LALSING KESHRISING REHVAR Vs. VALLABHDAS SHANKERLAL THEKDI

JUDGEMENT

(1.) This appeal is filed under sec. 116A of the Representation of the People Act 1951 (Act 43 of 1951) (hereinafter referred to as the Act) by Lalsing Keshrising Rehvar whose election to a seat in the Gujarat Legislative Assembly has been declared under sec. 100(1)(b) read with sec. 123 sub-sec. (2) and (3) to be void by Mr. A. A. Dave the sole member of an Election Tribunal appointed under sec. 86 of the Act by his order dated 29th December 1962 in an election petition filed by Vallabhdas Shankerlal Thekdi respondent No. 1 herein. Sabarkantha District has been allotted one Parliamentary seat. This district consists of a number of talukas. These talukas were allotted between them six seats in the Gujarat State Legislative Assembly. In the elections held in 1962 one Pashabhai Patel was one of the candidates for the Parliamentary seat. He was fighting the election on the ticket of the swatantra party. We are not directly concerned with the election to the Parliamentary seat. We are also not directly concerned with the elections to the assembly seats except a seat allotted to a constituency consisting of Malpur and Bayad talukas of Sabarkantha District. In the latter constituency there were three candidates at the above election.:- (1) Lalsing the appellant (2) Madhuben K. Shah respondent No. 2 and (3) Madhukarrao Fanse respondent No. 3. Lalsing was contesting the election on swatantra party ticket Madhuben on Congress party ticket and Madhukar on P.S.P. ticket. The polling for the parliamentary and the assembly seats in the above constituency was held on 21st February 1962 and the result of the assembly seat was announced on 26th February 1962. Lalsing was declared elected to the assembly seat. On 11th April 1962 Thekdi respondent No. 1 a voter in the constituency filed an election petition before the Election Commission challenging the election of Lalsing to the above seat. This petition was referred to the Tribunal consisting of the sole membership of Mr. A. A. Dave. The election of Lalsing was challenged by Thekdi on a number of grounds all of which do not now survive. Thekdi contended inter alia that corrupt practices described in sub-secs. (2) and (3) of sec. 123 were committed during the course of the aforesaid election and that therefore the election was liable to be declared void under sec. 100 subsec. (1) clause (b) of the Act and that the result of the election had been materially affected by reason of the above corrupt practices which were committed by Lalsing`s agents and therefore also the election was liable to be declared as void under sec. 100(1)(d)(ii) of the Act. Broadly speaking there were two sets of corrupt practices which were set up by Thekdi. The first set arose out of the publication of a printed pamphlet Ex. 70 bearing the signature of one Goswami Dixitji Maharaj and a message of the same person published in the issue dated 19th February 1962 of a paper entitled Lok Sevak edited by witness Malvi a copy of which is at Ex. 72. The copies of these two documents were distributed amongst the voters of the Constituency on the 18th and 19th February 1962 Thekdi alleged that a passage in Ex. 70 and the message Ex. 72 amounted to undue influences and were direct interference with the free exercise of electoral rights and that in particular the impugned passage and message induced or attempted to induce electors to believe that they would become or would be rendered objects of divine displeasure or spiritual censure. He also alleged that the aforesaid two publications amounted to an appeal by Lalsing or his agents to vote for Lalsing and to refrain from voting for the other two candidates on the ground of religion and thus amounted to a corrupt practice under sec. 123 sub-sec. (3). According to Thekdi the aforesaid two documents were prepared printed published and distributed by agents of Lalsing with his consent and therefore directly fell within the purview of sec. 100 sub-sec. (1) clause (b) of the Act. The second set of corrupt charges was based on the allegation that Lalsing and his agents had used or made an appeal to the symbol of dhruv star for the furtherance of the prospects of Lalsings candidature or for prejudicial affecting the election of the other two candidates. Lalsing admitted the use of the symbol of dhruv star but denied that it was a religious symbol. Lalsing also denied that the other corrupt practices based on the alleged publication of Exs. 70 and 72 had been committed by him or by his agents with his consent. On the euphoric said leadings a number of issues were raised by the Tribunal for its decision. The Tribunal came to the conclusion that Exs. 70 and 72 were published and distributed by Lalsings agents that these two publications amounted to corrupt practice described in sec. 123 sub-sec. (2) proviso (a)(ii); that the aforesaid pamphlet and message were distributed with the consent of Lalsing and that therefore came within the mischief of sec. 100(1)(b) of the Act. He also came to the conclusion that the use of the symbol of dhruv star by Lalsing and his agents amounted to a corrupt practice under sec. 123 sub-sec. (3) and that the use by the agents was with Lalsings consent and that therefore the same fell within the purview of sec. 100(1)(b) of the Act. The Tribunal however held that the publication of the two documents Exs. 70 and 72 did not amount to the commission of a corrupt practice within the meaning of sec. 123 sub-sec. (3) of the Act. On the above two grounds the Tribunal held the election of Lalsing to be void and made a declaration to that effect. Aggrieved by the aforesaid decision Lalsing came to this Court in appeal his appeal being First Appeal No. 476 of 1962. A Division Bench of this Court by its judgment pronounced on 14th and 15th March 1963 held that the decision of the Tribunal that the use of the dhruv star was the use of a religious symbol was correct and that the same was made use of by Lalsings agents with Lalsings consent and that therefore the decision of the Tribunal that the election was void on that ground was correct. On this finding the Division Bench did not feel called upon to record its own findings in regard to the corrupt practices found by the Tribunal to have been committed in regard to the two documents Exs. 70 and 72. Basing itself upon the above finding in regard to the use of a religious symbol the Division Bench dismissed First Appeal No. 476 of 1962. Aggrieved by that decision Lalsing went to the Supreme Court and was granted special leave by that Court to appeal against the decision of this Court. The Supreme Court by its judgment delivered on 3rd August 1965 reversed the decision of the Division Bench and held on the authority of Ramanbhai Ashabhai Patel v. Dabhi Ajitkumar Fulsinhji and others reported in . 1965 Supreme Court 669 that the use of the dhruv star was not the use of a religious symbol. Therefore the Supreme Court allowed the appeal of Lalsing and as this Court had not recorded its findings on the other points in dispute it remanded the first appeal to this Court with a direction that the same should be disposed of in accordance with law. That is how the present appeal comes to be reheard by this Court.

(2.) In this Court Lalsing challenges the findings recorded by the Tribunal in regard to the aforesaid two publications Exs. 70 and 72 namely that they amounted to the commission of corrupt practices mentioned in sec. 123 sub-sec. (2) of the Act. Alternatively he contends that even if the two publications do amount to such a corrupt practice it does not come within the mischief of section 100 sub-section (1) clause (b) of the Act inasmuch as Thekdi had failed to prove that the two documents were published and distributed with his consent. Alternatively he contends that even if this Court comes to the conclusion that the aforesaid corrupt practice was committed and that it was practiced by his agent or agents the case at the most would fall for consideration under sec. 100 sub-sec. (1) clause (d) sub-clause (ii) and that Thekdi has failed to establish that the result of the election was materially affected and that on that ground this Court should record a finding that the case does not fall within the mischief of sec. 100 sub-sec. (1) clause (d) sub-clause (ii) aforesaid. On the other hand Mr. Patwari on behalf of Thekdi supports the findings recorded by the Tribunal on the aforesaid grounds. Alter natively he argues that even if the case under sec. 100 sub-sec. (1) clause (b) of the Act has not been made out Thekdi has successfully established a case under sec. 100 sub-sec. (1) clause (d) sub-clause (ii) of the Act. Still alternatively Mr. Patwari contends that in any case Thekdi has established that the aforesaid publications amounted to corrupt practices within the meaning of sec. 123 sub-sec. (3) on the ground that the aforesaid two documents amounted to soliciting votes on the ground of religion and that therefore the finding recorded by the Tribunal against Thekdi on that score is wrong and requires to be reversed. Both the sides raised several contentions regarding the construction of sec. 123 sub-secs. (2) and (3) and sec. 100 sub-sec. (1) clause (b) and sub-sec. (1) (d) (ii) of the Act. We shall refer to the rival contentions of the two sides regarding these and allied questions at their proper place in the course of this judgment.

(3.) Mr. Nanavati formulated three broad submissions for the decision of this Court. They are:-