SHAIK MOHAMMAD UMAR SAHEB Vs. KALESKAR HASHAM KARIMSAB

JUDGEMENT

(1.) This is an appeal by special leave from an order of the Bombay High Court dismissing in limine an application under Arts. 226 and 227 of the Constitution and refusing to quash the judgment and order of the Assistant Judge at Sangli rendered in Election Petition No. 10 of 1967. The facts are as follows.

(2.) On June 3, 1967 election of councillors to the Sangli City Municipality was held under the Maharashtra Municipalities Act, 1965 (hereinafter referred to as the Act'). The counting of votes took place with regard to Ward No. 25 on June 4, 1967. According to the election petition, the results were published in the Official Gazette on June 15, 1967 and the petition was filed on June 24, 1967. The petitioner who was himself a candidate for election from the said ward challenged the election of the appellant before us on several grounds set forth in para. 3 of the petition. The first of these was to the effect that the appellant had, with the help of his supporters published an undated pamphlet and circulated the same on a large scale among the voters in Ward No. 25 and that the said pamphlet contained untrue, false and defamatory statements about the petitioner thereby prejudicing the voters generally against him and in particular instigating the Muslim voters to vote against him by arousing their religious sentiments. Another similar ground based on a defamatory pamphlet date 30th May, 1967 was urged in the petition. Charges of terrorising voters and securing votes by false personation were also levelled therein. Statements were made in the petition that the appellant's name as councillor had been declared in the official Gazette on June 15, 1967 and the petitioner's cause of action had arisen on that date. The first of these was expressly accepted as correct in the written statement of the appellant and the second remained unchallenged. The appellant however repelled the charges mentioned above and denied that he was responsible for the publication of any of the impugned pamphlets. Of the four issues framed at the hearing of the petition, the first was

(3.) Learned counsel for the appellant raised five points before us. The first point was that the procedure adopted by the trial court was wrong in that the two witnesses who were examined as court witnesses had been cited by the election petitioner earlier and the learned Judge had in the exercise of jurisdiction vested in him refused to issue summonses to them when he was asked to do so on August 21, 1968. It was urged that having rejected this application, it was not open to the Judge to examine these two persons as court witnesses and this was a serious irregularity which the High Court should have set right by quashing the order of the Judge based on the evidence of these witnesses. The second point was that the election petition was filed beyond the period prescribed by the Act and as such it was not maintainable. The third point was that the first issue which was decided against the appellant was so confusing and misleading that there was no fair trial of the petition to the prejudice of the appellant. The fourth point was that in any event there was no evidence of corrupt practice of which the appellant could be found guilty. The fifth point was that the order of the Judges disqualifying the appellant for a period of five years was unduly harsh and ought to be set aside.