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Hari Ram Sri Harkesh Vs. Election Tribunal, Muzaffarnagar and ors. - Court Judgment

LegalCrystal Citation
SubjectElection
CourtAllahabad High Court
Decided On
Case NumberCivil Misc. Writ No. 4627 of 1966
Judge
Reported inAIR1970All146
ActsUttar Pradesh Town Areas Act, 1914 - Sections 8A(2) and 39; Uttar Pradesh Town Areas Rules - Rules 48 and 49; Uttar Pradesh Municipalities Act, 1916 - Sections 28; Representation of the People Act, 1951 - Sections 123; Code of Civil Procedure (CPC) , 1908
AppellantHari Ram Sri Harkesh
RespondentElection Tribunal, Muzaffarnagar and ors.
Appellant AdvocateSri Dhar, ;S.N. Kacker and ;Ashok Mohiley, Advs.
Respondent AdvocateS.S. Bhatnagar, Adv. and ;S.C.
DispositionPetition allowed
Excerpt:
.....and section 123 of representation of the people act, 1951 - canvassing is inducing a person to caste his vote in favour of particular candidate - interpretation of the word canvassing in different enactment whether it denotes same meaning - held, inducing and canvassing or appealing to religious feeling of electors is corrupt practices both in section 28 of the u.p. municipalities act and section 123 of the representation of the people act. - cantonments act[c.a. no. 41/2006]. section 346 & cantonment fund (servants rules, 1937, rules 13, 14 & 15: [h.l. gokhale, ag. cj, p.v. hardas, naresh h. patil, r.m. borde & r.m. savant, jj] jurisdiction of school tribunal constituted under maharashtra employees of private schools (conditions of service) regulations act, (3 of 1978) held,..........for at particular candidate. canvassing is the act which is performed by the person who seeks the vote to induce the elector to; caste his vote in his favour. thus a voter1 is induced to cast his vote for a particular candidate as a result of the canvassing done by the candidate or his supporters. it is only by means of canvassing that he can induce or attempt to induce any voter to give or to refrain from giving a vote in favour of any candidate.9. the law punishes a man for his acts and a candidate is liable to be unseated if he does any act either directly or through his agent which amounts to a corrupt practice. what the candidate does is canvassing and, therefore, it is only the canvassing of a particular nature that can be prohibited by law. a candidate is liable for his acts and.....
Judgment:

H. Swarup, J.

1. This petition has been filed for the issue of a writ in the nature of certiorari to quash the order of the Election Tribunal dated 1-11-1966 dismissing the Election Petition No. 2 of 1965 filed by Hari Ram against the election of Habibullah as the Chairman of the Town Area Committee Shahpur held on 11-11-1964.

2. The result of the election was declared on 12-11-1964. At the election Habibullah secured 952 votes, Hari Ram petitioner 938 and Mohd. Husain Khan secured 425 votes. Habibullah was declared elected. The contention of the election petitioner was that Habibullah himself and through his workers, agents and supporters had canvassed for the votes on the ground of religion and community and such canvassing had affected materially the result of the election. He had also challenged the election on the ground that certain votes of his had been wrongly rejected while some cast in favour of Habibullah had been wrongly included. Habibullah. respondent No. 2, denied the allegations of the petitioner and also raised objection to the votes secured by Hari Ram and rejected qua him. The Election Tribunal on a final scrutiny held that there was mistake and after adding and deducting the disputed votes, held that 934 votes were validly cast in favour of Hari Ram and 936 votes in favour of Habibullah.

On the plea of inducing the voters to cast votes in favour of Habibullah and to refrain from casting votes in favour of Hari Ram on the ground of religion and sect, the finding of the Election Tribunal was that, 'Habibullah and his supporters had as against the petitioner canvassed for the votes of about 50 to 60 voters on the ground of religion and community at the meeting held on the day preceding the election in the Thateron Wall Masjit.' But taking the view that mere canvassing could not amount to the corrupt practice of inducing or attempting to induce the voters in giving or refraining from giving their votes in favour of the candidate on the ground of 'sect, caste or sub-caste within the meaning of Clause (iv) of Rule 49 of the rules regarding election to Town Areas, the Tribunal dismissed the Election petition. In taking this view of law the Election Tribunal relied on the unreported decision of this Court in Civil Misc. Writ No. 1137 of 1966, Sajid Husain v. Narain Das, D/- 5-9-1966 (All).

3. The learned counsel for the petitioner contended before the Division Bench which originally heard this petition that the decision given by this Court in C. M. Writ No. 1137 of 1966 (All), required re-consideration and, thereupon, this case was referred to the Full Bench for decision.

4. The learned counsel for the petitioner confined his case to the plea that the Election Tribunal was in error in holding that canvassing in the circumstances of the present case did not amount to corrupt practice within the meaning of Clause (iv) of Rule 49. No other point was raised,

5. The learned counsel for the respondent No. 2 has contended that canvassing for votes on the ground of religion is not hit by the provisions of Rule 49 (iv) and the same does not amount to a corrupt practice. He has further contended that 'sect' means only a sub-division of the Muslim community, such as Shia and Sunni sub-divisions and does not include the Muslim community as such, and thus, according to him, an appeal to the Muslim on the ground of their religion and community does not amount to an appeal to any sect within the meaning of the rule. We do not think any of the contentions raised by the learned counsel for the respondent is correct.

6. The U. P. Town Area Amendment Act No. 6 of 1948 which came into force on February 14, 1948 brought a change in the electional system for the election, of a Town Area Committee and its Chairman. It introduced the joint electorate system and defined it to mean a system under which the electors belonging to the minority and non-minority communities vote iointly and not as electors of separate communities Minority community was again defined to mean Muslim or non-Muslim community according to the population in the area of the Committee. Section 8-A (2) of the Town Areas Act provides that the Chairman shall be elected by the electors of the Town Area at an election to be held simultaneously with the general election of the members of the Committee. 'Elector' in relation to a ward means a person whose name is for the time being entered in the electoral roll of that ward.

With certain qualifications every person above the age of 21 was to be included in the electoral roll. By Section 6-A added by the Town Area Amendment Act of 1952 the election of the members of the committee was to be on the basis of adult suffrage. In exercise of the powers given to the State Government under Section 39 of the U. P. Town Areas Act, the State Government framed rules regarding elections to Town Areas. These rules were enforced on February 26, 1948, and after amendments and corrections were finalised on October 2, 1948, and they stand today in the same form so far as the election of the Chairman of the Town Area Committee is concerned. Rule 48 of these rules provides that the election of any person as Chairman of the Committee may be questioned on various grounds including the ground that such person committed a corrupt practice as defined in Rule 49 for the purpose of the election. Rule 49 reads as follows:--

'49. A person shall be deemed to have committed a corrupt practice who directly or indirectly by himself or any other person:

(i) induces or attempts to induce, by fraud, intentional misrepresentation, coercion or threat of injury, any voter to give or to refrain from giving a vote in favour of any candidate;

(ii) with a view to inducing any voter to give or to refrain from giving a vote in favour of any candidate, offers or gives any money or valuable consideration, or any place or employment, or holds out any promise of individual advantage op profit to any person;

(iii) gives or procures the giving of a vote in the name of a voter who is not the person giving such vote;

(iv) induces or attempts to induce any voter to give or to refrain from giving a vote in favour of any candidate on ground of sect, caste or sub-caste;

(y) abets (within the meaning of the Indian Penal Code) the doing of any of the acts specified in Clauses (i), (ii), (iii) or (iv) of this rule,'

7. A reading of the various sections of the U. P. Town Areas Act and the Rules makes it clear that the intention of the legislature was to introduce a system of election which was free from religious bias. The introduction of the joint electorate system for all the seats in the Committee and for the election of the Chairman clearly indicates that the electors have to seek election without taking recourse to their religious affinity or membership of a community.

8. Rule 49 mentions the various acts which if employed to persuade an elector to vote or refrain from voting for a candidate will be deemed to be corrupt practice. Sub-rules (i) and (ii) of Rule 49 speak of inducing the electors to vote in favour of a candidate or to refrain from voting in favour of a candidate by some threat or promise. Sub-rule (iv) of Rule 49 deals with the inducement of the electors on the ground of sect, caste or sub-caste. This form of corrupt practice has in it no element either of threat or of promise of reward, but is confined to an appeal to the electors on the ground of sect, caste or sub-caste. Under a democratic process of elections canvassing is the only recognised method of inducing the electors to vote for or to refrain from voting for a particular candidate.

Canvassing is the system of persuading the electors through the medium of speech -- vocal and written. It is the method of inducing the elector to act in a particular manner. By means of canvassing the candidate and his supporters attempt to change the mind of the, voter and to persuade him to vote for at particular candidate. Canvassing is the act which is performed by the person who seeks the vote to induce the elector to; caste his vote in his favour. Thus a voter1 is induced to cast his vote for a particular candidate as a result of the canvassing done by the candidate or his supporters. It is only by means of canvassing that he can induce or attempt to induce any voter to give or to refrain from giving a vote in favour of any candidate.

9. The law punishes a man for his acts and a candidate is liable to be unseated if he does any act either directly or through his agent which amounts to a corrupt practice. What the candidate does is canvassing and, therefore, it is only the canvassing of a particular nature that can be prohibited by law. A candidate is liable for his acts and that of his agents. It is to be noted that even an 'attempt to induce' has been made a corrupt practice under Sub-rule (iv) of Rule 49. In our: opinion if a person does any act (and that act may be canvassing only) to induce any voter to give or to refrain from giving a vote in favour of any candidate on the ground of sect, caste or sub-caste he becomes guilty of committing corrupt practice within the meaning of Rule 49. If he makes a speech or distributes a pamphlet which is calculated to induce the voter either to give vote in his favour or to refrain from giving vote in favour of his opponent on the ground of sect, caste or sub-caste, he commits the act of corrupt practice under Rule 49 (iv).

10. With great respect we do not agree with the view taken by the learned Judges while deciding C.M. Writ No. 1137 of 1966 (All) regarding the interpretation of Clause (iv) of Rule 49. There can be no act of inducing other than the act of canvassing which the candidate or his supporters are permitted to do in a democratic elec-. tion. One can only canvass his view point to induce the electors to vote or refrain from voting in favour of a candidate. We might call canvassing permissible under the law to be 'canvassing' pure and simple and 'unfair canvassing', which is not permissible under the law to be an act to induce or an 'attempt to induce'. We do not think there is any justification for holding that: 'inducement signifies controlling the will of the voter while canvassing merely indicates that the voter is requested to vote but his will is left free and he is able to act as he chooses.' In our opinion the word 'inducement' has not been used to signify the 'controlling of the will'. The maximum the judicial interpretation has gone, is to hold that inducing means 'inclining the will' (Wilson v. State, 38 Ala 411, 413). The various meanings assigned to phrase to 'induce' given in Vol. 42 Corpus Juris Secundum are as follows:--

'To bring on, to bring on or about, to cause to effect; to lead to or produce, also to incline, the will, to incite by motives, to influence to an act or course of conduct, to lead by persuasion or reasoning, to influence, to lead on, to remove by persuasion or influence, to persuade, to influence the actions of others by either hope of reward or fear of reprisal, to prevail on, to prevail on by argument, advice, expostulations, or reasons, to coax.

'Induce' has been held synonymous with 'influence' and 'persuade'. It has also been compared with 'influence'.

11. According to Webster's New International Dictionary, Vol. 2 'Induce' means to lead on, to influence, to bring on or about, to effect, to cause, to use argument.' The Word 'Influence' means 'to sway, to infuse, to inspire and to produce an effect without apparent force or direct authority as influenced by suggestion'.

12. The Shorter Oxford English Dictionary defines the word 'Induce' as to bring on, to bring on or about, to cause, to effect; to lead to or produce; also to incline the will; to incite by motives, to influence to an act or course of conduct to lead by persuasion or reasoning; to influence, to lead on, to remove by persuasion or influence, to persuade; to influence the actions of others by either hope of reward or fear of reprisal; to prevail on; to prevail on by argument, advice, expostulations, or reasons; to coax.' 'To persuade' means to induce a person to believe something, to lead one to do something. It is thus clear that the phrase 'induce or attempt to induce' in Sub-clause (iv) of Rule 49 cannot be interpreted to mean: controlling the will 'of the voter'.

13. In a way the will of a voter is never controlled. The stage of canvassing and inducing is only upto the time the vote is not cast. Once the elector goes to the booth to cast his vote he cannot be induced any further. At the time of the casting of vote the voter may, if he eo chooses, do as he likes. The election by means of secret ballot is based on the principle that an elector has a right to exercise a vote in such a manner that others may not even know what he has done. An elector can be persuaded by a candidate to vote for him or to refrain from voting for another till he enters the polling booth, and thereafter his will has to be left absolutely free for exercise of franchise.

We, therefore think that the phrase 'induces or attempts to induce' used in Clause (iv) of Rule 49 refers to unfair and illegal canvassing for votes and if in the course of canvassing any attempt is made to incline, persuade or influence the will of an elector so as to induce him to give or refrain from giving a vote in favour of any candidate on the ground of sect, caste or sub-caste it becomes a corrupt practice. As soon as a person appeals to an elector to vote for him or his nominee or to refrain from voting for another candidate on the ground of sect, caste, or sub-caste he commits corrupt practice. It is immaterial whether the elector is actually induced or not to vote or refrain from voting for a candidate under the influence of such a canvassing as under Clause (iv) of| Rule 49 even an attempt to induce has been made a corrupt practice.

14. The learned counsel for respondent No. 2 drew our attention to the provisions of Section 28 of the U. P. Municipalities Act and urged that while the word 'inducing' has been used in respect of securing votes by exercise of fraud etc. or by extending a threat or promising a reward, the word 'canvassing' has been used in cases of securing votes on account of caste, community, sect or religion. We do not think that the use of two words in different context signifies any special difference between them. The word 'canvasses' refers to the same idea as induces when used in relation to secruing of votes at an election by unfair means not permissible by law. The legislature while enacting different laws at different times can use different expressions to convey the same intention. It is only when the same words are used in two different statutes that the rule of interpretation requires that so far as possible the same meaning be given to them, because the legislature is presumed to mean the same thing by the same words. But when two different words are used in two different statutes, there is no bar to their conveying a similar meaning if the context so warrants.

The learned counsel then referred to Section 123 of the Representation of the People Act and pointed out that in subsection (iii) 'appeal' by a candidate to vote or to refrain from voting on the ground of religion, caste etc. has been specifically made a corrupt practice and whenever the word 'induced' has been used it has been used with reference to an act by which the candidate either gives a threat or offers a reward. From this he wants us to draw the inference that by using the word 'induce' in Clause (iv) of Rule 49, the legislature did not intend to make it equivalent to simple appealing or canvassing but meant to refer only to processes whereby some threat was given or reward promised. In our opinion no such Inference can be drawn. Wherever a threat or promise is contemplated as a means of inducing the voter it is made a separate item of corrupt practice. Inducing and canvassing or appealing to religious feelings of electors has in every enactment been made an independent item of corrupt practice. Both in Section 28 of the U. P. Municipalities Act and Section 123 of the Representation of the People Act mere canvassing and appeal on the ground of religion, caste or sect has been made a corrupt practice and there appears no reasonable ground for holding that the words 'induces' or 'attempts to induce' used in Clause (iv) of Rule 49 do not refer to canvassing and appealing unadulterated with the element of threat of injury or promise of reward.

15. In the case of Shah Hamidullah v. Raja Ram Gupta, (ILR 1960-2 All 822) a Division Bench of this Court while interpreting Clause (iv) of Rule 49 observed that 'there can be no doubt that the intention of the framers of Clause (iv) of Rule 49 was to prevent appeals being made to the electors on a communal or caste basis'. The democratic structure of Town Area Committee is based on a secular pattern and no person who desires to represent the electorate in the management of the affairs of the Committee is permitted by law to seek election by appealing to the sectarian bias of the voters because by such canvassing he is likely to induce the Voters to exercise their franchise on a criterion not envisaged by law. In a social order free from religious bias the purpose of the joint-electorate system is to elect representatives who are free from such bias and do not canvass for votes or contest the election by creating a sectarian ,bias in the electorate.

16. The learned counsel for the second respondent then argued that the interpretation given by the two Division Benches of this Court in C. M. Writ No. 1137 of 1966 (All) and in the case of Shah Hamidullah v. Raia Ram Gupta, reported in ILR (1960) 2 All 822 to the meaning of the Word 'sect' in Clause (iv) of Rule 49 is not correct. According to him it only means a sub-division of the Muslims. His submission is that it has been used in respect of the Muslim as 'caste' and 'sub-caste' have been used in respect of Hindus. We do not see any justification for the placing of this interpretation on the word 'sect' in Clause (iv) of Rule 49. The word 'sect' has both a wider and narrower meaning. It is defined in Shorter Oxford English Dictionary as follows:--

'A religious following; adherence to a particular religious teacher or faith, especially a body of persons who unite in holding certain views differing from those of others who are accounted to be of the same religion -- In modern use commonly applied to a separately organized religious body having its distinctive name and its own places of worship; a 'denomination''.

17. In the case reported in ILR (1960) 2 All 822 a Division Bench of this Court took the view that the intention of the State Government in framing CL (iv) of Rule 49 was that the word 'sect' should convey the wider of the two meanings. We respectfully agree with that view in so far it holds that 'sect' conveys the wider meaning. We, however, think it will convey the intention of the legislature more fully if it is assigned both the alternative meanings. The rule makes it a corrupt practice for a person to canvass for votes on the ground both of 'sect' as used to represent a religious denomination and also to represent a sub-division of that reUgious community or section of the electorate. From the definition of the words 'minority community' given in the Town Areas Act it is clear that the framers of the law meant to refer to religious denominations also as sects. The inducing or attempting to induce any voter to give or to refrain from giving vote in favour of any candidate on ground of a religion and community will, therefore, amount to a corrupt practice.

18. The Election Tribunal had framed issue No. 3 as follows:--

'Whether the respondent No. 1 through himself, his workers, agents and supporters canvassed for votes on the ground of religion and community? The effect?'

19. It gave a finding in the following words:--

'In my opinion, he (the petitioner) has succeeded in proving his allegations with regard to what transpired after the Friday prayers in the Thateron-wali Masjid and statement of P. W. 23 proves that respondent No. 1 and his supporters have as against the petitioner canvassed for the votes of about 50 to 60 Muslim voters on the ground of religion and community'.

20. We think that on this finding the Election Tribunal was bound under law to hold that Habibullah the second respondent, had committed a corrupt practice within the meaning of Clause (iv) of Rule 49 and his election was liable to be questioned under Rule 48 and the Election Tribunal committed a manifest error of law in holding that it was not a corrupt practice within the meaning of Rule 49 (iv).

21. In the result the petition succeeds and is allowed. Let a writ in the nature of certiorari be issued to quash the judgment of the Election Tribunal dated 1-11-1966, passed in Election Petition No. 2 of 1965 between Hari Ram and Habibullah and another. The Election Tribunal will now decide the Election Petition in accordance with law and in the light of the observations made above. The petition is allowed, but in the circumstances of the case the parties will bear their own costs.


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