Rajasthan High Court - Jaipur
Bhom Raj And Anr. vs Devi Singh Bhati on 11 July, 1988
Equivalent citations: AIR1989RAJ142
ORDER M.C. Jain, J.
1. Bhomraj and Purnaram, registered electors of Kolayat Assembly Constituency No. 14 of Rajasthan, have filed this election petition against the returned candidate Shri Devisingh Bhati. The election was held on 5-3-85 in pursuance of the notification issued on 1-2-85 under Sub-section (2) of Section 15 of the Representation of the People Act, 1951 (for short 'the Act'). As per the programme issued by the Election Commission of India under Section 30 of the Act, the following dates were appointed : --
(a) 8-2-85 (Friday) as the last date for making nomination; (b) 9-2-85 (Saturday) as the date for the scrutiny of nominations; (c) 11-2-85 (Monday) as the last date for withdrawal of the candidature; (d) 5-3-85 (Tuesday) as the date for the poll; (e) 9-3-85 (Saturday) as the date before which the election shall be completed.
After rejection of two nomination papers, the following candidates remained in the field :--
(1) Shri Devisingh Bhati (respondent), (2) Smt. Kanta Khaturia, (3) Shri Asharam Gehlot, (4) Shri Ganeshram, (5) Shri Deen Dayal.
After counting, the respondent Devisingh was declared elected. The petitioners have challenged the election of the respondent on the following grounds : --
(1) The nomination paper of Shri Mohammed Ali was improperly rejected. He had delivered his nomination paper on 8-2-85 along with the certified copy of the electoral roll of Bikaner Assembly Constituency, in which, his age was mentioned as 30 years. Copy of the electoral roll was the part of the nomination paper. The rejection of his nomination paper is alleged to be improper because his name was once shown in the list of validly nominated candidates. The date fixed for the scrutiny of the nomination papers was 9-2-85 and the date for withdrawal of the same was 11-2-85, therefore, the returning officer was not competent to reject the nomination paper on 11-2-85. His nomination paper also could not be rejected when he had submitted the certified copy of the entry of the electoral roll showing his age as 30 years, and that certified copy was a part of the nomination paper.
(2) The District Election Officer, Bikaner established additional polling stations for the electors of seven villages namely : (1) Chila Kashmir, (2) Gulam-Wala, (3) Kandharli, (4) Nokha urf Daiya, (5) Lakhasar, (6) Bichwal and (7) Panwarwala by his order dt. 19-2-85 purported to have been issued with the consent of the Election Commission. The establishment of these additional polling stations was illegal, being in violation of Rule 49 of the Conduct of Election Rules, 1961. No notification as envisaged by rules was published 15 days before the date of poll. The non-compliance of the rule has materially afftected the result of the election.
(3) Smt. Kama Khaturia was a formidable candidate of Congress-I. In order to jeopardise the chances of her victory, false and highly defamatory statements affecting her personal character and conduct were published in the form of a pamphlet as well as in the weekly paper 'Kranti Bigul', on the night, intervening 4/5-3-85. The author of the said pamphlet is Shri Onkarsingh Rajput r/o Bikaner Mohalla Chotina Kua. He is an active member of Janta Party' for the last several years and had actively campaigned for the respondent. Shri Mohan Sharma. the Editor of 'Kranti Bigul' actively supported and campaigned for the respondent. Copies of the pamphlet and of the paper 'Kranti Bigul' were widely distributed and published in the entire constituency on the night intervening 4/5-3-85 as well as while the polling was in progress and particularly near the polling stations to the voters. Their p ublication was done by the respondent himself, his election agent Shri Davendrasingh as well as by his agents/ workers with the consent of the respondent or his election agent. The petitioners submitted a schedule annexed to the petition giving the instances of the publication and full particulars relating to the time, date, place and persons responsible for the distribution as well as the persons to whom the same were distributed. The said pamphlet and the said paper contained defamatory statements which were false and were believed to be false by the respondent and his election agent and other agents and workers of the respondent and which were not believed to be true in relation to the personal character and conduct of Smt. Kanta Khaturia and the aforesaid statements were reasonable calculated to prejudice the prospects of her election.
2. It was prayed that the petition may be accepted and the election of the respondent may be quashed and set aside.
3. Reply to the election petition was filed by the respondent. The grounds of challenge of the respondent's election were traversed. It was alleged that the respondent, his electron agent Shri Davendrasingh and his agents or workers did not commit any corrupt practice with the consent of the respondent and/or his election agents. The allegations of the petitioners in this regard are absolutely wrong, unfounded and without any basis.
4. It was further alleged that the Returning Officer did not improperly reject the nomination paper of Shri Mohd. Ali and the allegation of the petitioner in this regard is incorrect and untenable. Shri Mohammed Ali did not fill in his age in the nomination paper and left the column of age blank. The Returning Officer, therefore, rejected the nomination paper on 9-2-85, the day for the scrutiny. Shri Mohd. Ali however, requested the Returning Officer that Rajasthan High Court and Supreme Court have held that the omission to mention the age in the nomination paper was not fatal and that, he should be allowed time for showing the rulings to that effect. The Returning Officer then allowed time up to 11-2-85 till 11.00 a.m. and he made it clear that if Shri Mohd. Ali failed to do so his nomination paper would be treated as invalid and rejected. The Returning Officer waited till 11.20 a.m. but Shri Mohammed Ali did not turn up, therefore, his nomination paper stood rejected. It was alleged that it is obligatory for the candidate to mention age in the nomination paper and its non-mention in the nomination paper is fatal. Filing of the certified copy of the entry in the electoral roll was of no avail. The requirement regarding the filing of the certified copy of the entry in the electoral roll of the constituency where the name of the candidate is registered, is there when such candidate files the nomination paper for another constituency for the purpose of satisfying that he is a duly registered elector and the Returning Officer is not at all concerned with the age mentioned in such entry. Shri Mohd. Ali did not place any reliance on the age mentioned in the certified copy of the entry in the electoral roll for Bikaner Constituency and he sought time for showing the rulings to the effect that non-mention of age in the nomination paper was not at all fatal. It is not open to the petitioners to place reliance on the age mentioned in the certified copy in the electoral roll for Bikaner Constituency. Further, according to the nomination form, his name was entered at S. No. 504 part No. 123 of the electoral roll of Bikaner Assembly Constituency while he filed certified copy of the entry at S. No. 504 part No. 123 of the said constituency, therefore, the nomination paper of Shri Mohammed Ali was liable to be rejected even on this ground alone. In any case, the petitioners cannot rety on the age mentioned in the certified copy of the entry at S.No. 504 part No. 123 of the electoral roll of Bikaner Assembly Constituency, when according to the nomination paper his name was entered at S. No. 504 part 123. It was denied that after conclusion of the scrutiny, the name of Shri Mohd. Ali was shown in the list of validly nominated candidates. The list did not show the name of Shri Mohd. Ali and the allegatidn of the petitioners to the contrary is wholly incorrect. At the foot of the above list, the note entered therein clearly shows that the name of Shri Mohammed Ali was not shown in the above list of validly nominated candidates and that, he was allowed time till 11.00 a.m. on 11-2-85. On the other hand, the list issued in pro forma-II of the candidates whose nomination papers were rejected, clearly shows that Shri Mohd. Ali was given time up to 11.00 a.m. on 11-2-85 to rebut. Sub-paras (a) to (d) of para 8 were denied.
5. The contents of para 9 relating to the ground of establishment of additional polling stations were denied. It was admitted that the District Election Officer, Bikaner issued an order dt. 19-2-85 for the establishment of seven new polling stations on the approval of the proposal by the Election Commission of India, by telegraphic order dt. 16-2-85. Rule 49 has no application. It was alleged that according to the instructions issued in the form of Handbook for Returning Officers published by the Chief Election Commission of India on 1-1-84, the polling stations are required to be set up in such a manner that ordinarily no voter is required to travel more than two kilometres for recording his vote. Since, the answering-respondent and various other candidates including the Congress-(I) candidate Smt. Kanta Khaturia sent proposal to the District Election Officer for setting up more polling stations, the District Election Officer, on receiving telegraphic order dt. 16-2-85 established the alleged new polling stations and the petitioners cannot make any grievance on that account. The District Election Officer had informed to all the political parties and the concerned candidates about the establishment of the said polling stations. The District Election Officer also established five additional polling stations in Lunkaransar Assembly Constituency No. 12 and one polling station in Nokha Assembly Constituency No. 15. It was done on the request of the candidates and the petitioners are not entitled to make any grievance. There has been no non-compliance of the Rules relating to the establishment of seven new polling stations.
6. The ground of corrupt practice mentioned in para 10 was denied. It was denided that Smt. Kanta Khaturia was a formidable candidate. She was defeated in 1977 General Election by Shri Manakchand Surana. She was further defeated in 1980 General Election by the respondent by a margin of 1950 votes and she was again defeated by the respondent in the present election by a margin of 10,594 votes. There was no possibility of her success in 1985 General Election. As regards, the publication of pamphlet and weekly paper (Kranti Bigul), it was alleged that the answering-respondent has no knowledge about their publication. It was denied that the 'Kranti Bigul' contains any defamatory caption 'Kanta Girftar'. It was also alleged that the answering-respondent has no connection whatsoever, with Shri Onkarsingh Rajput. The answering-respondent does not know the author of the pamphlet. The said pamphlet was not published to the knowledge of the answering-respondent or his election agent Shri. Davendrasingh or any of the agents/workers during the election, and they have no knowledge about Onkarsingh Rajput referred to in sub-para 3 of para 10. It was denied that the said Shri Onkarsingh Rajput is an active member of Janta Party for the last several years and actively campaigned for the respondent. It was denied that Shri Mohan Sharma actively supported and campaigned for the respondent. Shri Sharma is entitled to have his own independent views and the petitioners are not entitled to draw any inference from what has appeared in the said paper. The contents of paras 11 and 12 and its sub-paras were denied. A plea was taken in the additional plea that the affidavits filed by the petitioners in support of the corrupt practice alleged by them are neither in the prescribed form nor they are in accordance with law and they deserve to be ignored in the end, it was prayed that the election petition be dismissed.
7. On the pleadings of the parties, the following issues were framed : --
(1) Whether the nomination paper of Shri Mohammed Ali was improperly rejected by the Returning Officer on the grounds specified in paras 8(a), (b) and (c) of the election petition?
(2)(a) Whether the statements contained in Annxs. 1 and 2 are false and believed to be false and which were not believed to be true, in relation to the personal character and conduct of Smt. Kanta Khaturia by the publishers/distributors of the said pamphlet and newspaper.
(b) If so, whether Annxs. 1 and 2 were published by the respondent, his Election Agent and his agents/workers with the consent of the respondent and his Election Agent as specified in paras Nos. 10, 11 and 12 of the election petition and whether the statements contained in Annxs. 1 and 2 were reasonably calculated to prejudice the prospects of the election of Smt. Kanta Khaturia?
(c) If so, whether the respondent Shri Devisingh Bhati has committed the corrupt practice as specified in Section 123 of the Representation of the People Act, 1951 and, if so, whether his election is liable to be set aside?
(3) Whether the establishment of seven new polling stations was illegal on the grounds specified in para 9 of the election petition, and, if so, whether large number of voters were prevented from exercising their right of franchise and whether the election of the respondent is materially affected on that ground?
(4) To what relief the petitioner is entitled to?
Additional Issue :--
1. Whether the additional affidavits of the petitioners Bhomraj and Purnaram dt. 15-5-86 alleged in the election petition are no affidavits in the eye of law and deserves to be ignored?
8. At the trial, the petitioners examined PW 1 Bhomraj, PW 2 Khinvraj, PW 3 Mohanlal, PW 4 Mangilal, PW 5 Shankerlal, PW 6 Bhanwarlal and PW 7 Babulal.
9. In rebuttal, the respondent examined himself as NPW 1 Devisingh and produced NPW 2 Sardar Ratansingh, NPW 3 Mahesh Prakash Ranga, NPW 4 Satyanarain Sad, NPW 5 Jawaharlal, NPW 6 Naraindas, NPW 7 Jhanwarlal Bothra, NPW 8 Hariram, NPW 9 Udaisingh, NPW 10 Dayaram, NPW 11 Moti Ram, NPW 12 Gumansingh, NPW 13 Dhannaram, NPW 14 Ganesharam, NPW 15 Tikuram, NPW 16 Chandratan, NPW 17 Ramkishan, NPW 18 Chain Singh, NPW 19 Onkar Singh and NPW 20 Davendra Singh.
10. The petitioner produced 15 documents exhibited as Ex. 1 to Ex 15 and in rebuttal, the respondent produced 16 documents (Ex.A/1 to Ex.A/16).
11. I have heard Mr. M. M. Singhvi, teamed cou'nsel for the petitioners and Mr. L. R. Mehta, learned counsel for the respondent.
My findings on the issues are asunder : --Issue No. 1
12. This issue relates to the question of improper rejection of the nomination paper of Shri Mohammed Ali by the Returning Officers. So far as the factual aspect of this issue is concerned, the nomination paper of Shri Mohammed Ali was rejected on 9-2-85 as the column relating to age was blank and there was no declaration made by the candidate regarding his age in the nomination paper. Time was sought by Shri Mohammed Ali to show the rulings on the point that the omission to mention age in the nomination paper is not fatal. The Returning Officer allowed time up to 11-2-85 till 11 a.m. and it was made clear that if he failed to do so his nomination paper will be treated as invalid and rejected. The Returning Officer waited till 11.20 a.m. but Shri Mohammed Ali did not turn up, so his nomination paper was rejected. His name did not appear in the list (Ex. A1) of validly nominated candidates. On the contrary, his name appeared in the list (Ex. A2) of the candidates whose nomination papers, were rejected. The Returning Officer passed the following orders on the back of the nomination paper on 9-2-85 and 11-2-85.
"Ex. 5 Rejected. Age not written in column ¼d½ of the nomination form. However, candidate stated that Rajasthan High Court and Supreme Court of India have noted that this omission is not fatal to the nomination.
Hence, candidate is given time up to 11 a.m. on 11-2-85 to present these rulings failing which the nomination will be treated as invalid and rejected.
Sd/
-9-2-85"
"11-2-85 It is now 11.20 hours. No representation has been made by the candidate so far. His nomination paper accordingly is rejected.
Sd/
-11-2-85"
13. The assertion made in paras 8(a) and 8(b), therefore, are wrong and are not in any way substantiated.
14. Mr. M. M. Singhvi, learned counsel for the petitioners submitted that although the column for age was not filled in by Shri Mohammed Ali but Shri Mohammed Ali had submitted the certified copy of the electoral list (Ex. 3) of Bikaner City Assembly Constituency, in which, his name appeared at S. No. 514 part No. 123 and in the column of age, his age was mentioned as 30 years. The certified copy of the entry (Ex. 3) in the electoral list of Bikaner City Assembly Constituency was the part of the nomination paper and it was obligatory for the Returning Officer to have looked into the certified copy of the entry. The Returning Officer erred in law in overlooking the age mentioned in the electoral list and he improperly rejected the nomination paper of Shri Mohammed Ali. The certified copy of the entry was the integral part of the nomination paper filed by Shri Mohammed Ali and that, could not have been ignored in law. Reliance was placed by him on a decision of the Supreme Court in Ranjit Singh v. Pritam Singh, AIR 1966 SC 1626, in which, the object of the provision contained in Section 33 of the Act was considered.
15. Section 3 of the Act provides that where the Candidate is an elector of a different constituency, a copy of the electoral roll of that constitutency or of the relevant part thereof or a certified copy of the relevant entries in such roll shall, unless it has been filed along with the nomination paper, be-produced before the Returning Officer at the time of scrutiny.
16. It was observed in Ranjit Singh's case (supra) that "the object of producing the copy under Section 33(5) is to enable the returning officer to check whether the candidate and the proposer are qualified or not, one for the purpose of standing and the other for purpose of proposing. In order to check this, the returning officer must have a complete copy of the relevant part. If the copy is not a complete copy, it is possible that a name which may have been included in the draft or in the first amendment may have been excluded in the second amendment made on the basis of an order of the appellate officer therefore, to enable the returning officer to decide whether a candidate is qualified to stand, or whether a proposer is qualified to propose he must have a complete copy of the relevant part of the roll. If he has, not a complete copy, he will not be able to decide whether, the candidate dr the proposer has the necessary' qualification.
It was further observed that Section 33(5) requires that it is the copy produced by the candidate which should show whether he is qualified or not and for that purpose a copy produced by the candidate should be complete whether it is of the roll or of the relevant part thereof. To such a case Section 36(4) has no application. That provision is to the effect that the returning officer shall not reject any nomination paper on the ground of any defect which is not of a substantial character. But the non-production of a complete copy of the relevant part, in our opinion is a defect of a substantial character for it makes it impossidble for the returning officer to decide whether the candidate is qualified or not. Qualification for standing for election is a matter of substantial character We are, therefore, of the opinion that the High Court was not right in the view it took that the production of an incomplete copy of the relevant part was not a defect of a substantial character which would make the nomination paper liable to be rejected. The fact that the returning officer rejected the nomination paper on some other ground is of no consequence. If there was in truth a defeat of a substantial character in the matter of compliance with Section 33 of the Act; the nomination paper was liable to be rejected, and if it was so rejected, rejection would be proper whatever may have been the reason given by the returning officer. In the present case, we are of the opinion, that the production of a copy of the electoral roll which is incomplete is a defect of a substantial character. This defect will invalidate all the nomination papers. The nomination papers of Wazir Singh were rightly rejected by the returing officer though he gave different reasons for doing so."
17. Mr. M. M. Singhvi, learned counsel for the petitioners, submitted that the Returning Officer has to see as to whether the candidate is qualified to stand and for that purpose, the entry of age in the electoral roll would be relevant and after looking into the entry of age in the roll, he has to satisfy that the candidate is qualified to stand and contest the election.
18. Mr. Singhvi, further placed reliance on a decision of the Supreme Court in Ganuram v. RiKhiram Kaundal, AIR 1984 SC 1513. In that case, there was no compliance of Sub-section (2) of Section 33 of the Act which required that the nomination paper relating to the reserved constituency must contain a declaration by a candidate specifying the caste or tribe of which he is a member and the area in relation to which that caste or tribe is a Scheduled Caste, or as the case may be, a Scheduled Tribe of the State. In that case no written declaration had been made by the appellant specifying the caste and area in relation to which that caste is a Scheduled Caste of the State but along with the nomination paper, the appellant had filed as an annexure thereto a certificate issued by the Sub-Divisional Magistrate certifying that the appellant belonged to a Scheduled Caste namely 'Lohar. It was observed in that case that (para 5) : --
The said certificate was appended to the nomination paper obviously with the sole purpose and intention of making it known to the Returning Officer and all others concerned that the appellant is filing his nomination as a candidate belonging to a Scheduled Caste namely 'Lohar' and it was in proof of that assertion and for eliminating doubt or Controversy in the matter that the Sub-Divisional Magistrate's certificate was produced. The High Court has taken the view that since Section 33 of the Act requires that the nomination paper must be in the prescribed form and Form 2B is a self-contained one the filing of any enclosure or certificate along with the Form is not contemplated. We are unable to agree with this view. When the nomination paper has been made in the prescribed form there is no legal prohibition against the other requisite particulars be ing furnished in a separate paper appended to the form instead of writing them out in the form itself, This is very often done in the matter of filing returns of Income-tax, Wealth-tax etc. In such cases the annexure appended to the form should be treated as part of the nomination paper. We are therefore of opinion that the certificate which was produced by the appellant as an annexure to the nomination paper has to be treated as forming part of the nomination paper and the declaration contained therein that the appellant belongs to the Scheduled Caste of 'Lohar' must be understood and treated as a declaration by the appellant in the nomination form within the meaning of Sub-section (2) of Section 33. We have to remember that we are dealing with nomination papers pertaining to candidates belonging to Scheduled Castes and Scheduled Tribes, who for well known historical reasons, are unfortunately, extremely backward socially, economically and educationally in comparison with other sections of our people. In such a context we consider that the Court has to place a liberal and benevolent interpretation on the provisions contained in Section 33(2) of the Act rather than adopt a narrow, rigid technical and purely literal construction."
It was further observed that :--- ( para 6) It is manifest that the legislative purpose underlying Sub-section (2) of Section 33 of the Act is that when a nomination paper is filed in respect of a reserved seat in any constituency there must be a clear specification by the candidate of the particular caste or tribe to which he belongs and the area in relation to which that caste or tribe is a Scheduled Caste or Scheduled tribe of the State. This requirement is fully satisfied in the present case because by producing the certificate of the Sub-Divisional Magistrate as an annexure to his nomination paper the appellant had clearly made it known that he was filing the nomination as a candidate belonging to the 'Lohar' caste, which is admittedly a Scheduled Caste in the entirety of the area of the State of Himachal Pradesh. It is also significant that no objection whatever was raised against the nomination filed by the appellant at the time of scrutiny. The Returning Officer had published a notice of nominations under Section 35 of the Act and in the said notice it was expressly stated that the appellant had filed his nomination as a candidate belonging to the Scheduled Caste namely 'Lohar'. Having regard to all the facts and circumstances' of the case and the legal position as explained above, we consider that the High Court was in error in holding that the nomination paper filed by the appellant was not valid and its acceptance by the Returning Officer was improper."
19. Mr. M. M. Singhvi, also placed reliance on a Divisional Bench decision of this Court in Gangaram v. Taruram AIR 1984 Rajasthan 183. This case relates to the election of Sarpanch and relevant, provisions of Rajasthan Panchayat and Nyaya Panchayat Flection Rules came up for consideration. There were no provisions in those rules similar to those contained in Sub-section (4) of Section 33 and Sub-section (4) of Section 36 of the Act. That was not a case relating to omission of declaration regarding the age. It was observed that omission ro mention the ward number of the voters' list and giving wrong number of ward number of the voters' list in the nomination paper would not justify rejection of the nomination paper, if the identity of the concerned candidate is established from the voters' list.
20. Mr. M. M. Singhvi, learned counsel for the petitioners also referred to a decision of this Court in the Election Petition No. 8 of 1985 -- Anand Purohit v. Birad Mal Singhvi, decided on 18-2-87 in which nomination papers of Hukamichand and Suraj Prakash Joshi were rejected on the basis that the ages mentioned in the electoral roll were less than 25 years and value was attached to the age entry in the electoral roll. That decision is not of much relevance as no question of omission of age in the nomination paper arose for consideration.
21. Mr. Singhvi. emphasized that when the certified copy of the entry in the voters' list was appended to the nomination paper of Shri Mohammed AH then, it should have been taken by the Returning Officer to be the candidate's declaration regarding his age as the candidate is relying on the entries made in the voters' list with regard to all particulars including the particulars of age and omission of age in the column, in these circumstances, ceased to be a defect of substantial nature or character and the Returning Officer was not justified in rejecting the nomination paper of Shri Mohammed Ali.
22. Mr. L. R. Mehta, learned counsel for the respondent submitted that the object of production of the certified copy is simply to show that the candidate is an elector in a different constituency. Under Section 33(5) of the Act, such a document can even be produced at the time of scrutiny and it is not necessary that it should be filed along with the nomination paper.
23. In Brijendralal Gupta v. Jwalaprasad. AIR 1960 SC 1049 cited by Shri Mehta. the question which arose for consideration was whether omission to specify the age by the respondent No. 5 Udaibhan in his nomination paper amounts to a defect and whether it is a defect of substantial nature under Sub-section (4) of Section 36 of the Act. In that case, the Returning Officer noticed the omission and recorded that failure of respondent 5 to declare his age, cannot be treated as a clerical or technical error but is of a substantial nature since declaration as to age was necessary in order to entitle a candidate to be qualified under Article 173 of the Constitution. P. B. Gajendragadkar. J. as he then was, speaking for court held that having regard to the context, it would be unreasonable to hold that the word 'defect' under Section 36 excludes all cases of omission to specify the nomination paper and this contention of the appellant was rejected that omission in question is not a defect under Section 36(4). The next question which was considered in that case was as to whether in case of such an omission, it was obligatory on the Returning Officer to hold an enquiry under Section 36 of the Act. It was observed as under :-- (at Pp. 1053-54) "If the nomination paper of respondent 5 did not comply with the provisions of Section 33 the case fell squarely under Section 36 and the only question which can arise in such a case is whether or not the defect arising from the failure to comply with the provisions of Section 33 is of a substantial character or not. If the defect is not of a substantial character the Returning Officer shall not reject the nomination paper on the ground of the said defect; if, on the other hand, the defect is of a substantial character the Returning Officer has to reject the nomination paper on the ground of said defect. That is the effect of the provisions of Section 36(2)(b) and (4) read together. An enquiry which is necessary under Section 36(2)(a) may and can be held for instance in cases where the nomination paper shows the age of the candidate's above 25, but an objection has been raised that in fact he is below 25 and as such incompetent to stand for election under Article 173 of the Constitution; in other words, the impugned nomination has complied with the provisions of Section 33 and as such does not fall under Section 36(2)(b) at all, nevertheless the validity of the nomination can be challenged on the ground that in fact Article 173 is not complied with. Cases falling under this class must be distinguished from cases falling under Section 36. In the latter class of cases the failure to comply with the provisions of Section 33 being established there is no scope for any enquiry under Section 36. Once the alleged non-compliance is proved, the d(sic) nomination falls to be accepted or rejected according as the defect is of an unsubstantial or of a substantial character. Therefore, it is not right to hold that even after the Returning Officer was satisfied that the omission to specify his age showed that the nomination paper of respondent 5 had not complied with the provisions of Section 33, he should still have held an enquiry under Section 36. Non-compliance with the provisions of Section 33 itself would justify the rejection of the nomination paper provided of course that the defect arising from the non-compliance in question is of a substantial character."
From the above observations, it is clear that if the defect arising from non-compliance is of a substantial character, then, there is no need of holding any enquiry.
23A. With regard to the question as to whether the defect is of a substantial character or not, their Lordships clearly and categorically stated that "just as the nomination paper must show the full name of the candidate and his electoral roll number, and just as the nomination paper must be duly signed by the candidate, so, must it contain the declaration by the candidate about his age. It is significant that the statement about the age of the candidate is required to be made by the candidate above his signature and is substantially treated as his declaration in that behalf. That being the requirement of the prescribed nomination form, it is difficult to hold that the failure to specify the age does not amount to a defect of, a substantial character. The prima facie eligibility of the person to stand as a candidate, which depends.
under Article 173 of the Constitution, inter alia, on his having completed the age of 25 years is an important matter, and it is in respect of such an important matter that the prescribed form requires the candidate to make the declaration. It would, we think, be unreasonable to hold that the failure to make a declaration on such an important matter is a defect of an unsubstantial character.''
24. This contention of the respondent was negatived that "the Returning Officer should not be astute to reject the nomination paper on technical grounds and that in the present case, the Returning Officer should have looked at the electoral roll and satisfied himself, that respondent 5 was duly qualified to stand for the election. His age was 48 years and it was shown in the electoral roll against his name. It was observed in cases of non-compliance of Section 33, which attract the provisions of Section 36, there would be no occasion to hold an enquiry under Section 36(2)(a), The only point to consider in such cases would be whether the defects in question are substantial or not and so the argument that the Returning Officer could have easily verified the age of respondent 5 is not really material in construing Section 36." .
25. Their Lordships also considered the matter in the light of the provision contained in Section 36 of the Act. That aspect is an important aspect of the matter. Section 36 lays down that for the purpose of this Section, a certified copy of the entry in the electoral roll shall be conclusive evidence of the fact that the person referred to in that entry is an elector for that constituency, unless it is proved that the person in question is subject to any of the disqualifications mentioned in Section 16 of the Representation of the People Act, 1950. It was observed that AIR 1960 SC 1049 at Pp. 1055-56 "the presumption raised under Section 36 would not be enough to justify the plea about the validity of the nomination paper because thesaid presumption only tends to show that the person concerned has completed 21 years of age. It is clear that in regard to persons between 21 to 25 years of age their names would be registered in the electoral roll and so, they would be electors if otherwise qualified and yet they would not be entitled to stand for election to the State Legislature. Thus, it would not be correct to assume that a reference to the certified copy of the electoral roll would in every case decisively show that the age of the candidate satisfied the test prescribed by Article 173 of the Constitution; in other words, the requirement about the completion of 25 years of age is outside the presumption under Section 36 and that must be the reason why the prescribed nomination form requires that the candidate in signing the said form must make a declaration about his age. This Consideration supports our conclusion that the declaration about the age is a matter of importance and failure to comply with the said requirement cannot be treated as a defect of an unsubstantial character."
26. It has been pointed out that in Bijendralal's case, (AIR 1960 SC 1049) (supra), the certified copy of the entry in the electoral roll was not a part of the nomination paper, so, this question directly did not come up for consideration as to what is the effect of such a document which forms part of the nomination paper and which makes mention of the requisite qualification to be possessed by the candidate to stand at the election. So far as this aspect of the matter is concerned, first it is to be seen as to whether the certified copy of the entry in the electoral roll is an 'integral part of the nomination paper. The domination paper is complete by itself and has to be submitted in the prescribed form. Nothing is required to be added to it or to make an integral part of it. Besides that, there is nothing in the nomination paper suggesting that the certified copy is the integral part of the nomination paper. There is no requirement of filing the certified copy of the entry along with the nomination paper. It can even be produced at the time of scrutiny as provided under Section 33. The intention behind filing the certified copy of the entry along with the nomination paper is simply to satisfy the requirement of Section 33(5) of the Act. That filing or production as contemplated in Section 33(5) does not in any way dispense with the making of declaration regarding the age in the nomination paper. The declaration emanates from the candidate himself and such emanation from the candidate is of Utmost importance. So far as the entry of age in the electoral roll is concerned, it may or may not be based on the information of the person concerned and it cannot decisively show that the age of the candidate satisfied the test prescribed by Article 173 of the Constitution as observed in Brijendralai's case (supra). A clear and positive declaration has to be made by the candidate about the requisite qualification of age. The declaration can be supported by an entry in the electoral roll but the electoral list can never be a substitute for declaration. The declaration necessarily has to be made by the candidate himself and an entry made by someonelse cannot be considered to be a declaration of the candidate. It is urged that if the matter is examined in the light of Ganuram's case, (AIR 1984 SC 1513) (supra), the requirement of making declaration regarding the age is satisfied. I am unable to accept this submission. True, in Ganuram's case (supra), certificate by the Sub-Divisional Magistrate was made as an annexure to the nomination paper and no additional declaration was given by the candidate regarding his caste and the area in relation to which that caste is a Scheduled Caste of the State. But the certificate stands on a different footing, than filing of a certified copy of the entry in the electoral roll. The certificate is issued at the instance of the party, so, it can be taken to be a version of the person obtaining the certificate but the same cannot be said to be true in respect of the electoral roll/list. Purpose of which, is only to show that the person concerned is an elector in a different constituency. It is only an estimated age based on some enquiry as envisaged in the Rules, which is recorded in the electoral list, so, such an entry cannot be equated with the declaration regarding the age to be made in the nomination form.
27. One decision of the election petition nearer to the facts of the present case has been cited by Shri Mehta, learned counsel for the respondent, in which, both the decisions in Ganuram's case, (AIR 1984 SC 15131 (supra) and Bijendralal Gupta's case, I AIR 1960 SC 1049) (supra) dealt with above, have been considered. That election petition is Surendra Nath v. Mahendra Pratap Singh, AIR 1986 All 290. In that case, the petitioner 1 filed two nomination forms and neither of the forms contained a declaration of his age, although, he had filed a certified copy of the extract of electoral roll and a photostat copy of the High School Certificate and an endorsement with regard to both the documents was made in one of the nomination forms. His age was shown as more than 25 years in both the documents. A contention was raised to the effect that mere omission to specify the age of the petitioner 1 in the nomination forms was not a defect of substantial character and the Returning Officer should have afforded an opportunity to rectify the mistake before rejecting the nomination forms. In para 9 of the judgment, the learned Judge observed as under : --
"The mode of fulfilling the requirement as contained in Article 173 of the Constitution, has been set out in the Form 2B, which enjoins upon a candidate to declare his precise age. The declaration of age in the manner, as prescribed by the statutory Form 2B by a candidate, is mandatory and it is not open to any candidate to find out some other way to comply with this requirement. Moreover, the law requires the declaration of age by a candidate under his signature and filing of documentary evidence to support the fact that the candidate was of either 25 years or more than 25 years is no compliance of law. If any objection is raised against the age declared in the Form 2B by a candidate, then the latter may show materials to support his version relating to age, but otherwise production of documentary evidence in support of age does not tantamount to a declaration, which is required to be made by a candidate himself in the Form 2B. Why the declaration of age is so necessary in the Form 2B? The reason is not far to seek. One who makes a declaration is bound by that, if a candidate does not declare his age, but filed merely documentary evidence to show his age and the Returning Officer relying upon that evidence comes to the conclusion that the candidate possesses requisite age and ultimately it transpires that the documentary evidence furnished by the candidate was not reliable or that showed the wrong age, then the question is what will be the responsibility of the candidate himself. In such a situation, the candidate may get away saying that the Returning Officer satisfied himself from the documents, which the former obtained in good faith. It is to plug this kind of situation that the rule making authorities thought it proper to take a d eclaration of age from the candidate himself. If a declaration is incorrect, then the candidate who made it will himself be responsible. Completion of 25 years of age is one of the eligibility conditions that has been prescribed by the Constitution and full care has been taken under the law to see this constitutional requirement is fully complied with by a candidate before he is declared fit to contest the election. Though the respondent has disputed that the certified copy of the extract of electoral roll and photostat copy of the High School Certificate were filed with the nomination papers by the petitioner 1 but even if this contention of the latter in regard to both the documents is assumed to be correct, there is no compliance of law, inasmuch as no declaration of age was made under his signature by the petitioner 1 in either of the nomination papers. If the declaration of age is mandatory, as it is in view of the aforesaid findings, it could not be obligatory on the Returning Officer to consider the certified copy of the extract of the electoral roll and the photostat copy of the High School Certificate and treat them either as a declaration of age or a substitute thereof. So long a declaration is not made, the Returning Officer is under no legal obligation to look into any other material to come to the conclusion whether the constitutional requirement as to age has been satisfied."
28. Reliance was placed in that case on the authority in Ganuram's case. (AIR 1984 SC 1513) (supra). It was observed that in Ganuram's case (supra), the appellant Ganuram made a declaration to the effect that he belonged to Scheduled Caste but the omission was that the sub-caste, which he belonged to was (not) mentioned in the nomination form. His sub-caste was 'Lohar'. The certificate of the Sub-Divisional Magistrate was annexed certifying his sub-caste as 'Lohar'. The learned Judge stated that this authority is misplaced, as the appellant in that case made a declaration that he belonged to Scheduled Caste. The only omission was that sub-caste was not mentioned in the nomination paper. So that was not the case where the declaration pertaining to Scheduled Caste was absent, but that declaration having been made, the appellant simply omitted to mention his sub-caste for which he annexed the caste certificate. The learned Judge, therefore, observed that in the case before him, the petitioner 1 made no declaration absolutely as to age and, therefore, the facts of Surendra Nath's case, (AIR 1986 All 290) (supra) are quite different from the facts of Ganuram's case, (AIR 1984 SC 1513) (supra). It was also observed that moreover, in Ganuram's case (supra) the Supreme Court has not overruled its earlier decision in the case of Brijendralal's case, (AIR 1960 SC 1049) (supra) and, therefore, the latter still holds the field.
29. In the present case, undisputably the age column is blank in the nomination form and the electoral list has not been made part of the nomination paper. Even if, this would have been made the part of the nomination paper, it could not be considered as a declaration of the candidate. There may be cases of this nature, where the candidate may file his own affidavit regarding his age and make the affidavit, a part of the nomination paper or instead of an affidavit, he may submit his independent declaration making the declaration, a part of the nomination paper or any other document forming part of the nomination paper, clearly making out a declaration regarding the age. What would be the position in such situations, I need not consider that here. So far as the present case is concerned, as already considered above, the electoral list was not made a part of the nomination paper and even if it is considered as part of the nomination paper, still, it cannot be taken to be a declaration of the candidate regarding his age and Ganuram's case (supra) is clearly distinguishable as considered above.
30. I, therefore, hold that the defect of omission of age in the nomination form was a defect of a substantial character and is not in any way cured simply by production of the certified copy of the entry in the electoral roll along with the nomination paper. Thus, there is non-compliance of the provision contained in Section 33 and as such the nomination paper of Shri Mohammed Ali was liable to be rejected. The Returning Officer was, therefore, justified in rejecting the nomination paper. I, therefore, decide issue 1 against the petitioners and in favour of the respondent.
Issues No. 2(a), (b) and (c) :--
31. It is not necessary to deal with these issues separately and I propose to deal with all the three parts (a), (b) and (c) together. The ground of challenge which is the subject-matter of issue 2 is alleged in paras 10, 11 and 12 of the Election Petition. It has been alleged that the respondent committed the corrupt practice as he himself, his election agent Shri Davendra Singh, and his agents and workers, with his consent or with the consent of the election agent published and distributed the pamphlet Ex. 6 and newspaper (Kranti Bigul) Ex. 7 containing the defamatory statements, which were false and believed to be false by them and which were not believed to be true in relation to the personal character and conduct of Smt. Kanta Khaturia and the statements were reasonably calculated to prejudice the prospects of the election of the Congress (I) candidateSmt. KantaKhaturia.
32. Mr. M. M. Singhvi, learned counsel for the petitioners submitted that a bare perusal of Ex. 6 and Ex. 7 would show that they were in the nature of defamatory statements in respect of Smt. KantaKhaturia relating to her personal character and conduct Both the documents were published and distributed on the eve of the last leg of election i.e. on the intervening night of 4/5th March, 1985 as well as while the polling was in progress and particularly near the polling stations to the voters. The pamphlet and the newspaper were clearly suggestive of the fact that Smt. Kanta Khaturia is involved in the acts of violence of beating and firing through her hired goondas and that she was involved in threatening the voters through such unsocial elements and that she was also involved in collection of liquor arid arms and she along with 40-50 goondas was encircled by the public as well as by the police. The contents of the newspaper 'Kranti Bigul' (Ex. 7) were indicative of the fact that she had been arrested and that she had been involvedin the aforesaid activities and actions whereby the voters were threatened These statements were false or in any case, they were believed to be false and were not believed to be true and they relate to the personal character and conduct of Smt. Kanta Khaturia and they were published solely with a view that the prospects of her election may be prejudiced Reliance was placed by Mr. Singhvi on the decision of the Supreme Court in T. K. Gangi Reddy v. M. C. Anjaneya Reddy, (1961) 22 ELR 261.
33. Mr. L. R. Mehta, learned counsel for the respondent, on the other hand, submitted that Exs. 6 and 7 do not at all touch the personal character and conduct of Smt. Kanta Khaturia. No act has been attributed to her. The acts have been attributed to unknown group of persons. They have simply been said to be present along with Smt. Kanta Khaturia. So far as the fact of arrest is concerned, it has been stated in Ex. 7, in the broad caption -- "Kanta Giraftar?". There is a sign of interrogation and even in the body of the paper Ex. 7, it has not been stated that she has been arrested. On the contrary, what has been stated is that it has not been confirmed that she had also been found to be an accused.
34. Mr. Mehta pointed out that T. K. Gangi Reddy's case (supra) has no application to the present case. In that case, violent act was attributed directly to M. C. Anjaneya Reddy, whereas, it is not so in respect of Smt. Kanta Khaturia.
35. A perusal of Exs. 6 and 7, in my opinion, is clearly suggestive of the fact that in the acts alleged in these documents, Smt. Kanta Khaturia is involved and she is behind such unsocial elements. She may not have been arrested but impression is sought to be created that she has been arrested and that, illegal weapons and illicit liquor have been recovered and the electors have been threatened by the men of Smt. Kanta Khaturia. The statements made in Exs. 6 and 7 undoubtedly, are of such a nature that in such acts Smt. Kanta Khaturia is involved and that they relate to her personal character as well as conduct and it can be found that the publication of Exs. 6 and 7 was intended to prejudice the prospects of her election. It is true that Smt. Kanta Khaturia was defeated in 1977 General Election by Shri Manakchand Surana and she was defeated by the respondent in 1980 by a margin of 1950 votes when Shri R. K. Dass Gupta contested as a Janta candidate and in 1985 elections, the respondent was a candidate of combined opposition. He won by 10,594 votes and there may be no chance of her for winning the election. But what is to be seen is as what was the calculation behind the publication of Exs. 6 and7. The reasonable calculation only appears to be that prospects of her election may be prejudiced.
36. However, the issue of corrupt practice has to be considered on the other aspects namely; whether Exs. 6 and 7 were published and distributed by the respondent, his election agent as well as by his agent/workers with the consent of the candidate or his election agent and whether the petition is liable to be dismissed solely on the ground that the petition suffers from want of material facts and material particulars with regard to the publication of Exs. 6 and 7 relating to the time, date, place and person responsible for distribution as well as persons to whom the same were distributed.
37. Mr. L. R. Mehta, learned counsel for the respondent submitted that there is no averment in the petition that the persons responsible for distribution of pamphlet and newspaper (Exs. 6 and 7) mentioned in Schedule 'I' were the agents and workers of the respondent and they distributed the pamphlet and newspaper with the consent of the respondent or his election agent. In para 11 of the petition, after stating the ground in the first para, in the second para what is simply stated is that some of the instances of the publication are set out in Schedule 'I' annexed to the petition and the particulars of time, date and place have been mentioned. I have looked into the Schedule T. The Schedule 'I' is divided into five columns. The second column deals with the person who distributed the pamphlet and newspaper Exs. 6 and 7. It is not mentioned in the Schedule 'I' that the persons named in the column 2 (other than the respondent and his election agent) were their agents or the workers, who distributed Exs. 6 and 7 with the consent of the respondent or his election agent. As already stated in sub-para (i) of para 11, a general and vague allegation has been made and it does not contain the names of the persons, who were the agents and workers, who distributed Exs. 6 and 7 with the consent of the respondent or his election agent. Sub-para (ii) of para 11 does not in any way qualify sub-para (i). It simply states that some of the instances of the publication are set out in Schedule 'I', so this averment is clearly lacking in the pleading that the persons named in column 2 of Schedule 'I' were the agents and workers of the respondent and that they distributed the copies of Exs. 6 and 7 with the consent of the respondent or with the consent of his election agent. Similarly column 3 of Schedule 'I' is in respect of date and column 4 is in respect of village and place and in all acts of distribution by the persons named in column 2, the time of distribution mentioned is morning of 5-3-85. Similarly, in column 4 only the name of the village has been mentioned or in respect of the area of Bikaner City Assembly Constituency all the eight wards have been mentioned in column 4. No specific place of distribution has been mentioned in various villages or eight wards of Bikaner City Assembly Constituency. The names of those persons have not been stated as has been brought in evidence to whom the copies of Exs. 6 and 7 have been distributed. Mr. Mehta, pointed out that the charge of corrupt practice is quasi-criminal in nature, so. full and complete facts and particulars are required to be pleaded and the petition is liable to be dismissed solely on this ground.
38. Reliance was placed by him on Samant N. Bala Krishna v. George Fernandez, AIR 1969 SC 1201, Udhavsing v. Madhav Rao Scindia, AIR 1976 SC 744, Daulatram Chauhan v. Anand Sharma, AIR 1984 SC 621 and Azhar Hussain v. Rajiv Gandhi, AIR 1986 SC 1253. I need not consider all these decisions cited by him.
39. In Azhar Hussain's case (supra), it has been held that the election petition can be and must be dismissed u nder the provision of the C. P. C, if the mandatory requirements enjoined by Section 83 to incorporate the material facts and particulars relating to alleged corrupt practice in the election petition are not complied with. The Civil P. C. applies to the trial of an election petition by virtue of Section 87 of the Act. Since. C.P.C. is applicable, the Court trying the election petition can act in exercise of the powers of the Code including Order 6. Rule 16 and Order 7, Rule 11(a). Therefore, that Section 83 does not find a place in Section 86 of the Act, which authorises dismissal of the election petitions in certain contingencies does not mean that powers under the C.P.C. cannot be exercised. An election petition can be summarily dismissed if it does not furnish cause of action in exercise of the powers under the C.P.C. and it is settled law that the omission of a single material fact would lead to an incomplete cause of action and that an election petition without the material facts relating to a corrupt practice is not an election petition at all.
40. In para 38, it was observed that in view of the doctrine laid down in Nihalsingh's case, (1970) 3 S CC 239 as early as in 1-970, the High Court was perfectly justified in taking the view that no cause of action was made out. For, in the absence of material particulars as to who had printed, published or circulated the pamphlet, when, where and how it was circulated and which facts went to indicate the respondent's consent to such distribution, the pleading would not disclose a cause of action, There would be nothing for the respondent to answer and the matter would fall within the doctrine laid down in Nihalsingh's case (supra).
41. In view of the aforesaid decisions, so far as allegation regarding the distribution by the agents and workers of the respondent with his consent or with the consent of his election agent, need no examination and consideration and examination of the case would be confined to the distribution of Exs. 6 and 7 by the respondent himself, or by his election agents and the petition is not liable to be dismissed for want of material facts and particulars as considered above.
42. The burden of proof of the facts (illegible) subject matter of ground of corrupt practice lies on the petitioners. The petitioners, in my opinion, have utterly failed to prove that the copies of Exs. 6 and 7 were distributed by the respondent Devisingh or by his election agent Shri Devendrasingh. So far as his election agent Devendrasingh is concerned, there is not an iota of evidence on record that he distributed the copies of Exs. 6 and 7. On behalf of the petitioners, three witnesses have been examined viz. PW 4 Mangilal, PW 6 Bhanwarlal and PW 7 Babulal, who attributed the distribution of Exs. 6 and 7 to respondent Devisingh. PW 4 Mangilal has deposed that Shri Devisingh arrived at the polling station at Chopra School, Gangashahar at about 6.30 a.m. and he distributed the copies of Exs. 6 and 7 among their workers and voters on their table and then he came towards Congress 'I' table, where he distributed the pamphlet and newspaper to the voters and the same were also delivered to him. Narainlal and Jhanwarlal are the workers of Devisingh and Narain can distribute the copies of Exs. 6 and 7 after Shri Devisingh had left. PW 6 Bhanwarlal has stated that he was at the Sudharashana College Polling Station. At about 7 a.m Shri Devisingh and Shri Onkarsingh Rajput came in a car and they delivered the copies of Exs. 6 and 7 at Janta Party's camp and thereafter they came to Congress 'I' camp. Shri Devisingh gave a copy of the pamphlet and Shri Onkarsingh gave a copy of the newspaper. Both of them distributed the copies of Exs. 6 and 7 to the voters.
43. PW 7 Babulal has deposed that he is a Congress 'I' worker and was on the polling station Shatter School, Gangashahar. Shri Devisingh along with Shri Jhanwarlal Bothra and Jawaharmal Sethia came to Shatter School at 7.45 a.m. and Shri Devisingh distributed the copies of Exs. 6 and 7 first to Janta Party's workers and voters on their table. Then, he came to Congress 'I' table and he gave one copy of the pamphlet and newspaper to him. Devisingh stayed there for sometime but the distribution continued even after his departure,
44. The evidence of these witnesses stands rebutted by the statements of Devisingh and also by the statements of Naraindas (NPW 6). Jhanwarlal Bothra (NPW 7) and Jawaharial Sethia (NPW 5). If the statements of these three witnesses, if read in the light of the contents of Schedule 'I' then it would appear that, improvements have been made in the evidence and the facts, which were not mentioned in the Schedule have been stated nO Specific place has been mentioned in the Schedule and no specific time has been mentioned in the Schedule. The witnesses in rebuttal categorically stated that no copies of pamphlet and newspaper were distributed by Shri Devisingh. Shri Devisingh even did not come at the aforesaid polling stations. There is no corroboration of the testimony of PW 4 Mangilal, PW 6 Bhanwarlal and PW 7 Babulal. In Schedule 'I' with regard to the distribution of copies of Exs. 6 and 7 by Shri Devisingh at Bikaner, it is stated that he distributed Exs. 6 and 7 in the eight wards and gave their copies to 7 persons mentioned in column 5. Out of the seven persons; five are Advocates and none of them has been examined Out of seven persons named in column 5, only one Bhanwarlal has been examined The place 'Sudharshana College' is not mentioned in Schedule 'I'. In the absence of corroboration as well in view of the clear evidence in rebuttal, the solitary statements of PW 4 Mangilal, PW 6 Bhanwarlal and PW 7 Babulal cannot be believed and it cannot be found that Shri Devisingh distributed the copies of Exs. 6 and 7 at any place as stated by the witnesses.
45. Although, it is not necessary to consider the other evidence of PW 1 Bhomraj, PW 2 Khinveraj, PW 3 Mohanlal and PW 5 Shankerlal in the absence of the allegation, the persons named by them responsible for distribution were the agents and workers of the respondent or his election agent, still suffice it to say that the evidence of these witnesses as well stand fully rebutted Not only that, in defence, the respondent has examined the witnesses in respect of the place, for which, hearsay evidence has been produced by the petitioner: There is evidence of Bhomraj with regard to the distribution of the copies of Exs. 6 and 7 at Varsinghsar but his evidence stands rebutted by the testimony of NPW 10 Dayaram and NPW 11 Motiram to whom the act of distribution has been alleged by Bhomraj (PW11 and Khinvraj (PW 2) has deposed that she copies of Exs. 6 and 7 were distributed by Satya Narain Swamy (NPW 4), Sardar Ratansingh (NPW 2). Both these witnesses have rebutted the evidence of Khinvraj. The evidence of Mohanlal (PW 3) is with regard to the distribution of the copies Exs. 6 and 7 by Hariram at village Vajju and Hariram was examined in rebuttal as NPW 8. The evidence of PW 3 Mohanlal, thus, stands rebutted by the testimony of Hariram. Similarly the witness Shankertal (PW 5) stated that the copies of Exs. 6 and 7 were distributed by Udaisingh. Shri Udaisingh has been examined in rebuttal as NPW 10. He was the polling agent of the respondent. He completely rebuts the evidence of Shankerlal. Thus, the entire evidence led by the petitioners stands rebutted by the evidence led by the respondent. Thus, in my opinion, it is not proved that Shri Devisingh or his election agent or any of the workers or agents of Shri Devisingh with his consent or with the consent of his election agent distributed the copies of Exs. 6 and 7 to the voters. Except the distribution' part of this issue, no other evidence has been produced by the petitioners that the copies of Exs. 6 and 7 were got printed and published by the respondent and his election agent or any of their workers or agents. The authorship of Ex. 6 is attributed to Shri Onkar Singh. The identity of whom, has been disclosed in the manner, that he is the resident of Chotina Kua and it has also been disclosed that he is a member of Janta Party. It may be stated that the burden of this issue was on the petitioners. Pressline was printed in Ex. 6. Ex. 6 is stated to have been printed by Roshan Printers, Kuchilpura, Bikaner. No one has been examined from Roshan Printers on behalf of the petitioners. Who got Ex. 6 printed and how he is connected with the respondent is not established. Similarly, the editor of 'Kranti Bigul' has not been examined by the petitioners. Mere allegation has been made that the editor Shri Mohan Sharma supported and campaigned for respondent. It has not been alleged that he was in any way connected with the respondent i.e. he was his worker or agent.
46. Although, the petitioners have not produced any evidence to prove the authorship of Ex. 6 and its printing but it was stated to have been issued by Shri Onkarsingh. The respondent has examined Shri Onkarsingh NPW 19. He clearly deposed that he was the counting agent of Shri Devisingh but he did not get the pamphlet Ex. 6 printed and to his knowledge, there is no organisation of Chotina Kua Mandal, Bikaner. He further stated that neither he got Ex. 6 printed nor distributed it to anybody. For Ex. 3 and Ex. 4 small posters as well he madesuch a statement. He rebutted the testimony of Bhomraj that he along with Devisingh distributed the copies of Ex. 6 and Ex. 7 in eight wards of Bikaner. He also rebutted the testimony of Shri Bhanwarlal (PW 6) regarding the distribution of Ex. 6 and Ex. 7 outside the Sudharshana College and stated that he did not accompany Shri Devisingh in any area on 5-3-85. He denied that he had taken a shop on rent near Chotina Kua. Thus, the authorship and printing of Ex. 6 is not at all proved,
47. Mr. M. M. Singhvi, learned counsel for the petitioner submitted about the bill of Roshan Printers (Ex. 8) bearing No. 476A. Shri Davendra Singh (NPW 20) has deposed that a bill No. 476A was issued by Roshan Printers in connection with the printing of the material, which was got printed by him for the respondent. About Bill Ex. 8, he stated that he does not know the reason of putting S. No. of the bill as 476A and S.No. is never with Alphabet 'A'. He did not ask as to why the printer put Alphabet 'A' after the serial number. Thissuggestion is denied that he got substituted the bill No. 476A in place of Bill No. 476 and he does not know whether bill No. 476 is with Roshan Printers or not. He does not know that bill No. 477 had already been issued when bill Ex. 8 was issued to him on 4-3-85. Mr. Singhvi also submitted that the motive for publication and distribution of Ex. 6 and Ex. 7 could only be with the. respondent. So, if these circumstances are taken into consideration, then it should be found that Ex. 6 and Ex. 7 were published and distributed by the respondent and his election agent and their agent and workers. From the aforesaid circumstances, in my opinion, reasonably it cannot be inferred as contended by Mr. Singhvi. It was for the petitioners to have produced satisfactory evidence to establish that Ex. 6 and Ex. 7 were got printed, published and distributed by the respondent and his election agent.
48. I have considered above that in the absence of this pleading of the material fact that the workers and agent mentioned in column 2 of Schedule 'I' were workers and agent of the respondent and that they distributed Ex. 6 and Ex. 7 with the consent of the respondent or his election agent, the petitioners' evidence on this aspect of the case needs no examination. Still, the respondent has admitted that Sardar Ratan Singh NPW 2, Mahesh Ranga NPW 3, Hariram NPW 8, Udai Singh NPW 9, Motiram NPW 11, Chain Singh NPW 18, Hanumansingh and Shivkarandan were his workers. In respect of Hanumansingh and Shivkarandan, there is no evidence by the petitioners that they distributed Ex. 6 and Ex. 7. So far as the remaining admitted workers are concerned, they have been examined in rebuttal and all the aforesaid witnesses have denied the distribution of the copies of Ex. 6 and Ex. 7. Firstly, therefore, the evidence regarding the distribution of the copies of Ex. 6 and Ex. 7 by the agents and workers cannot be looked into. Even if it is looked into, still the petitioners' evidence stands completely rebutted As a result of the aforesaid discussion, in my opinion, the petitioners have not been able to establish that the copies of Ex. 6 and Ex. 7 were published and distributed by the respondent and by his election agent or by the agents and workers of the respondent and when they have failed to so establish the question that the copies of Ex. 6 and Ex. 7 were distributed with the consent of the respondent or his election agent does not arise for consideration at all.
49. I, therefore, hold that the statements made in Ex. 6 and Ex.. 7 were false and were believed to be true, which were in relation to the personal character and conduct of Smt. Kama Khaturia and were reasonably calculated to prejudice the prospects of her election, but the petitioners have failed to prove that Ex. 6 and Ex. 7 were published and distributed by the respondent or his election agent or by any other person with the consent of the respondent or his election agent. As the petitioners have failed to prove this part of the issue, the burden of which lay on them, it cannot be found that the respondent committed any corrupt practice and his election is not liable to be set aside. Issues Nos. 2(a), 2(b) and 2(c) are decided accordingly.
Issue No. 350. This issue has not been pressed before me by the learned counsel for the petitioner and rightly so. The new polling stations were established in pursuance of the approval of the Election Commission by the District Election Officer vide order dt. 19-2-85. No illegality has been pointed out regarding the establishment of additional seven polling stations in Kolayat Assembly Constituency of Bikaner. The order was also issued is respect of five additional polling stations of Loonkaransar Assembly Constituency No. 2 and one additional polling station in respect of Nokha Assembly Constituency No. 5. This issue is decided against the petitioner and in favour of the respondent.
Additional Issue No. 151. After amendment of the election petition, fresh affidavits were filed by the petitioners Bhomraj and Purnaram on 15-5-86. Mr. L. R. Mehta submitted that without seeking any amendment in the affidavits, amended affidavits have been filed by the petitioners. In connection with the affidavits, suffice it to say that no permission is needed for seeking amendment. The affidavits have to be based on personal knowledge or on the information, which may be delivered to be true. In the affidavits filed by the petitioners with regard to paras 5, 10, 13 it is stated that they are true and correct to their knowledge. For paras 11 and 12, it is stated that they are partly true to their knowledge and partly true to their information.
52. What part is true to their knowledge and what part is true to their information, has not been stated in the affidavits but on account of such a nature of the affidavits, nothing would turn and the parties have led evidence and Bhomraj has come into the witness box.
The election petition, in my opinion, is not liable to be dismissed on this ground.
53. This issue is, therefore, answered accordingly.
54. In view of my findings on the issues aforesaid, the election petition deserves to be dismissed.
55. Accordingly, the election petition is dismissed. In the facts and circumstances of the case, the parties shall bear their own costs.
56. The substance of this decision shall be intimated to the Election Commission and the Speaker of the Rajasthan Legislative Assembly and an authentic copy of this decision shall be sent to the Election Commission immediately.