Judgment

Dr. ANAND, J.:- On 25th of September, 1992, the election of the appellant, Mr. Quamarul Islam, from 10 Gulbarga Assembly Constituency was set aside by the High Court of Karnataka by allowing an Election Petition filed by the defeated candidate, respondent No. 1, Shri S. K. Kanta. The aggrieved, unseated candidate, (appellant) has filed this appeal under S. 116A of the Representation of the People Act, 1951 (hereinafter referred to as Act).

2. On 24-11-1989, elections were held to the Karnataka Legislative Assembly. The appellant contested the election as a candidate of Muslim League from 10 Gulbarga Assembly Constituency. The election petitioner, respondent No. 1 herein contested the election as a candidate of Janta Dal Party. While the appellant secured 55801 votes respondent No. 1 secured 51204 votes. There were other candidates also in the fray belonging to different political parties besides six independent candidates. Respondent No. 2 contesting on the ticket of Congress (1) secured 12,675 votes while all other candidates secured insignificant number of votes. Respondent No. 1 questioned the election of the appellant through an Election Petition on various grounds, alleging the commission of corrupt practices by him within the meaning of Ss. 123(2), 123(3), 123(3A), 123(4) and 124(7) of the Act. Allegations regarding receipt of improper votes, rejection of valid votes besides adoption of illegal procedure during the counting were also made. The learned single Judge trying the Election Petition after recording the evidence and taking into account documents etc., produced at the trial, found that the appellant had committed the corrupt practices defined in sub-sections (2), (3), (3A) and (4) of S. 123 of the Act and, therefore, declared the election of the appellant void. The other allegations were held not established. The Election Petition was allowed with costs. The returned candidate was unseated.

3. According to the averments in the Election Petition, the appellant was described as the General Secretary of the Karnataka Branch of the Indian Union Muslim League (hereinafter referred to as IUML) who taking advantage of his position appointed persons to various organisations in the IUMI. It is averred that Mohd. Moiuddin Pasha was appointed as a Convenor of the Muslim Youth League (hereinafter referred to as MYL) and that the said Mohd. Moiuddin Pasha acted as election agent of the appellant. Reliance was placed on certain advertisements and messages issued by IUML seeking votes for the appellant. Reference was also made to the Bahmani News, an Urdu Newspaper, published from Gulbarga and it was alleged that the messages printed therein and the advertisements issued and published therein by IUML and MYL were aimed at furthering the election prospects of the appellant. Reliance was also placed on the alleged speeches delivered by the appellant and his election agent and other agents with his consent, seeking votes on grounds of religion, etc., as published in the said newspaper. The following "messages" published in various issues of Bahmani News were extracted in the petition, on the basis of which it was maintained that the said publications amounted to commission of corrupt practices as defined in Section 123.

"Re-collect your memory before voting.

that you might have come across to hear this sentence :-

"I will not sign on your passport forms because, I have been elected only on Hindu Votes, you go to him to whom you have voted."

Now your Election decision is definitely in favour of Muslim unity."

Issued by Indian Union Muslim League, Gulbarga.

4. The said newspaper again contained another message to the following effect, in the publication of 2-11-1989;

"Can you Vote such party, its Chief Minister wanted to impose restrictions on the Azan (call for the prayer) and he is also intending to do so. Certainly your election decision will be in favour of Muslim Unity.

Issued by Indian Union Muslim League."

5. Reference was also