GHAYAR ALI KHAN Vs. KESHAV GUPTA

JUDGEMENT

(1.) This is an appeal under Section 116A of the Representation of the People Act, Act No. 43 of 1951, as amended by Act No. 27 of 1956. It will be called hereinafter the Act.

(2.) The appeal arises out of an election held for electing a member to the U. P. Legislative Assembly from Constituency No. 24 known as Thanabhawan constituency of Muzaffarnagar district, in the State of U. P. There were only two contesting candidates at the election, namely, the appellant Sri Ghayur Ali Khan and the respondent Sri Keshav Gupta. The appellant belonged to the Praja Socialist Party and the respondent to the Congress Party. There was thus a straight contest between the candidates set up by the two parties. The polling took place on 6-3-1957 and the counting of votes took place on the next day, when the appellant was held to have secured 25933 votes and the respondent 25258 votes. The appellant was accordingly declared to have been duly elected as a member of the U. P. Legislative Assembly from the above constituency. The respondent then submitted an election petition to the Election Commission, which was, in due course, forwarded to the District Judge of Muzaffarnagar, Sri Mahesh Chandra who was constituted as the Election Tribunal for disposal of this election petition. The Election Tribunal, on receipt of the petition, issued notice to the parties, and proceeded to try the election petition. As a result of the pleadings of the parties, it framed 16 issues. The parties led evidence before it, but at the time of the argument it appears that the learned counsel for the respondent did not press issues Nos. 6, 10, 13 and 14 before the Election Tribunal. The Tribunal accordingly decided only the rest of the issues, deciding issues Nos. 1, 2 and 5 in favour of the respondent and the rest against him. Issue No. 1 raised the question of an appeal on the ground of religion and community to the electorate, and issues Nos. 2 and 5 related to the exercise of undue influence by the appellant. The decision on issues Nos. 1, 2 and 5 being in favour of the respondent, it allowed the election petition and declared the election of the appellant -as void. The appellant has accordingly filed the present appeal against the decision of the Election Tribunal.

(3.) The learned counsel for the appellant challenged the correctness of the decision recorded against him on issues Nos. 1, 2 and 5. The learned counsel for the respondent tried to support the decision of the Tribunal on the above issues, and further urged that the decision of the Tribunal against him with respect to issues Nos. 3, 4 and 15 was incorrect and the election petition should have been allowed on the further grounds giving rise to the said issues. He has not challenged the correctness of the decision of the Tribunal on issues Nos. 7, 8, 9, 11 and 12. We have thus to see whether the decision of the Election Tribunal on issues Nos. 1, 2, 3, 4, 5 and 15 is correct or not. Issue No. 16 only posed the question as to the relief the respondent was entitled to. We shall now proceed to decide those Issues concerning which arguments have been addressed. ISSUE No. 1.