1. The judgment in this appeal shall also govern the disposal of M. P. NO. 194 of 1957 and also the cross-objection filed by the first respondent Shri Rukmini Raman Pratap Singh in the matter of costs awarded by the Tribunal below.
2. In the recent elections to the Legislative Assembly the appellant Shriniwas was a candidate for election along with six others. Of the candidates, the first respondent Shri Rukmini Raman Pratap Singh wag elected, having polled 6,835 votes as against 3,000 odd of the next best polled. We need not mention the number of the votes obtained by the other candidates, except to say that Shrinivas obtained 3,960 votes and one Shri Manbodh Singh, who is not a party to this appeal and was also not joined in the election petition before the Tribunal below, obtained 3,819 votes. After the results were declared Shriniwas filed an election petition for the following reliefs:
(a) That the election of the respondent be declared void.
(b) The costs of the petition be awarded to the petitioner.
(c) Any other relief to which the petitioner may be entitled.
3. The petition was heard by the Election Tribunal appointed by the Election Commission and was dismissed on the 25th September 1957 on the short ground that Manbodh Singh, whose name has been mentioned above, was necessary party and had not been joined. In doing so, the Election Tribunal purported to act under Section 90 (3) of the Representation of the People Act, 1951 (hereafter called the Act). According to the Tribunal the defect was the non-joinder of Shri Manbodh Singh, against whom a corrupt practice had been alleged. No doubt, under Section 82 of the Act it is provided as follows :
'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 contention of the answering respondent before the Tribunal was that inasmuch as corrupt practice had been alleged against Shri ManbodhSingh he should have been joined. Reliance wasthus placed upon the provisions of Section 90, Sub-section (3), which provides as follows:
'The Tribunal shall dismiss an election petition which does not comply with the previsions of ..... Section 82 ...... notwithstanding thatit has not been dismissed by the Election Commissioner under Section 85'.
Reference at this stage may also be made to another section of the Act which provides in the list of corrupt practices the following :
'123 (4). The publication by a candidate or Ms agent or by any other person, of any statement of fact which is false, and which he either believes to be false or does not believe to be true, in relation to the personal character or conduct of any candidate, or in relation to the candidature, orwithdrawal, or retirement from contest, of any candidate, being a statement reasonably calculated so prejudice the prospects of that candidate's election.'
4. The main issue in this case, therefore, is whether the election petition was correctly dismissed by the Election Tribunal and further whether the allegations in respect of Shri Manbodh singh's conduct involved a statement of fact in relation to the candidature of Shriniwas, which statement Manbodh Singh knew to be false or believed to be false and was a statement reasonably calculated to prejudice the prospects of Shriniwas' candidature.
5. A few more facts are now necessary. Before polling took place, as is customary & also provided by the Rules, symbols had to be assignedbe the contesting candidates. The rules on the subject are quite clear. To recognized parties a symbol is allotted under the directions of the Election Commission for all their candidates in all constituencies. For those who stand under an unrecognised party or independently choice is given in the matter of symbols, and they have to make a declaration about the order in which they prefer the 'free' symbols.
By 'free symbols' is meant those symbols which have not already been assigned to recognised parties. The Election Commission recognized only four parties & assigned to them four symbols. All other symbols thus remained free and could be used by independent Candidates or candidates sponsored by unrecognized parties. One such symbol was tree', and another was 'a man winnowing corn'.
It appears that the Election Commission was approached on behalf of the so-colled Socialist Party and that the Commission had issued some directions with regard to the assignment of 'tree'as the symbol for the Socialist Party. It was admitted before us that such communications were made in press notes which were made available to all the returning officers, whose duty it was under the law to assign free symbols. The Election Com-mission in these press notes expressed itself as follows :
'An unrecognised political party which had applied for recognition and which has been asked by the Commission to provide evidence of the extent of its electoral support in a State or the country as a whole must, if it still desires such recognition, select one of the 'free' symbols for its candidates at elections, intimate in advance to the Commission the symbol so selected and ensure that each candidate that it sets up selects that symbol as his first choice.
The party must also officially and formally inform the Commission, the Chief Electoral Officers of the State or the Returning Officer of the Constituency before the expiry of the last date for withdrawal of the candidatures the name of every candidate set up by it and the candidate must also simultaneously acknowledge that he belongs to the party.'
Again, on 24th December 1956 the Election Commission issued another press note, in which it observed :
'Each party should advise all the candidates sponsored by it to select one of the 'free' symbols and their first choice. In that case, there would be every likelihood of all its candidates or most of them being allotted the symbol by the Returning Officer.
The party should also intimate in advance to the Commission the symbol so selected and ensure in its own interests that each candidate that it sets up selects that symbol as his first choice.'
6. Prom these press notes it is quite manifest that though the Election Commission did not accept the Socialist Party as a recognised party still efforts were being made to allot as far as possible, with the concurrence of the party candidates, one single symbol for all candidates going under that party.
7. Without waiting for the allotment of the symbols finally the candidate sponsored by the Socialist Party, who is the present appellant, began to hope that the symbol 'tree' which was assigned to the Socialist party would be assigned to him. We do not at this stage refer to certain exhibits which were placed before us, because during the course of arguments the learned counsel for the appellant contended that some of the hand-outs which were exhibited in the case were not issued by Shriniwas and were forgeries.
That is a matter which will probably have to be determined in some other proceeding. All the same, there was circulated a hand-out which is marked Annexure 7, in which Shri Manbodh's name appears along with the symbol of 'tree', and there is a description in it that the voters should not forget the symbol or the Socialist Party, via. 'tree' and also an invocation 'Long live the Socialist Party.'
The appellant Shriniwas in his petition referred to this matter and made certain allegations, which were construed by the learned Tribunal as alleging a corrupt practice against Shri Manbodh Singh. The Election Tribunal having accepted this position held that Manbodh Singh ought to have been joined in the petition and that the nonjoinder was fatal to the maintainability of the election petition before it. This, in short, is the essence of the case.
8. The case of the appellant before us was that the allegation was not made of a corrupt practice but that the allegation was made only to put in a head of charge which may be described in the words of the Act as follows :
'that the result of the election, in so far as it concerns a returned candidate, has been materially affected by any non-compliance with the provisions of the Constitution or of this Act or of any rules or orders made under this Act.' (Section 100(1)(d)(iv) ).
According to the answering respondent this allegation fell within the four corners of Section 123, Sub-section (4) and was an allegation of a corrupt practice on the part of Shri Manbodh Singh, which necessitated his joinder as a party to the petition.
9. The way to determine this controversy is first to see whether the allegation as made satisfies the conditions of Sub-section (4) of Section 123. That sub-section designates a course of conduct as corrupt if it involves the publication by a candidate or his agent or by any other person of any statement of fact which is false in relation to the candidature of any candidate, being a statement reasonably calculated to prejudice the prospects of that candidate's election.
Annexure 7, no doubt, involves a falsity. It suggests falsely that Shri Manbodh Singh was a candidate sponsored by the Socialist Party. The collocation of the expressions, together with the picture of the symbol and the name of Shri Manbodh Singh, clearly represents that Shri Manbodh Singh was adopted by the Socialist Party and was a candidate on its behalf. To that extent, there is a statement of fact which is false or which Shri Manbodh Singh either believed to be false or did not believe to be true in relation to his own candidature.
It was, however, pointed out that the subsection deals with a statement not in relation to one's own candidature but in relation to the candidature of a candidate other than oneself. Though the word 'any' has been used and that might have included all the candidates, including the one who had published the statement, the latter part of the fourth sub-section clearly shows by its demonstrative adjective 'that' that some other candidate is meant. The sub-section, therefore, as it stands, cannot but be construed to mean that one candidate should publish a false statement in relation to the candidature of some other candidate.
10. It was contended before us and was hotly debated that Annexure 7 can be said to imply a false statement in relation to the candidature of Shriniwas. It was pointed out; by the answering respondent that the words are 'in relation to' and that those words are always regarded as words of wide import and not restricted, as was suggested by the learned counsel for the appellant.
We concede this argument, and we think that any statement made regarding the candidature of a candidate could properly be brought within the mischief of the fourth sub-section of Section 123, provided it had the effect which is laid down in that sub-section. We, however, do not think that as the end of the matter, because we have further to see whether the statement in the election petition charged Shri Manbodh Singh with a corrupt practice or was made for any other purpose.
It will be noticed that the election petition, which is a long document, narrates the circumstances under which the symbols came to be assigned to the various parties and candidates. The effect of the election petition on this part of the case is to highlight the confusion which had arisen by not making 'tree' as the symbol of the Socialist Party in the constituency. Our attention was drawn to the various memoranda, extractsfrom which we have quoted above, and it was argued that the intent and purport of citing these facts was to draw attention to the fact that the Act and the Rules and Orders made thereunder had not been obeyed nor strictly followed.
Reference was made to the 5th and 10th rules framed under the Act, and it was pointed out that the allotment of these symbols had to be in accordance with the directions of the Election Committee, and that inasmuch as symbols were not allotted as directed by the Election Commission there was a breach of section 100(1)(d)(iv), which we have quoted above.
11. A large number of authorities was cited before us, mainly from the Election Tribunal cases, to which we need not refer here. It is, quite patent that the facts of one election petition are not always the facts of another election petition, and even in the same kind of election petitions there may be shades and nuances which may not be exactly alike, in our opinion, it is always safer to stick to the words of the Act and the Rules and the facts in each petition.
12. Having given the matter our anxious, consideration, we are of the opinion that the allegation in respect of Shri Manbodh Singh was made not as charging him with a corrupt practice but as showing the confusion which has resulted by the Socialist Party having 'tree' as the, recognized symbol in other parts and in other elections but not in this constituency. An attempt was made to show that neither the rules framed under the Act nor the directions of the Election Commission had been properly given effect to, leading to a confusion in the minds of the voters as to which was the recognized candidate for the Socialist Party. Having read the election petition, both as propounded by the learned counsel for the answering respondent and on our own, we come to the conclusion that there was no allegation of corrupt practice as laid down in the Act against Shri Manbodh Singh, but that there was only a description of what had actually taken place and of the confusion that had resulted by the allotment to Manbodh Singh of 'tree' as his symbol
13. This being our reading of the election petition, we cannot say that the petition merited summary dismissal as it received from the Election Tribunal. The presence of Shri Manbodh Singh, in cur opinion, was not necessary, because he was not being charged with a corrupt practice, nor was any statement on Ms part being alleged which was calculated to affect prejudicially this candidature of the present appellant.
14. We accordingly hold that the order passed by the Election Tribunal dismissing the election petition was improper and cannot be sustained. We accordingly set it aside and remit the case to the Election Tribunal or to its successor to be determined by the Election Commission, for disposal according to law.
15. In view of our decision in the appeal it is no longer necessary to decide the miscellaneous petition on the identical facts. The miscellaneous petition, therefore, shall be filed as infructuous. We must also interfere in the matter of costs. So far as the costs of the appeal before us are concerned, the answering respondent shall pay the costs of the appellant.
As regards the order of costs passed by the Election Tribunal, that order is set aside, and the costs there shall be the costs in the election petition case hereafter to be disposed of. There shall be no hearing fee here since the learned counsel did not file any certificate. There shall be no order for costs in the miscellaneous petition.