SUDHIR LAXMAN HENDRE Vs. SHRIPAT AMRIT DANGE

JUDGEMENT

(1.) (After stating the fact and some evidence His Lordship proceeded): In connection with the order of the Elcetion Commisioner ordering a repoll confined to one polling station, the argument of Mr. Dhabe is that such an action is not warranted by the provisions of the Representation of the People Act. According to Mr Dhabe, in view of the defect that was brought tot henotice of the polling officer as well as the Returning Officer and to The Election Commission the entire electin to the Parlimentary seats in the constitutency should have been set aside nd a fresh election held. Under S. 57 of the Act, provision is made for the adjournment of poll at an election in certain emergencies. It is not disputed that S. 57 would not apply to the fact of this case. Section 58 provides for a fresh poll being taken and it runs as follows:

(2.) BUT even assuming that S. 58 does not in terms provide for a fresh election at a polling station,under circumstances which have arisen in the present case, the only section whichempowers an Election Tribunal to declare an election to be void is S. 100 of the Act and Mr. Dhabe has, therefore, argued that what has happened amounts to a corrrupt practice which must invalidate the election.

(3.) ACCORDING to Mr. Dhabe, the polling aghents of the successful candidates were responsibel for making a false statement of fact to the polling officer that the pettioner and Mr. Parulekar had withdrawn from candidature. That would be therefore, a corrupt practice within the meaning of S. 123(4) of the Act And Mr. Dhabe says that the evidence establishes that the polling agenst of the successful candidates were present at the polling station and were responsible for th einformation given to Mr. Bharucha. It is contended further that at that polling station the pollin g agents of Messrs. Hendre and Parulekar wer not present and onl;y the agents of other candidates were present and according to Mr. Bharucha, the polling agent had given him the information that both Messrs. Hendre and Parulekar had widthdrawn and on that information he had not kept the ballot boxes of these two candidates in the polling compartment. Now, there are several difficulties inthe wayof accepting this contentinof Mr. Dhabe. In the frist instance, Exhibit P. 34, the report of Mr. Bharucha, show that themajority of the polling agents gave him this information. In this evidence the Tribunal, he said that the polling agents there gave him to understand that the two candidates had withdrawn. If the polling agents of Messrs. Hendre and Parulekha were not ther, the polling agents of the Cogress candidates as well as those of Messrs Dange and Maney wouldbe there and, accoridng to the Hendre's letters botht he Returning Officer as well as the Election Commission written on the polling aents of both the Congress aswell as the Samyukta Maharashtra Samiti candidates had given the wrong information to thepresidieng officer. As already stated. Mr.Manay's evidence shows, and there is no dispute on this point, that on that very day election were also held for the State Legislative Assembly and ther were polling agents of candidates standing for that Assembly and that electionwas held at the same polling station. It cannot, therefore, be said with certainly that the polling of successful candidates Messrs. Dange and Manay were responsible for giving this false information to Mr. Bharucha, nor I ther any evidence whatever on the record to show that this was done witht he consent of the petitioner has also stated in his evidence that owing to the illnes of hs sone had not been able properly to divide the supervisin work of polling stations amongst his workers and it was difficult for him even to co -operate with his workers whowee scattered over a wide area and who also belived that he had withdrawn. Mr. Dhabe has drawn our atention to the provisions of S. 46 of the Act under which poliing agents or his election agent and to Rule 13 of the Representation of the People (Conduct of Elections and Election Petitions), Rules, 1956, published in the Manual of Election Law, second edition, and Form 10 in connection witht he appointment of polling agent and Mr. Dhabe contends that as soon as polling agent is aponted all his actions must be presumed to be binding on thereturned candidate. We are notprepared to accept his argument. As I have already pointed out, when a corrupt practice is committed by a returned candidate or his eleciton agent, then the question of consent does not arise, but if it is committe by 'any other person which expression would include a polling agent then it mus be shown that the corrup practice has been committed with the consent of the returned candidate or his election agent. There is no reliable evidence on the record to show that the polling agent of Messrs. Dauge an Manay went responsible for giveng this false information to Mr. Bharucha and there is no evidence aso to show that this was done iwth the consent of either the returned candidates of theirelection agents and therefore, in our opinion, this would not amount to any corrupt practice under S. 100(1)(b) of the Act.