KHAJI KHANAVAR KHADIRKHAN HUSSAIN KHAN Vs. SIDDAVANBALLI NIJALINGAPPA

JUDGEMENT

(1.) This appeal under Section 116-A of the Representation of the People Act, 1951 (hereinafter referred to as "the Act") has been filed by two appellants whose election petition for setting aside the election of respondent No. 1 has been dismissed by the High Court of Mysore. Appellant No. 1 was one of the candidates who filed his nomination for election to the Mysore Legislative Assembly from Shiggaon Constituency in the District of Dharwar. Appellant No. 2 was a voter in that Constituency. The notification fixing the time-schedule for the elections was issued on the 13th January, 1967, fixing 20th January, 1967 as the last date for filing nominations, 21st January, 1967 as the date of scrutiny, and 23rd January, 1967 as the last date for withdrawal of candidature. According to the appellants, only eight candidates filed their nominations within time up to 20th January, 1967. One of them was appellant No. 1. Respondent No. 1 was not included amongst the seven other candidates and his nomination paper was subsequently introduced amongst the records of the Returning Officer on behalf of respondent No. 1 with the aid of the Returning Officer. The Returning Officer is respondent No. 2 in the appeal, having been impleaded as respondent No. 2 in the election petition also. It was further pleaded that, even if any nomination paper was filed by respondent No. 1, it was not accompanied by the relevant portion of the electoral roll in which the name of respondent No. 1 appeared as a voter which was necessary, because respondent No. 1 was not a voter in this Constituency, but in a different Constituency. No deposit as required by Section 34 of the Act was made in time; and, further still, respondent No. 1 was not qualified to be chosen to fill the seat in the Legislature, because he had not made and subscribed before the person authorised in that behalf by the Election Commission an oath or affirmation according to the form set out for the purpose in the Third Schedule to the Constitution as required by Art. 173 (a). It was alleged that, despite all these defects, respondent No. 1 was declared elected unopposed on the date of scrutiny on the incorrect ground that all other candidates had withdrawn their candidature. The appellant accepted the genuineness and validity of the withdrawals by the seven other candidates, leaving appellant No. 1 as the sole contesting candidate. The further case was that, in order to have respondent No. 1 returned unopposed, corrupt practices were committed to obtain a withdrawal form signed by appellant No. 1 and it was filed illegally before the Returning Officer.

(2.) The version relating to the commission of corrupt practices and to the filing of the withdrawal forms of appellant No. 1 may now be stated. The appellants allege that the whole manoeuvring was done by one Patil Puttappa, Member of Parliament, who was a staunch supporter of respondent No. 1, and by Mahalinga Shetty, the son-in-law of respondent No. 1. These two persons caught hold of two other persons, Hotti Peerasabnavar Chamensab Ghudusab (hereinafter referred to as "P. W. 3"), and Nadaf Mohamad Jafar Saheb (hereinafter referred to as "P. W. 4"), and, through them, attempted to induce appellant No. 1 to withdraw his nomination by promising to get him a long-awaited huller licence and also to get him better patronage for his bookselling business and for receiving other aid and support for his material prosperity. The appellants allege that this inducement was offered without disclosing that respondent No. 1's candidature was spurious, For this purpose, on 20th January, 1967, at about 8-30 P. M., while appellant No. 1 was sitting at the shop of one Joshi, a car arrived from which P. W. 4 got down, came to appellant No. 1 and told him that Patil Puttappa was calling him and requesting him to go with him. Appellant No. 1 went with P. W. 4 towards the car in which Patil Puttappa was sitting. The latter asked appellant No. 1 why he should further trouble himself with election matters when he had enough work in connection with the shop, flour mill and his garden lands. He added that it will be to the advantage of appellant No. 1 to withdraw his nomination, promising that he would assist him in his trade, get him an agency for paper and would help him to secure a licence for his huller which he said, he had heard he was trying to obtain without success. Appellant No. 1 replied that he had filed his nomination with a view to contest the elections as his candidature had been sponsored by many people and he was not willing to withdraw his nomination. In spite of requests having been made two or three times, appellant No. 1 refused. At a later stage, when he asked why he should withdraw his nomination, Patil Puttappa told him that they desired uncontested return of respondent No. 1, and that was the reason why they were making that request. Appellant No. 1 then objected saying that respondent No. 1 had not filed his nomination, whereupon Patil Puttappa stated that every necessary arrangement would be made to secure the uncontested return of respondent No. 1. At the time of this talk, Mahalinga Shetty was also sitting in the car. When appellant No. 1 continued to be hesitant, Patil Puttappa asked him to go with him in the car and, in this suggestion, P. Ws. 3 and 4 supported him. Appellant No. 1 first declined to do so because he was not prepared to accede to the request for withdrawing his nomination, but, on Patil Puttappa's persistence, he agreed to go along, provided appellant No. 2 also accompanied him. Appellant No. 1 then went to the shop of appellant No. 2 and, thereafter, both of them got into the car and were taken to the house of one Hanumanthagouda Ayyangouda Patil (hereinafter referred to as ''R. W. 3"). Patil Puttappa, Mahalinga Shetty and the two appellants all went inside the house of R. W. 3 and sat there when Patil Puttappa once again made a request to appellant No. 1 to withdraw his nomination. Appellant No. 1 refused while appellant No. 2 also supported him by stating that appellant No. 1 had full support of the Muslims of the locality an that there was every chance of his success, so that there was no point in his withdrawing the nomination. Thereafter, Patil Puttappa changed his tactics and told appellant No. 1 that it would neither be good nor safe for him to continue to refuse his request and threatened him by asking whether he would like to go on with the election or prefer to live in safety. He added that he was a Member of Parliament and, therefore, he could do anything to appellant No. 1. He also produced a blank printed form and two blank sheets of white paper and asked appellant No. 1 to sign them, giving the threat that he will not be allowed to go, unless he affixed his signatures to them. When appellant No. 1 looked for support to appellant No. 2, the latter was also similarly threatened, whereupon he said that there was no escape and, consequently, appellant No. 1 should sign the papers as desired by Patil Puttappa. Against his will and submitting to the pressure of Puttappa, appellant No. 1 signed the papers which were taken away by Puttappa who left asking R. W. 3 not to permit the two appellants to go away, unless Puttappa himself told him to let them go. The two appellants, according to them, were kept confined in the house of R. W. 3 throughout the night of 20th January and again throughout the day and night of 21st January, 1967. They were only allowed to leave the house at about 4-30 A. M. on 22nd January, 1967, when a servant of R. W. 3 woke them up and told them that they could go away. The charge put forward on the basis of these facts was that an attempt was made to bribe appellant No. 1 to withdraw his nomination by offering him help in obtaining the licence for the huller and in getting him agency for paper, with the further charge that signatures on the withdrawal form were obtained by undue influence. It was further pleaded that that withdrawal form was filed before the Returning Officer by some one other than appellant No. 1 or his election agent. The case put forward in the election petition, thus, was that the withdrawal from candidature of appellant No. 1 was attempted to be obtained by offering inducements and by subjecting him to threats and by exercise of undue influence in which assistance of the Returning Officer was procured. In the commission of these corrupt practices, there was consent of respondent No. 1, so that the election of respondent No. 1 was void. In order to prove the consent of respondent No. 1, to the commission of the corrupt practices the case put forward was that, subsequent to the alleged withdrawal of candidature by all the other candidates including appellant No. 1, leaving respondent No. 1 as the sole candidate, respondent No. 1 met P. Ws. 3 and 4 and gave them an assurance that the promises which had already been made to assist appellant No. 1 will be honoured.

(3.) The further version put forward on behalf of the appellants, subsequent to their release from the house of R. W. 3, is that, when they came out of the house towards the Poona-Bangalore Road, they felt ashamed to show their faces in their own town of Shiggaon and, consequently, decided to go to Hubli for a few days. A truck happened to pass there carrying some goods and, since they had some money, they took a lift in the truck and went to Hubli. They went to a canteen for refreshments and on the table they found an issue of a newspaper 'Samyukta Karnataka' in which appeared a news item stating that respondent No. 1 had been returned uncontested at Shiggaon. Appellant No. 1 felt surprised, because he had not withdrawn his nomination. He consulted appellant No. 2 and the two of them, after thinking over, realised that advantage must have been taken against them of the papers which appellant No. 1 had been made to sign at the house of R. W. 3. They, therefore, decided to see a lawyer and selected Sadashiv Shankarappa Settar (hereinafter referred to as "P. W. 2") because, besides being a lawyer he was also a candidate in the election. They went to his house twice at about 9 A. M. and again at about 12.30 or 1.00 P. M., but he was not at home. They waited on the second occasion until about 2.30 P. M. when he returned and, after taking his meals, he ultimately talked to them at 3 P. M. As a result of the consultation, P. W. 2 drafted a telegram which was despatched by the appellants at about 4.35 P. M. to the Returning Officer. In the telegram, it was mentioned by appellant No. 1 that he had read in a newspaper that he had withdrawn which was false as he had not withdrawn and the withdrawal form was not presented by him. He added that he did not know who had filled in the contents of the withdrawal form and who had presented it and, consequently, wanted the Returning Officer to treat it as invalid, adding that he was still contesting the election from the Shiggaon Constituency. The Returning Officer received it on the same evening, i.e., on 22nd January, 1967, but noted on it that, since it was a telegram, it could not be acted upon or considered. Thereafter, appellant No. 1 addressed a meeting late at night in a locality called 'Durgada Bailu' in Hubli where election propaganda was going on. After taking further steps next day, the appellants continued to stay in Hubli for 2 or 3 days and they ultimately returned to Shiggaon on the 25th January, 1967. On these pleadings, the case put forward was that appellant No. 1 had never withdrawn his candidature and that, since respondent No. 1 had never filed his nomination paper and all other candidates had withdrawn, appellant No. 1 was entitled to be declared elected unopposed. In the election petition, therefore, in addition to the relief or declaration of the election of respondent No. 1 as void, appellant No. 1 also claimed a declaration that he was the duly elected candidate from the Shiggaon Constituency.