- (1.) THIS is an appeal under Section 166 A of the Representation of the People Act (hereinafter called the Act) by Shri Khilumal Topandas whose election petition has been dimissed by the election Tribunal, Ajmer- on the 10th of September, 1967. The petition relates to the Ajmer Cily west Constituency of the Rajasthan assembly. The insult of the election was declared on the 9th of March, 1957 and shri Arjundas Tulsidas respondent was declared elected. The appellant is an elector in that constituency. He presented an election petition before the Election commission. The trial of the petition took place before Shri Kishan Lul Dhabai, Member of the election Tribunal, Ajmer, The election was challenged on various grounds but in this appeal the learned counsel for the appellant frankly conceded that he confined his case to the corrupt practices which fell within the definition of Sub-sections 3 and 4 of Section 123 of the Act. In that elcction Dr. Pohumal was the candidate on behalf of the Congress party. Shri Kishen Gurnani was an independent candidate but he withdrew from the contest before the election. The particulars relating to the corrupt practices alleged to have been committed under Section 123 (3) are given in paragraphs 10, 11 and 12 of the election petition, while the particulars about the corrupt practices alleged to have been committed under Section 123 (4)are given in paragraphs 4 to 9 of the petition.
(2.) SO far as the corrupt practices under Section 123 (3) are concerned, learned counsel for the appellant confined his arguments before us to the documents Exs. 2, 3, 4, and 9 to 14, all in the Sindhi language and it was urged that the publication of these by the respondent or his agents or his party amounted to a systematic appeal to the Sindhies in that constituency to vote in favour of the respondent on the ground of community. It was urged that soon before or after the partition of india in 1947 a large number of residents of Sind who were known as Sindhies migrated to Ajmer City and they formed the Sindhi Community. The respondent or his agents systematically appealed to the Sindhies to vote in favour of the respondent who was himself a Sindhi by publication of the aforesaid documents.
(3.) EX. 2 is a pamphlet under the signature of the respondent. It is published in the hindu Printing Press, Ajmer. Ex. 3 is a pamphlet purporting to be issued by one shri Hiranand and published in Qurbani Press, Diggi Chowk, Palaza Road, Ajmer. Ex. 4 is another pamphlet purporting to be issued by Respondent Shri Arjundas tulsidas. Exs. 9 to 14 are extracts from the newspaper Hindu Daily, the Chief editor of which was Shri Govindram Hassaram and the Editor Shri Shewaram tilokchand. This newspaper was published at Hindu Press, Ajmer. The respondent admitted that Exs. 2 and 4 were published by him but he denied that any other documents were published by him or his agents. We first take into consideration Ex. 2. The respondent has also produced Ex. A4 and Ex. A5 two pamphlets which are substantially the translations of Ex. 2 in Hindi and English respectively and which were also distributed by the respondent during the election, As there is no dispute about the English translation we may take it that the Ex. 2 when translated in English is as given in Ex. A5. As this pamphlet is the subject-matter of the corrupt practice under Section 123 (4), we may quote it in verbatim the whole pamphlet. "request For Assembly Election. You have proved in last Municipal election that you have enough of regard for Pujya Kaka Sahib and Pujya Pursharthi Panchayat and those friends who tried to demolish our wall, their hopes were not fulfilled. For that you have my thanks. For the coming Assembly election, I am a candidate under orders of Pujya Pursharthi Panchayat from Ajmer West constituency i. e. , from Wards Nos. 1 to 15, and 21, 22 and 32. We can win one seat from this constituency for Rajasjian Assembly and can make our voice reach that place. In this consti-tuenqy there are in all fifty thousand two hundred votes out of which our votes are twenty five thousand seven hundred, 3600 of Muslims, 1300 of Reigars and 2500 of other scheduled castes. If we show courage it is easy to win the seat. But our opponents having given money, have set up one brother to spoil the votes of Punchas and this brother refuses to compromise in any manner and says that he would certainly try to see that this seat is lost by the Punchas. In the last Assembly, I tabled three Bills, viz. , Cow Slaughter Prohibition bill, No Smoking in Cinemas Bill, and Dawry Restraint Bill and kept about 15 resolutions like. No Recovery of Rent from Purshar-thies, no fees from students up to Matric. Some of trie proposals were accepted. No other member tabled any bill in the Assembly. Outside assembly, I tried to support the public in all its activities, in spite of the fact that the Government tried that I should leave you, and join them. Some brothers are raising fancy rumours against me that I had promised and had given them in writing that if Rr. Pohumal gets the congress Ticket Pur-sharthi Panchayat shall not put up a candidate against him. This is not true. We both had jointly agreed that in that case we shall leave it to the Pursharthi Panchayat and we shall act according to their orders. Certainty I have accepted the judgment of the pursharthi Panchayat. I have already mortgaged myself with you punchas and the Pursharthi Panchayat and never have I mortgaged you anywhere. I shall request you for the coming election, that forgetting all the connections, and without coming under any pressure by casting all your valuable votes for Pursharthi Panchayat i. e. , casting your votes for yourself, enhance your reputation, and strengthen your own fort. Constituency is big. It is possible I may not be able to meet some punchas for which I beg your pardon. " Yours ever at Service arjundas Tulsidas advocate. " it is urged by the learned counsel for the appellant that the respondent had clearly admitted in this pamphlet] that he was a candidate of Pursharthi Panchayat which was nothing but a body of Sindhies. It is further urged that the words 'our votes' referred to in para 1 of the pamphlet have reference to the votes of Sindhies. In the last but one paragraph there is an appeal for votes for Pursharthi Panchayat which again is interpreted by the learned counsel for the appellant as an appeal to the Sindhies.;