1963 Supreme(MP) 59

High Court Of Madhya Pradesh
K. L. Pandey and S. P. Bhargava, JJ.
SHANTI SWAROOP SHARMA - Appellant
Versus
ABDUL REHMAN FAROOQUI - Respondents
First Appeal 33 Of 1962
Decided On : 04/29/1963

Headnote:(1) Representation of the People Act, 1951 - Ss. 90(1) and 87 - connected election petitions-trial - Tribunal can try subsequent petition first in its discretion - procedure laid down under S. 10 of Civil P. C. need not be followed.

       Although S. 10, Civil P. C. is so worded that, when the conditions therein specified are fulfilled, the Court has no discretion in the trial of suits, section 87 of the Act expressly confers upon the Election Tribunal a discretion to try the election petitions separately or in one or more groups where more petitions than one are presented in respect of the same election. [Para 7]

       Therefore, when the Tribunal, in its discretion, proceeded with the subsequently instituted election petition, the exercise of that discretion cannot be challenged on the basis of the provisions of S. 10 of the Code. This is more particularly so when only petitioner in previously instituted petition applied for consolidation of the two ejection petitions and the returned candidate did not make any application under section 10 of the Code and thereby waived his right to have the proceedings in the subsequently instituted election petition stayed. This is because section 10 of the Code merely lays down a rule of procedure which may be waived. 21 MPLC 216 = AIR 1937 Nag. 132 relied on. [Para 7]

       (2) Representation of the People Act, 1951 -Ss. 90(3) and (4), 82 - maintainability of election petition-joinder of candidate whose nomination has been rejected-joinder will not incur dismissal, although joinder not strictly necessary under S. 82.

       The candidate whose nomination paper has been rejected by the Returning Officer is also a candidate within the meaning of section 79 (b) of the Act and he is en tilled, under S. 90(4) of the Act to apply for being impleaded as a respondent in an election petition : 1963 JLJ 660 = AIR 1963 M. P.356, relied on. [Para 9]

       (3) Representation of the People Act, 1950 - S. 17-scope-nomination-name of candidate appearing in two constituencies – nomination not void.

       The provisions of section 17 of the Act are directory and that, even if they are not observed in a particular case it cannot be said that the nomination of any person, whose name appears in the electoral rolls of two constituencies, is void or that there was any non-complaince with the provisions of the Constitution or the Representation of the People Act, 1951: AIR 1958 Bom. 325, relied on. [Para 10]

       (4) Representation of the People Act, 1950 - Ss. 23(3) and 24 - change of constituency-inclusion of name in new constituency - inclusion cannot automatically remove name from previous constituency-entry in previous constituency cannot be questioned except by appeal.

       Where the elector applies for inclusion of his name in another constituency, the electoral registration officer of the first constituency has to pass an order under S. 23(3) of that Act, about removal of the name from the electoral roll of that constituency and such removal is not an automatic consequence of the entry of the name in the electoral roll of the other constituency. And the failure of the electoral registration officer of the first constituency to remove the name of applicant from the electoral roll of that constituency does not make the entry invalid or liable to be called in question otherwise than by way of an appeal under section 24 of the Act : AIR 1963 SC 458, followed. [Para 10]

       (5) Representation of the People Act, 1951- S. 36(7) - Representation of the People Act (1950) - S. 17-cortified copy of entry in electoral roll-person denoted by entry-copy conclusive to prove that he is elector-not rebuttable by resorting to S. 17 of 1950 Act.

       Having regard to the provision of S. 36(7) of the Act it is manifest that, unless there be a question about disqualification under section 16 of the 1950 Act, 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 eligible for contesting the election in the constituency and It cannot be allowed to be rebutted by showing that his name was, in disregard to section 17 of the 1950 Act, also entered in the electoral roll of another constituency; AIR 1960 SC 1049 and 1962 J L J 132, followed. [Para 11]

       (6) Representation of the People Act, 1951 - Ss.33 (4); 36 (4) and 169 - Conduct of Election Rules (1961) - Rr. 2 (f) and 4 - nomination paper-omission to mention name of constituency in columns 2 and 5 but mentioned elsewhere-omission not of substantial character.

       The question whether a defect in a nomination paper is or is not of a substantial character depends upon the nature of the defect and the facts and circumstances of the case.

       [Para 14]

       Where the name of the constituency is clearly stated elsewhere in the nomination papers, the omission to mention the name of the constituency in columns 2 and 5 of the nomination papers is, where there is no difficulty in checking that the names of the proposer as well as the candidate are entered as voters in the electoral rolls, a defect of an unsubstantial character: AIR 1962 SC 1248, followed. [Para 14]

       Further a defect which is not substantial, does not become substantial merely because it is not removed or because it is relied upon as a ground for challenging the nomination papers. [Para 16]

       (7) Representation of the People Act, 1951 - Ss. 100 (1) (C) and (d) (iv) (as amended by Act 27 of 1956) and S. 36 - rejection of nomination paper-rejection in disregard of S. 36 (4) - it is improper rejection falling under S. 100 (1) (c) and not under 100(1)(d)(iv) -rejection is conclusive proof of election being void.

       Where the election of the returned candidate is challenged on the ground that the rejection of the nomination paper was in disregard of the provisions of S. 36(4) of the Act, it is a case of improper rejection of nomination paper falling under S. 100 (1) (c) of the Act and not a case of non-compliance with the provisions of S. 33 of the Act and the rules framed thereunder leading to rejection of nomination paper falling under section 100 (1) (d) (iv) of the Act, and the election can be declared void without being shown that the result of the election, so far as it concerned the returned candidate, was materially affected by such rejection: 1958 JLJ 805, = AIR 1959 M. P. 141, relied on; AIR 1959 SC 422 and AIR 1957 SC 242, followed. [Para 17]

       Sub-section (4) of S. 36 of the Act is in the nature of a proviso to sub-section (2) of that section, both operate in the same field and sub-section (4) is intended to soften the rigour of some of the provisions of sub-section (2) and the rejection of nominations for failure to comply with any of the provisions of section 33 is covered by clause (b). [Para 17]

       Before S. 100 of the Act was amended by Act 27 of 1956, it required proof of the result of the election being materially affected by the improper acceptance as well as by improper rejection of any nomination. That section was specially amended to dispense with such proof in all cases in which any nomination was improperly rejected. [Para 17]

       (8) Representation of the People Act 1950 - S. 116-A - finding of facts and appreciation of evidence-powers of High Court.

       When the finding of the Tribunal rests solely on appreciation of oral evidence, importance should be attached to it and unless the appellant is able to show that, upon a consideration of the evidence as a whole, there is a substantial balance in his favour, the Tribunal's appraisal should not be reversed. AIR 1959 SC 93, followed. [Para 19]

       (9) Representation of the People Act, 1951 - S. 123(4) -scope-statement must be false and of fact made in relation to personal character or conduct of other candidate-statement that, candidate colluded with mine-owners and sacrificed interests of labourers for his selfish ends and that he opened at several places gambling and drinking dens and encouraged Goondaism- amounts to corrupt practice.

       In order to attract section 123 (4) of the Act, there must be a false statement of fact by a candidate or his agent, which is made in relation to the personal character or conduct of any other-candidate. The statement would not come within the mischief of the section if it is a false statement of opinion or if it amounts to merely a criticism of the political views, position, reputation or action of a rival candidate. But the section would be attracted if the person beneath the politician is attacked and his honour, integrity or veracity is falsely challenged. There is no sharp dividing line separating what is personal from what is political. It may well be that a given statement involves both imputations and this may be so if the statement about political character affects the honour, integrity or veracity of the candidate. AIR 1962 SC 1156, followed. [Para 21]

       Where the statements made by a candidate against another candidate falsely attributed to him conduct of colluding with the mine- owners and thereby sacrificing the interests of the labourers for his selfish ends, that he had opened at several places gambling and drinking dens and encouraged Goondaism and that he had collected by unfair means property worth Rs. 40,000.

       Held: Allegations made in statements related to the personal character of the candidate and the dissemination of these false statements on the eve of the election showed the contesting candidate in adverse light which he could not meet in proper time and were reasonably calculated to prejudice the prospects of his election and therefore amounted to corrupt practice. AIR 1962 SC 1156, followed. [Paras 22, 23 & 24]

       (10) Representation of the People Act, 1951 - S. 123(4) - evidence and proof - publication of statements -falsity of -proof- onus- petitioner proving falsity-burden shifts on maker of statements to prove truth of statements - evidence Act, 1872 - Ss. 101 to 104.

       Where, in an election petition, the petitioner, who seeks to establish corrupt practice contained in S. 123 (4) of the Act, proves the falsity of the statement or the belief or want of belief, the burden to prove that the statements were not false or were bona fide belived to be true shifts on the person who made the statements. 22 ELR 261 (SC), followed.

       [Para 23]

       (11) Representation of the People Act, 1951 - S. 100(1)(b) - grounds for declaring election as void-corrupt practice proved-further proof that result of candidate was materially affected not necessary.

       Once the petitioner establishes a corrupt practice, it is not necessary that he may further prove that the result of the election was materially effected. [Para 25]