Patna High Court
Priyabrat Narain Singh vs Brijmohan Singh And Ors. on 6 September, 1963
Equivalent citations: AIR1964PAT2, AIR 1964 PATNA 2
JUDGMENT Misra, J.
1. This is an appeal against the judgment of the Election Tribunal, Gaya, by one of the candidates from the Aurangabad Assembly Constituency No. 244 for election as a member of the Bihar Legislative Assembly. Polling was hold in that constituency on the 21st of February, 1962, and the result of the election was announced on the 26th of February, 1962. Respondent No. 1, Brijmohan Singh, secured 10,421 votes and the appellant was able to poll 7,529 votes. Accordingly, respondent No. 1 was declared duly elected to the Bihar Legislative Assembly. Out of the eight candidates who filed their nomination papers, which were found to be valid, four withdraw and (he appellant along with the three respondents, Brijmohan Singh, Sarjoo Singh and Nagendra Singh, alone remained in the field. As a result of the election, apart from the votes polled by the appellant-petitioner and respondent No. 1, respondent No. 2 secured 4,052 votes and respondent No. 3 secured 968 votes.
2. After the result of the election was declared, the appellant filed a petition for setting aside the election of respondent No. 1, Brijmohan Singh on a number of grounds which were set out in the election petition, all of which, however, it is unnecessary to mention here inasmuch as only a few of them have been pressed before us by the learned Counsel for the appellant. The petitioner also prayed that he might be declared duly elected in place of respondent No. 1. Respondent No. 1, however, controverted all the allegations made against the validity of his election. The learned District Judge of Gaya, who is the Election Tribunal, recorded evidence in the case and has held substantially against the appellant and dismissed his petition against which he has preferred this appeal.
3. The main question argued before us relates to the fact that respondent No. 1 was below the age of 25 years on the date the nomination paper was filed by him and, as such, he was not competent to be a candidate under Article 173 of the Constitution. Secondly, it has been urged that respondent No. 1, the successful candidate, published a pamphlet, described also as leaflet, in the nature of a parody -- which has been so characterised by the Election Tribunal -- as containing aspersions against the personal character of the appellant which is a corrupt practice within the meaning of Section 123 (4) of the Representation of People Act, 7951 (hereinafter called the Act) and renders the election of respondent No. 1 invalid, As regards the various other corrupt practices, apart from the above, reference has also been made to the provisions of Clauses 2, 3 and 5 of Section 123 of the Act, relating to appeal to voters in the name of religion and utilising the services of the Block Development Officer, Aurangabad South, for furthering his prospects, The Election Tribunal, as I have said, has held on a consideration of the evidence led by the parties that it was not established by the appellant by reliable evidence that respondent No. r was below 25 years of age on the date of filing his nomination paper. The parody (exhibit 10) contained in the pamphlet was not established to have been issued and circulated by Brijmohan Singh and even if that were so upon which the finding is general and inconclusive, the parody which was the subject-matter of exhibit 10 was not shown to relate to the personal character of the appellant but that it related to his political character which is not a corrupt practice in terms of Section 123 of the Act. He has also negatived the charges of corrupt practices of other kinds including the one relating to respondent No. 1 holding two subsisting contracts in his individual and personal capacity for execution of work for construction of a community hall and also a health centre at Naugarh, Aurangabad.
4. Coming to the first question regarding the age, of respondent No. 1, it is not disputed that if he had not attained the age of 25 years on the relevant date, he would not be competent to file the nomination paper as he would certainly be ineligible as a candidate for the Bihar Legislative Assembly under the bar provided in the Constitution of India. It may be stated that the date of filing the nomination paper in this case was from the 13th January to the 20h January, 1962. Respondent No. 1 was, however, according to the appellant, born on the 15th of October, 1937, which was mentioned in the school admission register of the Town High School, Aurangabad, the Secondary School Examination Board certificate of 1953 (No. 29333), equivalent to the matriculation certificate, the other registers kept in the Board's office, the application for appointment as Sub-Inspector of Police and in many other unquestionable papers. He was thus disqualified to be a candidate under Article 173 of the Constitution of India and his nomination paper should not have been accepted. Accordingly, the election in question had been materially affected by non-compliance with the provisions of the Constitution and the Representation of People Act and the rules and orders made therein.
5. On behalf of respondent No. 1, a horoscope (exhibit E)was filed to show that he was born on the 15th of October, 1935, and not of the 15th of October, 1937. Exhibit K the hath-chitha of birth, was filed by the chowkidar of village Dabura Khurd which is the place of residence of respondent No. 1 in support of the date of birth alleged by respondent No. 1, which would show that he was past the age of 25 years and as such competent to offer himself as a candidate for election to the Bihar Legislative Assembly and it was not hit by the provisions of Article 173 of the Constitution. Of the witnesses examined on behalf of the appellant, P.Ws. 2, 6, 7, 13 and 61 supported the appellant's case that Brijmohan Singh was born on the 15th of October, 1937, as was mentioned in exhibits 2, 8 and 18; whereas R. Ws. 4, 20, 32, 34, 58 and 61 were cited on behalf of respondent No. 1 in support of his case that he was born on the 15th of October, 1935, and not on the 15th of October, 1937. Apart from these witnesses, the Member of the Tribunal also summoned Court Witnesses Nos. 1, 2 and 3. The case made out on behalf of the respondent to contradict the entries in exhibits 2, 8 and 18, and in support of the horoscope (exhibit E) and hath-chitha (exhibit K), was that the entries were made in the admission register of Aurangabad Town High School, and he was admitted into that school, purposely below the right age in order to have some margin in support of his candidature for service under the State Government for which a maximum age limit is usually laid down. His father, who was a peon in the Nazarat at Aurangabad, had given the correct age to his uncle, who also was a peon in the Nazarat at Aurangabad, but the latter for the benefit of the respondent No. 1 reduced the age by two years to enable respondent No. 1 to have some margin for making an application for a post as stated above. It is further stated that respondent No. 1 was admitted as a student in the village primary school at Poiwan. His correct date of birth was mentioned there in the admission register; but the register bearing this entry was not available as it was taken by one Rajbans Missir under the influence of the appellant Priyabrat Narain Singh, A horoscope was duly prepared and maintained in the family and although it was not filed by the respondent himself but it was filed before the Member of the Tribunal by the respondent's father in whose custody it was. Jagesar Dusadh, the chowkidar of the village, way not first willing to produce the hath-chitha but, he was, however, brought under warrant of arrest and produced it (exhibit K), showing the real date of birth of respondent No. 1. The date of birth 15th of October, 1935, would also be corroborated by the entry in the voters' list of the Gram Panchayat known as Paribarik Pustika as also in the electoral roll of voters (exhibit VII) of the Aurangabad Constituency prepared in 1957.
6-10. The oral evidence of the witnesses on behalf of the appellant, as I have said above, has been brought on record through five witnesses.
(His Lordship discussed the oral and documentary evidence on record and rejecting both horoscope and hath-chitha as unreliable, continued as under : --)
11. The next document is the voter's list (Exhibit VII). This mentions the date of birth of respondent No. 1 showing that he was 21 years of age in 1956 when the voter's list was prepared. But nothing turns upon this document because it is not clear as to who supplied the date of birth to the person preparing the voter's list; even the father of respondent No. 1 does not say that he supplied the date of birth to the authority. In my opinion, no significance can be attached to the voter's list (Exhibit VII), which may have been correctly or incorrectly prepared. As opposed to this, there is this entry in the school admission register of the Aurangabad Town High School (Exhibit 2) dated the 19th January, 1946; the matriculation certificate dated the 1st December, 1953, (Exhibit 18) and an application by respondent No. 1 for appointment as a Police Sub-Inspector, dated the 26th August, 1959, all of which show that respondent No. 1 was born on the 15th October, 1937. It is true, no doubt, that both Exhibits 8 and 18 contain clear statements by respondent No. 1 with regard to his date of birth, but Mr. Balbhadra Prasad Singh appearing on behalf of respondent No. 1 has urged that these documents cannot have any weight it the entry in the school admission register be found to have been made purposely reducing the age of respondent No. 1. Once entry will be made in the school admission register showing a particular date of birth, it was the normal procedure for the form being filled up for the matriculation examination in accordance with the school admission register and, subsequently, when respondent No. 1 made an application for appointment as a Sub Inspector, he had to adhere to the date of birth mentioned in his school admission register, because, he would not be heard to make a different statement nor was it to his interest at that stage to say so; and, in any view, if he made a statement different from the date of birth as mentioned in the matriculation certificate, it was bound to lead to a subsidiary line of enquiry into his candidature which would be extremely inconvenient to him. In my opinion, this contention on behalf of respondent No. 1 by Mr. Balbhadra Prasad Singh has considerable force and exhibits 8 and 18 cannot in any way support the contention of the learned Counsel for the appellant with regard to the date of birth of respondent No. 1, if I could come to the conclusion that the entry in the school admission register itself was wrong for one reason or another. Mr. B.C. De has contended further that, in the absence of evidence to the contrary, the date of birth mentioned in the matriculation certificate must be accepted as reliable, because, there is a presumption of correctness attached to that certificate. He has not urged that the date of birth mentioned in the matriculation certificate of a candidate must be taken to be conclusive evidence of his date of birth, but, that in the absence of evidence to the contrary, it would be the only reliable document to be acted upon. In support of his argument, he has referred to the case of Bhim Mandal v. Magaran Coram, AIR 1961 Pat 21 which is a judgment of a single Judge of this Court. As opposed to this, Mr. Balbhadra Prasad Singh has referred to the decisions of the various High Courts laying down that the entry in the school admission register in regard to the date of birth and, for the matter of that, in the matriculation certificate, in the absence of evidence to show on whose statement the entry in the school admission register was made, would be inadmissible in evidence. Section 35 of the Evidence Act, upon which, reliance was placed by Mr. B.C. De in support of his contention, is not construed in that manner in the aforesaid decisions. In my opinion, it is unnecessary to pronounce definitely upon this argument as, in this case, I have already held, with reference to both oral and documentary evidence, that the date of birth of respondent No. 1 could not be the 15th October, 1935, and that the evidence on behalf of the appellant is more cogent to show that the entry made in the matriculation certificate was correct.
12. Considerable stress was laid by the learned Counsel for the parties upon the question of onus of proof. Mr. B.C. De urged that although, in general, onus would lie upon the appellant-petitioner to establish satisfactorily by evidence the facts which, would go to disqualify a successful candidate and, as such, the petitioner in an election dispute is like a prosecutor in a criminal case, but, when some evidence is given on behalf of the petitioner, burden would shift on to the respondent to establish the contrary. Mr. Balbhadra Prasad Singh for the respondent has contended in this connection that, in an election dispute, the petitioner who challenges the validity of election of the respondent is obliged under law to establish by sufficient evidence the facts which would go to invalidate the election. This is a burden which must be discharged by the petitioner and he is not entitled to take advantage of any lacuna on the part of the respondent in adducing evidence to substantiate his case. In a case like this, the principle of shifting the burden also does not arise. The petitioner alleged that Brijmohan Singh was below the age of 25 years when he filed the nomination paper to contest the election for the seat in the Bihar Legislative Assembly from the Aurangabad constituency. The burden lay upon him to have" examined the headmaster of Poiwan School or, for the matter of that, the headmaster of the Aurangabad Town High School, whose evidence might be relevant for determining the real nature of the entries in the school admission register. He has referred in this connection to the case of Moiabhoy Mulla Essabhoy v. Mulji Haridas, 42 Ind APP 103 at p. 108 : (AIR 1915 PC 2 at pp. 3--4) and K. Lakshmanna v. T. Venkateshwarlu, 70 Ind App 202 : (AIR 1049 PC 278) and Halsbury's Laws of England (3rd Edition, Vol. 15) at page 267. In my opinion, however, little assistance can be derived for the case of the respondent from these authorities, in as much as they lay down the general proposition as to the party on whom the burden of proof to substantiate an issue in the dispute lies. It is well-settled that where proof has been adduced on behalf of the parties, it is for the Court to sift the evidence and come to a decision. It is only when the Court is not able to come to a decision on evidence laid before it by the parties that the question of burden becomes material, because, in that event that party would fail upon whom the burden lies to prove a particular issue in as much as he asserts the affirmative. But there comes a stage after come evidence is led when the burden shifts, or, as has been put in paragraph 492, at page 269, in Halsbury's book itself -- "This burden rests upon the party who would fail if no evidence at all, or no more evidence, as the case may be, were, adduced by either side. In other words, it rests, before any evidence whatever is given, upon the party who has the burden of proof on the pleadings, that is, who asserts the affirmative of the issue; and it rests, after evidence is gone into, upon the party against whom, at the time the question arises, judgment would be given if no further evidence were adduced by either side." In any view of the matter, the present case is not one where this wellknown academic question of law comes into play, because it is a case where both parties brought on record the evidence available and the Court is in a position to come to a decision and the question of burden of proof and sifting of evidence or the distinction between the burden of proving an issue and the burden of proof as a matter of adducing evidence during the various stages of the trial does not arise. In the present case, the matriculation certificate (exhibit 18), the application for appointment as a Sub-Inspector of Police (Exhibit 8) and the entry in the school admission register (Exhibit 2), all support the case of the appellant and, therefore, burden must be deemed to have shifted to respondent No. 1 to get rid of the effect of these documents by leading evidence to the contrary. It was for the Tribunal to come to conclusion on a consideration of the entire evidence on the record and, likewise, it was for this Court, in appeal, to scrutinise the evidence. I am, therefore, satisfied that the Tribunal was wrong and failed to assess the evidence, both oral and documentary properly, in coming to the conclusion that respondent No. 1 was born on the 15th of October, 1935. It appears to me that the date of birth as mentioned in the Matriculation certificate is more consistent with the trend of evidence and that, accordingly, respondent No. 1 was not qualified to be a candidate for the Bihar Legislative Assembly, being below the age of 25 years on the date of filing the nomination, and as such his ejection is hit by Article 173 of the Constitution.
13. Although the finding with regard to, age would be sufficient for the purpose of disposal of this appeal, it is necessary to refer to the next branch of the argument relating to the pamphlet alleged to have been issued by the respondent Brijmohan Singh, which is Annexure II to the petition. The substance of this document, which is a poetical composition, is that it makes certain disparaging remarks about the appellant Priyabarat Narain Singh. If is like a lampoon or parody as the Member of the Tribunal has characterised it. It begins thus :
^^cxqyk usrk ls gksf'k;kj vksV u mudks nsukth** The second line is the refrain of the entire composition and occurs at the end of every second line. Rest of the two lines or couplet into which the entire piece runs deal with the action and character of Priyabarat Narain Singh, The object of the composition was to dissuade the voters from casting their votes in favour of the person who bore the character painted in it. Objection is taken to the entire composition as a scurrilous document attacking the personal character of the appellant which is a corrupt practice under Section 123 (4) of the Act. Before, however, I deal with the merit of the document, which is brought on record as exhibit 10, it may be stated that the authorship of the composition and its publication on behalf of Brijmohan Singh were denied by him. The appellant's case was that this was printed at the Gokhul Press, Aurangabad, where the other documents of respondent No. 1 relating to the election were also printed, and these were systematically distributed among the voters of the entire constituency in order to lower down the personal character of the appellant in the estimation of the public, so that they would be unwilling to cast their votes in favour of such a person. The stand of respondent No. 1 was that this document was never printed at his instance and that it was fabricated at a subsequent stage by the appellant himself when he lost the election, in order to make the provisions of Clause (4) of Section 123 of the Act applicable and affect the validity of his election on account of having taken recourse to a practice which is prohibited under the Act, The witnesses examined on behalf of the appellant on this point as to the printing and circulation of this document are P. Ws. 6, 11, 13, 16, 17, 23, 32, 33, 39, 40, 41, 44, 49, 51, 52, 53, 55, 56 and 59. Apart from that the Tribunal summoned C. W. 2 Sheonandan Prasad, the proprietor of the Gokhul Press. Some witnesses were examined on behalf of respondent No. 1 as well who denied the circulation of the pamphlet by or on behalf of Brijmohan Singh. In my opinion, it will be helpful to begin the consideration of this point with the evidence of Sheonandan Prasad as, in the normal circumstances, he would be the most competent person to say as to whether this pamphlet was printed in his press on the order placed by Brijmohan Singh. As I have said above, in his examination-in-chief, he admitted that the pamphlet (Exhibit IV), serial No. 62, in the register of Orders was printed at the instance of Brijmohan Singh. He referred to Annexures III, IV and V all of which were printed in his Press under the orders of Brijmohan Singh. Order No. 62 was received by him from Brijmohan Singh to print posters, notices and ballot papers. The entry was made in the pen of his sister's son Kameshwar Prasad whose handwriting he proved. If his evidence is accepted, it would be conclusive on the authorship of the pamphlet.
(His Lordship then discussed the evidence of other witnesses and continued as under:--) It appears to me unnecessary to deal with this rest of the evidence because, as I have said above, if the authorship of the document is established, the circulation thereof among the electorate appears to be a very natural sequel. And, in spite of the evidence of some of the witnesses being that of men who were interested in the candidature of Priyabrat Narain Singh either because they were congressmen or the workers and agents of Priyabrat Narain Singh, I accept their evidence on this point as reliable on the whole (sic) that the authorship and circulation of Annexure II, the leaflet, have been established beyond reasonable doubt by the appellant.
14. The other relevant question with regard to this document is the content of it. The Election Tribunal has not recorded any distinct finding that the leaflet was not printed at the instance of Brijmohan Singh. Although the evidence of the witnesses on behalf of the appellant was adversely commented upon by the Member of the Tribunal yet he held that it would not constitute a corrupt practice under Section 123 (4) of the Act, inasmuch as, at the highest, the aspersions made in the pamphlet would be an attack on the political character of Priyabrat Narain Singh and not on his personal character and, it was only in the latter event that it would come under the mischief of Section 123 (4) of the Act.
Learned Counsel for the appellant has contended that the learned District Judge was in error in construing the parody. It is contended that it is clear beyond doubt that the object of the parody was to ridicule the appellant. The very title of the poem would show that the attack went beyond the political issue and touched the personal character of the appellant, because he has been characterised in that as cxqyk usrk which would mean a leader who was out to serve his own interest while pretending to serve the public cause. It is true, no doubt that the word used there is usrk or leader which by itself might not render, this line open to objection. It may also be that a considerable part of the poem might appear only as a political criticism of the activities of the appellant which would be quite legitimate in an election campaign. Particular stress, however, has been laid down upon the lines ^^frdMe ftudk ,d lgkjk] vksV u mudks nsuk th] * * * Bx fo|k esa cMs l;kus] vkys volj oknh th** A mention was also made of these lines --
^^mtyk dkyk] dHkh fujkyk] f'kjokuh iStkek th mYyw jkst cukrs lcdks] vksV u mudks nsuk th ogka ls ysrs osru HkÙkk] ;gka odkyr is'kk th nkSyr dk tks <sj yxkrs vksV u mudks nsuk th** It is stated that the last four lines would refer to the professional character of the appellant who is a senior pleader of the Aurangabad Bar. It is contended by the learned Counsel for the appellant that the latter four lines have nothing to do with the political character of the appellant but they relate to his professional character as a lawyer. In an attempt to ridicule him, his professional uniform Sherwani Paijama and his ordinary dress were also brought in. Reference to white and black was made to show that he was not a reliable person and his daily business was to make fools of others and that he got his salary as a legislator and yet carried on his profession as a lawyer and thereby amassed considerable wealth.
In my opinion, there is substance in the contention that these lines of the writer have nothing to do with the political life of the candidate against whom they are directed but refer to his professional life and as such wholly unjustified during the election campaign. The black dress in the form of Sherwani and white Paijama would not be unusual for a lawyer and to utilise this to paint the character of the lawyer as unreliable on this ground cannot be justified. It is true, no doubt, that such lines placed before an educated roan would not be anything more than cheap jile (jibe?) at the lawyer by a layman. But putting these lines in a pamphlet among the rural voters might have the effect of prejudicing their mind against the candidate. Even as it is, however, these lines in themselves might not be held to be so seriously objectionable as to bring the writing within the mischief of Clause (4) of Section 123 of the Act. But the line ^^frdMe ftudk ,d lgkjk** which would mean fraud and trickery the only means of such a candidate is certainly an attack upon the personal character as such. But, more than this, the line ^^Bx fo|k esa cMs l;kus** is the most objectionable part of the entire piece as it makes out the candidate an expert in the art of cheating. It is difficult to hold that this line can be regarded in any way other than an attack upon the personal character of the appellant. Mr. Balbhadra Prasad Singh has endeavoured to show that these lines should be understood in the context and it should be taken to refer to the political character of the candidate. I am unable to accede to the argument of Mr. Balbhadra Prasad Singh.
What is to be regarded as an attack on the personal character, as distinct from the political character, was the subject matter of controversy before their Lordships of the Supreme Court in the case of Inder Lal v. Lal Singh, AIR 1962 SC 1156 at p. 1159 where Gajendragadkar, J. has made the following observations :
"Though it is clear that the statute wants to make a broad distinction between public and political character on the one hand and private character on the other, it is obvious that a sharp and clear-cut dividing line cannot be drawn to distinguish the one from the other. In discussing the distinction between the private character and the public character, sometimes reference is made to the 'man beneath the politician' and it is said that if a statement of fact affects the man beneath the politician it touches private character and if it affects the politician, it does not touch his private character. There may be some false statements of fact which clearly affect the private character of the candidate, If, for instance, it is said that the candidate is a cheat or murderer there can be no doubt that the statement is in regard to his private character and conduct and so if the statement is shown to be false, it would undoubtedly be a corrupt practice, Similarly, if the economic policy of the party to which the candidate belongs or its political ideology is falsely criticised and in strong words it is suggested that the said policy and ideology would cause the ruin of the country, that clearly would be criticism, though false, against the public character of the candidate and his political party and as such, it would be outside the purview of the statute. But there may be cases on the borderline where the false statement may affect both the politician and the man beneath the politician and it is precisely in dealing with cases on the borderline that difficulties are experienced in determining whether the impugned false statement constitutes a corrupt practice or not. If, for instance, it is said that in his public life, the candidate has utilised his position for the selfish purpose of securing jobs for his relations, it may be argued that it is criticism against the candidate in his public character and it may also be suggested that nevertheless affects his private character. Therefore, it is clear that in dealing with corrupt practices alleged under Section 123 (4) where we are concerned with borderline cases, we will have to draw a working line to distinguish private character from public character and it may also have to be borne in mind that in some cases, the false statement may affect both the private and the public character as well''.
The same principle has been laid down in the case of Sudhir Laxman Hendre v. S.A. Dange, 17 Ele. LR 373 at pp. 391 and 394 : (AIR 1960 Bom 249 at pp. 253 and 254). In my opinion, the present case is within the statement of law in the above case, and, there being a recital in the pamphlet to the effect that the appellant was an expert in the art of cheating, without any qualification whatsoever or without reference to the fact that he was so in his political life and as such unreliable, would put the case within the mischief of Clause (4) of Section 123 of the Act. Mr. Balbhadra Prasad Singh has contended that this could be so if specific instances were given showing the cheating practised by the appellant, which could be shown to be a false allegation. A general statement that a candidate was a cheat does not bring the case within the ambit of Clause (4).
In my opinion, a clear statement like a cheat or a murderer in a pamphlet circulated among the electorate would be a personal attack on the character of the candidate, even if no specific instance, which can be shown to be false, of such an act has been put in the document. It appears to me, therefore, that the learned Member of the Election Tribunal was in error in construing this pamphlet only as an attack upon the political character of the candidate and not upon his personal character.
15. Mr. Balbhadra Prasad Singh has urged further that assuming that the leaflet containing the parody (exhibit 10) was printed at the instance of respondent No. I and was also circulated in the constituency, that in itself would not make it a corrupt practice unless it can be shown that it refers to the appellant. It is true that the parody does not contain the name of the person to whom it refers, its heading being ^^cxqyk usrkls gksf'k;kj** (beware of the leader who behaves like a heron), meaning thereby that he has the cleverness of a crocodile. Learned counsel has contended that this in itself does not mean any reflection on the conduct of the appellant. Learned counsel for the appellant has, however, contended that although his client's name does not appear specifically in the parody but there are definite allusions therein to the person against whom the parody was composed to show that it was the appellant who was meant by it and none else. In particular, reliance is placed upon the following lines in it :
^^vksV fy;k ?kj vUnj cSBs Hkwy x;s lc okns th QtZ ctkuk Hkwy x;s th vksV u mudks nsuk th** These two lines show that the candidate referred to herein was a person who was already a member of the Legislature from that constituency. It is urged that the evidence of the appellant was that he was elected a member of the Bihar Legislature on a Congress ticket in 1952 and continued to be a member up to 1962. The same would not apply to any other candidate either of the Parliament or the Bihar Legislative Assembly who contested the election from that constituency to the Legislature and who forgot his promises as also his duties. There was no other candidate to whom this description applied except the appellant. Further, the next two lines :
^^mtyk dkyk dHkh fujkyk f'kjokuh iStkek th mYyw jkst cukrs lcdks vksV u mudks nsuk th** would show that these lines refer to a person who puts en black sherwani and Payjama and whose profession it was to befool others. It is urged that this reference is to the professional life of the appellant who was the only lawyer candidate in the constituency. Moreover, the next following lines clinch the issue which run thus :
^^ogka ls ysrs osru HkÙkk ;gka odkyr is'kkth nkSyr dk tks <sj yxkrs vksV u mudks nsuk th** In these two lines, there is clear reference to the legal practice of the candidate. It is stated that the appellant is a senior practitioner of the Aurangabad Bar and is in flourishing practice. The lawyer, therefore, who was already a member getting his salary and travelling allowances etc., was the person to whom these lines were intended to apply. It is unnecessary to refer to the other lines. In nay opinion, the contention of Mr. Gorakh Nath Singh for the appellant that the attack on the personal character of the appellant is too thinly veiled in these lines to mislead any one, and the voters of the locality could have no doubt after reading these lines that the person in whose favour the voters were dissuaded from voting was no other candidate than the appellant himself. In my opinion, there is force even in this contention and it must be held that these lines were written as an attack on the personal character of the appellant and as such the conduct of respondent No. 1 comes within the prohibition contained in Section 123 (4) of the Act.
16. One of the points raised by Mr. Balbhadra Prasad Singh, which was, however, not agitated before the Tribunal, is that the burden lay upon the petitioner to prove that the statements contained in the pamphlet were false and unless that was established, the parody contained in the pamphlet would not constitute a corrupt practice within the meaning of Section 123 (4) of the Act. Mr. Gorakh Nath Singh has urged, in reply, that the petitioner alleged in clear terms that the allegations were false and there was no denial of that in the written statement; accordingly, it was not necessary for the petitioner to adduce positive evidence in support of the fact that the statements contained in exhibit to were false. He has referred to the case of Vijendrajit Ayodhya Prasad Goel v. State of Bombay, AIR 1953 SC 247. In my opinion, no authority is needed for the proposition that where a fact alleged by the plaintiff in a suit or the petitioner in a proceeding is not denied by the defendant or the opposite party, even if not clearly admitted, the averment amounts to an admission and exempts the plaintiff or the petitioner from the burden which lies on him to establish that fact. In the present case, the stand taken up by respondent No. 1 was that he was not responsible for the publication of the parody nor for the distribution of copies containing it but that the whole thing was engineered by the petitioner himself. In the circumstances, there was no scope for him to say that the allegations were true. In any case, respondent No. 1 did not assert in the court below that the allegations were not false and both parties proceeded on the assumption that the allegations contained in the parody were false as the only question mooted between the parties was whether respondent No. 1 had ordered the printing of the leaflet containing the poem and whether his men or supporters had distributed the same among the electorate in the constituency.
17. An objection was raised to the validity of election of respondent No. 1, also, on the ground that he held a contract under the Government for execution of works, one for the construction of a community hall and the other for constructing a health centre at Naugarh, Aurangabad North Block, undertaken by the Bihar Government and had taken Rs. 15,000/- as advance from the Government and some cement for the purpose of construction. The fact was not denied by respondent No. 1, but it was urged on his behalf that he did so as the Mukhia of Naugrah Gram Panchayat. It is conceded , by the learned counsel for the appellant that if the respondent did so as the Mukhia, the case would not come within the mischief of Section 7(d) of the Act. But the learned counsel for the appellant has contended that respondent No. 1 did not bring on record the relevant document of the Gram Panchayat to show that he entered into the agreement as the Mukhia and not in his personal capacity. Learned Member at the Tribunal has negatived the argument on behalf of the appellant and held that the two agreements in question were executed by Brijmohan Singh as the Mukhia of the Gram Panchayat, which fact is not denied on behalf of the appellant. In appeal, it has been urged by Mr. Gorakh Nath Singh that all the papers of the Gram Panchayat were in possession of Brijmohan Singh and he should have brought on record the relevant document to show in what capacity he executed the agreements concerned. On behalf at respondent No. 1, Mr. Balbhadra Prasad Singh urged that the papers were no longer in his possession as he ceased to be Mukhia at the time that the proceeding was pending before the Election Tribunal. On behalf of the appellant, it was contended further that, in any view, he should have sent for the copies of the agreements from the Government office as a copy of the agreement must be preserved there also. It is true, no doubt, that there was this lacuna in the case so far as respondent No. 1 was concerned. Learned Counsel for the parties, therefore, seriously contended as to the party on whom onus lay to establish this fact. Mr. Balbhadra Prasad Singh argued that the onus lay upon the petitioner-appellant to bring the relevant documents to show that the agreements were entered into by Brijmohan Singh with the State of Bihar in his personal capacity and not as a Mukhia of the Gram Panchayat. He also contended that 50 per cent of the cost of the construction of the community hall and the health centre would be payable by the local people and the other 50 per cent would be met out of the State Coffers. The question of a contract by Brijmohan Singh having been entered into in a personal capacity does not arise, because the work is entrusted to the Gram Panchayat whose responsibility it is to look after the construction and be entitled to the Government quota of 50 per cent when the work is completed to the satisfaction of the authorities. In my opinion, there is substance in the argument on behalf of Brijmohan Singh. As a matter of fact, a petition was filed by him before us for additional evidence which he endeavoured to bring on record, being copies of the agreements lying in the Government office. It has been urged on his behalf that there was sufficient cause for not producing evidence with regard to the agreements so far as respondent No. 1 was concerned, because, he was under the impression that onus lay upon the petitioner to establish by satisfactory evidence of circum-
stances which would vitiate the election of the successful candidate. That, however, would not condone any laches. In my opinion, learned counsel is, however, correct in his contention on the main issue "in view of the fact that the construction of a community hall and health centre would not be a matter of a private contract but a matter between the Gram Panchayat and the State Government. I am inclined to agree with the finding of the learned Member of the Tribunal that Brijmohan Singh executed the contracts for these projects not in his personal capacity but as a Mukhia of Naugarh Gram Panchayat and as such it cannot be said that he held any contract under the Government on the date on which the nomination paper was filed and was thus disqualified from being a candidate for the Bihar Legislative Assembly under Section 7 (d) of the Act.
18. In the result, therefore, having come to the conclusion that respondent No. 1 was below the age of 25 years when his nomination paper was filed and, further, that he published a pamphlet (Annexure II) Exhibit 10, containing attack upon the personal character of the appellant, it is clear that he was not competent to be a candidate and, even if that were so, his election was affected by Clause (4) of Section 123 of the Act, as he was guilty of a corrupt practice of having made an attack on the personal character of his rival and his election must be set aside.
19. Having disposed of the main point in controversy between the parties, the next question is whether the appellant can be declared elected to the Bihar Legislative Assembly on setting aside the election of respondent No. 1. I have already stated that the number of votes secured by the four candidates, who contested the election was as follows: -
1. Brijmohan Singh (Respondent No. 1) --
10,421.
2. Priyabrata Narain Singh (Appellant) 7,529.
3. Sarjoo Singh (Respondent No. 2) .--
4,052.
4. Nagendra Singh (Respondent No. 3) --
968. Section 98 of the Act provides --
"At the conclusion of the trial of an election petition the Tribunal shall make an order -- (a) dismissing the election petition or (b) declaring the election of all Or any of the returned candidates to by void; or (c) declaring the election of all or any of the returned candidates to be void and the petitioner or any other candidate to have been duly elected".
This form of the section is as it stood amended by the Representation of the People (Second Amendment) Act, 1056 (Act 27 of 1956). Learned Counsel has contended that it is Clause (c) of Section 98 which should apply to this case, inasmuch as the votes cast in favour of respondent No. 1 were all wasted by those who voted for him because they were given full notice of the fact of his being below the proper age for being a candidate and the fact was announced at a number of meetings of the voters and still those who voted for him insisted on casting their votes in his favour. In the result, it must be held that all such votes were wasted and, according to the well-known principle, in election disputes, whether the petitioner or any one of the defeated candidates at an election should be declared elected or not should depend upon the fact as to whether after eliminating the invalid votes, or votes which are otherwise deemed to have been wasted, the petitioner or any other candidate can be taken to have obtained the highest number of votes in the constituency or not. Mr. Gorakh Nath Singh has drawn our attention to the case of Jagadananda Roy v. Rabindra Nath Sikdar, AIR 1958 Cal 533 wherein the principle of wasted votes has been explained. It has been laid down in that decision that if votes are cast for a candidate who was palpably not qualified to be a candidate within the knowledge of the voters, and yet votes were cast for him at the election, all votes must be taken to have been wasted and they must be excluded from the number of votes cast. Leaving them out of consideration, therefore, the votes secured by the appellant were the next highest in number. In the above case, however, the principle laid down is that apart from technical defects in the ballot paper, or in the vote of a particular voter, which would render that vote invalid, if, for instance, a woman becomes a candidate in a constituency, as happened in the English case referred to in that judgment, when under the Corporation Act, a woman could not become a candidate, it was held that the votes cast in favour of the woman candidate must be taken to have been wasted and the voters, who exercised their franchise in favour of the woman candidate, must be taken to have spoiled their own votes. Mr. Gorakh Nath Singh has drawn our attention in this connection to the evidence of the witnesses for the appellant who came to state that it was given out in the red pamphlet issued on behalf of the appellant that respondent No. r was below the age of 25 and as such was not competent to be a candidate at all for the Bihar Legislative Assembly, and, in spite Of that, the voters insisted on saying that they would cast their votes for him all the same. Mr. Balbhadra Prasad Singh has endeavoured to show that this part of the case of the appellant is palpably false. If the appellant were aware of the disqualification, if any, attaching to the candidature of respondent No. 1 before the nomination was filed, he would certainly have filed an objection to the acceptance of his nomination. Thus, he was himself not aware of this fact up to that stage and the appellant as P. W. 4 tacitly admitted that fact. It is likely that the age of the appellant mentioned in the matriculation certificate was not known to any one until the election was over and it was not likely, therefore, that the fact of the incompetency of respondent No. 1 to be a candidate could have been published among the voters at that stage. Further it has been urged that even assuming that the fact was announced among a few voters whose number is not known, it cannot be taken to have been published in the entire electorate of that constituency. The exact number of whom if any, the information was communicated not being ascertainable, the appellant cannot take advantage of Clause (c) of Section 98 of the Act. In my opinion there is substance in the contention urged on behalf of respondent No. 1 in so far as the application of Clause (c) of Section 98 is concerned. It appears to me that even if all the voters of the constituency were apprised of the fact by a notice being circulated among them on behalf of the appellant, this would hardly go to vitiate the votes of persons who cast them in his favour, inasmuch as they were not bound in course of an election to act upon any information conveyed by the rival of a candidate in the constituency. Such information may be groundless on account of a genuine mis-information on the part of the candidate spreading such information or it may be deliberately made to mislead voters and prejudice the chance of return of a rival. The principle, therefore, of wasted votes cannot apply to a situation like this. As a matter of fact, the following observation in the above Calcutta case, AIR 1958 Cal 533 itself is pertinent on this matter :-
"........ The preponderant view also seems to be that it is not in respect of every disqualification that the question would arise of 'thrown away' votes, even where the votes are cast with notice or knowledge of the disqualification or of the facts, creating it, but that it arises only where the disqualification is founded on some positive and definite fact, existing or established at the time of the poll and the passages, cited by Mr. Kar from Halsbury's Laws of England, have reference to that aspect of the matter. Those passages, however, state only part of the law on the point ..."
This shows that the doctrine of wasted votes can only apply to a case where the defect in the candidature of a person is patent beyond doubt and everyone must be deemed to have knowledge of that fact as in the case of a woman who under the relevant statute is disqualified from being a candidate. The sex of a candidate mast be known to all the voters and so also the provision of law, it any, bearing on that point. It was in that context that in the English case referred to in the Calcutta judgment, being the case of Gosling v. Veley, (1847) 7 QB 406 at p. 439, the following observation of Lord Denman, C. J., has been quoted: -
"Where the disqualification depends upon a fact which may be unknown to the elector he is entitled to notice, for without that, the inference of assent (which is essential for inferring wilful perverseness on the part of the elector) could not be fairly drawn nor would the consequence as to the vote (that is, of its being thrown away) be just. But, if the disqualification be of a sort whereof notice is to be presumed, none need expressly be given; no one can doubt that, if an elector would nominate and vote only for a woman, to fill the office, of mayor or burgess in Parliament, his vote would be thrown away; there the fact would be notorious and every man would be presumed to know the law upon that fact,"
Where, however, there are facts which may be true, or may not be true, the voters cannot be penalised for having wasted their votes if they cast them in favour of a candidate who on a closer scrutiny at a subsequent stage 13 found to be disqualified from offering himself as a candidate for election, Rogers on Election (Vol. IT, Eighteenth Edition) at page 120 contains the following passage which is relevant in determining how the fact of disqualification of a candidate should lead to the application of the doctrine of wasted votes :-
"The result of the above decisions is that an elector, who votes for a disqualified candidate, with knowledge either of the disqualification or of the facts creating the disqualification, throws away his vote; and such knowledge will be presumed where the disqualification or the facts creating the disqualification are notorious."
The candidature of Brijmohan Singh (respondent No. 1) in the present case comes within the latter category set out above and not the former one and, even if his election is set aside, the appellant cannot be declared to have been duly elected in the vacancy caused by setting aside the election of Brijmohan Singh to the Bihar Legislative Assembly from his constituency. The contention of Mr. Gorakh Nath Singh on this score must be rejected.
20. The appeal is, therefore, allowed. The judgment and order of the Election Tribunal are set aside and the election of respondent No. 1 to the Bihar Legislative Assembly is set aside. The prayer of the appellant to be declared elected in the seat is, however, refused.
Bahadur, J.
21. I agree.