (b) that but for the votes obtained by the returned candidate by corrupt practice the petitioner or such other candidate would have obtained a majority of the valid votes, the Tribunal shall after declaring the election of the returned candidate to be void declare the petitioner or such other candidate as the case may be to have been duly elected.
Section 98 therefore gives power to the Election Tribunal to declare the petitioner duly elected and the grounds on which such a declaration can be granted are enumerated under Section 101. Section 116A then provides for an appeal against any order of a Tribunal passed under Section 98. Sub-section (2) of Section 116A then provides that the Civil Procedure Code will be followed with respect to an appeal under this Chapter as if the appeal were an appeal from an original decree passed by a civil court.
In view of Sub-section (2) of Section 116A, the provisions of the Civil Procedure Code in respect of the filing of cross-objection under Order 41 Rule 22 are attracted. The respondent, therefore, has a right to file a cross-objection as against that part of the order which refused the relief claimed by him. One of the reliefs claimed by him was a declaration that he was duly elected. He had therefore a right to file a cross-objection on the ground that the relief of declaration in his favour wag wrongly refused.
18. In the memo of cross-objection, which has been filed on behalf of the respondent which is printed at page 250 of the Paper Book, no relief has been claimed to the effect that the order of the Tribunal refusing the declaration in favour of the respondent should be quashed and a declaration that he was duly elected should be made. The findings arrived at by the Tribunal have been challenged; but no relief has been claimed and it has not been specifically mentioned that the challenge is confined to the grounds on the proof of which he was entitled to a declaration under Section 98 of the Act.
It was therefore urged by the appellant that the respondent should not be allowed to canvass the points taken in the cross-objection. The respondent's counsel however states that the findings which are not relevant for granting a relief to him of declaration in his favour have only been challenged on the ground that it is open to the respondent to support the judgment on grounds other than those on which the judgment is based. As regards the findings on corrupt practices, it is stated that as it is essential to establish corrupt practices in order to get a relief of declaration, he has a right to challenge the finding of the Tribunal on that issue in order to succeed in the cross-objection.
The corrupt practices alleged against the appellant are contained in paragraphs 9 (A) and (B) of the petition. In para A, the allegation is that on the 4th March, 1957 only 2 days before the polling, the appellant delivered a communal speech in a meeting at Chapari lower primary school presided over by one Upen Chakravarty. The appellant delivered a speech in that meeting to the effect that if the votes are not cast in favour of a Muslim, then the cow slaughter and eating of beef will be stopped and they would be compelled to idol-worship.
He is further alleged to have told the voters that if a non-muslim is voted, they will be without any representative from that constituency. According to the appellant no meeting, was arranged by his agents. What happened was that on his way back, he found that there was a meeting going on in that school where about 300 people had gathered. He then went to the meeting which has almost finished and told the people who had collected there to vote for him.
19. The respondent produced Basir Sarkar P. W. 13, Gopal Chandra Sarkar--P.W. 10, Amjad Ali--P. W. 11, Manindra Kumar Sarkar--P. W. 18 and Upendra Chakravarty--P. W. 28 in support of his case. The appellant produced Intaz Ali--R. W. 5. The Tribunal has fully discussed the evidence and in our opinion, he has rightly come to the conclusion that the respondent has not succeeded in proving beyond doubt that the words alleged to have been uttered by the appellant were actually uttered by him at the meeting. That there was a meeting was not denied by the appellant; that he reached almost towards the close of the meeting is also borne out by the testimony of the witnesses for the respondent. The only difference is as regards the actual words uttered by the appellant at the meeting.
It is also disputed that in feet he made any speech. According to him, he just arrived at the scene after the meeting was almost over and he had only canvassed and had not made any communal speech. In the circumstances, the evidence of the witnesses will have to be scrutinised with care and the probabilities of the story will have to be considered in order to judge the truth of the statements of the witnesses. It looks improbable that the appellant would have used the words attributed to him and would have made such an open speech condemning the communal policy of the Congress only a few days before the election in a meeting presided over by a Congress supporter and attended to by Hindus as well.
It is not necessary for us therefore to refer in detail to the statements of the witnesses in this regard. The Tribunal had the advantage of seeing the witnesses and watching their demeanour and was thus in a better position to assess the value of their testimony and unless there are some compelling reasons for us to differ from the estimate of the Tribunal of their evidence, we see no reason to hold contrary to the findings of the Tribunal on this point.
20. The other corrupt practice alleged is contained in paragraph 9B of the petition. It is stated therein that meetings were held in the villages Chatta and Jatradiya in which the appellant--Tazuddin Ahmed appealed to the voters to cast their votes in favour of him as a muslim candidate because the muslims who at, one time ruled India for thousand years are now living like cats and dogs in India and now they should all unite as muslims. This was alleged to have aroused communal feelings in the minds of the voters of the constituency.
As regards the Jatradiya meeting, P. W. 14--Lokman Khan has stated that there was a library meeting 7 or--8 days before the election and Mahmmad Ali Pleader presided over the meeting. After the meeting, the president left the place and then the appellant--Tazuddin Ahmed delivered a speech wherein he stated that the muslims ruled India for thousand years and that now they are living like cats and dogs and he asked the muslims to vote for him as he was a muslim candidate. P. W. 15--Martaz Ali had supported him. He has stated that there were 500 to 600 people and the majority of them were muslims. In this meeting, it is admitted that the respondent's party was also represented.
The appellant has admitted that he attended the meeting at Jatradiya as a speaker and that he delivered a speech, but he denies that he spoke the words which are attributed to him. He has examined Mr. Ibrahim, a school teacher who has stated that the annual meeting of Jotradiya youth league was presided over by Mlvi. Mahammad Ali. In that meeting, the appellant and the respondent were present. Respondents son was also present. The aims and objects of the meeting were explained by the Secretary and then the appellant as well as the respondent's son addressed the meeting.
The Tribunal preferred to believe the testimony of the respondent's witnesses and we see no reason to differ from his finding. As we have already pointed out in connection with the other allegation of corrupt practice that the difference between the parties being very narrow and the dispute only being as to the actual words used by the appellant, it will be unreasonable to believe that the appellant could have uttered these words which are attributed to him in a circumstance like the one in which he is said to have delivered the speech.
As regards the meeting at Chatta, six witnesses were examined by the respondent. The Tribunal relied upon the statements of P. W. 7--Sahimuddin who is said to be the common witness for both the sides as he was summoned by both the parties. The Tribunal has based its conclusions on the statement of this witness. The fact that a number of witnesses were examined by the respondent in support of the alleged speech made by the appellant has been emphasised by the counsel for the respondent and it is contended that the evidence of all these witnesses has not been properly considered by the Tribunal.
We do not think that the Tribunal did not apply its mind to the evidence of the witnesses produced on behalf of the respondent in support of the Chatta meeting; but in the circumstances the Tribunal was justified in relying upon the testimony of Sahiuddin who was a common witness for both the parties in the sense that he was summoned by both the parties. On a careful examination of the evidence of the witnesses we see no reason to differ from the findings arrived at by the Tribunal.
In the result, therefore, the respondent failed to establish the fact that at the various meetings the appellant made communal speeches and used the words which are attributed to him. In this view of the matter, it is not necessary to go into the question whether the words if used at ail by the appellant would have constituted corrupt practice under either of the sub-sections of section 123 of the Act or not
21. There is another aspect of the matter which may be considered. Section 100 of the Act lays down the conditions for declaring an election to be void and Clause (b) of Section 100(1) lays down that the election can be declared to be void if the Tribunal is of opinion that any corrupt practice has been committed by the returned candidate or his election agent or by any other person with the consent of a returned candidate of his election agent. The Tribunal therefore could set aside the election and declare the election to be void on a finding that corrupt practice has been committed. But in order to grant a declaration that the petitioner-respondent had been duly elected, it is not enough to establish that corrupt practice has been committed.
The respondent has further to establish that but for the votes obtained by the returned candidate by corrupt practice, the petitioner would have obtained the majority of the valid votes. Unless therefore the petitioner-respondent established that the number of votes lost to him on account of the corrupt practice were more than 224, he could not have been granted the declaration claimed. In the present case, there is no evidence to show as to show as to how many votes were actually lost to the respondent due to the communal propaganda if any, made by the appellant. In this view of the matter also, the respondent is not entitled to the relief claimed.
22. In the result, therefore, we do not find any force in the cross-objection either. We accordingly dismiss the appeal and reject the cross-objection. The parties will bear their own costs both in the appeal and in the cross-objection.
H. Deka, J.
23. I agree.