B.L. Hansaria, J. - (1.) THE battle of ballots won in the field is not to be lightly undone by a Court when it is approached by a defeated candidate, or by any other competent and interested person. This principle is so well woven in the fabric of election law that no citation of authority is needed to justify it. Despite this the Court has to rise to the occasion when it finds that the purity of the election has been defiled by indulgence in corrupt practice, or when it is satisfied about the existence of any other ground mentioned in Section 100 of the Representation of People Act, 1951, herein -after called the Act. Here also, the Court would be justified in reversing the verdict of the people on its being fully satisfied about the allegations made by the election Petitioner. Any other attitude of the Court would destroy the democratic structure given to us by the Constitution, and nourished thereafter by the people who have shown their deep faith in the system by expressing their wishes almost freely and fearlessly establishing thereby the efficacy of the elections in choosing only those as their representatives who according to the voters had been successful or had made sincere efforts in delivering goods to the hungry millions.
(2.) THE Petitioner in the present case having lost in the battle of hustings, which took place on 17.2.83, has approached this Court not only for a declaration that the election of Respondent No. 1 (hereinafter, the Respondent) was void, but for a further declaration that it was be who was duly elected to the Meghalaya Legislative Assembly from No. 49 Rajabala Constituency. It may be pointed out here that the Respondent had secured 3126 votes as against 2568 votes obtained by the Petitioner who was the recipient of the next highest number of votes. The returned candidate had thus polled 558 votes more than that Petitioner. There were four other candidates in the fray, but we are not concerned with them. The present was not the first encounter between the concerned persons, as the election Petitioner and the Respondent had faced each other in the election held in 1978, when the Petitioner had got elected by a margin of 19 votes only. Being a sitting M.L.A., the Petitioner was naturally looking forward for his victory in the 1983 election also, but the same eluded him, and he says that this was due to indulgence in corrupt practices by the returned candidate, so also because he was allotted the symbol of 'Hand' meant for the Indian National Congress in violation of the provisions of the Act, or the rules or orders framed thereunder which materially affected the result of the Respondent. This apart, it is the contention of the Petitioner that the Respondent was disqualified to be a candidate as he was not a citizen of India. 2A. Keeping in view the averments made by the parties, this Court framed the following eight issues: 1. (a). Wither the change of allotment of symbol from 'Boat' to "Hand" to Respondent No. 1 Shri Khorshedur Rahman Khan was in breach of paragraph 13 of the Election Symbols (Reservation and Allotment) Order, 1968 or was in breach of any order made under the Representation of the People Act, 1951, or the Rules, framed thereunder? (b) Whether Respondent No. 1 made the declaration as required under Rule 10(4) and (5) of the Conduct of Election Rules, 1961 ? If not, whether his nomination paper was liable to be rejected? (c) Whether Respondent No. 1 made the requisite declarations in his nomination paper as required under paragraph 13 of the Election Symbol (Reservation and Allotment) Order, 1968 to the effect that he was set up by -Congress (I)? (d) Whether due notice, in writing that Respondent No. 1 was set up by Congress (I) were delivered to the Returning Officer of the constituency by 3 PM on the last date of withdrawal of the candidature and whether one of those said notices vas duly signed by the President, Secretary, or any other Office bearer of the party competent to set up Respondent No. 1? (e) Did the Secretary to the Election Commission of India, New Delhi send the Telex Message to the Deputy Commissioner, West Garo Hills, Tura and the Chief Election Officer of Meghalaya intimating that if an independent candidate was subsequently adopted by any recognised party be could be allotted the symbol reserved for that party on receipt of requests made by the said recognised party? If the Telex Message was an order made by the Secretary was it a valid order of the Election Commission? Whether the Telex Message conveyed an order or decision or direction of the Election Commission? (f) Whether the Returning Officer could allot the reserved symbol "Hand'' to Respondent No. 1 after the date of withdrawal of candidature was over? 1A. Whether any of the allegations contained in Clauses (a) to (f) of Issue No. 1 amounted to non compliance with the provisions of the Constitution, Representation of the People Act, 1951 or of any Rules or Orders made under the Representation of the People Act and whether the result of the election in so far it concerned" the returned candidate" was materially affected? 2. Whether on 14.2.83 at about 6.30 PM, with the consent and knowledge of Respondent No. 1 his supporters and workers named in Annexure -'F' obstructed the Petitioner and his supporters and workers in front of the house of Ahmed Ali Bepari from 6.30 PM of 14.2.83 to 7 PM of 16. 83, as alleged in para 25(A) of the election petition and amplified in Annexure 'F' to the Election petition? If so, whether the acts amounted to corrupt practice as contemplated under Section 123 of Respondent of the people Act, 1951? 4(a). Whether the agents, workers and supporters of Respondent No. 1 (in para 25 (c) were agents, workers and supporters of Respondent No. 1? If so, did they) distribute cash, clothes etc to the voters of Sidakandi, Bowabari, Fersha Kandi, Narasati and Magurmar as averted in para 25(c) of the election petition? (b) Whether Dr. Dilwar Hussain Khan was a Gazetted Government Officer and he canvassed on behalf of Respondent No. 1 on 10.2.83 till 16.2.83 at the places mentioned in para of the petition? (c) Whether Respondent No. 1 appointed Shri Safiur Rahman Biswas as his counting agent? (d) Whether Shri Safiur Rahman Biswas was a Govt. L.P. Teacher at the relevant time? 4A. If the allegations contained in Issue 4(a) to (d) are proved did they amount to corrupt practice as contemplated under Section 123 of the Representation of the People Act? 5. Did Respondent No. 1 or any of his agents, supporters and workers canvassed till 17.2.83 morning as alleged in the election petition? If so, whether the result of the election has been materially affected thereby? 6. Did Respondent No. 1 display his party banner within the radius of 25 meters from Baldamgiri 12 and Rajabala Polling Station till 10 AM on 17.2.83 to mislead the voters and whether complaint for removal of the banner was made by some candidate to the Presiding Officer on 17.2.85 at 10 A.M.? If so what the Presiding Officer did? Whether these amounted to corrupt practice under Section 123 of the Representation of the People Act? 7. Whether Respondent No. 1 was disqualified to be a candidate for the election on the ground that he is not a citizen of India? 8. Whether the election of the returned candidate is liable to be set aside on any of the grounds? What relief, if any, the parties are entitled to? 3. It would be worthwhile, at this stage, itself to have a bird's eye view of the law relating to the burden of proof etc. which a Court has to bear in mind while adjudging any allegation relating to corrupt practice. The same was stated thus by me in the case of Bakin Pertin (E.P.2/80) and reiterated in Rainbow Ezung (E.P. 4/80): (1) Allegation of corrupt practice i.e. quasi -criminal in nature, or is substantially akin to criminal charges, because it not only vitiates the election but also disqualifies the person concerned from taking part in it for a considerable long time or may extinguish the man's public life. Rajik Ram v. J.S. Chouhan : AIR 1975 SC 667), D. Venkata Reddy v. R. Sultan : AIR 1976 SC 1599), Amolak Chand v. Bhagwandas ( : AIR 1977 SC 813). (2) So a grave and heavy onus rests on the accuser to establish it by clear, cogent and reliable evidence beyond reasonable doubt. It cannot be established by a mere balance of probabilities. Razik Ram (supra), Nizamuddin v. Narbada Prasad ( : AIR 1975 SC 1909), Narayana Roa v. G. Venkata Reddy ( : AIR 1977 SC 208) K.M. Mani v. P.J. Antony (AIR 1979 SC 254), N.C. Zeliang v. Aju Newmai ( : AIR 1981 SC 8) and R.B Singh v. R.B. Jha (AIR 1976 SC 2373)" To this, I would add now, that the corrupt practice has to be proved to the hilt by the election Petitioner the standard of proof of such an allegation being the same as a charge of fraud in a criminal case, as stated in Sultan Salahuddin v. Mohd. Osmani : (1980) 3 SCC 281. (3) Two Corrolories follow from this: First, even strong, suspicion would not be sufficient a la Narendra v. Manikrao : AIR 1977 SC 2171 (para 11); and secondly, benefit of doubt belongs to the returned candidate, vide, Abdul Hussain Mir v. Shamsul Huda : (1975) 4 SCC 533 (para 5). (4) There is, however, one difference between n criminal action and an election petition. The same is that the election trial does not, give liberty to the other side to keep mum, and the charge has to be examined on appraisal of the evidence adduced by both the sides. (M. Narayana (Supra) and M. Chenna Reddy v. V.R. Rao (40 ELR 390). (5) Oral evidence had to be judged with greatest cart as very often the evidence is of partisan witnesses like workers, agents, supporters and friends who have to be regarded as highly interested. So corroboration from independent source, unlying circumstances, or contemporaneous and unimpeachable documents is sought for as a matter of prudence to lend assurance to the verbal testimony. D. Venkata Reddy (Supra), Kankaiyalal v. Manna Lal (AIR 1976 SC 2836), Rahim Khan v. Khurshid Ahmed ( : AIR 1975 SC 290) and Lakshmi Raman v. Chandan Singh : AIR 1977 SC 587). (6) Mere consistency in the evidence may not weigh, as tutored witnesses are capable of being consistent. So, if the evidence is fraught with inherent improbabilities and replete with unnatural tendencies, Court may reject the same. D. Venkata Reddy (supra), To this, it may be added that necessary particulars, statement of facts and essential ingredients of corrupt practices must be pleaded with exactitude and precision as stated in Sultan Salehuddin (supra); and Daulat Ram v. Anand Sharma : AIR 1984 SC 621. The Petitioner has also to give time, place, names of persons etc. relating to the alleged corrupt practice, and the pleading must further show as to whether the corrupt practice was indulged in by (a) the candidate himself or (b) by his authorised election agent or any other person with express or implied consent, as pointed out in Daulat Ram (supra). Needless to say that no evidence can be led which is beyond pleadings as pointed out in Surinder Singh v. Hardayal Singh : AIR 1985 SC 89.
(3.) BEFORE discussing the issues, it would be useful to set out the calendar of dates fixed by the Election Commission for the purpose of holding the election. (a) 21.3.83 -Friday, as the last date for making nominations. (b) 22.1.83 -Saturday, as the last date for the scrutiny of nominations. (c) 24.1.83 -Monday, as the last date for the withdrawal of candidature, (d) 17.2.83 -Thursday, as the date on which the poll shall, if necessary, be taken. (e) 28.2.83 -Monday, as the date before which the election shall be completed.;