GOSWAMI - (1.) THIS election appeal under Section 116-A of the Representation of the People Act, 1951 (briefly the Act) by the appellant, Mohd. Yunus Saleem, the defeated Congress (R) candidate, is against the judgment of the Allahabad High Court wherein he challenges the election of the B.K.D. candidate, Shiv Kumar Shastri (Respondent No. 1) to the Lok Sabha from the 76 Aligarh Parliamentary Constituency in the general elections held in March 1971. THIS constituency consist of five Assembly constituencies, namely, 876-Aligarh, 377-Koli, 378-Iglas, 379-Khair and 380-Chandaus. There were seven candidates on the run for the election from this constituency. The poll was scheduled to take place in Aligarh and Koli on 1/03/1971 and in Iglas, Khair and Chandaus on 3/03/1971. The polling in Aligarh and Koli was completed peacefully on 1/03/1971 and the appellant obtained the highest number of votes as will appear from the chart given below : JUDGEMENT_854_4_1974Html1.htm On 2/03/1971, a communal riot between Hindus and Muslims took place in Aligarh city and as a result of this the Election Commission on receipt of reports of the local authorities at Aligarh postponed the poll in the remaining segments from 3/03/1971 to Marc 9/03/1971. As will appear from the above chart, during the poll this time on 9/03/1971, the first respondent obtained a very high percentage of votes with the result that he was declared elected. The 2nd respondent, although a Samyukt Socialist Party candidate (SSP), was sponsored by the four parties alliance consisting of Jan Sangh, Swatantra, Congress led by Shri Nijalingappa, and Samyukt Socialist Party.
(2.) THE appellant alleges several corrupt practices in his election petition before the High Court and also raises certain questions of law. THE Chief Election Commissioner has been impleaded as a respondent in this appeal. THE High Court has repelled the contentions of the appellant. We are now concerned in this appeal with the following issues :- Issue No. 2 :"Whether the order of the Election Commission adjourning the poll from 3rd March to 9th March was without jurisdiction and illegal"? Issue No. 5 :"Whether Pooram Singh Malan (respondent No. 2) withdrew from the election on 6th March and asked his supporters to vote instead for respondent No. 1. If so, was this done as a result of inducements offered at the instance of respondent No. 1"? Issue No. 7 :"Whether voters were induced by threats offered by Hukum Singh, the polling agent of respondent No. 1, to promise not to vote for the petitioner but to vote for respondent No. 1 (as detailned in paragraph 28 of the petition)"? Issue No. 8 :"Whether respondent No. 1 and Kalyan Singh, M.L.A. appealed to Hindu voters in Gordha village on 7-3-1971 not to vote for the petitioner because he was a Muslim (as detained in para 28 of the petition); and whether similar appeals were made to voters by respondent No. 1 and Prakash Vir Shastri, Virendra Varma, Reghunath Singh and Ram Prasad Deshmukh in Khair, Chandaus and Iglas between 7-3-1971 and 9-3-1971 (as detailed in para 30 of the petition)"? Issue No. 8-A :"Whether respondent No. 1 and the other persons named in paragraph 30 of the petition and the statement of further particulars made speeches in Khair, Chandaus and Iglas Tehsils alleging that the petitioner was responsible for communal riots in Aligarh and other places, which statements were known by them to be false"? Issue No. 9 :"Whether Virendra Varma and Raghunath Singh appealed to Jat voters to vote for respondent No. 1 on the ground that he was the candidate of a party led by Shri Charan Singh (as detailed in para 30 of the petition)"? Issue No. 10 :"Whether respondent No. 1's election agent Yogendra Pal Singh and Virendra Varma and Charan Singh appealed to Jat and Thakur voters at Iglas on 7-8-1971 not to vote for the petitioner as he was a Muslim and not to allow Muslim, Jatav and Brahmin voters to vote (as detailed in para 34 of the petition)"? Issue No. 11 :"Whether at the same meeting (mentioned in para 34) Yogendra Pal Singh falsely stated that the petitioner was a Razakar of Hyderabad and had instigated the Aligarh riots"? Issue No. 12 :"Whether respondent No. 1 has committed corrupt practices as defined in clauses (1), (2), (3) (3-A) and (4) of Section 123 of the Representation of People Act"? The learned Counsel of the appellant has firstly addressed us on the 2nd issue and we will, therefore, take the same first. To appreciate the point in controversy, some facts may be stated : The Election Commission published a notification in the Gazette of India Extraordinary dated 27th January, 1971, fixing ting the following dates for the purpose of the election under Section 30 of the Act : JUDGEMENT_854_4_1974Html2.htm The notification fixed 1/03/1971, for the poll in the Aligarh and Koil segments and 3/03/1971 in the Iglas, Khair and Chandaus segments. The learned Counsel for the appellant submits that the Election Commission had no jurisdiction or authority to alter the dates fixed under clause (d) of Section 30 in the aforesaid notification except under circumstances mentioned in Sections 57 and 58 of the Act. We may, therefore, first look at Sections 57 and 58 of the Act. Section 57 in terms provides for a situation when the proceedings at any polling station in an election are interrupted or obstructed by any riot or open violence, or if it is not possible to take the poll at any polling station on account of any natural calamity, or any other sufficient cause. Section 57 empowers the presiding officer or the returning officer to adjourn the poll to another date in any of those circumstances. The returning officer under sub-section (2) has to report the circumstances to the appropriate authority and the returning officer next fixes appropriate dates for poll with the previous approval of the Election commission. Under Section 57 (2) when the poll has to be postponed after the same has commenced and voters have exercised their right to vote for some time,there is provision for fixing the hours during which the next poll shall be taken and there is a direction in this sub-section not to count the votes cast at such election until such adjourned poll has been completed, Section 57, therefore, does not deal with the direct exercise of power by the Election Commission in altering dates of poll under the conditions specified in that section. Section 58 provides for a contingency where a ballot box used at a polling station or at a place fixed for the poll is unlawfully taken out of the custody of the presiding officer or the returning officer, or is accidentally or intentionally destroyed or lost or is damaged or tampered with to such an extent that the result of the poll at that polling station or place cannot be ascertained or any such error or irregularity in procedure is likely to vitiate the poll is committed therein. In such an event the returning officer has to report the matter to the Election Commission who after taking all material circumstances into account has to take a decision to declare the poll void and appoint a day and fix the hours for taking a fresh poll after an appropriate notification in that behalf. The Election Commission under this section may even decide against a fresh poll after considering the various circumstances and direct the returning officer for the further conduct and completion of the election. It is, therefore, clear that these two sections can be invoked only in very specified circumstances and in the manner provided therein. On the other hand, our attention is drawn to two other sections, namely, Section 30 and Section 153 of the Act, which were relied upon by the respondents in the High Court and the submissions were accepted there. We may read these two sections : Section 30 : "Appointment of dates for nominations, etc. :- As soon as the notification calling upon a constituency to elect a member or members is issued the Election Commission shall, by notification in the Official Gazette, appoint - (a) the last date for making nominations, which shall be the seventh day after the date of publication of the first mentioned notification or, if that day is a public holiday, the next succeeding day which is not a public holiday :- (b) the date for the scrutiny of nominations, which shall be the day immediately following the last date for making nominations or, if that day is a public holiday, the next succeeding day which is not a public holiday; (c) the last date for the withdrawal of candidatures, which shall be the second day after the date for the scrutiny of nominations or, if that day is a public holiday, the next succeeding day which is not a public holiday; (d) the date or dates on which a poll shall if necessary, be taken, which or the first of which shall be a date not earlier than the twentieth day after the last date for the withdrawal of candidatures; and (e) the date before which the election shall be completed". Section 153 : "Extension of time for completion of election - It shall be competent for the Election Commission for reasons which it considers sufficient, to extend the time for the completion of any election by making necessary amendments in the notification issued by it under Section 30 or Sub-section (1) of Section 39".
(3.) THE High Court has held that "Section 153 can be construed as declaring the competency of the Election Commission to extend time under cl. (d) as well as clause (e) of Section 30". We are unable to agree with the High Court that Section 153 can be properly invoked in this case to the aid of the Election Commission in changing the dates of poll for the three remaining constituencies, specified in the notification under Section 30(d) of the Act. Section 153 in terms provides for extending "the time for completion of any election by making necessary amendments in the notification issued by it under Section 30 ...." Section 30 (e) deals with "the date before which the election shall be completed". It is clear in this case, as set out earlier, that the last date for completion of the election was fixed by the appropriate notification to be 1 5/03/1971 and the altered date of poll in this case from 3rd o 9th March, is within the last date for completion of the poll under Section 30(e). Section 153, therefore, cannot come to the aid of the Election Commission to alter the date of poll, as has been done in this case, as the said section in inapplicable to the facts and circumstances of this case. We may, therefore, examine whether the Election Commission has got power to alter the date of poll under Section 30 of the Act read with Section 21 of the General Clauses Act which is undoubtedly applicable in interpretation of the provisions of the Act. We may read Section 21 of the General Clauses Act : Section 21 : "Where, by any Central Act or "Regulation, a power to issue notifications, orders, rules, or bye-laws is conferred, then that power includes a power, exercisable in the like manner and subject to the like sanction and conditions, if any, to add to amend, vary or rescind any notifications, orders, rules or bye-laws so issued". THE Election Commission in this case exercised power under Section 30 of the Act and issued the notification appointing the various dates mentioned therein for the purposes specified. Once this power is conferred under Section 30 upon the Election Commission, the power to amend the same, which will include alteration to the dates of poll, can be exercised under Section 21 of the General Clauses Act. THEre is, therefore, no merit in the contention that the Election Commission had no power or jurisdiction to alter the date of poll from 3rd March, to 9th March, 1971, in the remaining constituencies in this case. Issue No. 2 is, therefore, rightly decided by the High Court although we do not agree with the High Court with regard to the construction of Section 153 of the Act. In the view we have taken, it is not necessary for us to consider whether Article 324 can be invoked in this case in aid of the power to alter the date of poll by the Election Commission. The learned counsel for the appellant also submits that there should have been a fresh notification of the date in form No. 1 under Rule 3, read with Section 31 of the Act, of the Conduct of Elections Rules 1961. We are, however, not impressed by this submission as the amendments of the date of poll gets engrafted in the original form in pursuance of the subsequent notification dated 2/03/1971, made in valid exercise of the power under Section 30 of the Act, read with Section 21 of the General Clause Act.;