Judgment

HEGDE, J. :- This is an election petitioner s appeal under Section 116-A of the Representation of the People Act, 1951 (to be hereinafter referred to as the Act). It relates to the election to the Tamil Nadu Legislative Council from the Madras City Graduates constituency. The election was held on April 11, 1970. Seven candidates contested in that election. The election was according to the principles of proportional representation by means of single transferable vote. The Madras City Graduates constituency was a two member constituency. The 1st respondent, Vasantha Pai was declared elected in the first count itself. The second respondent Narayanaswamy was declared elected in the second count. The election of Vasantha Pai was challenged by the appellant Vardachari who is an elector in the constituency in question on the ground that Vasantha Pai was guilty of corrupt practices mentioned in sub-sections (2) and (4) of Section 123 of the Act. The High Court came to the conclusion the petitioner has failed to make out his case and consequently dismissed the election petition. Hence this appeal.

2. The charges levelled against Vasantha Pai are: (1) that he (Vasantha Pai) falsely carried on propaganda to the effect that the High Court of Madras had decided in an earlier election petition between him and R. N. Seshadri that the constituency in question is a non-political and Narayanaswamy having been sponsored by the Swatantra Party any votes given to him will amount to "throwing away" of the votes and (2) that Narayanaswamy being a non-graduate was not qualified to be a candidate at the election.

3. It may be noted at this stage that Vasantha Pai did object to the candidature of Narayanaswamy before the Returning Officer on the two grounds mentioned earlier. The Returning Officer rejected those objections holding that there was no material before him to show that Narayanaswamy had been sponsored by the Swatantra party and further that in his view a non-graduate is not disqualified from seeking election from a graduate constituency. Even after the Returning Officer rejecting the contentions of Vasantha Pai, he admittedly carried on the propaganda referred to earlier by publishing leaflets as well as appeals in the Newspapers.

4. Section 123 enumerates what are corrupt practices for the purposes of the Act. Sub-section (2) of that Section to the extent material for our present purpose reads:

"Undue influence, that is to say, any direct or indirect interference or attempt to interfere on the part of the candidate or his agent, or of any other person with the consent of the candidate or his election agent, with the free experience of any electoral right."

(The proviso is not relevant for our present purpose.)

5. Sub-section (4) thereof says:

"The publication by a candidate or his agent or by any other persons, with the consent of a candidate or his election agent of any statement of fact which is false and which he either believes to be false or does not believe to be false or does not believe to be true, in relation to the personal character or conduct of any candidate, or in relation to the candidate, being a statement reasonably calculated to prejudice the prospects of that candidate s election."

6. Before examining the points in issue, it is necessary to set out a few more facts.

7. In 1967 a seat in the Madras City Graduates constituency fell vacant. For that seat election was held on August 21, 1967. In that election Vasantha Pai was one of the contestants. One of the other contestants was R. N. Seshadri. R. N. Seshadri was declared elected having secured the highest number of votes. Thereafter Vasantha Pai challenged the validity of the election of Seshadri on various grounds. One of the grounds taken by Vasantha Pai was that in an election from graduates constituencies political parties were not competent to sponsor candidates, Seshadri having been sponsored by the Swatantra party, was not qualified to be a candidate. Yet anot