Case: Mohd. Yunus Saleem Vs. Shiv Kumar Shastri And Others

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 March 1, 1971 and in Iglas, Khair and Chandaus on March 3, 1971. The polling in Aligarh and Koli was completed peacefully on March 1, 1971 and the appellant obtained the highest number of votes as will appear from the chart given below:367377378379380CityKoilIglasKhairChandausTotalSarva Shri Amar Singh2055596037608682,995Jagdish Gandhi5001,2911,1141,1039274,937Pooran Singh Malan18,3854,16531033738623,583Mohd. Yunus Saleem44,42225,22817,13419,37218,030124,186Virpal Singh6221,2401,0261,2541,3205,462Shiv Kumar Shastri4,71916,26042,28153,24043,012160,313Saheb Singh5583,1701,6531,6713,0766,958On March 2, 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 March 3, 1971 to March 9, 1971. As will appear from the above chart, during the poll this time on March 9, 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 issuesNo. 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. 1s 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"?3. 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:4. The Election Commission published a notification in the Gazette of India Extraordinary dated 27th January, 1971, fixing the following dates for the purpose of the election under Section 30 of the Act :February 3, 1971 - The last date for making nominations.February 4, 1971 - The date for the scrutiny of nominations.February 6, 1971 - The last date for the withdrawal of candidatures.Various dates between March 1, 1971 and March 5, 1971 - For holding the poll in different constituencies in Uttar Pradesh.March 15, 1971 - The date before which the election shall be completed.The notification fixed March 1, 1971, for the poll in the Aligarh and Koil segments and March 3, 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 acceptedElection 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.

Reasoning:
9. It is well settled that election under the Act is from the date of publication of the notification calling the election to the date of declaration of the result of the election, both days inclusive. We have, therefore, a terminus a quo and a terminus ad quem under the law. The word "candidate" is defined for Part VI (Disputes regarding Elections) and Part VII (Corrupt Practices and Electoral Offences) under Section 79 (b) and itWe have already set out the material portions of Section 123 (1) (A) as well as the earlier section to which our attention has been drawn. It is strenuously submitted by Mr. Hardy that the omission of the words "retire from contest" is very significant and the legislature now confines withdrawal under Section 123 (1) (A) (a) to the stage as envisaged under Section 37 and not thereafter. The Shorter Oxford English Dictionary gives the meaning of the word "withdraw" (verb intransitive) to go away or retire from the field of battle or any contest. Withdraw or not to withdraw, therefore, includes "retire from contest" or not to retire from contest. There is, therefore, nothing significant etymologically in the deletion of the words "retire from contest". When, therefore, Section 123 (1) (A) speaks of withdrawal from being a candidate, it is not limited to a candidate who has been validly nominated and who has withdrawn earlier according to law. It is because of this reason that the words "retire from contest" become unnecessary and were advisedly deleted by the legislature.11. Again looking from another angle, Section 123 (1) (A) (a) has got two stages; the first stage relates to the period when even before filing of nomination paper a person is contemplating to stand or not to stand as a candidate in the election (see definition of candidate under Section 79 (b)). The second stage is reached after filing of the nomination paper when law gives a candidate requisite time to withdraw from the candidature. It is true that the words "to retire from context" in the old provision are now deleted and the provision is recast by adding the words "not to withdraw" in addition to the words "to withdraw" in the earlier provision. We are, however, unable to hold that the expression "to withdraw or not to withdraw" from being a candidate has only a restricted meaning to be confined to the stage where law permits a candidate to withdraw from the election. For the purpose of Section 123 the words "to withdraw or not to withdraw" from being a candidate are of wide amplitude to include a subsequent withdrawal or nonwithdrawal even at the last stage prior to the poll.A grievance was made by the learned Counsel for the appellant that a petition was made by the appellant for examination of additional witnesses and the High Court wrongly rejected the same. We find from the order of the High Court that the party had been warned that "any proposed addition to the list of witnesses would have to be justified". The High Court found that beyond saying that their names were left out "by inadvertence or, oversight" no other sufficient ground was given by the appellant to justify his prayer. We, therefore, do not find any justification for the grievance on this score. Another petition was also filed by the appellant on 18th November, 1971, for examination of Pooran Singh Malan (respondent No. 2) as a witness. The High Court rejected the prayer on the ground that his name did not figure in the list of witnesses supplied on 9th November, 1971. Since Malan is a respondent, who on the proof of the averments could have been named under Section 99, the appellant cannot make a grievance for rejection of his prayer. It is not possible for this Court to interfere with the discretion exercised by the learned trial Judge in a matter like this.15. We now come to issue No. 7. This issue is with regard to the corrupt practice of undue influence under section 123(2) of the Act. The allegations are that on 7th March, 1971, two days before the poll, the first respondent visited the village of Sapera and after collecting a number of Hindus at the chaupal of the Sarpanch, Hukum Singh, went , along with them to the Muslim quarter of the village and by means of threats forced the Muslim voters of that place to swear by the Quran that they would vote for him and not for the appellant or any other candidate. After the Muslims had taken the oath, Shastri is alleged to have warned them that if they did not act in accordance with the oath, they would be in danger of divine displeasure. The witnesses examined by the appellant for establishing this charge are Raghubir Singh (PW 11), Rafiq (PW 14) and Sheodan Singh (PW 15). These witnesses are residents of Sapara. Both PWs 11 and 15 admit that they are supporters of the Congress and were supporting the Congress in the election but claim that on account of Shastris visit to the village on 7th March, 1971, they turned over to him. Even then they have come forward to give evidence against Shastri in this case. The High Court has given cogent reasons for discarding their testimony and we are unable to take a contrary view. P.W. 14, Refiq, is also undependable. Although he spoke about the swearing by the Quran at the mosque, he did not know the name of the Mulla. He has no opinion of his own and admitted that when asked by Shastri and others he told that he would vote "as they directed". Finally he did not go to vote on the day of poll. Besides, their statements are satisfactorily rebutted by the evidence of the first respondent, R.W. 1, Giraj Singh and R. W. 8 Hari Singh, the polling agent of the first respondent. We are satisfied that the High Court has correctly appreciated the testimony of these witnesses with regard to this charge.The appellants case is that a meeting was held at Iglas at the Jawahar Inter College at 8.00 A.M. on March, 7, 1971. He examined Gajendra Singh (P.W. 18) and Ram Das Singh (P.W. 19), Kishan Singh (P.W. 23) and Brij Lal Sharma (P.W. 31) P.Ws. 18 and 19 were the active workers of the B.K.D. party yet they deposed that on hearing the allegations against Yunus Saleem and the Muslims of Aligarh they changed their minds and worked day and night for the success of the first respondent. Even at the time of giving evidence they claimed to be in favour of the B.K.D. party, yet came forward to give evidence against the successful B.K.D. candidate. Kishan Singh (P.W. 23) is a member of the Aligarh District Congress Committee and claims to have gone to the meeting organised by the rival party in order to find out what was being said. He, however, made no report about the unlawful propaganda being carried on at this meeting to the election authorities. He was conscious that this meeting held within 48 hours of the time fixed for the closing of the poll was an illegal one, yet he made no report to the authorities about this. Brij Lal Sharma (P.W. 31) is also a supporter of the Congress (R). Even he did not make any report to any one about what he had heard in the meeting. The High Court has observed that "the unreliability of the petitioners allegations regarding this alleged Iglas meeting stands further more revealed by the discrepancy between the testimony of these witnesses and the details given in the statement of further particulars filed by the petitioner on 26-8-71". It is also disclosed in further particulars "that among those who addressed the meeting held in Iglas at 8.00 P.M. on 7-3-1971 was Chaudhary Charan Singh, but none of four witnesses deposes to Chaudhary Charan Singhs participation in the meeting and from the statement of Brij Lal Sharma it is clear that Chaudhary Charan Singh did not attend it.We have examined the evidence in regard to each of the aforesaid meetings. The High Court after a correct appreciation of the evidence led by the appellant came to the conclusion that the evidence produced by the respondent has to be preferred and held that allegations and imputations alleged to have been made in these meetings were not established. We have been taken through the evidence by the learned Counsel for the appellant and we are unable to hold that another view with regard to the oral testimony of the appellants side is even possible in this case. Although we have referred to the evidence with regard to two meetings earlier in the judgment, we do not propose to restate the evidence and the improbabilities again since we are in complete agreement with the conclusions with regard to all these charges reached by the High Court.27. In view of the nature of the evidence led by the appellant with regard to these meetings and its refutation by the witnesses of the first respondent, we have no reason to differ from the High Courts conclusion that the allegations have not been established.28.In the matter of appreciation of oral testimony in an election dispute, this court in an appeal under Section 116A must have convincing and clinching reasons to take a contrary view from that of the High Court. It is not enough that another view is merely possible to take on the oral evidence. Strict proof of the allegations is called for and the High Court has, in our opinion, rightly declined to accept the oral evidence of the appeallants side and rightly preferred that of the respondents side.We do not feel at all justified in this case to take a contrary view. We, therefore, hold that issues Nos. 8, 8A, 9, 10 and 11 are correctly decided by the High Court. We have no hesitation to hold that the election petition was rightly dismissed. As for Issue No. 12, it is a consequential issue and in the view we have taken in the foregoing discussion it was rightly decided against the appellant. We hold that no corrupt practice has been proved to have been committed by the first respondent under Section 123 (1) (2), (3), (3-A) and (4) of the Act.