(1) At the General Elections of this year 1967. Mr. Siddavanahalli Nijalingappa who was at that time and still continues to be the Chief Minister of Mysore was returned unopposed to the Mysore Legislative Assembly from the Shiggaon Constituency of Dharwar District.
(2) At the said election Khajekhanavar Khadarkhan Hussiankhan, the first petitioner in this petition, was one of the candidates who had presented nomination. The second petitioner Gangadhar Vasudev Joshi is an elector in that constituency and a friend of the first petitioner. In the petition filed by them they pray that the election of Mr. Nijalingappa as aforesaid be declared void and that the first petitioner be declared duly elected.
(3) Mr. Nijalingappa is impleaded as the first respondent.
(4) The essence of the case as stated in the petition which I shall summarise presently and to the details of which I shall refer whenever necessary in appropriate context, is that the first respondent had not field or caused to be filed any nomination paper at all or that nomination paper if any filed on his behalf suffered from fatal infirmities and that the withdrawal of the candidature said to have been made by the first petitioner had not in fact been made but that it has been made to appear so by the first respondent resorting to corrupt practices of bribery and undue influence through the instrumentality or agency of one Patil Puttappa. It is further alleged that in the said commission of corrupt practice which according to the petitioner was in the nature of a carefully calculated manoeuvre or manipulation, the Returning Officer of the constituency had also participated or rendered some assistance. He has therefore been impleaded as the second respondent in the petition. With particular reference to him there is the further case that the first respondent had procured or obtained from him, who is a person in the employment of the State Government, assistance in such a way as to amount to a corrupt practice under sub-section (7) of section 123 of the Representation of the People Act.
(5) There were at the same election seven other candidates, namely, (1) Basvantrao Bullappa
Mamle Desai (2) Ramchandra Chikke Patil (3) Mallasarjagouda Gurupadgouda Patil (4) Gadigeppagouda Chanbasangouda Patil (5) Amonullakhan Shaik Ahamed Khan Pathan. (6) Ayubkhan Mohamed Akbarkhan Pathan and (7) Abdulrashid Khaler Ghouse Bannur. The withdrawal of candidature by these seven candidates is not called in question. In fact the petitioner relies upon that fact taken along with the alleged absence of the nomination of the first respondent as the ground for the second prayer namely, declaration that the first petitioner has been duly elected.
(6) The petition opens with the statement that the first petitioner and the seven other candidates mentioned in the last preceding para were the only candidates and that upon the withdrawal of the other seven, the first petitioner became entitled to be forthwith declared elected.
(7) The next important allegation in the petition is that the second respondent Hanumanthappa Shvabasappa Hosamani is a trusted favourite of the first respondent, that there has been a special bond of interest between the two respondents extending over a long period commencing even some time before the by-election held in Bagalkot Constituency in 1962, and that the first respondent had taken special care to see that the second respondent is posted as the Assistant Commissioner of the Revenue Sub-Division, Savanur, at what is described in the petition as 'the portentous juncture of the election time'.
The suggestion made in the petition is that even in the course of the by-election in Bagalkot in the year 1962, when also the first respondent was returned unopposed, the second respondent had rendered him special assistance by so shaping things as to bring about an uncontested election of the first respondent It is further stated that after he was defeated at the polls from the Hosadurga Constituency during the General Election of 1962, the first respondent had taken fright for elections and that during the present elections he had been casting about to find out the best and the most convenient constituency from which he can manage to return unopposed.
(8) It is against these statements or against the background of these allegations that the further allegations are made to the effect that as a matter of fact the first respondent's nomination was not al all filed in the Shiggaon Constituency either within the date or the time prescribed or allowed therefor by law, that the list of validly nominated candidates or even the notice of nominations did not contain the name of the first respondent and that even at the time of the scrutiny of nomination papers neither the filing of the first respondent's paper nor its acceptance figured at all. Partly by way of probabilising the said statement of fact and partly by way of additional support to his main case, it is further alleged in the petition that the nomination paper if any filed for the first respondent suffered from certain fatal infirmities.
One of them is alleged non-payment of the deposit as required under S. 34 of the Representation of the People Act. The first respondent is an elector not in Shiggaon Constituency but in the Chitradurga constituency. It was therefore necessary to produce before the Returning Officer a certified extract or a certified copy of the portion of the electoral roll of the Chitradurga Constituency in which the name of the first respondent appears. The petition states that no such extract or copy was produced before the Returning officer Under Article 173 of the Constitution as amended by the Sixteenth Constitutional Amendment, it is necessary for a candidate at the election to subscribe to an oath or affirmation in the form (VII A) set out in the Third Schedule to the Constitution.
The petition alleges that the provisions of the Article cannot be said to have been properly complied with unless the affirmation or the oath required by it is made before or at any rate simultaneously with the presentation f the nomination paper, and that there has not been such compliance with the Article in the case of the nomination paper if any filed on behalf of the first respondent in the Shiggaon Constituency
(9) For all these reasons, whether taken singly or cumulatively, the petition claims that the nomination of the first respondent must be taken to have been maneuvered or manipulated and ushered in and that the declaration of the uncontested return of the first respondent is a mere concoction entirely unrelated to facts.
(10) In addition, the petition charges the first respondent with the corrupt practices of bribery as defined by sub-section (1) undue influence as defined by sub-section (2) and the procuring of the assistance of Government servants as defined in sub-section (7) of section 123 of the Representation of People Act.
(11) Although the petition sets out the details in fairly lengthy paragraphs the substance of the allegation is the following.
(12) On 20-1-1967 which was the day immediately preceding the date fixed for scrutiny of nomination papers, Patil Puttappa mentioned above and a son-in-law of the first respondent called Mahalinga Setty are said to have caught hold of two other persons called Hotti peerasabnavar Ghudusab Chamansab and Nadaf Mahamed Jaffar Sab and attempted to induce the first petitioner to withdraw his candidature by offering him or promising to secure for him a licence for his huller, to get him better patronage for his book selling business and to see generally that the first petitioner is helped, aided and supported for his material prosperity. It is further stated that Patil Puttappa requested the first petitioner to go with him and Mahalinga Shetty for further discussion, that when the second petitioner also accompanying him, Patil Puttappa offered no objection, that thereupon both the petitioners were taken in a car to the house of one Hanumantgouda Patil and thereafter they had spurned further attempts at inducement, they were subjected to threats as a consequence of which the first petitioner ultimately affixed his signature to a blank printed form. Even thereafter the petitioners were denied opportunity of free movement and kept under virtual surveillance until he early hours of the morning of 22nd January.
(13) In relation to the alleged corrupt practice under sub-section (7) of section 123, the general statement of particulars is that the particulars are same as those already set out in sub-paragraphs (a) to (h) of Para III of the petition.
(14) On their release from the house of Hanumantgouda on the morning of 22nd January, the petition states, the petitioners went to Hubli and after consulting a lawyer Mr. S. S. Shettar, the first petitioner despatched a telegram to the Returning Officer, the 2nd respondent, setting out the true facts. On the night of 22nd January the first petitioner is also stated to have informed the District Election Officer at Dharwar of the true facts and also made a speech at an election meeting held at Hubli. On the 23rd, the first petitioner after further legal consultation is also said to have despatched another telegram to the Returning Officer reiterating the stand or the position taken up by him in the first telegram.
(15) Then follow the two prayers to which I have already made reference.
(16) The first respondent has filed a detailed written statement. His defense is generally one of complete denial of every one of the allegations made in the petition. He expressly denies the alleged special bond of interest between him and the second respondent, and states that he cannot be described as his trusted favourite. He denies that either Patil Puttappa or Mahalinga Setty or Chaman Sab or Mahamad Jaffar was in any sense an agent of his at or for the election, and further states that he had neither accorded previous consent to or subsequently ratified any of the acts attributed to any one of them in the petition. Now most of the facts alleged in the petition are according to the written statement of the first respondent, not within his personal knowledge. He therefore states in several places in his written statement that he has ascertained that the said facts are not true. For the present purpose. It is sufficient for us to note that either on his own knowledge or upon information so ascertained by him, the first respondent totally denies every one of the allegations made against him.
(17) The written statement of the first respondent also states or sets out what may be regarded as his positive case. He states that he had authorised his proposer Hanumantagouda A. Patil to make the necessary deposit under section 34 and to present his nomination paper to the Returning Officer and that he learns that Hanumantgouda did so make the deposit and present the nomination paper within time on the 20th January 1967. On the following day 21-1-67, the date fixed for scrutiny, the first respondent states that he reached the office of the Returning Officer at Shiggaon at about 2-30 p.,. and made and subscribed to the affirmation in the prescribed form before Returning Officer. Thereafter, according to the written statement the second respondent Returning Officer scrutinised all the papers and as there was no objection raised by anybody to any of the papers all the papers were accepted. Thereafter according to the first respondent, all the eight candidates other than himself and including the first petitioner delivered to the Returning Officer the notices of withdrawal. First respondent avers that the Returning Officer, after satisfying himself about the genuineness of such notices of withdrawal and the identity of the first petitioner who delivered his, accepted the same. As he, the first respondent, remained as the only candidate in the field, his friend including C. C. Patil congratulated him.
(18) From what is stated above, it is clear that the case of the first respondent is that a valid nomination paper satisfying all the conditions necessary for its validity had been presented on his behalf and that the withdrawal of candidature by the first petitioner was brought about by the first petitioner personally presenting the notice of the withdrawal to the Returning Officer.
(19) The Second respondent has filed a separate written statement traversing such of the allegations in the petition as are directed against him.
(20) While admitting that the first petitioner and the seven other candidates named by him had filed nominations at Shiggaon, the second respondent adds that the first respondent had also filed his nomination. he denies that he is a trusted favourite of the first respondent or that there is any sort of intimacy or special bond of interest between him and the first respondent. He refers to his postings to Bagalkot and later to Savanur as postings made in the ordinary course of service in public interest by the State Government. He states positively that the first respondents proposer H. A. Patil filed the nomination of the first respondent for shiggaon constituency on 20-1-1967 well within time, that the relevant extract of the electoral roll containing the name of the first respondent was enclosed with the nomination paper that the requisite sum had been duly deposited under S. 34 of the Representation of the people Act, that the first respondent did solemnly affirm in accordance with the law before him on 21-1-1967 before the scrutiny or his nomination paper for Shiggaon Constituency, and that the nomination paper of the first respondent having been scrutinised along with other nomination papers was accepted without any objection on the part of anybody.
He then states that because he was the Returning Officer for not only Shiggaon but also Shirahatti and Kundagol Constituencies, he had notified on the 20th itself a programme for the scrutiny according to which the papers or shirahatti Constituency were to be taken first those of Kundagol next and lastly the papers of Shiggaon.The first respondent had also filed nomination paper in Kundagol Constituency. As he was not present at the scrutiny and at the time of the scrutiny it was found that he had not subscribed to the affirmation, the second respondent states that he rejected the nomination paper. When the nomination papers of Shiggaon Constituency were taken up for scrutiny and before the nomination paper of first respondent was taken up for scrutiny, he according to the written statement, appeared and took the necessary oath as prescribed by law. The second respondent further positively avers that the first petitioner presented in person before him his notice of withdrawal of his candidature in the prescribed form duly filled up and signed by him. He admits having received two telegrams purporting to be those from the first petitioner and states that because they were telegrams he did not take any action on them. He adds that the first petitioner having validly withdrawn his candidature, it was no longer open to him to cancel the withdrawal.
(21) On these pleadings, the following issues were framed.
(1) Do the petitioners prove that the nomination paper of the first respondent had not been presented at the election in question, or that if one such had in fact been presented, the same was invalid and inoperative in law for any one or more of the following reasons:
(a) That it was not accompanied by relevant portion of the electoral roll in which the name of the first respondent appeared;
(b) That the deposit required by S. 34 of the Representation of the People Act had not been made in time:
(c) that oath or affirmation under Article 173(a) of the Constitution had not been made as required by the Article.
(2) Do the petitioners prove that the first petitioner had not in fact withdrawn his nomination paper, or if he had the same was invalid for any reason?
(3) (a) Do the petitioners prove that Patil Puttappa, Mahalinga Shetty, Nadar Mahmed Jafar Saheb and Hotti Peersabnavar Chamensab Ghudusab, referred to in paragraph III (i) of the 1st petitioner or subjected him to threats with a view to secure his withdrawal of his nomination in the circumstances set out in sub-paragraphs (I) and (J) of paragraph III of the petition?
(b) Do the petitioners further prove that the said four persons did so with the consent of the first respondent?
(4) Do the facts proved by the petitioners under issue No. 3 establish the commission of the corrupt practice of bribery under Sub-s (1) and/or undue influence under sub-2.(2) of section 123 of the Representation of the People Act invalidating the Election of the 1st Respondent?
(5) Do the petitioners prove that in the matter of the presentation of the nomination paper of the first respondent and in the matter of withdrawal of the nomination of the first petitioner the first respondent had secured the assistance of the 2nd respondent in such a way as to amount to corrupt practice under sub-section (7) of Section 123 of the Representation of People Act?
(6) Are the petitioners entitled to an order declaring the election of the first respondent void?
(7) Are the petitioners entitled to a declaration that the first petitioner had been duly elected?
(22) Both the petitioners have given evidence as P. Ws. 6 and 5 respectively. In addition, they have examined four other witnesses P. W. 1 Hanumanthasa Pawar, P. W. 2 S.S. Shettar, P. W. 3 Chaman Sab Ghudu Sab, and P. W. 4 Mahmed Jaffar.
(23) The first respondent has given evidence as R. W. 1. He has also examined Mr. G.C. Patil, Advocate. Hanumantagouda Ayyanagouda Patil and Gurupadappa Basappa Mahalinga Setty as Rs. Ss. 2, 3 and 4 respectively.
(24) Respondent 3 examined himself as R. W. 5
(25) It will be seen from the issues that whereas the first two issues state the central or the principal points in controversy between the parties, issues 3, 4 and 5 refer to the allegations of corrupt practice which really from the background of the controversy expressed in the first two issues. The corrupt practices which have been made the subject of issues 3 and 4 are directly related to the claim of the first petitioner as formulated in issue No.2. The alleged procreation of assistance from the second respondent which is made the subject of issue No. 5 is related according to the allegations in the petition itself to both the acceptance of the nomination of the first respondent which is made the subject of first issue and the withdrawal of candidature by the first petitioner which is made the subject of the second issue.
Having regard to this inter-relation between the points of controversy as formulated in the issues, the evidence also is inevitably directed towards or connected with the background facts from which arise all the arguments and contentions related to the first two issues. Hence at least at the commencement it is not possible to distinguish or keep separate the discussion of the evidence in relation to one issue from discussion of the evidence in relation to other issues. I therefore consider it most convenient in the first instance to give the general features or outline of the case sought to be made by the parties on the basis of the oral evidence tendered and then proceed to discuss the issues at which stage I shall refer to the further details of the evidence in their appropriate context.
(After stating the general outline of the case (Prs. 26-85) sought to be made out by the parties his Lordship proceeded.)
(86) These are the two versions placed before the Court by the contending parties in this case which in almost every material particular are diametrically opposed to each other. Except that some papers have been filed and marked as Exhibits, the evidence is entirely and exclusively oral evidence. In cases of this nature, where the dispute is in relation to an election, it is hardly ever possible for a court to find a witness who may be described as totally disinterested. It is inevitable that in matters of election, persons who give evidence in election petitions will be persons who have some political or personal affiliation with one or other of the contending parties. Even apart from any deliberate attempt at colouring the facts or uttering a falsehood, the very fact of personal interestedness or the fact of sharing a common interest with one or other of the contending parties may itself disable the witnesses from making a correct assessment of the value of the facts and events witnessed by them.
It is, therefore, a matter of considerable difficulty for a Court to make a choice between one version and another version or to condemn outright the evidence of one witness as totally unacceptable and accept as reliable the entire evidence f another witness. The only safe guide in matters of this nature is the availability of circumstances which may be regarded as unimpeachable on the basis of which the Court,may make a reasonably accurate comparison between what the witnesses say and the way persons of their mental and emotional build or makeup may be expected to re-act, to situations, peculiarly in relation to the actual facts in issue.
(87) Although the witnesses so far referred to, will all fall into the category of witnesses whose evidence has to be scanned with caution in the manner aforesaid, there is one witness who may, in ordinary circumstances be regarded as disinterested or not so interested in one or other of the parties as the other witnesses may be, and that is the 2nd respondent the Returning Officer. I used the word 'ordinary' advisedly for reasons which I shall state presently.
(88) The Returning Officer is generally an officer of the Government before he is appointed or selected as Returning Officer by the Election Commission. The duties that he performs are undoubtedly quasi-judicial in nature. The Election Commission, which has issued a Hand-book of Instructions to Returning Officers, has expressly drawn the attention of all the Returning Officers to this circumstance and has in very clear terms impressed upon them the necessity of observing what they describe as high judicial standards and also of bringing to bear on the discharge of their duties, not only impartiality but also patience and courtesy.
(89) Ordinarily, therefore, one could say that Returning Officers may be expected to place before the Court facts or events as they have actually occurred without making any attempt to colour the same to the benefit of one party or the detriment of another party.
(90) In this case, as I have already stated, the petitioners have chosen to implead the Returning Officer as a regular party to the proceedings. They have also very seriously questioned his bona fides and in the course of arguments on their behalf strenuous attempts have been made to make out the original case of mala fides as well as to whittle down or totally take away the value of the evidence tendered by him.
(91) Even so, It appears to me, the evidence of the Returning Officer in this case can be and perhaps is the only assistance from which I have to assess the two versions placed before me by the contending parties. If it were a normal case, with no attack made on the bona fides of the Returning Officer his evidence would have been of clear value as the evidence of a disinterested witness to test the truth or otherwise of the evidence tendered by other witnesses. Here in this case where his bona fides are questioned and he is charged with partisan feelings in favour of one of the contending parties, the extent to which that attack may succeed or fail will also give the measure of the value to be placed on the evidence tendered by the one or the other of the contending parties.
(92) I, therefore, proceed first to summarise his evidence and examine all the attacks made against him personally as well as in his capacity as Returning Officer, before making any attempt to assess the value of the evidence tendered by or on behalf of the petitioners and by or on behalf of the 1st respondent.
[After summarising the facts deposed by the Returning Officer (Paras 93 to 110) His Lordship proceeded].
(111) Foregoing is a summary of all the material facts deposed to by the 2nd respondent. the consideration of answers elicited from him in the course of the cross-examination on behalf of the petitioners can more conveniently be taken up along with the examination of the several attacks made against his bonafides and the credibility of his evidence.
(112) Although very serious allegations have been made against him and it has been attempted on behalf if the petitioners to make out that he has at all material times completely permitted his sense of official duty to be over-powered by his interestedness in the 1st respondent, the petitioners have made no attempt whatever to lead any direct evidence in support of these serious allegations. The entire case is sought to be built upon what are described as necessary inferences from proved facts.
(113) Facts may be regarded as completely proved or admitted are only just about half a dozen or less in number. The 2nd respondent happened to be the Returning Officer both at bye-election from Bagalkot in May 1962 as well as in the General Elections of 1967 in Shiggaon Constituency. At both these elections, the 1st respondent was returned unopposed. The 2nd respondent was first posted as the Assistant Commissioner of Bagalkot in May 1961 about one year before the bye-election. He was posted as the Assistant Commissioner of Savanur Sub-Division of which Shiggaon is part, in December 1965, about one year before the elections of 1967.
(114) Upon these facts, it is suggested that the posting of the 2nd respondent as these places about a year prior to the respective elections was specially motivated. The argument sought to be developed on this basis is that before the became Returning Officer, he was also functioning as the Electoral Registration Officer, and that therefore, his working as such was likely to furnish him with opportunities to come into contact with important members of the electorate so that he may utilise those contacts for the furtherance of the prospects of the election of the 1st respondent.
(115) Now the facts stated above or more accurately the admitted or proved facts are not in themselves sufficient to charge the 2nd respondent with any mala fides. The real case is that he was specially posted at these places so that he may so manoeuvre things as to bring about an uncontested return of the 1st respondent. The argument that he was posted at the respective places one year before the date of the election so that he may contact the electorate is really destructive of the first argument, as long standing contact with the electorate will be a matter of value only if a poll was going to be taken.
[After discussing the allegations against the 2nd respondent (Paras 116 to 133) the judgment proceeded]
(134) The next argument in support of the case of mala fides is directly related to Ex. R. 8 and may therefore be taken up for consideration at this stage itself.
(135) The argument is that in view of the allegations contained in Exhibits P. 3 and R. 8 it became the duty of the 2nd respondent to hold a summary enquiry under sub-section (3) of Section 37. That section deals with withdrawal of candidature.
Sub-section (3) reads:
The Returning Officer shall, on being satisfied as to the genuineness of a notice of withdrawal and the identity of the person delivering it under sub-section (1) cause the notice to be affixed in some conspicuous place in his office'
The corresponding rule in the Conduct of Elections Rules is Rule No. 9 Sub-rule (1) thereof prescribes a form for the notice of withdrawal and enjoins upon the Returning Officer the duty of making a note on the form of the exact time of its presentation Sub-rule (2) says that the notice under sub-section (3) of section 37 shall be in form No. 6 Form No. 6 is the form prescribed for exhibiting information about withdrawals of candidature delivered to the Returning Officer. In this case, the 2nd respondent has deposed that after satisfying himself about the particulars mentioned in sub-section (3) of S. 37 he had put up notices in form No. 6 in both Kannada and English and produced his office copies thereof as Exhibits R 27 and R 28.
(136) Prima facie, therefore, if his evidence is to be accepted, he had, according to him, completed his function to enquire under sub-section (3) of Section 37 before putting up Exhibits R. 27 and R. 28.
(137) Nevertheless, the argument is that in view of the decision of the Madhya Pradesh High Court reported in : AIR1959MP141 , Ramakant Kesheorao v. Bhikulal Laxmichand, the Returning Officer had the power to revise his opinion until he came to put up the list of contesting candidates under Section 38 of the Act.
(138) A reading of the said case in the light of the previous ruling of the Supreme Court (Sic) in Natwar Lal v. Bhartendra Singh, (1953) 5 Ele. LR 408 (Ele. Tri-Kotah), shows that the argument so presented cannot be accepted. In Natwar Lal's case, (1953) 5 Ele. LR 408=(Ele. Tri. Kotah), Their Lordships have clearly pointed out that in the matter of scrutiny of nomination papers, the Returning Officer discharges or exercises a quasi-judicial decision on the matter, he has no right to review which has to be specially conferred upon authorities other than the ordinary courts. The Madhya Pradesh High Court referring to the said decision of the Supreme Court states that the stage of completed judicial decision is reached when a list of validly nominated candidates is put up after completion of the scrutiny. In the case before them, the Returning Officer had accepted the nomination paper of a candidate in respect of a Parliamentary Constituency and later discovered while scrutinising the nomination paper of the candidate relating to an Assembly Constituency that he was disqualified and immediately took up the previous paper and rejected that also as invalid. But, he did this before putting up the list of validly nominated candidates.
It may be a question of some nicety and difficulty whether the stage of a completed judicial decision is not reached when the Returning Officer enforces his acceptance or rejection on the nomination paper in question or is postponed till he puts up the relevant list under the Rules. But, even assuming that it is permissible to postpone the stage till the putting up of the relevant notice, such a stage had in fact been reached in this case. Before receipt of Ex. P. 3 he had already put up the list of withdrawals in Form No. 6. Those lists were put up on the 21st evening. Ex. P 3 was received by him on the 22nd evening.
(139) Even as a matter of fact the allegation in Exhibits P. 3 and R. 8 was that the 1st petitioner himself had not personally presented the withdrawal, the further suggestion being that somebody might have presented a withdrawal from making out that he is authorised by him to do so. According to the evidence of the 2nd respondent, the withdrawal was presented not by an authorised person, but by the 1st petitioner himself personally.
(140) Therefore, there was no question of fact which remained to be examined by him. As a matter of law, he was precluded from reviewing the position having put up the notices exhibits R. 27 and R. 28. What is more, under sub-section (2) of s. 37, it is not open to a candidate who has withdrawn his candidature to cancel his withdrawal subsequently.
(141) That is the view on facts and law set out by the 2nd respondent in his endorsement on the reverse of Ex. R. 8(b) which I have already copied.
(142) Hence, if he acted on that view of the law and facts, the highest that the petitioners could do is to argue that that view is wrong. I do not think it is open to construct a theory that because he dealt with Ex. R. 8 that way, he must necessarily be charged with having been inspired by special interest in the 1st respondent.
(143) Next line of argument is that with a view to assist the 1st respondent, the 2nd respondent had deliberately departed from well known provisions of law and the relevant Rules. As the matter appeared to me of some considerable importance from the point of view of the argument pressed on behalf of the petitioners, I requested Mr. Patil to give me a list of instances in which from time to time the 2nd respondent had made such deliberate departures from the law or the Rules. He formulated four such instances.
(144) The first of them is that though Section 36 of the R.P. Act prohibits adjournments of scrutiny proceedings, the 2nd respondent had deliberately postponed or adjourned the scrutiny of papers relating to Shiggaon Constituency till 2.30 P.M. in the afternoon to enable the 1st respondent to come and subscribe to the affirmation which he had not done previously. It is further stated that while dealing with the alleged objections to the nomination paper of one of the candidates in Shirahatti and Kundagol, he had not reduced the objections to writing nor written out his order thereon. This, it is stated, is a disobedience of the law which requires that whenever objections are taken, the Returning Officer should hear the parties and determine them and make a written order accepting or rejecting the same.
(145) Whether in the circumstances deposed to by the 2nd respondent he should have made a written record of the objections raised during the scrutiny of the papers of Shirahatti and Kundagol, is not a matter which in my opinion is of direct relevance to Shiggaon constituency. The only manner is which the 2nd respondent is said to have assisted the 1st respondent is that on the pretext that there were objections to be examined in the case of Shirahatti and Kundagol, he had unnecessarily taken up time. If that was his objective, I think he could have spent more time by writing out long orders. Apart from that, there is no other point so far as the examination of Shirahatti and Kundagol papers is concerned.
(146) The posting of the scrutiny of Shiggaon papers to the afternoon or as the third in the order of priority is described by Mr. Patil as an adjournment in contravention of sub-section (5) of S. 36, which says that the Returning Officer shall hold the scrutiny on the date appointed and shall not allow any adjournment of the proceedings except when such proceedings are interrupted or obstructed by a riot or by violence or by causes beyond his control. The ordinary meaning of the provision would be to compel or oblige the Officer to hold the scrutiny on the date specified therefor with a view to see that the calendar of events, which is set out by the Statute itself in Section 30, and not left to be prescribed by anybody else, is not as far as possible disturbed. Further, the scrutiny dealt with by Sub-section (5) of Section 36 is obviously the scrutiny relating to a single constituency.
To say that when a Returning Officer has to deal with more constituencies than one, he adjourns the proceedings for scrutiny of a certain constituency by reason only of the fact that he takes up the scrutiny of the papers of that Constituency next after the scrutiny of the papers relating to another Constituency, would be to reduce the law to an ausrudity. When the scrutiny is actually commenced, it may be that interruption thereof except for causes beyond the control of the officer as set out in the section may be an irregularity.
(147) No such situation has arisen in this case. The 2nd respondent was the Returning Officer, as already stated, for three constituencies. He had on the previous day i.e. the 20th, made up a programme for scrutiny and posted it on his notice board. According to his evidence, he did so at about 12.00 noon. There is no evidence on record nor even a suggestion made to any witness that the 2nd respondent knew or must be taken to have known even at 12-O' clock on the 20th that the 1st respondent was expected to present his nomination paper that afternoon. Nor is there any evidence to show that on the 21st anybody on behalf of or in the interest of the 1st respondent requested the 2nd respondent to come and subscribe to the affirmation Indeed, the argument of Mr. Patil was, if anybody had made such a request or if the 2nd respondent himself in view of the non-arrival of the 1st respondent waited for him for some reasonable length of time, he would not have charged the 2nd respondent with mala fides.
(148) On the whole, it appears to me that except suspicions suggested without any real basis in evidence or proved circumstances, no inference of any mala fides is possible from the fixation of the programme of scrutiny by the 2nd respondent. In the absence of any acceptable evidence, it has to be taken that the settlement of the programme of scrutiny by the 2nd respondent especially when it had been done at a time when he may not even be said to have been aware of the 1st respondent or anyone on his behalf thinking of presenting a nomination paper of his, must be regarded as natural conduct on his part.
(149) The second instance of departure from the law stated by Mr. Patil was that in spite of the fact that sub-section (2) of Section 53 says that the result of the election, in the absence of contest, should be declared forthwith, the 2nd respondent had delayed the declaration under section 53(2) till the 23rd of January, instead of doing it on the 21st itself, when after the withdrawal of eight others, the 1st respondent alone remained in the field. The 2nd respondent was questioned on this point and he stated that according to his view point and he stated that according to his view of the law, the word 'forthwith' in Section 53(2) meant immediately after the expiry of the time fixed for withdrawal of nomination papers. The view of the law appears to be correct and Mr. Patil himself conceded that it was correct to wait till the last moment fixed for withdrawal of candidature before declaring results. Even in cases where after withdrawals of candidature at an earlier point of time, only one candidate may be left, it is still open to that one candidate to withdraw.
Hence, even according to the arguments on behalf of the petitioners, as subsequently corrected, there is no departure made by the 2nd respondent from any provision of law as understood by him. Even otherwise, it appears to me that it would have been more in the interest of the 1st respondent than otherwise, to publish the results on the 21st itself rather than to wait till 23rd. Apparently the point was given up because if pressed further, it would work against the argument rather than support it.
[After consideration of evidence in respect of charges of mala fides against 2nd respondent (Paras 150 to 182) His Lordship stated.]
(183) On a close and detailed examination of all the attacks made against the bona fides of the second respondent I feel satisfied that there is no substance in any one of them.
(184) I therefore consider that it would be safe to proceed on the basis that on material particulars the evidence of the second respondent is substantially true.
(185) I shall now proceed to examine the issues one by one.
(186) The first issue has two parts. The first part deals with the factum of the presentation of the first respondent's nomination papers and the second part with certain alleged infirmities.
[After reviewing the evidence (Paras 187 to 216) the judgment proceeded.]
(217) The legal position now to be discussed is whether the petitioners are right in their contention that the affirmation should have subscribed to before or simultaneously with the presentation of the nomination paper or the 1st respondent is right in his contention that provisions of Article 173(a) may be said to have been fully complied with if he makes affirmation at a point of time just or even immediately before the commencement of the scrutiny of his nomination paper.
(218) The relevant portion of Article 173 reads:-
'A person shall not be qualified to be chosen to fill a seat in Legislature of a State unless he (a) is a citizen of India, and makes and subscribes before some person authorised in that behalf by the Election Commission on oath or affirmation according to the form set out for the purpose in the Third Schedule.'
The form is VII-A or VII-B, A being the form for use by a candidate before election and by a member after election. Form VII-A read as follows:--
'I, A. B., having been nominated as a candidate to fill a seat in the Legislative Assembly or Legislative Council, do swear in the name of God/Solemnly affirm that I will bear true faith and allegiance to the Constitution of India as by law established and that I will uphold the sovereignty and integrity of India.'
(219) The person before whom oath or affirmation may be made has to be a person authorised by the Election Commission. On 2nd January 1965, the Commission issued two Notifications specifying the person so authorised by them,--one in relation to Parliament and the other in relation to State Legislatures. They consolidated both of them by a fresh Notification issued on 25th April 1967. In both the principal person authorised is the Returning Officer of the Constituency in question. I set out below the full text of the Notification No. 3/130/65(2) dated 2nd January 1965, first issued in relation to election to State Legislatures:--
'In pursuance of clause (a) of Article 173 of the Constitution, and in supersession of its notification No. 3/130/163(2), dated the 15th November, 1963. The Election Commission hereby directs-
(a) That candidate for election to the Legislature of a State by an assembly constituency or a council constituency, shall make and subscribe the oath or affirmation, according to the form set out for the purpose in the Third Schedule to the Constitution, before the returning officer or an assistant returning officer for that constituency and
(b) that a candidate for election to fill a seat or seats in the Legislative Council of a State by the members of the Legislative Assembly of the State, shall make and subscribe the said oath or affirmation before the Returning Officer or the Assistant Returning Officer for that election.
Providing that if any such candidate is at the time confined in a prison or under preventive detention, he may make and subscribe the said oath or affirmation before the Superintendent of the prison or Commandant of the detention camp in which he is so confined or under such detention'
(220) Now, two things follow from the form set out in the Third Schedule to the Constitution and the Notification of the Election Commission specifying the authorised person. According to the form, the occasion for taking affirmation is subsequent to nomination, because the form says 'having bee nominated' Unless a candidate is in prison or preventive detention the only person before whom he can make affirmation is the Returning Officer of the Constituency from which he is a candidate for election to the State Legislature.
(221) The next question for consideration is at what point of time a person can be said to have been nominated as a candidate. The relevant provisions are Sections 32 and 33. The former reads:
'32. Nomination of candidates for election.--Any person may be nominated as a candidate for election to fill a seat if he is qualified to be chosen to fill that seat under the provisions of the Constitution and this Act or under provisions of the Government of Union Territories Act, 1963, as the case may be.'
The relevant portion of the latter reads:--
'33. Presentation of nomination paper and requirements for a valid nomination.--(1) on or before the date appointed under clause (a) of Section 30 each candidate shall, either in person or by his proposer between the hours of eleven O' clock in the forenoon and three O'clock in the afternoon deliver to the returning officer at the place specified in this behalf in the notice issued under section 31 a nomination paper completed in the prescribed form and signed by the candidate and by an elector of the constituency as proposer.
Provided that no nomination paper shall be delivered to be returning officer on a day which is a public holiday'
(222) Now, the argument on behalf of the petitioners is that section 32 deals exhaustively with the question or topic of nomination and that section 33 deals only with the ancillary topic of the presentation of a nomination paper. Nomination, according to this argument, is merely an act of naming by the proposer accepted by the person so named.In fact, even the acceptance does not seem to be quite essential for the purpose of the argument. It is stated that the moment a proposer signs his name in the form proposing a certain person as a candidate for election from a constituency named therein, the nomination of the said person is complete for all purposes of the law. Hence, the nomination having been completed or the person having been nominated, he is bound to make affirmation before presenting the nomination paper. The reason in support of this argument is that the making of an affirmation is a positive qualification prescribed by the Constitution itself and that even before the Returning Officer receives a nomination paper, he must be prima facie satisfied that a person qualified to nominate has nominated a person qualified to be nominated.
(223) The two further questions which arise for testing the acceptability or otherwise of the said argument are--
(1) Whether there could at all be a nomination before a nomination paper is presented to the Returning Officer
(2) What is the date with reference to which the existence or otherwise or possession or otherwise of the qualification is to be ascertained.
(224) The argument on behalf of the 1st respondent is that nomination is not mere naming but naming of a person in such a way as to enable him to stand as a candidate for election. Hence what is done under Section 32 is the preparation of a nomination paper for presentation and when the said paper is presented under section 33, the nomination is complete.
(225) On the second proposition, the argument on behalf of the 1st respondent s that the said amended clause (1) of sub-section (2) of Section 36 makes it clear that the date with reference to which the existence or otherwise of qualification is to be ascertained is the date fixed for the scrutiny of nomination papers. Sub-section (2) of Section 36 reads as follows:--
'36(2). The Returning Officer shall then examine the nomination papers and shall decide all objections which may be made to any nomination and may, either on such objection or on his own motion, after such summary inquiry, if any, as he thinks necessary, reject any nomination on any of the following ground:--
(a) that on the date fixed for the scrutiny of nominations the candidate either is not qualified or is disqualified for being chosen to fill the seal under any of the following provisions that may be applicable, namely:--
Articles 84,102,173and191 Part II of this Act, and Ss. 4 and 14 of the Government of Union Territories Act, 1963 or
(b) that there has been a failure to comply with any of the provisions of section 33 or section 34; or
(c) that the signature of the candidate or the proposer on the nomination paper is not genuine'
(226) There is another aspect of the matter which has also a bearing on the solution of this controversy. Under section 33, a nomination paper can be presented not merely by a candidate but also by a proposer. Hence, the presentation of a nomination paper by a proposer is a good presentation. It will therefore be open to a proposer to present a nomination paper during the last minute of the time fixed for presentation which is three O'clock in the afternoon on a day not later than the seventh day from the date of the notification calling for election.
(227) Section 32 lays down the general condition of eligibility. It will be noticed that the said section refers only to the qualification of the person to be nominated. But when we come to section 33. what we have is that on or before the date appointed for the receipt of nomination papers, the candidate, either in person or by his proposer, between certain hours, may deliver to the Returning Officer a nomination paper completed in the prescribed form and signed by candidate and by an elector of the constituency as proposer. The preliminary examination which the Returning Officer is called upon to undertake before receiving nomination papers is set out in Sub-section (4) of Section 33, according to which on the presentation of a nomination paper, he has to satisfy himself that the names and electoral roll numbers of the candidate and the proposer as entered in the nomination paper are the same as those entered in the electoral rolls.
(228) The general or basic constitutional provision is that a person shall not be qualified to be chosen to fill a seat in a State Legislature unless he is a citizen and has made the necessary affirmation of allegiance. The question as to the point of time when a person may be so said to be chosen has been a matter of judicial examination and different views had been taken until settled by the Supreme Court. The amendment of clause (a) of sub-section (2) of Section 36 was apparently intended to put an end to the controversy.
(229) Although the ultimate destination of a candidate is a seat in the Legislature and it is for filling that seat that the Constitution requires that he should possess certain qualifications, the process whereby he reaches that seat proceeds in more stages than one. He has first to be nominated as a candidate: next his nomination paper must pass the scrutiny by the Returning Officer; next he must get elected at the poll if poll is necessary. Finally, his election should survive an election petition if filed questioning the same.
(230) So far as the scrutiny is concerned the amended clause (a) of sub-section (2) of Section 36 now states that the scrutinising officer should reject a nomination paper if on the date of the scrutiny the candidate nominated does not posses the qualification under Article 173 and other legal provisions mentioned above.
(231) In regard to election petitions, Section 100 in clause (a) of sub-section (1) thereof, empowers the High Court to set aside an election if, in its opinion, the returned candidate was not qualified on the date of his election. The expression 'date of election' is defined in section 67-A to be the date on which the candidate is declared by the Returning Officer as elected either under Section 53 or under Section 66 as the case may be.
(232) In view of these express provisions of the statute regarding the date with reference to which the existence of qualification has to be ascertained, the statement in Sec 32 that only a qualified person should be nominated as a candidate must be read as a general statement without reference to any date on which that qualification has to be possessed. But because the nomination under section 32 is for the purpose of getting elected the candidate nominated, he must satisfy all the provisions of law, the compliance with which is necessary to secure a safe seat in the Legislature. That the ultimate object of all elections is due constitution of Legislatures which means Legislatures whose seats are occupied by qualified persons, is clear from the provisions of Article 327 which authorises Parliament to make by law provision with reference to all matters relating to or connected with elections including the preparation of electoral rolls, the delimitation of constituencies and all other matters necessary for securing the due constitution of legislative bodies.
(233) Hence the specification of time with reference to which the existence or otherwise of qualification is to be ascertained in a law made by Parliament pursuant to Article 327 must be read as supplemental to and not in a manner in derogation of Article 173.
(234) Once that position is reached, it appears to me that so far as the powers of the Returning Officer to accept or reject nomination paper are concerned, he is bound to examine the existence or otherwise of qualifications under Article 173, only on the date fixed for the scrutiny of nomination papers.
(235) Apart from the express language used in the said clause, as now amended, the provisions of section 33 and the operation of the Election Commission's specification of authorised persons for the purpose of Article 173(a) make it difficult to accept the contention pressed on behalf of the petitioners.
(236) If, as I have stated, section 32 requires that the person to be nominated just be one who has necessary qualification but makes no mention of the date on which such qualification should be ascertained and if section 33 permits a proposer to present a nomination paper right up to the last minute of the time fixed for the presentation of nomination papers, then it is clear that the law does not insist upon the candidate to make affirmation before the presentation of the nomination paper. Excluding the cases covered by the proviso, viz., the candidates in prison or under preventive detention, the normal rule is that the only officer who can administer oath or affirmation is the Returning Officer of the constituency for or in respect of which a person is nominated as a candidate. Hence the swearing officer and the officer to whom a nomination paper has to be delivered is the same. If a candidate has to make affirmation even before the presentation of his nomination paper, then, the provision authorising a proposer to present a nomination paper becomes nugatory.
(237) I am also not impressed by the argument that nomination is complete the moment the proposer signs the nomination paper nominating a particular person as a candidate. Nomination, as I have stated, is naming of a person as a candidate for election, and no one becomes a candidate for election until the nomination reaches the Returning Officer. Prior thereto, he is for the purposes of law described only as a prospective candidate, i.e., a person who with election in prospect holds himself out as a candidate.
(238) Although he need not therefore make affirmation before the actual presentation of the nomination paper, he cannot postpone it indefinitely, because he cannot stand for election unless his nomination paper is accepted as valid by the Returning Officer. The validity or invalidity of it is determined by the scrutiny under section 36 of the Representation of the People Act. Hence he should possess the qualification under Article 173 on the date fixed for scrutiny. Although the date fixed for scrutiny may extend up to the mid-night of that day, because his paper can be rejected on the ground that he had not made the affirmation, he is obliged to make the affirmation before the Returning Officer has the opportunity of rejecting his paper. No rejection is possible by him except after an examination of the paper and the existence or otherwise of the prescribed qualification of the candidate.
If therefore before the Officer takes up a candidate's nomination paper for scrutiny the candidate takes care first to ask him to administer affirmation to him, the officer by virtue of the authorisation under the Notification of the Election Commission is bound to comply with his request, and once the affirmation is completed, the candidate must be held to be qualified or any rate not disqualified for lack of affirmation.
(239) Another line of argument pursued by Mr. Patil on behalf of the petitioners on the basis of the ruling in : 1SCR481 , Rattan Anmol Singh v. Atma Ram is that at the time of the scrutiny, all that the candidate is permitted to do is to adduce evidence on the question of the existence or otherwise of the qualification and not take steps to acquire that qualification if he did not possess that qualification at the time he was nominated.
(240) The point considered there was the validity or invalidity of a nomination paper in which the proposer was illiterate and made a mark instead of writing out his name by way of signature. The said mark was not attested by any one. After examining all the provisions of the Act and the relevant rules, their Lordships held that in the absence of an attestation, the mark was ineffective and did not answer the meaning which the statute assigned to the word 'subscribing'. Having held that way, their Lordships stated the second proposition, viz., that the infirmity or irregularity was not capable of being cured by an attestation at the time of the scrutiny, in the following terms:--
''The next question is whether the attestation can be completed by the persons concerned at the scrutiny stage. It must be accepted that no attempt was made at the presentation stage to satisfy the Returning Officer about the identity of these persons but evidence was led to show that this was attempted at the scrutiny stage. The Returning Officer denies this, but even if the identifies could have been proved to his satisfaction at that stage it would have been too late because the attestation and the satisfaction must exist at the presentation stage and a total omission of such an essential feature cannot be subsequently validated any more than the omission of a candidate to sign at all could have been. Section 36 is mandatory and enjoins the Returning Officer to refuse any nomination when there has been any failure to comply with any of the provisions of section 33'.
(241) The above extract from the judgment of their Lordships makes it perfectly clear that they were dealing with clause (b) of sub-section (2) of Section 36.The compliance with the provisions of Sections 33 and 34 has obviously to be anterior in point of time or at any rate contemporaneous with the presentation. Section 34 dealing with deposits expressly states that a candidate shall not be deemed to be duly nominated for election from a constituency unless he deposits or causes to be deposited the sum specified therein. Therefore, that is a provision of law which has got to be complied with for a valid nomination. He cannot be nominated at all unless he makes the deposit.
Section 33 refers to the necessity of signatures by the proposer and the candidate in a prescribed form. Obviously, that is a matter to be attended to or observed or at any rate at the time of the presentation. Above all, the amendment, which specifies the date fixed for scrutiny as the relevant date, is limited to clause (a) of sub-section (2) of Section 36, and there is no reference to the dates in either of the clauses (b) and (c). The reasons is obvious. The dates for purposes of clauses(b)and(c) are capable of being ascertained by a reference to other sections of the Act. The date with reference to which the existence of a qualification has to be ascertained was a subject of difference of opinion and was settled by the Legislature amending clause (a).
(242) Even with regard to the amendment, Mr. patil suggested that the selection of the words 'the date fixed for the scrutiny' which are different from the words 'at the time of scrutiny' used in sub-section (5) of section 33 must be regarded as indicative of some difference in meaning. Now, sub-section(5)of Section 33 states that where a copy of the electoral roll of a candidate who belongs to another constituency has not been produced along with the nomination paper, it may be produced before the Returning Officer at the time of scrutiny. It is therefore argues by Mr. Patil that the above interpretation which would reduce the expression 'the date fixed for the scrutiny' to 'at the time of scrutiny' may not be correct. The argument is subtle, but the difference in wording, in my opinion, makes no difference to the legal position because although the date fixed for scrutiny may extend up to the midnight of the day, the affirmation must have been subscribed to at least before the scrutiny of particular candidate's paper is taken: otherwise it is liable to be rejected.
(243) For all these reasons, I record the following find on issue No. 1:--
The petitioners have failed to prove that the nomination paper of the 1st respondent had not bee presented at the election in question. On the contrary the first respondent has proved that a nomination paper on his behalf had in fact been delivered to the 2nd respondent.
The petitioners have also failed to prove that the nomination paper of the 1st respondent is invalid or inoperative either because it was not accompanied by the relevant portion of the electoral roll in which the name of the 1st respondent appeared, or because the deposit required to be made under Section 34 of the Representation of the People Act had not been made in time or because the affirmation under Article 173(a) of the Constitution had not been made as required by the said Article.
[After discussing evidence regarding issues 3,4 and 5.(Paras 244 to 303) the judgment proceeded]
(304) It is therefore argued on behalf of the petitioners that I should compare the writing 'Hanumantagouda Ayyanagouda Patil' in Ex. R.-11 with the writing 'Khader Khan Hassain Khan' in Ex. P-8 and hold that in all probability the latter writing is also that of Patil Puttappa.
(305) There would have been some strength in this argument if the petitioners had been consistent in their case that Patil Puttappa who filled the blanks in Ex. R-11 also filled the blanks in Ex. P-8.
(306) The cross-examination on their behalf shows that they were merely trying to sound witness after witness so that they may ultimately pitch upon some witness to admit the writing to be his or depose that the writing is Patil Puttappa's. Apart from the fact that depending upon or drawing any inference on the basis of rejected suggestions is an impossible thing for a Court to do, suggestions of complicity in fraudulently filling up a form signed in blank has to be proved by positive and acceptable evidence. It is not possible upon mere suggestions and suspicions to ask a Court to hold a state of affairs to be true suggesting the commission of more than one offense punishable under law.
[After discussing evidence regarding the writing of Ex. 8 the judgment proceeded].
(307-310) The last argument upon fact which has to be dealt with under this matter has been made possible by the 1st respondent not examining Patil Puttappa.
(311) Just before the close of the evidence of the 2nd respondent, an application I. A No. 11 was filed by the petitioners' counsel requesting me to summon Patil Puttappa as a Court witness. 1st Respondent's counsel has filed a set of objections. But both counsel are agreed or proceeded upon the footing that the discretion is entirely of the Court in the matter of calling or not calling patil Puttappa as a Court witness. When such as the clear legal position and both sides are quite aware of it, the filing of the application and the filing of the objections, in my opinion, serve no better purpose than placing on record mere arguments. The said statements are, in my opinion, unnecessary and uncalled for. Both parties recognise that the only question for consideration is the effect of non-examination of Puttappa on the value of evidence already placed on record.
(312) Patil Puttappa had been named as a witness in the lists filed by both the parties. Whereas the 1st respondent merely described him as a person who may be called upon to give oral evidence, the petitioners also wanted that he be summoned to produce his account books showing the amount of money collected by him from the Government by way of charges on Government advertisements in his papers 'Viswavani' and 'Prapancha'. He made a return to the summons that he had not maintained separate accounts of advertisement charges, that it may take a long time for him to pick out the figures for various years referred to in the summons and that therefore he may be given some time. He was not present in Court on 4th July 1967, the date of commencement of trial. But I was told that he might be present on the following day.
He appeared on that day, 5th July 1967, and stated that he had made a request to the Director of Information and Publicity to give him a statement of figures gathered from the official papers and further stated that he will be in a position to make a clearer statement two days later. He was asked to appear on the 7th July 1967. On that day he produced a tabulated statement given to him by the Director of Information and Publicity which was later marked as Ex. P-11 through the 1st respondent as R. W. 1. Upon his producing that statement in Court, Mr. B. S. Patil, learned counsel for the petitioners, stated that he had nothing more to do with Patil Puttappa as a witness. I therefore permitted him to go.
(313) Earlier, I had asked both the counsel to make up their minds as to which of them was going to examine him, because apart from the Court getting suspicious about the value of the evidence of the witness, it has to be stated the witness as a person was entitled to fair treatment at the hands of the parties. But apparently at that stage, neither counsel was prepared to make any definite statement as to whether he would examine Patil Puttappa on his side. The petitioner's counsel had apparently done with him Mr. Ethirajulu Naidu for the 1st respondent stated that it was too early for him to make a statement on behalf of his client as to whether he would examine Patil Puttappa or not But because I had put a specific question to him, he said, apparently out of deference to me, that if Patil Puttappa was going to be examined on behalf of the petitioners, it will then be not necessary for him to do any thing more than cross-examine him. But that if the petitioners were not going to examine him, in all probability he may not examine him on behalf of the first respondent.
(314) Ultimately, neither side examined Patil Puttappa
(315) From what is stated above, one thing is clear and that is, the relevance of Patil Puttappa's evidence, being only on the case of corrupt practice, the burden of proving which is on the petitioners, the attitude of the Counsel merely represented a desire on the part of one Counsel to lighten his burden and a desire on the part of the other Counsel to wait and see.
(316) That it was so is clear from the arguments pressed by Mr. B. S. Patil on the basis of the principle that though it is undoubted that the burden of proving a case of corrupt practice is entirely and exclusively on a petitioner in an election petition the said rule does not absolve the respondent of his responsibility to assist the Court by producing the best evidence available and that on his failure to do so it may be open to the Court to draw such inference against him as may appear to be just and reasonable.
[After discussing evidence (Paras 317 to 332) His Lordship proceeded].
(333) There is only one point of law not suggested in the petition but raised in arguments which I should notice.
(334) Withdrawals are presented under Section 37 of the Representation of People Act, 1951, the first sub-section of which reads:
'37(1). Any candidate may withdraw his candidature by a notice in writing which shall contain such particulars as may be prescribed and shall be subscribed by him and delivered before three O'clock in the afternoon on the day fixed under clause (c) of section 30 to the Returning Officer either by such candidate in person or by his proposer or election agent who has been authorised in this behalf in writing by such candidate.'
(335) It is pointed out that the time for delivery is 'before three O'clock in the afternoon on the day fixed,' whereas section 33 dealing with the presentation of nomination paper uses the words 'on or before the date appointed'.
The argument is, whereas section 33 refers to a period ending with a certain date, section 37 refers to a single day and that day is the date fixed for under clause (c) of Section 30, and that therefore presentation of withdrawal notice at any time prior to 23r January 1967 is wholly inoperative or void. Apart from the fact that the argument, if accepted, would render the withdrawal of candidature of seven other candidates also void, making the petition itself incompetent in view of the second prayer, section 37 cannot be read in the manner suggested, when it says that the withdrawal notice should be presented before three O'clock on a particular day, it also says that the said day is the day fixed under clause (c) of Section 30. That clause describes that day as the last day for withdrawal.
Reading the two together, it only means that three O'clock in the afternoon of the day fixed under clause (c) is the last moment of time before which the withdrawal should be presented. The beginning of that period during which the notice of that withdrawal can be presented is not stated, but it has to be inferred from the fact that there must be accepted nomination before it could be withdrawn. Probably, the beginning of the period, therefore will be the acceptance of the nomination which is earlier than the day fixed for scrutiny by more than one day. I find therefore no substance in this argument.
(336) I therefore record the following findings on issues 2, 3 and 4:
Issue No. 3(a) :The petitioners have failed to prove that Patil Puttappa, Mahalinga Shetty, Nadaf Jafar Sahab and Hotti Peerasabnavar Channansab Gudusab, referred to in paragraph III (I) of the petition, either offered inducements to the first petitioner or subjected him to threats with a view to secure his withdrawal of his nomination in the circumstances set out in sub-paragraphs (i) and (j) of paragraph II of the petition.
Issue No. 3(b) ; As the facts themselves have not been established, the question whether there was consent prior or subsequent to the commission of corrupt practice does not arise: if necessary, the finding is that there is no proof of any such consent.
Issue No. 4 : As no facts as alleged have been established under issue No 3, the petitioners have failed to prove the commission of the corrupt practice of bribery under sub-section (1) and or undue influence under sub-section (2) of section 123 of the Representation of the People Act invalidating the election of the first Respondent.
Issue No. 2:-The petitioners have failed to prove that the 1st petitioner had not in fact withdrawn his nomination paper. On the contrary, it is established by evidence that the 1st petitioner has himself presented his notice of withdrawal to the second respondent. The petitioners have failed to prove that the said notice of withdrawal was invalid for any reason.
(337) For the reasons already discussed, 1. A. No. II is dismissed.
(338) The fifth issue does not call for such discussion in view of the fact that the evidence bearing thereon has already been discussed by me in detail under issues 1 and 2.
(339) The assistance amounting to corrupt practice under sub-section (7) of Section 123 said to have been obtained by the 1st respondent from the 2nd respondent is restricted to two matters. (1) the presentation of the nomination paper of the 1st respondent and (2) the withdrawal of candidature by the 1st petitioner. The statement of particulars in sub-paragraph (k) of paragraph III of the petition is also that the particulars are the same as have been set out in sub-paragraphs (a),(b),(c),(d),(e),(f),(g)and (h) thereof.
(340) So far as the reception of the nomination paper is concerned, the ultimate suggestion is that formulated in sub-paragraph (g)of paragraph III, viz., that by manipulations and maneuvers the nomination paper of the 1st respondent has been ushered in. The said case rests entirely upon the allegation that the 2nd respondent has been a special favourite of the 1st respondent with a long-standing bond of intimacy between them and that by virtue of the same, the 1st respondent has utilized the assistance of the 2nd respondent to take on record a nomination paper which was in several particulars seriously defective. I have discussed the question of alleged mala fides of the 2nd respondent and come to the conclusion that all the attacks made against his bona fides are without substance. The said finding is sufficient to hold that no case of corrupt practice under sub-section (7) of Section 123 has been committed in relation to the reception of the nomination paper of the 1st respondent.
(341) As to the withdrawal of candidature by the 1st petitioner, the matter is closely related to the case of corrupt practice which has been made the subject of Issue No. 3. While discussing the evidence in relation thereto, I have already pointed out that the petitioners' success in that part of the case depends largely, if not exclusively, on their being able to prove complicity of the 2nd respondent in the corrupt practice stated in Issue No. 3 itself.
While examining the evidence thereon, I have pointed out that apart from intrinsic improbabilities in the evidence adduced by or on behalf of the 1st petitioner the virtual giving up of one portion of the evidence of P. Ws. 3 and 4 has had the effect of totally breaking this link of alleged complicity of the 2nd respondent in the matter of the presentation of the withdrawal notice Ex P-8. That opinion is sufficient to hold that no corrupt practice within the meaning of sub-section (7) of Section 123 is proved to have been committed in relation to the reception of the 1st petitioner's withdrawal of candidature Ex P-8.
(342) My finding on issue No. 5 therefore is that the petitioners have failed to prove that either in the matter of the presentation of the nomination paper of the 1st respondent or in the matter of withdrawal of the 1st petitioner, the 1st respondent had secured the assistance of the 2nd respondent in such a way as to amount to corrupt practice under sub-section (7) of Section 123 of the Representation of the People Act.
(343) The findings already recorded as above are sufficient to find issues 6 and 7 against the petitioners. On those findings it has to be held that the petitioners are not entitled to the declaration that the election of the 1st respondent is void or that the 1st petitioner is or has been duly elected I hold accordingly.
(344) In the result, the Election Petition is dismissed. The petitioners will pay costs of the respondents in two different sets, one set for each respondent.
(345) As this is an original Judgment, the Registrar will calculate costs of all the parties in three different sets and append the Memoranda of Costs to this Judgment one memorandum of costs of the petitioners, one of the 1st respondent and one of the second respondent. In each of these sets, Advocate's fee will be assessed at Rs. 1500.
( 346) Petition dismissed