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Basantilal Ratanlal JaIn Vs. Umashankar Muljibhai Trivedi and ors. - Court Judgment

LegalCrystal Citation
SubjectElection
CourtMadhya Pradesh High Court
Decided On
Case NumberFirst Appeal No. 19 of 1963
Judge
Reported inAIR1965MP94; 1965MPLJ378
ActsRepresentation of the People Act, 1951 - Sections 79, 82, 83, 90, 123 and 123(3)
AppellantBasantilal Ratanlal Jain
RespondentUmashankar Muljibhai Trivedi and ors.
Appellant AdvocateR.S. Dabir and ;V.S. Dabir, Advs.
Respondent AdvocateG.P. Singh and ;L.S. Baglel, Advs.
DispositionAppeal dismissed
Cases ReferredMohan Singh v. Bhanwarlal
Excerpt:
- - 1, umashankar trivedi, the 'returned candidate' filed his written statement on 27-7-1962 without raising any specific objection therein that the petition was liable to be dismissed for non-joinder of vimal kumar chordia, however, on 12-11-1962, after the issue had been framed the applied for the dismissal of the election petition, cm the ground that, in so far as the petitioner having alleged corrupt practices against laxmi-narayan pandey, sunderlal patwa, champalai arya, mohan singh, mohanlal malawada, vimal kumar chordia and basantilal sharma, who were candidates at the election held in february 1962 sind as such necessary parties to the petition under clause (b) of section 82 of the act, had failed to join them as party respondents to the petition, it was liable to be dismissed.....naik, j. 1. this is an appeal under section 116a of the: representation of the people act, 1951 (hereinafter referred to as 'the act') against the order of the election tribunal, ratlam, dismissing under sub-section (3) of section 90 of the act the election petition filed by the petitioner basantila] against the election of respondent no. 1, umashanbai' trivedi to the lok sabha from 36, mandsaur parliamentary constituency, on the ground that vimal kumar chordia, a candidate against whom allegations of corrupt practice had been made in the petition, had not been made a party respondent.2. facts relevant for purposes of this appeal may shortly be stated as follows:in the last general elections to the lok sabha from the 36, mandsaur parliamentry constituency the respondents umashankar.....
Judgment:

Naik, J.

1. This is an appeal under Section 116A of the: Representation of the People Act, 1951 (hereinafter referred to as 'the Act') against the order of the Election Tribunal, Ratlam, dismissing under Sub-section (3) of Section 90 of the Act the election petition filed by the petitioner Basantila] against the election of respondent No. 1, Umashanbai' Trivedi to the Lok Sabha from 36, Mandsaur Parliamentary Constituency, on the ground that Vimal Kumar Chordia, a candidate against whom allegations of corrupt practice had been made in the petition, had not been made a party respondent.

2. Facts relevant for purposes of this appeal may shortly be stated as follows:

In the last general elections to the Lok Sabha from the 36, Mandsaur Parliamentry Constituency the respondents Umashankar Trivedi, Dr. Raghubir Singh and Virendra Singh were the contesting candidates. Along with the aforesaid contesting candidates, Vimal Kumar Chordia and some others had also filed their nomination papers; but they had all withdrawn their candidatures before the appointed' date. In the ensuring poil, Umashankar Trivedi obtained a majority of valid votes. He was therefore, declared elected on 27-2-1962.

The petitioner, who was a voter in the said constituency, filed an election petition challenging the election of respondent No. 1 Umashankar Trivedi, the 'returned candidate', inter alia, on the ground that he, his agents or other persons with his consent, had arranged meetings, used slogans, showed posters, distributed leaflets and played gramophone records to make appeal in the name of Hindu religion for the furtherance of the propects of the result of the election of respondent No. 1, and to prejudicially affect the result of the election of respondent No. 2 (see paragraph 6 (i) of the petition). While stating the full particulars of the alleged corrupt practice in annexure No. 3 of Schedule I to the petition, he stated that 'Shri Vimal Kumar Chord'ia in a largely attended meeting at Shamgarh appealed to the masses that-

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The petitioner made the contesting candidates, including the returned candidate, party respondents. to the petition but did not join Vimal Kuma? Chordia against whom allegations of corrupt practice had been made in the aforesaid schedule.

3. Respondent No. 1, Umashankar Trivedi, the 'returned candidate' filed his written statement on 27-7-1962 without raising any specific objection therein that the petition was liable to be dismissed for non-joinder of Vimal Kumar Chordia, However, on 12-11-1962, after the issue had been framed the applied for the dismissal of the election petition, cm the ground that, in so far as the petitioner having alleged corrupt practices against Laxmi-narayan Pandey, Sunderlal Patwa, Champalai Arya, Mohan Singh, Mohanlal Malawada, Vimal Kumar Chordia and Basantilal Sharma, who were candidates at the election held in February 1962 sind as such necessary parties to the petition under Clause (b) of Section 82 of the Act, had failed to join them as party respondents to the petition, it was liable to be dismissed under Sub-section (3) of Section 90 of the Act.

The petitioner by his reply dated 13-11-62, inter alia, contended that the aforesaid persons were not candidates at tho election from the parliamentary constituency in question, and were therefore not necessary parties to the petition, and that even if they were, there was no law which enjoined that they should be made parties. The objection was dismissed by the Tribunal by its order dated 14.11.1962 on the ground that the persons whose non-joinder was alleged to be in violation of Clause (b) of Section 82 of the Act 'were not candidates with respect to election to Mandsaur parliamentary constituency'.

4. Respondent No. 1, applied for review of the aforesaid order alleging, inter alia, that there was an error apparent on the face of the record, inasmuch as Vimal Kumar Chordia was admittedly & candidate for the Mandsaur parliamentary constituency. The Tribunal by its order, dated 27-12-2962, reviewed its previous order, and upholding the contention of respondent No. 1, Umashankar Trivodi, dismissed' the election petition under Subsection (3) of section 90 of the Act. It held that Vimal Kumar Chordia was a 'candidate' at the election from the Mandsaur parliamentary constituency; that the word 'candidate' in Clause (b) of Section 82 of the Act includes a person who had withdrawn his candidature before the 'appointed date, and that therefore his non-joinder was fatal to the maintainability of the election petition.

5. In this appeal, the learned counsel for thy appellant (petitioner) contends:

(1) That the person referred to as Vimal Kumar Chordia in annexure No. 3 of the Schedule 1 to the election petition, who is alleged to have addressed a meeting at Shamgarh, was not the same person who had filed his nomination paper for election from the Mandsaur parliamentary constituency and who had later withdrawn his candidature before the 'appointed date'.

(2) That the allegations contained in annxsure No. 3 of Schedule I to the election petition were not allegations of corrupt practice within the meaning of Sub-section (3) of Section 123 of the Act.

(3) That even if it be held that the allegations contained in the aforesaid annexure No. 3 were allegations of a corrupt practice they had not been validly made as required by law because they lacked the necessary details regarding the date and the time of their commission.

(4) That Vimal Kumar Chordia. against whom allegations of a corrupt practice had been made in the petition, had withdrawn his candidature before the 'appointed date' and was thus not 'any other candidate' against whom allegations of any corrupt practice were made in the petition, within the meaning of Section 82(b) of the Act.

(6) On the first point, tho Tribunal has held against the petitioner, and we agree with its findings on this issue. Vimal Kumar Chordia has been referred to in paragraphs 2, 3 and 4 of the election petition as a person who had filed his nomination paper for election from the Mandsaur parliamentary constituency as dummy candidate on behalf of the Jan Sangh, and who had later withdrawn his candidature before the time prescribed for its withdrawal. No other Vimal Kumar Chordia has been referred to in the petition. Consequently, when the petitioner in paragraph 6 (i) of the petition alleged that corrupt practices had been committed by the 'returned candidate', or by his agents, or by other persons with his or his agent's consent, and then referred to a speech delivered by a Vimal Kumar Chordia in Shamgarh, a place within the constituency, in the schedule of particulars, it could have had' reference to the Vimal Kumar Chordia who was the dummy candidate for the 'returned candidate' and to no other Vimal Kumar.

To have any relevance to the charge, the Vimal Kumar referred to must be an agent or a worker of the 'returned' candidate' or the Jan Sangh party to which he belonged. There was no point in referring to a speech by some Vimal Kumar Chordia who had no connection with the 'returned candidate', and a construction which would make the allegation meaningless has not to be preferred. Consequently, reasonably understood', a plain reading of the election petition shows that the Vimal Kumar Chordia referred to in annexure No. 3 of Schedule I to the petition was the Vimal Kumar Chordia referred to in paragraphs 2, 3 and 4 of the petition, who was a dummy candidate for the Jan Sangh party of respondent No. 1 and was thus an active supporter of the 'returned candidate' and his party. Because, if the corrupt practice alleged against him, could be proved, it would have avoided the election.

7. The petitioner, however, as A. W. 1 would have believed us that Vimal Kumar Chordia referred to in annexure No. 3 of Schedule I to the petition was some other Vimal Kumar Chordia of Rajasthan who had nothing to do with the Vimal Kumar Chordia who was a candidate at the election in question. According to him (A. W. 1), he was some outsider who had come to Shamgarh from Rajasthan, delivered the offending speech and then gone away. The petitioner, however, admitted that he had no evidence to offer to substantiate his assertion that the Vimal Kumar Chordia who had delivered the speech at Shamgarh was no other person than the Vimal Kumar 'Chordia who was a candidate for election from the Mandsaur parliamentary constituency. In our opinion, his statement has no merit and has been made to get out of the difficulty created by the non-joinder of Vimal Kumar Chordia.

8. Some support was sought to be derived for his testimony from the evidence of Baburao (A. W. 4), who stated that he had heard a speech at Shamgarh of one Vimal Kumar of Rajasthan who was different than the Vimal Kumar Chordia, the withdrawing candidate. His evidence further shows that that meeting was also addressed by Mohanlal Alalawada. However, in his cross-examination, he (A. W. 4) clarified his statement that the person who had delivered the speech at Shamgarh was Vimal Kumar and not Vimal Kumar Chordia. He further admitted that Vimal Kumar Chordia was a well known person of the locality. The witness (A, W. 4), therefore, instead of supporting the petitioner, gives a lie to his statement, because, according to him (A. W. 4), the Kajasthan man was Vimal Kumar and not Vimal Kumar Chordia, and the person mentioned in annexure No. 3 of Schedule I to the petition who is alleged to have made a speech at Shamgarh is not Vimal Kumar of Rajas-than but Vima! Kumar Chordia who was a well known man of the locality.

9. As against this, Vimal Kumar Chordia, who has been examined as 1 R. W. 1, lias stated that he had delivered a speech at Shamgarh on 13-2-1962 on behalf of the Jan Sangh Snbha party along with Mohanlal Sethia who was the same man as Mohanlal Malawada, and that no Vimal Kumar of Rajasthan delivered any speech in that meeting, He further stated that he had not known any Vimal Kumar of Rajas than nor any worker of the Jan Sangh by that name. Similarly, Mohanlal Malawada, who has been examined as 1 R. W. 8, stated that at a meeting at Shamgarh which was convened on behalf of the Jan Sangh on 13-2-1962, Vimal Kumar Chordia (1 R. W. 1), he himself and Atmaram had delivered speeches, and that no Vimal Kumar of Rajasthan had addressed that meeting.

10. In our opinion, the evidence of Vimal Kumar Chordia (1 R. W. 1) and Mohanlal Mahiwada (1 R. W. 8) is preferable to that of the petitioner (A. W. 1). We, therefore, reject the testimony of the petitioner and hold that Vimal Kumar Chordia referred to in annexure No. 3 of Schedule I to the petition is the same person who has been referred to in paragraphs 2, 3 and 4 of the petition and who was a candidate for the election in question from the 36, Mandsaur parliamentary constituency but had later withdrawn his candidature.

11. The second contention is equally devoid of force. Under Sub-section (3) of Section 123 of the Act, 'the appeal by a candidate or his agent or by any other person with the consent of a candidate of his election agent to vole or refrain from voting for any person on the ground of his religion, race, caste, community or language or the use of, or appeal to, religious symbols of the use, of, or appeal tn, national symbols such as the national flay or the national emblem, for the furtherance of the prospects of the election of that candidate or for prejudicially affecting the election of any candidate, shall be deemed to be a corrupt practice for the purposes of the Act.

The appeal in question which we have reproduced in paragraph 2 above, which exhorted the voters to vote for the Jan Sangh if Hinduism was to be saved on the ground that every vote for the Congress, whoso symbol was a pair of bullocks, would result in sending as many bullocks to the slaughter house which would, besides entailing the sin of cow killing for the voter, would also cause complete destruction of the Hindu religion, was clearly an appeal to vote or refrain from voting on the ground of religion for the furtherance, of the prospects of the election of the Jan Sangh Sabha candidate and for prejudicially affecting the election of the Congress candidate, which is a corrupt practice as defined in the Act.

12. The third contention is that in so far as the allegations in question lacked the necessary particulars as regards the day and the time of the meeting where the offending specch was alleged to have been delivered, they could not amount to 'allegations of any corrupt practice' within the meaning of Section 82(b) of the Act. The contention is misconceived. Allegations of corrupt practice which lack in details are none the less allegations of corrupt practice. If unobjccted to, they have to be adjudicated upon, and the parties can legitimately be at issue on them. It is true that it is very desirable that the allegations in regard to a corrupt practice should be precise and specific as their Jacking in necessary particulars may be prejudicial to the party which is to be made answerabe for them.

But, as pointed out by the Supreme Court in Balwan Singh v. Lakshml Narain, 22 Ele LR 273 at p. 280: (AIR 1960 SC 770 at p. 774), 'insistence upon full particulars of corrupt practices is undoubtedly of paramount importance in the trial of an election petition; but if the parties go to trial despite the absence of full particulars of the corrupt practice alleged, and evidence of the contesting parties is led on the plea raised by the petition, the petition cannot thereafter be dismissed for want of particulars, because the defect is one of procedure and not one of jurisdiction of the Tribunal to adjudicate upon the plea in the absence of particulars'. Consequently, the allegations in question were valid allegations of a corrupt practice, which gave jurisdiction to the Tribunal to adjudicate on them, so that on their basis Vimal Kumar Chordia could have been called upon to answer them. It may be that he may have objected to the lack of particulars, or it may be that he may have elected to go on trial on them; but in either case, it was a matter of procedure and not a question of jurisdiction of the Tribunal. This contention is also, therefore, rejected.

13. The last contention is that a candidate, who has withdrawn his candidature before the appointed date, need not be made a parly respondent to an election petition, even if allegations of corrupt practice are made against him. The contention appears to he based on the notice that a candidate, who has withdrawn his candidature is not a candidate within the meaning of Section 82(b) of the Act.

14. Under Section 79(b) in Part VI of the Act (in which Section 82 occurs, unless the context otherwise requires, 'candidate' means 'a person who has been or claims to have been duly nominated as a candidate at any election, and any such person shall be deemed to have been a candidate as from the time when with the election in prospect, he began to hold himself out as a prospective candidate. So that it is obvious that unless there was something in the context, Vimal Kumar Chordia was a 'candidate' within the meaning of Section 79(b) of the Act, because he was a person who had been duly nominated as a candidate. Section 82 then says; 'A petitioner shall join as respondents to his petition--(a) where the petitioner, in addition to claiming a declaration that the election of all or any of the returned candidates is void, claims a further declaration that he himself or any other candidate has been duly elected, all the contesting candidates other than the petitioner, and where no such further declaration is claimed, all the returned candidates, and (b) any other candidate against whom allegations of any corrupt practice are made in the petition.

The section speaks of three categories of candidates. A 'returned candidate' who is defined In Section 79(f) of the Act as meaning 'a candidate whose name has been published under Section 67 as duly elected'; a contesting candidate, who vide Section 38 of the Act is a candidate who was included in the list of validly nominated candidates and who has not withdrawn his candidature within the period prescribed for withdrawals; and 'any other candidate' against whom allegations of any corrupt practice are made. The candidate of the first category is always a necessary parly: while the candidates of the second and third categories are necessary parties only when the petitioner prays for a declaration that he himself or some other candidate has been duly returned, or when allegations of any corrupt practice are made against them.

15. In Kamaraja Nadar v. Kunju Thevar, 14 Ele LR 270: (AIR 1958 SC 687) the Supreme Court, while considering the question whether a 'candidate', who had retired under Section 55A of the Act (as It then was because Section 55A has now been repealed) was yet a contesting candidate and should be joined as a party respondent to the election petition, held that such a candidate was yet a contesting candidate and should be joined as a party. On a parity of reasoning, a person, who has withdrawn his candidature is yet a 'candidate' within the meaning of Section 82(b) read with Section 79 of the Act; and consequently, if allegations of corrupt practice are made against him, he must he joined as a party. The expression 'any other' as qualifying the word 'candidate' in Section 82(b) further suggests that he is outside the two categories of candidates dealt with in Section 82(a) and has to be joined when allegations of corrupt practice are made against him. The use of the conjunction 'and' between Sub-clauses (a) and (b) further suggests that when allegations of corrupt practice are made against such a person, he is a necessary party to the petition and must be joined as a party respondent.

16. See Chaturbhuj v. Election Tribunal Kan-pur, 15 Ele LR 301. (AIR 1958 All 809) a Division Bench of the Allahabad High Court, answering a similar contention, said:

'The use of the word 'other' in Clause (b) indicates that the persons who are necessary parties under this clause are those who are not already parties to the election petition under earlier Clause (a). In Clause (a) election petitions have been divided into two classes. One class of petitions is that In which the petitioner, in addition to claiming a declaration that the election of all or any of the returned candidates is void, claims a further declaration that he himself or any other candidate has been duly elected. The second class of election petitions is that in which no such further declaration is claimed, to that the only declaration claimed is that the election of all or any of the returned candidates b void. In cases of the first class, under Clause (a) all the contesting candidates other than the petitioner have to be joined at respondents to the election petition. The expression 'any other candidate' In Clause (b) of Section 82 would In these circumstances cover, in the case of election petitions of the first class, candidates other than the contesting candidates who in addition are candidates against whom allegations of corrupt practice are made in the petition. In the second class of cases the expression 'any other candidate' would cover candidates besides the returned candidates, provided that allegations of any corrupt practice are made against them in the petition. Reference to Clause (a) thus shows that the expression 'any other candidate' would cover in the first class of election petitions all candidates besides the contesting candidates and in the second class of cases all others besides the returned candidates. Reference to Clause (a) does not thus narrow down the scope of the words 'any other candidate' so as to exclude candidates who may have withdrawn their candidature or who may otherwise have gone out of the contest. Heading Section 82 by itself, therefore, the expression 'any other candidate' would appear to include all kinds of candidates except contesting candidates in the first class of cases and except returned candidates in the second class of cases, if allegations of any corrupt practice are made against them in the election petition.'

*****

'..... .Clause (b) of Section 82 of the Act introduces the requirement of certain persons being impleadcd as respondents in the petition with a purpose which is entirely different and distinct from the purpose for which persons are to be impleaded as respondents under Clause (a) of Section 82 of the Act or the purpose for which persons were to be Impleaded as respondents in an election petition under Section 82 of the unamended Act. Consequently any interpretation which was placed on the provisions of Section 82 of the unamended Act cannot serve any useful purpose when interpreting Clause (b) of Section 82 of the Act.'

The case was cited with approval by the Bombay High Court in Baburao v. M. S. Aney, 22 Ele LR 821: (AIR 1961 Bom 29) where a Division Bench repelling a similar contention, held:

'For the application of the provision containedin Section 82(b) of the Reprenentlon of the PeopleAct, 1951, that candidates against whom allegationsof corrupt practice are made In an election petition should be Joined as respondents to the petition,It is not necessary that the corrupt practice mustbe an act done by the candidate in his own interests,or done in his capacity as a candidate. Even if thealleged corrupt practices are acts done bya candidate in the interests of another candidate, thecandidate who is alleged to have committed the actmust be joined as a respondent.'

'For the purposes of Section 82(b) a candidate who has withdrawn his candidature under Section 37 is still 'a candidate', and if allegations of corrupt practice are made against such a person in the election petition, he must be joined as a respondent.

*****

'If it appears in the course of the trial that a person, who is alleged to have committed corrupt practice but who was not joined as a respondent, was a candidate who had withdrawn his candidatura, it if open to the Tribunal to permit the respondent even at that stage to raise the objection that the petition does not comply with Section 82(b) and to dismiss the petition under Section 90(3) on this ground.'

17. The learned counsel for the appellant (petitioner) strongly relied on a decision of the Patna High Court in Kapildeo Sfngh v. Suraj Narayan Singh, 17 Ele LR 475. (AIR 1959 Pat 250) wherein a Division Bench of that Court had held that 'on a proper construction of Section 82, my opinion as that a candidate who had been duly nominated as candidate at an election but has withdrawn his candidature under Section 37 of the Act is not a candidate within the meaning of Section 82(b) of the Act to be required to be made a party to the election petition.

18. As pointed out In Baburao's case, 22 Ele LR 321: (AIR 1961 Bom 29) (supra), basis of the Patna decision is the assumption that the expression 'any other candidate', which occurs in both Clauses (a) and (b) of Section 82 of the Act, must bear the same meaning in both the clauses; and as It, In Clause (a), means a candidate who had not withdrawn his candidature, it, when used iu Clause (b), must also mean a similar candidate, viz, one who had not withdrawn his candidature. With respect, we do not agree with the conclusion of the Patna High Court. In the first place, as pointed out by the Bombay High Court, Clauses (a) and (b) of Section 82 are not pari materia but deal with two different subjects: Clause (a) deals with an election petition where the prayer is that the election of the returned candidate be set aside, or where, in addition to the aforesaid prayer, a further declaration is prayed that the petitioner or any other candidate has been duly elected, i.e., It mainly deals with the question as to what the result of the poll should be; while Clause (b) deals with an ancillary purpose, viz., disqualification of a candidate because of a corrupt practice practised by him.

No doubt, any corrupt practice committed by the returned candidate or bis agent or by any other person with their consent is relevant for the purpose of deciding the validity of the election of the returned candidate. Similarly, any corrupt practice committed by any other candidate or his agent, or by any other person with their consent is relevant when a declaration is sought that he ought to be declared the validly elected candidate. For these purposes tbe joinder of the returned candidate or the contesting candidates is considered. sufficient, because they alone are answerable for the corrupt practice alleged against one or the other. But, apart from these, a further situation is envisaged by the Act when a corrupt practice is alleged against a candidate, because on proof of such corrupt practice the candidate runs the risk of incurring the penalty prescribed by the Act.

Interest of justice requires that no finding of corrupt practice ought to bs given against a candidate behind his hack, and to that end the Legislature has provided that when any allegation of corrupt practice is made against 'any other candidate' (i.e., any candidate other than the returned candidate and the contesting candidates whose joinder has been made compulsory under Clause (a)) he should also be made a party respondent to the petition, The expression 'any other candidate' has thus different connotation in the two clauses, because of the context in which it has been used. Secondly, In our opinion, the Patna High Court was in error in assuming that 'the question of corrupt practice practically arises only on publication or a list of contesting candidates under Section 38 of the Act after the withdrawal of the candidature by any candidate under Section 37 of the Act', There is no warrant for such an assumption. The definition of 'candidate' In Section 79(b) enures for the purposes of Parts VII and VIII also, where corrupt practices have been defined and some of the penalties for their commission prescribed.

Consequently, a 'candidate' as defined in Section 79(b) can be guilty of a corrupt practice as defined in Section 123 of the Act, and It is not necessary that he should have been a contesting candidate for the purpose. There is nothing in the context of Section 123 or Section 140 of the Act to show that the word 'candidate' should bear a different meaning in those sections. On the other band, the provisions of Sections 123 and 140 of the Act lend further support to our conclusion that candidates other than the returned candidates and the contesting candidates should also be made party respondents to the election petition if allegations of corrupt practices which may entail their incurring disqualification under Section 140 of tbe Act are made against them. Kapildeo Singh's case, 17 Ele LR 475: (AIR 1959 Pat 250) (supra) was also dissented from by a Division Bench of this Court in First Appeal No. 34 of 1960, dated 14-2-1963, where it was pointed out that that judgment was contrary to the analysis of section 82 of the Act by the Supreme Court In Kamaraja Nadar's case, 14 Ele LR 270: (AIR 1958 SC 687).

19. This contention, therefore, also fails.

20. After the arguments were over, tbe learned counsel for the appellant (petitioner) filed an application contending that allegations similar to those; contained in aunexure No. 3 of Schedule I to tbe petition were also made in Schedule G to the petition in Mohan Singh v. Bhanwarlal, First Appeal No. 34 of 1962, dated 14-2-1963: (AIR 1964 Madh Pra 137) but were held not to be a corrupt practice within the meaning of Sub-section (3) of Section 123 of the Act vide paragraph 33 of the judgment in that case.

21. It is true that in Mohansingh's case, First Appeal No. 34 of 1962, dated 14-2-1963: (AIR 1964 Madh Pra 137) (Supra), a general statement occurs In paragraph 33 of the judgment that 'if the appellant made an appeal to the voters to vote in the name of cow and for protection of cow, that is not an appeal on the ground of religion'; nor is 'an appeal in the name of Nanda-Deep...... an appeal to any religious symbol', because 'in common parlance Nanda-Deep does not represent the symbol of any deity'. But, in our opinion, those observations are not conclusive of the problem that we are called upon to consider in this case. In the first place, the allegations in the instant case are not exactly the same as those in Mohan Singh's case, First Appeal No. 34 of 1962 dated 14-2-1963: (AIR 1964 Madh Pra 137) (supra). Secondly the learned Judges deciding that case had considered the allegations contained in Schedule G to the petition therein in paragraph 31 et seq of their judgment and were of Opinion that the respondent had not been able to establish the allegations of corrupt practices averred in paragraph 11(i) of the petition and schedule G thereto'.

Consequently, no necessity arose for the learned Judges to give any final opinion on the question whether the allegations in Schedule G amounted to corrupt practices, and the observations made in paragraph 33 were obiter. Thirdly there is no evidence in the judgment in Mohan Singh's case, First Appeal No. 34 of 1962, dated 1.4-2-1963: (AtR 1904 Medh Pra 137) (supra) to show that the allegations in Schedule G to the petition therein were seriously considered by the learned Judges to determine if they constituted corrupt practices, In fact, the discussion in paragraphs 31 to 33 of the judgment in that ease is no warrant for saying that an appeal to the voters that 'on as many bullocks yon put the seal that many would go to the slaughter house and you shall he guilty of the sin of cow-killing, which would cause the destruction of the Hindu religion; and that if Hindu religion is to be saved, you should vote for the Jan Sangha', will not amount to an appeal to the voters to vote or refrain from voting on the ground of religion for the furtherance of the prospects of the election of the Jan Sangh candidate and for prejudicially affecting the election of the Congress candidate.

23.We are, therefore, of opinion that the election petition of the appellant-petitioner was rightly dismissed by the Election Tribunal under Sub-section (3) of Section 90 of the Act.

23. The appeal fails and is dismissed. Costsof respondent 1, Umashankar Trivedi shall be paidby the appellant-petitioner, who shall also bear hisown. Counsel's fee nil.


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