BISWANATH UPADHAYA Vs. HARALAL DAS AND ORS.
LAWS(GAU)-1958-4-9
HIGH COURT OF GAUHATI
Decided on April 16,1958

Biswanath Upadhaya Appellant
VERSUS
Haralal Das And Ors. Respondents


Referred Judgements :-

SUDHANSU SEKHAR PANDA VS. NATENDRA NATH DAS [REFERRED TO]


JUDGEMENT

G. Hehrotra, J. - (1.)THIS is an appeal under Section 116 -A of the Representation of the People Act, hereinafter called the Act, against the order of Mr. S.K. Dutta, Member, Election Tribunal, setting aside the election of Sri Biswanath Upadhaya the Appellant from the Patherkandi constituency of the Assam Legislative Assembly.
(2.)ON 25 -2 -1957, the General Election of Assam Legislative Assembly in the Patherkandi Assembly constituency was held, The Appellant Sri Biswanath Upadhaya, who was Respondent No. 1 before the Tribunal, Sri Debendra Singh, who was Respondent No. 4 before the Tribunal and Sri Baidyanath Mukherjee Respondent No. 6 before the Tribunal, hereinafter called the Appellant, Respondent No. 4 and Respondent No. C were the rival candidates for the general scat.
Sri Gopesh Namasudra, Respondent No. 2 before the Tribunal, Sri Ramesh Chandra Das Choudhury Respondent No. 3 and Sri Haramohan Roy, Respondent No. 5, hereinafter called Respondents 2, 3 and 5 respectively were the rival candidates for the reserved seat in the said constituency. It should be pointed out that the Patherkandi constituency is a double member constituency.

Sri Biswanath Upadhaya secured 28,965 votes; Sri Gopesh Namasudra 22,768 votes; Sri Ramesh Chandra Das Choudhury 9,523 votes; Sri Debendra Singh 2,335 votes; Sri Haramohan Ray 19,850 votes and Respondent No. 6, Sri Baidyanath Mukherjee secured 22,462 votes. The Appellant, Sri Biswanath Upadhaya and Gopesh Namasudra were thus duly declared elected for the general and reserved seats respectively.

Sri Haralal Das hereinafter called the Petitioner, who claims to be a bona fide inhabitant of Nagendranagar and was duly enrolled as an elector under serial No. 26, block No. 7 R, part No. 45 -P of Patherkandi constituency of the Assam Legislative Assembly brought a petition challenging the election of the returned candidates inter alia on the grounds (1) that the results of the election have been materially affected by the improper acceptance of the nomination of Sri Haramohan Ray, as his age in the electoral roll on 29 -1 -1957, the last date for filing of the nomination papers has been 21 years and thus he was not qualified under Article 173 of the Constitution of India, to be nominated as a candidate; (2) that Sri Gopesh Namasudra and Sri Haramohan Ray resorted to undue influence over the Namasudra community of Patherkandi constituency, raising Namasudra Jat Bhai cry and thus the voters could not get an opportunity to exercise their franchise freely and independently; (3) Sri Biswanath Upadhaya belonged to the priest class of the Hindustani community of the area and the said Respondent's workers appealed to the electors in the Patherkandi Assembly constituency and compelled them to swear by their sacred thread to cast their votes in favour of the Appellant.

The labour class people were induced to believe that they would incur Divine displeasure and spiritual censure in case they would not cast their votes in favour of the Appellant; (4) that Appellant, together with his agents and workers used and utilised the Tricolour Flag of the Congress in his election campaign describing that he had - been selected by Shri Jawaharlal Nehru for the said constituency to represent the progressive party of the United Front Group and by this misrepresentation he and his adherents misled the majority of the electors composed of the, illiterate section of the people of the locality to get their votes cast in his favour.

The Appellant also provided vehicular conveyance to the electors and entertained them with tea and other eatables, contrary to law. The Respondents Nos. 1 and 2 i.e., the Appellant, Sri Biswanath Upadhaya and Sri Gopesh Namasudra and other members of the United Front with whom they were in alliance and active collusion for the election purpose had published false stories and allegations in their party organ 'Jagaran,' which was distributed on 24 -2 -1957, and on 25 -2 -1957, knowing them to be false against the Respondent No. 6, Sri Baidyanath Mukherjee and that he would not succeed and get a single vole in the election and distributed copies of this publication amongst the electors of all the Polling Centres of the Patherkandi Assembly constituency on the date of the poll and by tins false propaganda they could secure the votes of a large number of electors to be cast in their favour.

Some other points were also taken; but it is not necessary to refer to them as they were neither pressed before the Tribunal nor the Tribunal has based its decision on these points and they have not been urged before us also. A preliminary point was taken by the Respondent -Appellant before the Tribunal about the maintainability of the petition. It was urged that in the Challan by which the security was deposited in the treasury did not mention that the amount of security was deposited in the name of the Election Commission and thus there was non -compliance with the provisions of Section 117 of the Representation of the People Act and the petition was liable to be dismissed under Section 90(3) of the Act. The Tribunal did not accept this contention and it has been reiterated by the Appellant before us. Section 90(3) of the Act reads as follows: The Tribunal shall dismiss an election petition which does not comply with the provisions of Section 81, Section 82 or Section 117 notwithstanding that it has been dismissed by the Election Commission under Section 85.

When the petition was sent to the Election Commission on 8 -4 -1957, on 23 -4 -1957, notice was issued to the Petitioner to show cause why the petition should not be summarily dismissed as the Treasury Receipt received with the petition did not mention specifically that the amount had been deposited in favour of the Secretary to the Election Commission. No. cause was shown. The Chief Elect on Commissioner by his order dated 6 -5 -1957, sent the petition to the Tribunal for determination and left open this question for decision by the Tribunal. It was observed by the Commission as follows:

The further question as to whether this defect should be treated as fatal to the election petition may be left for the Tribunal to decide after hearing both the parties.

The point was again raised before the Tribunal and the Tribunal by its elaborate order dated 4 -7 -1957, repelled this contention and held that the provisions of Section 117 have been substantially complied with and the petition was not liable to be rejected, under Section 90(3). Section 117 of the Act reads as follows:

The Petitioner shall enclose with the petition a Government Treasury receipt showing that a deposit of one thousand rupees has been made by him either in a Government Treasury or in the Reserve Bank of India, in favour of the Secretary to the Election Commission as security for the costs of the petition.

Section 90(3) is no doubt mandatory and failure to comply with Section 117 will make the petition liable to be rejected. But the real question is whether in the present case, it can be said that the provisions of Section 117 have not been complied with Admittedly, in the Treasury Challan, all the columns had been properly filled up.

The column of 'particulars' did not contain the words "in favour of the Secretary to the Election Commission of India." In the column 'heads of deposit,' it is shown to have been deposited for the election petition. It is also clearly mentioned in the receipt that the amount in question was a deposit of security for election petition in Patherkandi Constituency L.A.N (4).

The amount was thus available as security for costs. This fact distinguishes this case from the case of Sudhansu Sekhar Panda v. Natendra Nath Das : 62 CWN 323 : AIR 1958 Cal 322 (A) where similar objection was upheld. We think there was substantial compliance with the provisions of Section 117 of the R.P. Act in this case, and there is no, substance in the contention raised by the Appellant.

As to the other points raised regarding the power of the Tribunal to allow amendments, we are not inclined to accept the argument of the Appellant that in the present case there was any such error committed by the Tribunal. It is said that the copy of the Jagaran was not supplied along with the petition and that the corrupt practice was not fully described. Section 83 provides as follows:

(1) An election petition (a) shall contain a concise statement of the material facts on which the Petitioner relies; (b) shall set forth full particulars of any corrupt practice that the Petitioner alleges, including as full a statement as possible of the names of the parties alleged to have committed such corrupt practice and the date and place of the commission of each such practice; and (c) shall be signed by the Petitioner and verified in the manner laid down in the Code of Civil Procedure, 1908 for the verification of pleadings. (2) Any schedule or annexure to the petition shall also be signed by the Petitioner and verified in the same manner as the petition.

Section 90(5) of the Act provides that:

The Tribunal may, upon such terms as to costs and otherwise as it may deem fit, allow the particulars of any corrupt practice alleged in the petition to be amended or amplified in such manner as may in its opinion be necessary for ensuring a fair and effective trial of the petition, but shall not allow any amendment of the petition which will have the effect of introducing particulars of a corrupt practice not previously alleged in the petition.

It was urged that para (f) which contains the allegations about the corrupt practice under Section 123(4) does not specifically mention the distribution of the paper by the Appellant. It only states that the Respondents Nos. 1 and 2 had published false stories and allegations in their partyorgan Jagaran which was distributed on 24 -2 -1957 and 25 -2 -1957. About the distribution by the Appellant all that is stated, relates to the distribution on the day of polling and not a day prior to the polling.

It is also said that the copy of the Jagaran which was permitted to be filed and made an annexure to the petition was not verified by the Appellant. We do not think that the permission granted to file the copy of the Jagaran in any manner introduced any new head of corrupt practice. It only amounted to supply of more and better particulars. The want of such particulars in the petition could be no ground for throwing out the petition. This question really is immaterial at this stage because the parties have led evidence and the Tribunal has considered the case on merits.

This Court at this stage will not reject the petition on the ground that the Tribunal was wrong in allowing the paper to be brought on the record. It is then contended that the Petitioner should not have been allowed to lead evidence on the question of distribution by the Appellant on the day previous to the poll. An issue was framed to that effect, the parties led evidence on that issue, none of the parties were misled on that account and were not prejudiced in producing evidence. The question therefore at this stage is one only of academic interest. There is, therefore, no substance in this preliminary objection as well.

(3.)COMING to the merits of the case, the Tribunal found that the nomination of Respondent No. 5 Sri Haramohan Ray was wrongfully accepted inasmuch as he did not attain the age of 25 years on the date of the filing of the nomination papers not even when the results of the election were announced. Bat he held that the results of the election, so far it concerned the returned candidates were not materially affected by this wrongful acceptance and thus the election was not liable to be set aside.
As regards the allegation that Sri Gopesh Namasudra and Sri Haramohan Ray combined together and influenced the voters to cast their votes on communal consideration, the contention has not been accepted by the Tribunal and does not seem to have been seriously pressed before him. He has also repelled the contention of the Petitioner that the Appellant canvassed on communal considerations and asked for votes on the threat of excommunication and that he asked the voters to swear by their sacred thread to cast their votes in his favour.

He has also not accepted the case of bribery against the Appellant. The case that the Appellant provided vehicular conveyances to the voters has also not been accepted by the Tribunal. The main grounds on which he has set aside the election of the Appellant are two. Firstly that the Appellant together with his agents and workers used and utilised the Tricolour Flag of the Congress in his election campaign and secondly that in the Jagaran, which is the party organ of the Appellant, certain publication was made on the even of the election and the copies of the paper were distributed by the Appellant as well as by his other workers and agents.

This publication constitutes a corrupt practice within the meaning of Section 123(4) of the Representation of the People Act. The finding of the Tribunal on the use of flag is in the following terms:

But I am satisfied drat Upadhaya used the Congress flag in his election campaign. The use of the designation 'Congress' by a group of people who left the Congress is bad enough but the use of the Congress flag is worse.

This, according to the Tribunal, constitutes undue influence. The finding of the Tribunal holding the use of the Congress flag as an undue influence is in the following terms:

Thus, Upadhaya apparently could see that the tea garden labourers were inclined to support the Congress. Hence the reason for using a Congress flag is palpable. There was undoubtedly an attempt on the part of Respondent Upadhaya to mislead the tea garden labour by using the Congress flag, and to make them think that he was also a Congress man.... I therefore hold that Respondent No. 1 Upadhaya used the Congress flag for his election purpose and thereby committed the offence of 'undue influence' within the meaning of Section 123 of the R.P. Act.

The Tribunal did not accept the Petitioner's allegation that the Appellant said that he had been selected by Sri Jawaharlal Nehru from the said constituency to represent the United Front Group. As regards the publication in Jagaran, the Tribunal held that the allegations contained in the impugned issue of Jagaran dated 23 -3 -1957 constituted a corrupt practice and the Appellant committed an offence under Section 123 of the R.P. Act by giving it publicity.



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