GOSWAMI, J. - (1.) THIS is an appeal under Section 116A of the Representation of the People Act, 1951, against the Judgment of the High Court of Madhya Pradesh in an election petition filed by an elector named Mannalal (respondent No. 1 in this appeal), hereinafter to be described as the petitioner, for setting aside the election of the appellant Kanhaiyalal Nagori.
(2.) THE constituency was Javad Constituency of the Madhya Pradesh Legislative Assembly. THE poll took place on 8/03/1972 and the result was declared on 12/03/1972. THEre were four contesting candidates. THE appellant Kanhaiyalal whowas a Congress candidate and respondent No. 1 in the election petition. obtained 25,594 votes. Virendrakumar Saklecha (for brevity Saklecha) who was a Jan Sangh candidate, being respondent No. 4 both in the election petition as well as in this appeal, obtained the second highest number of votes. viz., 23,064. Ravishankar Sharma (respondent No. 2) who was a Socialist candidate, obtained 1300 votes and Jagmohan (respondent No. 3) an independent candidate obtained 1104 votes. THE last two candidates forfeited their security deposit. THE appellant Kanhaiyalal was declared elected by a margin of 2530 votes. Saklecha was being returned from his constituency since 1957 having won the election in that year and in the next two successive years 1962 and 1967. In the 1967 election wherein he won, there was an election petition against him. The High Court set aside the election on the ground of certain corrupt practices, but this Court set aside the judgment of the High Court in January 1972. In the year 1968, Congress Government was defeated and Samyukat Vidhayak Dal (briefly S. V. D.) came into power in the State. Saklecha was the Deputy Chief Minister in that Government from July 196 7/03/1969. The S. V. D. Government fell in 1969.
(3.) AS stated earlier the election of the appellant was challenged by an elector Mannalal by an election petition filed on 24/04/1972, alleging corrupt practices under Section 123 (4) of the Representation of the People Act (briefly the Act) which reads as follows:- 123. "The following shall be deemed to be corrupt practices for the purposes of this Act:- xxxxx (4) The Publication by a candidate or his agent or by any other person, with the consent of a candidate or his election agent, of any statement of fact which is false, and which he either believes to be false or does not believe to be true, in relation to the personal character or conduct of any candidate, or in relation to the candidature, or withdrawal, of any candidate, being a statement reasonably calculated to prejudice the prospects of that candidate's election." It may be appropriate to describe from the election petition itself the allegations against the returned candidate, Kanhaiyalal Nagori; "5. That the election of the returned candidate, respondent No. 1 is liable to be declared void and set aside on the following grounds:- (A) That the respondent No. 1 got published through Block Congress Committee, Javad, a pamphlet entitled "Saklecha Ke Karyakal Par Ek Nazar" and it was distributed throughout the Javad constituency by the respondent No. 1 himself and by his workers and agents with his consent. The said pamphlet was printed in Shriram Press, Neemuch and the signatories to the said pamphlets are all members and important office-bearers of the Congress party and who were actively conducting the election propaganda of the respondent No. 1. Respondent No. 1 was official Congress candidate and he was also Provincial Congress Committee member representing Block Committee Javad and President Janpad Panchayat Javad. The said pamphlet is in Malvi dialect and was distributed on a large scale throughout the constituency by the candidate himself and through his workers and agents by his consent and connivance. By the said pamphlet the respondent No. 1 through his agents Parasram Agarwal of Singoli, Chosarmalji of Singoli, Bhanwaral Badolia of Kadwasa, Ghanshyam Patidar of Neemuch. Vijayshankar Sharma of Neemuch. Shankarlal Bhatevara, President of Block Congress, Javad andDheeraj Vyas, Secretary, Block Yuvak Congress Javad, published statements of fact which are totally false and which the respondent No. 1 and his said agents believed to be false or did not believe to be true, in relation to the personal character or conduct of the Respondent No. 4 beingstatements reasonably calculated to prejudice the prospects of the election of Respondent No. 4. The said pamphlet contained allegations against the respondent No. 4, which are totally false to the knowledge of respondent No. 1 and his said agents and other persons who distributed the said pamphlet. The aforesaid pamphlet (an English rendering) reproduced below (sic) false allegations against the personal character and conduct of respondent No. 4 "Ex. P-1 INDIRA GANDHI JINDABAD PRAKASHCHAND SETHI JINDABAD Election Symbol Bird's Eye- View of Saklecha's Regime Dear Villagers, This is the election period. In our constituency voting shall be on 8th, the Wednesday. We have been returning the Deepakwala - Saklecha for the last 15 years and he has been sitting in the ASsembly for the last 15 years. Saklecha has remained Deputy Chief Minister but did no work. He only served his interest. You have read this news in 'Nai Dunia' newspaper, that Saklecha has devoured lacks of rupees from Dacoits. During his period of rule he has tortured people by selecting them. He troubled people indiscreetly. Saklecha has ploughed thousands of bighas of land on the Sukand side, when people are not getting land. Saklecha has ploughed the grassland of Bhutiakhal of Baval and has installed electric water pump on the Khal, when people are starving for water for irrigation of their land. This is a matter for consideration that what has been done by Saklecha for the villagers. He filled his belly. You gave him opportunity to work for 15 years, but he did nothing. Arey? You think about it, that if you would have given water to a Babool tree, then it would have also given you a blessing, but Saklecha has done nothing in 15 years. On our side we have a great scarcity of water, if he would have desired, then at the time of his Govt he would have got Tube wells prepared. But he did not think about it as for him there is a water pump fitted at Bhutia Khal and there is road for him to go to his home. He has helicopter and aeroplane for his travel He talks only in the Air. In Saklecha's Govt. they purchased Dodge Chassis in place of Mercedez and did much bungling with (sic) which God alone knows. He has devoured the land of one Baba of Javad Area. this is known to thewhole world. Therefore you have to consider it and be not deceived this time otherwise we will lag behind for other five years. Our area is lagging behind. This is a matter for you to remember. Therefore for the development of the area and for removal of shortage of water you have to put your seal on the Cow and Calf symbol of Kanhaiyalal Nagori and make him succeed. Remember this Our interest lies in this. You have to strengthen the hands of Indiraji. Do not forget it. Your have to put your seal this time on Cow and Calf. Parasram Agarwal, Singoli, Vice-President of Janpad Panchayat Javad, Chosarmal, Sarpanch, Panchayat Singoli, Bhanwarlal Badolia, Sarpanch Panchayat Kadwasa, Ghanshyam Patidar, Pleader, Neemuch (Janakpur). Viajayshankar Sharma, Neemuch (Mahudia), Shankarlal Bhatevera, President Block Congress Javad, Cheeraj Vyas, Secretary, Block Youth Congress. Best place for Printing - Shriram Printing Press, in front of Jaju Bhawan, Neemuch." "5 (B). The saidpamphlet was distributed by the respondent No. 1 and with is consent and in his presence and under his direction by his agents and workers who were accompanying him in the jeep while touring the constituency the particulars of which are given below:- JUDGEMENT_646_3_1976Html1.htm 5 (C). The said pamphlet was also distributed with the consent of respondent No. 1 by the following persons the particulars whereof are as follows:- JUDGEMENT_646_3_1976Image1.jpg The said persons were active workers and agents of the respondent No. 1 and the said Parasmal is his son and agent. The said persons distributed the said pamphlet which they were carrying on for the respondent No. 1. The statements contained in the said pamphlet are false and which the said persons and the respondent No. 1 believed to be false and did not believe to be true. 5(D) That the respondent No. 1 through the Block Congress Committee Javad published an election bulletin dated 6-3-1972 under the caption of 'Congress Tatha Anya Dali Kee Sachchi Hakeekat's and got it distributed free on a large scale throughout the Javad constituency. In this bulletin there is a reference to an interview with the Congress candidate respondent No. 1 in the form of question and answers. The questions put to him and answers given by him included the following question-answers." It is not necessary to reproduce what was published in the "Haquikat" particularly because the charge of distribution of the same by Kanhaiyalal on 6/03/1972 in various places such as Morwan Daroli, Diken, Ratangarh. Singoli and Jhantla, is not being pressed by Mr. Hardy although evidence was led to that effect in the trial Court.;