JUDGMENT 1. 1. In this election petition the election of respondent No. 1 Lalit Kishore Chaturvedi, a candidate of Bhartiya Janta Party (for short, BJP) has been challenged by the petitioner, a Congress(1) candidate under Section 100 and 101 of the Representation of People Act 1951 (for short, the Act) on various grounds. The petitioner has also prayed for a general count of valid votes and to prepare a fresh result in accordance with kw and to declare him having been elected on account of having received the majority of valid votes. 2. The election of the respondent No. 1 Lalit Kishore Chaturvedi has been challenged on the grounds as contained under Section 10)(1 ) (b) and (d) of the Act. The grounds on which the election has been challenged, inter alia are (i) several irregularities were committed during the course of counting by the counting parties (i) as contained in grounds of para 3(a), (b), (f). (g) and (h), (ii) the improper acceptance of nomination papers of respondent No. 2 Madan Lal Udaiwal and respondent Na. 3 Abdul Salam (iii) that various corrupt practices as detailed in para 3(i)(j) were committed by the respondent No. 1. his election agent and others at his instance and at his connivance. 3. The petition has been contested mainly by the respondent No. 1 though written statements to the petition were also filed by others. The case of the respondent No. 1 (hereinafter called as the retuned candidate) is that no irregularity was committed in the conduct of election or counting of votes or that the petitioner has secured mare votes than the returned candidate but wrong result sheets in form No. 2) was prepared. It is further the case of the returned candidate that nomination papers of Madanlal Udaiwal were properly accepted. According to him no such objection was raised at the time of scrutiny of nomination papers and it is for the petitioner to prove that the respondent No. 2 was in the employment of the Government of India, Ministry of Defence on the post of Sanitary Mate at the time of submission of nomination papers, at the date of scrutiny of nomination papers and at the date of' election. According to him the said respondent was not holding the office of profit under the Government of India and he was not disqualified for being chosen as a member of the Rajasthan Legislative Assembly under Article 191 of the Constitution of India. It is also stated that the result of the election was not materially effected on account of alleged improper acceptance of the no nomination paper of the said respondent. In the alternative, case has been set up by the returned candidate that resignation dated February 1, 1935 of the respondent No. 2 was accepted by the competent authority and he was no more in service of the Government of India at the relevant time and he was relieved from service with effect from February 1, 1985. &, far as the respondent No. 3 is concerned, the case of the returned candidate is that no objection was raised by anybody at the time of scrutiny of nomination papers. Uric said respondent was a contractor on the date of submitting the nomination papers and at the date of scrutiny of the nomination papers and at the date of election he was having subsisting contracts on those relevant dates. The result of the election was not materially effected on account of alleged improper acceptance of the nomination piper of the respondent No. 3. It is further the case of the returned candidate that the said respondent was not disqualified to contest the election under section 9A of the Act. The returned candidate further denied having committed any corrupt practice as alleged by the petitioner. In the additional pleas the case of the returned candidate is that the ground in the election petition that there are some over-writings and, or correction of entries of result sheet form No. 20 has been taken by the petitioner and according to the non- petitioner No. 1, returned candidate this cannot be a ground for setting aside the election as initialling of correction is not the requirement of the Act or Rules. It has been further stated that the contract by the respondent No. 3 with the Municipal Council, Kota does not come as disqualification under Section 9A of the Act and the election cannot be set aside under Section 100 of the said Act. It has been further stated that the contract by the respondent No. 3 with the Municipal Council, Kota does not come as disqualification under Section 9A of the Act and the election cannot be set aside under Section 100 of the said Act. According to him the allegations contained in para 3(i) and (j) of the election petition being vague as date, place and names of persons who committed corrupt practices have not been given, hence no enquiry can be made on such vague allegations. Even otherwise those allegations do not come within the definition of corrupt practice and no election can be set aside on that basis. According to him, the petition does not bear the signature of the petitioner as required by Section 81 of the Act and the same is liable to be dismissed under Section 86 of the Act. No objection during the process of election and during the process of counting of votes was raised by the petitioner and no application for recount was made. The petitioner was thus satisfied with the result of the election and now he has no right to challenge the election of the returned candidate. The other respondents who have filed their replies are respondents Nos. 5, 13, 14, 4, 6 and 2. In his written statement the respondent No. 2 Madanlal Udaiwal has stated that his nomination paper was rightly accepted.He had submitted an application on February 1, 1985 requesting the competent authority for compulsory retirement from service and this prayer was accepted by the competent authority. He never attended the duty after election between March 18 to March 24, 1985 or on any other date after submitting application on February 1, 1985. That apart the result of the election was not materially effected as he secured only 551 votes and had he not contested the election those votes would have been cast in favour of the returned candidate. The respondents Nos.6, 4, 14, 13 and 5 have supported the case of the petitioner. 4. On the pleadings of the parties this court framed the issues on February 17, 1986. The parties have led documentary and oral evidence. The arguments have been heard and my decision on various issues is as under:- ISSUE-V 5. Issue V reads as under "What is the effect of the petition being not signed by the petitioner at the place meant for his signatures"? The parties have led documentary and oral evidence. The arguments have been heard and my decision on various issues is as under:- ISSUE-V 5. Issue V reads as under "What is the effect of the petition being not signed by the petitioner at the place meant for his signatures"? Section 83 of the Act provides as to what shall be the contents of the petition and one of the requiremets under sub-section 1(c) of Section 83 is that an election petition shall be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure, 1908 (5 of 1908) for the verification of pleadings. Under Order 6 Rule 14 CPC every pleading shall be signed by the party and his pleader, if any. A look at the election petition will show that every page of it has been signed by the petitioner. No doubt before verification at the place meant for signatures of the petitioner, the petitioner did not sign but the signatures of the petitioner are there at the bottom of that page. It can therefore he said that the petition has been signed in accordance with Order 6 Rule 14 CPC. That apart, it can at best be said to be an irregularity and not an illegality. Even in case of a defect in the verification in the matter of election petition the Supreme Court in the case of Murarka Radhey Shyam Ram Kumar v. Roop Singh Rathore and others, AIR 1964 SC 1545 held that a defect in verification in the matter of election petition is a matter which comes within clause (c) of sub-section (1) of Section 83. The defect can be removed in accordance with the principles of the Code of Civil Procedure, 1908. Such a defect does not attract sub-section (3) of Section 90 inasmuch as that sub-section does not refer to non- compliance with the provisions of Section 83 as a ground for dismissing an election petition. In the case of M. Kamalam v. V. A. Syed Mohammed, AIR 1978 SC 840 , it was held that even if no signature is appended by the petitioner on the copy of the election petition paper and signature is placed only at the foot of the copy of affidavit that is sufficient compliance with the requirement of the last part of sub-section (3) of Section 81. The law does not require that the authenticating signature must be made by the petitioner at any particular place in the copy of the election petition. In fact, the copy of the affidavit constituted the end-portion of the copy of, the election petition and the signature placed by the petitioner at the foot of the copy of the affidavit was therefore clearly referable to the entire copy preceding it and it authenticated the whole of the copy of the election petition to he a true copy. Thus, issue No. V is decided against the returned candidate and for the petitioner. Issue-III 6. Issue III reads as under "Whether from the grounds of (d) para No. 3 of the petition, the respondent No. 3 was disqualified for being chosen as Member Legislative Assembly and his nomination papers were wrongly accepted and it should have been rejected? If so, by acceptance of the nomination papers, the result has been materially effected?" The necessary pleadings in this respect are contained in para 3 (d) of the petition and reply of the returned candidate is contained in para 7 of the reply. The case of the petitioner is that the respondent No. 3 Abdul Salam was a contractor with the Municipal Council, Kota and was having subsisting contracts on the date he filed nomination papers as well as on the date of their scrutiny. He was therefore disqualified to contest the election under Section 9A of the Act. It is further the case of the petitioner that at the relevant time there was administrator of the Municipal Council Kota appointed by the Government of Rajasthan after the duly elected Board having been dissolved. After dissolution of the Board, the entire administration of the Municipality vests in the Government. Any contract entered into with the Administrator and/or Municipal Council is to be considered as if entered into with the Government. Therefore, the respondent No. 3 worked with the appropriate Government, namely, Government of Rajasthan and consequently, incurred disqualification under Section 9A of the Act. It is further the case of the petitioner that the said respondent secured 1155 votes in his favour and therefore on account of improper acceptance of the nomination paper of the respondent No. 3 the result of election has been materially effected as the returned candidate was declared elected only by a margin of 579 votes. It is further the case of the petitioner that the said respondent secured 1155 votes in his favour and therefore on account of improper acceptance of the nomination paper of the respondent No. 3 the result of election has been materially effected as the returned candidate was declared elected only by a margin of 579 votes. Therefore in case the nomination paper of the respondent No. 3 had been rejected, the votes polled by the respondent No. 3 would otherwise have teen polled in favour of the petitioner. The returned candidate in his reply to para 3 (d) of the petition has denied the averments and has come out with the case that no such objection was raised by an body at the time of scrutiny of nomination papers and further that the respondent No. 3 was not disqualified to contest the election under Section 9A of the Act. According to the returned candidate, the contract with the Administrator or Municipal Council Kota cannot be said to be contract with the Government of Rajasthan or Government of India. The result of the election has not been materially affected and the votes polled by the respondent No. 3 would not have been polled by the petitioner. The respondent No. 3 has not filed any reply to the petition. 7. Section 9A of the Act reads as under: "9A. Disqualification for Government contracts etc. A person shall be disqualified if and for so long as there subsists a contract entered into by him in the course of his trade or business with the appropriate Government for the supply of goods to or for the execution of any words undertaken by that Government. Explanation-For the purposes of this section, where a contract has been fully performed by the person by whom it has been entered into with the appropriate Government, the contract shall be deemed not to subsist by reason only of the fact that the Government has not performed its part of the contract either wholly or in part". A bare reading of the above extracted section 9A will show that the disqualification contained therein shall only be attracted as long as there subsists a contract entered into by him in the course of his trade or business with the appropriate Government. 'Appropriate Government' has not been defined anywhere in the Act. A bare reading of the above extracted section 9A will show that the disqualification contained therein shall only be attracted as long as there subsists a contract entered into by him in the course of his trade or business with the appropriate Government. 'Appropriate Government' has not been defined anywhere in the Act. So far as the factual position is concerned, it can be said that there is sufficient material on record that the respondent No. 3 was having a contract in subsistence with the Municipal Council Kota on the date when he filed his nomination papers and when the scrutiny of the nomination papers took place. In this connection a reference may be made to the statement of PW 7 Om Prakash.He states that he is Executive Engineer in the Municipal Council Kota since July 1984 and he knows Abdul Salam son of Abdul Sakur, respondent No. 3. The said Abdul Salam was registered as a contractor in the Municipal Council Kota in the month of February-March 1985 and continues to be so even today. He further states that various works were executed under his supervision by Abdul Salam from January 20 to March 3, 1985. He has proved Ex. PW 1/2 and PW 1/3 as having been signed by Manmohan Jain, the Municipal Commissioner, Kota. But the question is as to whether the contract with the Municipal Commissioner Kota can be said to be a contract with the 'appropriate Government' as required under' Section 9A of the Act. In the earlier part of this judgment Section 9A of the Act has already been extracted and at the cost of the repetition it may be stated that the question of incurring disqualification mentioned therein will arise if there subsists a contract in between the candidate seeking election and the appropriate Government for execution of any work undertaken by that government.Appropriate Government' means the Central Government or the State Government as the case may he and cannot and will not include an autonomous body the creature of statute under law. The Municipal Council established under Section 8 of the Rajasthan Municipalities Act, 1959 (for short, the Municipalities Act) is a body corporate by the name of Municipal Council of the city and shall have perpetual succession and a common seal and may sue or be sued in its corporate name. The Municipal Council established under Section 8 of the Rajasthan Municipalities Act, 1959 (for short, the Municipalities Act) is a body corporate by the name of Municipal Council of the city and shall have perpetual succession and a common seal and may sue or be sued in its corporate name. By virtue of section 12 of the Municipalities Act except as otherwise expressly provided in that Act, the municipal Government of a municipality shall vest in the municipal board which si all stand charged with the (sic) of carving out the provisions of that Act subject to the limitations and restrictions specified therein. Under Section 80 of the Municipalities Act, the Municipal Council can enter into and (sic) all such contracts as it may consider necessary or expedient in order to carry into effect the said provisions and purposes of the Act. No doubt the Government has powers to appoint administrator under Section 298 of the Municipalities Act in the circumstances mentioned therein.The Administrator can only be appointed for such period as may be specified in the notification and by like notification the period of appointment of the Administrator can be curtailed or extended. Under Section 293 A(3) of the Municipalities Act on the appointment of an administrator under sub-section (1) all the powers and duties of the board shall be exercised and performed by the administrator so appointed and he shall be deemed to be a duly constituted board for the purposes of the Municipalities Act. Under Section 293 A(3) of the Municipalities Act on the appointment of an administrator under sub-section (1) all the powers and duties of the board shall be exercised and performed by the administrator so appointed and he shall be deemed to be a duly constituted board for the purposes of the Municipalities Act. Even after the appointment of the Administrator such an appointment can be made under the circumstances mentioned in Section 293 of the Municipalities Act the municipal council continues to be duly constituted and it cannot be said that merely because an administrator is appointed by the Government in exercise of the powers vested in it during the period of appointment, the administrator of municipal council/municipal board became a department of the Government or for that matter, the contract: entered into in between a person and the municipal council can be said to have been entered into between by that person and the appropriate government.Learned counsel for the petitioner in support of his contention that because a contract for execution of the work was subsisting when the respondent No. 3 filed his nomination papers and thus he was disqualified under Section 9 A of the Act, has placed reliance on the case of State of Gujarat v. Ramanlal AIR 1984 SC 161 , and has also referred to Section 295 and 293 of the Municipalities Act and contents that the power to dissolve and supersede the board is vested in the State Government and therefore because the respondent No. 3 was having subsisting contract with the Municipal Council, disqualification under Section 9A of the Act is attracted. He has also referred to Biharilal v. Roshanlal, AIR 1984 SC 385 . In my opinion none of these cases are applicable to the controversy involved in this case. The Municipal Council is not a department of the Government and as already stated earlier, it is constituted tinder the Municipalities Act, is a local authority and therefore Section 9A of the Act is not attracted.In the case of Ramanlal Keshavlal (supra) referring to the provisions of Gujarat Panchayat Act, 1961. it was held that the panchayat service is distinct from State service because the Panchayat institutions whom it serves together constitute an almost parallel but subsidiary Government. it was held that the panchayat service is distinct from State service because the Panchayat institutions whom it serves together constitute an almost parallel but subsidiary Government. It is only in that sense Panchayat Service is distinct from a State Service and not in the sense that members of the service are not servants of the State. In the case of Biharilal v. Roshanlal (supra) the question was as to whether the Assistant Teachers employed in a Basic Primary School run by the Uttar Pradesh Board of Basic Education are holding the office of profit and are disqualified to contest the election. The case of Ashok Kumar v. Ajoy Biswas (sic) controversy is concerned. It was held in that case that for determination of the question whether a person holds an office of profit under the Government each use must be measured and judged in the light of the relevant provisions of the Act.To make all cases of employees of local authorities subject to the control of Government and to treat them as holders of office of profit under the Government would be to obliterate the specific differentiation made under Article 58 (2) and Article 102 (1) (a) of the Constitution and to extend the disqualification under Article 58 (2) to one under Article 102 (l) (a) to an extent not warranted by the language of the Article. It was a case where Ajoy Biswas, respondent, was the Accountant incharge of the Agarthala Municipality and the question arose as to whether an accountant-incharge of the municipality is holding the office of profit within the meaning of Section 101 (I) e of the Constitution of India. The Municipality had been superseded and during the period of supression the powers and duties of the Commissioner and Chairman were exercised by the Administrator appointed by the State Government udder Section 558 of the Bengal Municipal Act, 1932 as extended to the State of Tripura in 1975. Then it was held that the accountant does not hold the charge or office of profit. In State of Bihar v. Union of India AIR 1970 SC 1446 , it was held that the enlarged definition of 'State' given in Parts III and IV of the Constitution would not be attracted to Article 131 of the Constitution of India.In Bajranglal v. State of Rajasthan. In State of Bihar v. Union of India AIR 1970 SC 1446 , it was held that the enlarged definition of 'State' given in Parts III and IV of the Constitution would not be attracted to Article 131 of the Constitution of India.In Bajranglal v. State of Rajasthan. 1986 RLW page 14 : 1985 RLR 927 , the question was as to whether an employee of the Rajasthan State Electricity Board was disqualified under Section 26 of the Municipalities Act to seek election as a ward member. It was held that the Rajasthan State Electricity Board is a statutory body registered under the Electricity (Supply) Act. 1948 and under Section 26 of the Municipalities Act only a person who holds a salaried or part-time appointment in the Central or State Government or a local authority was disqualified. It was further held that the Rajasthan State Electricity Board cannot be said to be Central Government, State Government or Local authority. Dealing with the argument of learned counsel for Bajranglal, the petitioner in that case, that the Rajasthan State Electricity Board has been considered as a State in the case of R. S. E. B. Jaipur v. Mohanlal, AIR 1967 SC 1857 the learned Judge held that in that case the meaning of State under Article 12 of the Constitution of India has been considered. In Keshav Chandra v. Gouri Sankar, (2) ELR 215 the facts were that Municipal Board Gauhati had been superseded by the Government and the petitioner whose nomination papers had been rejected by the Election Officer had taken contract of certain work in the Water Works of the Gauhati Municipality in 1948.A question arose as to whether the contract was with the Government of Assam. Referring to the relevant provisions of the Assam Municipalities Act which provided that all properties belonging to the Municipality shall vest in and belong to the Municipal Board by which alone, under the provisions of Section 22 of that Act, the Municipality will be represented for all purpose, it was held that on supersession of such Municipal Board when the Government takes up the management, the management only vests in the Government under the provisions of Section 294 of the Act, but the properties belonging to the Municipality continue to belong to it and they only vest in the Government for the purpose of management. So, on such supersession, it is not that the Municipality ceases to exist as an entity but only the management of its business vests in the Government.In this view of the matter, the legal position of the Government substantially comes to be one of an agent and any contract entered into by the Government for the execution of any work of the Municipality, during such period of supersession, cannot be treated as a contract with the Government on its own account, in which latter case alone, the operation of the disqualifying clause of section 7 (d) would appear to be attracted. In the case of S. L. Agrawal v. Hindustan Steel Ltd. AIR 1970 SC 1150 , it was held that Hindustan Steel Ltd. which is a corporation is not a department of the Government nor are the Servants of it holders of civil posts under the State.It has its independent existence and by law relating to Corporalions it is distinct even from its members. Though, it was a case where the question arose as to whether the employees are entitled or not entitled to protection of the Article 311 of the Constitution, but the observations will apply with equal force to issue No. III inasmuch as on the parity of reasons, it can he said that Municipal Council, Kota is not a department of the Government, it is a creature of statute is a corporate body and thus it cannot be said to be 'appropriate government' so as to attract section 9A of the Act. I am therefore of the definite opinion that though the respondent No. 3 was having subsisting contract with the Municipal Council Kota when he filed the nomination papers, and that contract was for the execution of some work, but the Municipal Council Kota is not 'appropriate government' and as such no disqualification was incurred by the respondent No. 3 under Section 9A of the Act and his nomination paper was therefore rightly accepted. After I have dealt with issue II, I will deal with the question as to whether assuming, though not accepting. that any disqualification was incurred under Section 9A of the Act by the respondent No. 3 at the time of nomination paper as well as at the time of scrutiny whether the election of the returned candiddate has been materially effected? 8. that any disqualification was incurred under Section 9A of the Act by the respondent No. 3 at the time of nomination paper as well as at the time of scrutiny whether the election of the returned candiddate has been materially effected? 8. Issue-II Issue II reads as under : "Whether the nomination papers of respondent No. 2 for the Vidhan Sabha Constituency were wrongly accepted by the Returning Officer and ought to have been rejected. If so, whether as a result of the wrong accepted of nomination papers the result has been materially effected ? The case of the petitioner is that the respondent No. 2 Madanlal Udaiwal was in the employment of Government of India, Ministry of Defence on the post of Sanitary Mate whose number was CS-133 under the Command of Station Commander Station Head Quarter, Kota at the time of filing of the nomination paper, prior to it and subsequent thereto. Thus, the said respondent was in the service of Government of India and holding the office of profit disentitling him to contest the election to the Vidhan Sabha on that ground as he was disqualified for being chosen as a Member of the Rajasthan Legislative Assembly by virtue of Article 191 (1) (a) of the Constitution of India. As per the case of the petitioner, to the best of his knowledge, the said respondent No. 2 was performing his duty even after the election between 18th March,1985 to 24th March,1985. The said respondent secured 551 votes and according to the petitioner the votes polled by the respondent No.2 would otherwise have been polled by him and thousand of persons of the harijan community who would have otherwise voted for the petitioner and his party on account of one amongst them contesting the election in the form of the respondent No. 2 with a view not to embarrass him, not go to cast their votes and as such the petitioner was deprived of the valuable votes of such persons. The result of the election has therefore been materially effected. The respondent No 2 has filed his separate written statement and though he admitted the number of votes polled by him, but denied that the votes polled by him, in case he had not contested the election, would have been cast in favour of the petitioner or that the result of the election has been materially effected. The respondent No 2 has filed his separate written statement and though he admitted the number of votes polled by him, but denied that the votes polled by him, in case he had not contested the election, would have been cast in favour of the petitioner or that the result of the election has been materially effected. He further stated that had he not contested the election, the votes would have been cast in favour of the returned candidate. The returned candidate in his written statement besides denying para 3(c) of the petition which contains the relevant pleadings. has stated that it is wrong to state that nomination paper of the respondent No. 2 Madanlal was improperly accepted. According to him no objection was raised by any person at the time of scrutiny of nomination papers. The petitioner should strictly prove by evidence that the respondent No. 2 was in the employment of the Government of India, Ministry of Defence on the post of Sanitary Mate at the time of submitting of nomination papers, at the date of scrutiny of nomination papers and at the date of election. According to the returned candidate, the respondent No. 2 was not holding the office of profit under the Government of India and he was not disqualified for him" chosen as a Member of the Rajasthan Legislative Assembly. It has been submitted by the returned candidate that the resignation dated February 1, 1985 was accepted by the competent authority and he was no more in service of the Government and was relieved from service with effect from February 1, 1985.9. There can be no dispute that the respondent No. 2 was holding the post of Sanitary Mate under the Government of India before he filed his nomination papers for Vidhan Sabha Nirvachan Kshetra (No. 107) Kota. The only question is as to whether on the date he had submitted his resignation which had been accepted and on the date of filing of his nomination papers on the date of scrutiny and;or the date of election, he was continuing in service ? The petitioner Jagdish Prasad Thada PW. 1 has stated that the respondent No 2 was posted as Sanitary Mate at the office of Station Commander, Station Head Quarters, Kota. His Number was CS-133. The petitioner Jagdish Prasad Thada PW. 1 has stated that the respondent No 2 was posted as Sanitary Mate at the office of Station Commander, Station Head Quarters, Kota. His Number was CS-133. According to him, he was also holding the said post and was employed when he submitted his nomination papers to the Returning Officer. He admitted that neither he nor anybody made any objection in that behalf, before the Returning Officer. According to him, he was not knowing this fact at the time of scrutiny of the nomination papers and therefore he did not object before the Returning Officer and gathered this fact later on before filing the election petition. According to him he had personally gone to the Head Quarters of Military and came to know that Madanlal Udaiwal was a Sanitary Mate under the command of Station Commander Station Head Quarters and as such was an employee under the Ministry of Defence. According to him no documents were shown to him and only information was furnished. Bahadur Singh Hada PW. 2 who was working for the petitioner, (Congress (I) candidate) during the election states that if the respondent No. 2 would not have stood and would not have contested the election the votes polled by him would have gone in favour of the petitioner. Havaldar Rikhi Ram PW. 6 states that he was posted as a clerk since August, 1984. He stated that Madan Lal Udaiwal remained Sanitary Mate at the Station Head Quarters Kota from November 5, 1957 to January 31.1985. According to him, Madanlal submitted his resignation under his letter dated January 31, 1985, and sought retirement from February 1, 1985. On February 25, 1985 the Sub Area Commander wrote that 'the discharge of Shri Madanlal Udaiwal Sanitary Mate of your head quarters on his own request has been approved by the sub Area Commander. Please take action accordingly". On March 4, 1945 they received the above letter from the Sub Area Commander and the same day Madanlal was informed of the acceptance of the request for discharge with effect from morning of February 1, 1985. In the cross-examination the witness states that the Station Commander is competent authority to give discharge to a Sanitary Mate on approval of sub-area commander. In the cross-examination the witness states that the Station Commander is competent authority to give discharge to a Sanitary Mate on approval of sub-area commander. According to him it is correct that the Station Commander wrote on the leaf of the letter signed retirement (sic) that the resignation may please be recommended strongly as Shri Madanlal was standing for election in Vidhan Sabha. This was recommended by him to the Sub Area Commander on January 31, 1985. Under the rules one can seek voluntary retirement after completing 25 years of service. Lalit Kishore Chaturvedi DW 1, the returned candidate, has stated that the nomination paper of Madanlal was; correctly accepted and no objection was filed by the petitioner or anybody-else at the time of scrutiny of his nomination papers. From the statement of Havaldar Rikhi Ram PW 6, it can be said that on February 25, 1985, the Sub Area Commander who was the competent authority approved the discharge of Madanlal Udaiwal respondent No. 2 Sanitary Mate on his own request and he was discharged with effect from the morning of February 1, 1985. It can therefore be said that the request of Madanlal Udaiwal for discharge from the Government service was accepted by the competent authority with retrospective effect from February 1, 1985. The last date for filing the nomination papers for the constituency in question was February 8, 1985, and the scrutiny of the nomination papers was to be made on the last date and the date for withdrawal of the nomination papers was February 11, 1985 and the polling in the constituency was to take place on March 3, 1985.Thus, on the date when the nomination papers were filed by the respondent No 2 and even on the date of scrutiny, though he had requested for discharge, but no permission had been given on his request and the order was only passed later on i. e. after acceptance of the nomination papers though with retrospective effect and the request for discharge was accepted.10. Under Article 191 (1) (a) of the Constitution a person shall be disqualified for being chosen as a Member of the Legislative Assembly or Legislative Council of a State if he holds any office or profit under the Government of India or the Government of any State specified in the First Schedule, other than an office declared by the Legislature of the State by law not to disqualify its holder. The only question therefore is as to whether as a result of acceptance of request of the respondent No. 2 for discharge with effect from February 1, 1985 in the facts and circumstances, can it be said that the said respondent was still holding an office of profit under the Government of India ?11. The contention of the learned counsel for the petitioner is that on the date when nomination papers were filed, though the respondent No. 2 had requested for his discharge with effect from February 1, 1985, but that request had not then been accepted and it was only accepted. as stated by Havaldar Rikhi Ram, PW. 6, on February 25. 1985 or on March 4, 1985 and the rules do not permit acceptance of resignation ordering the discharge with retrospective effect. Therefore, the said respondent was having the office under the Government of India not only on the date of filing of the nomination papers, but also on the date of scrutiny thereof and therefore he was disqualified under Article 191 (1) (a) of the Constitution of India.12. The contention of the learned counsel for the petitioner is that discharge of the respondent No. 2 could not be with retrospective effect. According to him it was only on March 4, 1985 that the Sub Area Commander had written that the discharge of the respondent No. 2 has been approved by the Sub Area Commander and action should be taken accordingly. It was only on the same day that the respondent No. 2 was informed of the acceptance of his request for discharge. In support of his contention that the discharge could not be with retrospective effect, learned counsel for the petitioner has placed reliance on Army Rules, 1954 and more so to its rule 18. Rule 18 of the said Rules is in respect of retirement, resignation, removal, release, discharge, or dismissal otherwise than by sentence of court-martial. In support of his contention that the discharge could not be with retrospective effect, learned counsel for the petitioner has placed reliance on Army Rules, 1954 and more so to its rule 18. Rule 18 of the said Rules is in respect of retirement, resignation, removal, release, discharge, or dismissal otherwise than by sentence of court-martial. It provides that the dismissal of a person subject to the Army Act, other than an officer whose dismissal otherwise than by sentence by court martial is duly authorised or the discharge of a person so subject whose discharge if duly authorised shall be carried out by the commanding officer of such person with all convenient speed. The authority competent to authorise such dismissal or discharge may when authorising the dismissal or discharge, specify a future date from which it shall take place. Under the proviso to sub-rule (2) of rule 18 of the Army Rules, 1954 if no such date is specified the dismissal or discharge shall take effect from the date on which it was duly authorised,or from the date on which the person dismissed or discharged. ceased to perform military duty, whichever is the later date. Under sub-rule (3) of rule 18 the retirement, removal, resignation, release, discharge or dismissal of a Person subject to the Act shall not be retrospective. It can therefore be said that discharge of a person subject to Army Act shall not be retrospective, The question arises in this connection as to whether in the instant case the discharge of the respondent No. 2 can be said to have been approved with retrospective effect ?13. A reference to the statement of Havaldar Rikhi Ram has already been made. He has stated that the respondent No. 2 had submitted his resignation under his letter dated January 31, 1985 and sought retirement with effect from February 1, 1985 He further stated that the Station Commander is the competent authority to give discharge to a sanitary mate which post the respondent No. 2 was holding but it could be on approval of Sub Area Commander. A further statement has been made by him that so far as Station Commander is concerned, he had written on the leaf of the letter signed returned that the resignation may be recommended strongly as Madanlal is contesting the election. A further statement has been made by him that so far as Station Commander is concerned, he had written on the leaf of the letter signed returned that the resignation may be recommended strongly as Madanlal is contesting the election. According to his statement, it was on February 25, 1985 that the Sub Area Commander had approved the recommendation and a letter of Sub Area Commander in that behalf was received on March 4, 1985 and the same day Madanlal was informed of the acceptance of his request for discharge with effect from morning of February 1, 1985. Thus, it can be said that the respondent No. 2 sought discharge with effect from February 1, 1985 and the same was approved. It can therefore be said that though the Sub Area Commander is the competent authority to approve the recommendations of Station Commander who was competent authority to give discharge, approved on February 25, 1985 and the same was communicated on March 4, 1985 but in fact the discharge of the respondent No. 2 from service was requested and approved with effect from February 1, 1985. Therefore, in my opinion, it cannot be said that the discharge was with retrospective effect.14. The case of Amrit Lal Ambalal Patel v. Himathbhai Gomanbhai Patel & anr. AIR 1968 SC 1455 on which reliance has been placed by the learned counsel for the petitioner has no relevance. It was a case of rejection of nomination papers on the date of scrutiny on the ground that the candidate did not have the qualification of age under Article 173 of the Constitution. It was held that merely because the candidate completes the prescribed age on the date of election, it will not make any difference as the relevant date is the date of scrutiny of nomination papers and the acceptance of nomination papers is improper. In the case of Rajkumar v. Union of India, AIR 1969 SC 180 , Rajkumar was a Member of I.A.S. and he asked the Government to relieve him from service, and his request was accepted by the Government but before communication of the order accepting his resignation, he withdrew his offer of resignation. It was held that he had no locus standi to so withdraw his offer of resignation after it was accepted. It was held that he had no locus standi to so withdraw his offer of resignation after it was accepted. In that case there were no rules framed under Article 309 of the Constitution as to when the resignation was to take effect. Referring to the case of State of Punjab v. Amar Singh Harika. AIR 1966 SC 1313 wherein it was held that the order was passed by the authority and kept on its file without communicating it to the officer concerned or otherwise publishing it did not take effect as from the date on which the order was actually written out by the said authority, such an order could only be effective after it was communicated to the officer concerned or was otherwise published, it was held that the principle of that case has no application. It was further held that termination of employment by order passed by the Government does not became effective until the order is intimated to the employee. But where a public servant has invited by his letter of resignation determination of his employment, his services normally stand terminated from the date on which the letter of resignation is accepted by the appropriate authority and in the absence of any rule or law governing the conditions of his service to the contrary, it will not be open to the public servant to withdraw his resignation after it is accepted him in the appropriate authority. In the case of Rajkumar (supra) the main issue for their r Lordship; of the Supreme Court was as to whether before communication of the resignation letter, though acceptance has been accorded by the competent authority in writing in a Government servant withdraw his letter of resignation It can therefore not be despatched on the basis of the aforesaid case of Rajkumar (supra) that in case there are no rules as to when the resignation becomes effective, it becomes effective from the date the letter of resignation was accepted by the competent authority though it might not have been communicated. In the case in hand the respondent No. 2 applied for discharge with effect from February 1, 1985 and the competent authority to give discharge was the Station Commander but only on the approval of Sub Area Commander. The competent authority recommended for acceptance of the request for discharge from February 1, 1985 and the said recommendation was accepted. In the case in hand the respondent No. 2 applied for discharge with effect from February 1, 1985 and the competent authority to give discharge was the Station Commander but only on the approval of Sub Area Commander. The competent authority recommended for acceptance of the request for discharge from February 1, 1985 and the said recommendation was accepted. In the famous case of Raj Narain v. Indira Nehru Gandhi, 1972 (III) SCC 850 a reference was made to the case of Rajkumar (supra) and though Yashpal Kapur tendered his resignation on January 13, 1971 but the President accepted his resignation on January 25, 1971 and the same was gazetted on February 6, 1971. The trial Judge held that the resignation became effective from January 14, 1971 and the Supreme Court observed that the view of the learned trial Judge needs re-examination. It was further held that the question needs to be examined with reference to the conditions of service of Yashpal Kapur. In the case of P. Kasilingam v. P. S. G College of Technology, AIR 1981 SC 789 , the case of Rajkumar (supra) was referred and the principles laid down there were reiterated. In para No. 18 of the aforesaid judgment it was further held that it is open to a servant to make his resignation operative from a future date and to withdraw such resignation before its acceptance. In the case of Dattatrava Hari Vaidya & ors v. Union of India & others, AIR 1976 Bombay 42, it was held that the order of confirmation can be passed with retrospective effect. It was not a case of acceptance of resignation or a request for discharge and therefore the case is not on the controversy involved in the present case. In Khem Chand v. State of Himachal Pradesh and another, 1976(l) SLR 741 which was a case of resignation by a temporary Government servant who was relieved in contemplation of resignation who had withdrawn the resignation before acceptance, it was held that resignation in such a case is nothing but a notice to end service and acceptance of resignation was not necessary.15. In my opinion, if a Government servant seeks retirement from a specified date, it is for the competent authority to accept the resignation from that specified date and the same is accepted from the date specified, it cannot be said that the resignation has been accepted with retrospective effect. Merely because in the instant case as already stated earlier the respondent No. 2 had in his letter of resignation sought discharge with effect from February 1, 1985 and the competent authority had sought the approval f the request which was accorded on February 25, 1985, it cannot be said that the resignation was accepted with retrospective effect.16. Even assuming for the sake of argument, though not accepting, that in the facts of this case because the approval was accorded on February 25, 1985, by the Sub Area Commander on the recommendation of Station Commander the resignation cannot be said to be accepted on the date the nomination papers were scrutinised and the question arises as a result of wrong acceptance of the nomination papers of the respondent No. 2 the result of the election has been materially effected ?17. While discussing the issue No. III, I have already said that under Section 9A of the Act the respondent No. 3 did not incur any disqualification of being a candidate of Assembly election and so far as the question whether the election has been materially effected as a result thereof it will be discussed in the latter part of this judgment. It may be stated that so far as the respondent No. 2 is concerned he secured 551 valid votes and the respondent No. 3 secured 1155 valid votes in his favour. So far as the votes polled by the respondent No. 3 are concerned, with the finding on issue No. III against the petitioner and in favour of the returned candidate, it cannot be said that the nomination papers of the respondent No. 3 were wrongly accepted and therefore there is no question of the result being materially effected.As already stated earlier,the respondent No 2 polled in his favour 551 votes and the returned candidate had won by a margin of 579 votes. Firstly, it cannot be said that if the nomination papers of the respondent No 2 would not have been accepted and he would not have fought the election, all the votes polled by him namely 551 votes,would have gone in favour of the petitioner and even if assuming that all the votes would have been polled in favour of the petitioner, even then the result of the election would not have been materially effected as still the returned candidate would have won securing more votes than the petitioner. The meaning of the result of the election has been materially effected", was considered in the case of Vashist Narain Sharma v. Dev Chandra and others, AIR 1954 SC 513 , it was held that the words -the result of the election has been materially affected" indicate that the result should not be judged by the mere increase or decrease in the total number of votes secured by the returned candidate but by proof of the fact that the wasted votes would have been distributed in such it manner between the contesting candidates as would have brought about the defeat of the returned candidate. It has been further held in pare No. 9 that it cannot be held that the mere fact that the wasted votes are greater than the margin of votes between the returned candidate and the candidate securing the next highest number of votes must lead to the necessary inference that the result of the election has been materially effected. That is a matter which has to be proved and the onus of proving it lies upon the petitioner. The court again in paras 11 to 13 held that the language of Section 100 (I) (c) is too clear for any speculation about possibilities. The section clearly lays down that improper acceptance is not to be regarded as fatal to the election unless the Tribunal is of opinion that the result has been materially effected. In the case of Kanta Prasad Upadhya v. Sarju Prasad Tiwari and others, 1969 (9) DEC-20 , the Supreme Court was dealing with a case of improper acceptance of nomination papers and where the retuned candidate had won by a margin of 2795 votes and the candidate whose nomination paper was improperly accepted got 4297 votes. In the case of Kanta Prasad Upadhya v. Sarju Prasad Tiwari and others, 1969 (9) DEC-20 , the Supreme Court was dealing with a case of improper acceptance of nomination papers and where the retuned candidate had won by a margin of 2795 votes and the candidate whose nomination paper was improperly accepted got 4297 votes. It was held that the election cannot be set aside on the mere allegation that the whole of the community to which the disqualified candidate belonged would have voted for candidate standing second in the array of candidates. It can therefore be said that the burden to prove that the result of election has been materially effected is on the petitioner and the petitioner has to prove the same. The issue cannot be decided in favour of the petitioner merely on speculation. It may be different that the margin of votes polled by a candidate whose nomination paper was wrongly accepted is many times high than the margin by which the returned candidate has succeeded. In that case, a case may be made out for holding that the result of the election has been materially effected, but in the case of present nature where the margin of votes is more than the votes polled by the respondent No. 2, even if it may be assumed though not accepted that the nomination papers were wrongly accepted, it cannot be said that the result of the election has been materially effected.18. An argument was advanced that if the nomination paper of respondent had not been wrongly accepted, he being a harijan, belonging to the scheduled caste, many more parsons belonging to the scheduled caste would have voted for the petitioner. Evidence has been led that because the respondent No. 2 had for election and his nomination paper was wrongly accepted many members his community did not come to cast their votes. Had his nomination paper not been accepted members belonging to the scheduled caste would have come to cast their votes. Thousands of voters would have voted for the petitioner. Firstly such evidence which has been brought on record does not prove his case and secondly as held by their Lordships of the Supreme Court in the case of Kanmta Prasad (supra) the election cannot be set aside merely because disqualified candidate would stood second in the array of candidates.19. Thousands of voters would have voted for the petitioner. Firstly such evidence which has been brought on record does not prove his case and secondly as held by their Lordships of the Supreme Court in the case of Kanmta Prasad (supra) the election cannot be set aside merely because disqualified candidate would stood second in the array of candidates.19. I am of the opinion that even if we assume that the nomination papers of the respondent No. 2 were wrongly accepted and should have been rejected. it cannot be said that as it result thereof the result of the election has been materially directed. Issues 2 and 3 are therefore decided against the petitioner and in favour of the returned candidate.20. Issue IV reads as under : 'Whether the grounds mentioned in (i) and (j) of para No. 3 of the petition are corrupt practices? If so whether the election of the respondent No. 1 is liable to be set aside on the ground of those corrupt practices". The case of the petitioner is that the returned candidate published the pamphlets Annexures 4 and 5 and circulated the same in the Vidhan Sabha Nirvachan Kshetra, Kota;(lO7) in which with a view to unduly influence the electors from exercising their electoral right in a free and fearless manner by making out false propaganda threatening them of dire consequences knowing fully well that such statements were absolutely false. By the second pamphlet inducement to vote for the returned candidate was given offering certain facilities in case the returned candidate was voted and declared elected. It was also stated in the said pamphlet that in case the petitioner is declared elected, harsh taxation will be imposed and thereby inducing the voters through mis-representation and false propaganda not to cast their votes in favour of the petitioner and to cast their votes in favour of the returned candidate. According to the petitioner, the returned candidate alongwith his agents and party workers published and circulated the aforesaid material threatening the electors with injury to the extent of demolition of their houses in case the returned candidate was not declared elected. By these acts, the returned candidate is guilty of corrupt practices for being declared elected and rendering his election void on account of the same. By these acts, the returned candidate is guilty of corrupt practices for being declared elected and rendering his election void on account of the same. It is further the case of the petitioner that the returned candidate on March 3, 1985 at about 5 p.m at Khedli Ward No. 7. Civil Lines. Kota addressed general public in a meeting stating that it Congress comes in power, if Thada is elected, house tax would be imposed, as Thuds is in favour of imposition of house tax. There is no difference between Thada and Dhariwal, if Thada is voted, these two personalities of Kota would incur their wreth upon the poor person and their hutments shall be erased to the ground by buldozers. It is further the case of the petitioner that the returned candidate influenced the voters not to cast their votes in favour of the petitioner. Before the said speech leaflets (Annr. 4 and 5) were distributed by the election agent Shri Kishan Gopal Gupta and other agents of the returned candidate to the knowledge of the returned candidate himself almost the same type of speech was made by Kishan Gopal Gupta, the election agent of the returned candidate. According to the petitioner, similar such meetings were held by the returned candidate and the election agent and other supporters on March 3, 198 at 7 p.m. at Sanjay Nagar Bhimganjmandi, at 7 p.m. at Ganwad and at p.m. at Distpura (Ward Civil Lines) on March 4, 1985 at about 5 p.m. at Kehavpura (Ward Kishorepura) and at 7 p m. at Adarsh Nagar Kachi Basti. the returned candidate again repeated that Thada is a dangerous person and if lie is elected, he would get all the kachi bastis demolished. The aforesaid facts which are alleged to be corrupt practice by the returned candidate his election agent and other agents with his knowledge are denied by the returned candidate in his written statement. In reply to para 3 (i) and (j) of the election petition, the returned candidate admits that he got printed the leaflets Annrs. 4 and 5, but according to him those leaflets were not issued with a view to unduly influence the voters from exercising their electoral right in free and fearless manner. No false propaganda threatening the voters of dire consequences was made by the returned candidate The facts stated in Annrs. 4 and 5, but according to him those leaflets were not issued with a view to unduly influence the voters from exercising their electoral right in free and fearless manner. No false propaganda threatening the voters of dire consequences was made by the returned candidate The facts stated in Annrs. 4 and 5 are said to be true and not false. According to the returned candidate he never induced the voters by offering any facilities to secure votes and he never declared that in case the petitioner is elected he would impose undue and harsh taxation. No misrepresentation and false propaganda was made by the returned candidate. The returned candidate or his agent or party workers never distributed or circulated Annr. 4 and 5 threatening the voters with the injury of demolition of their houses in case the respondent No. 1. the returned candidate, was not elected. According to the returned candidate the allegations of corrupt practices are vague.If petitioner has not given the date, place and names of persons who are alleged to have published and circulated leaflets Annr. 4 and 5 and no inquiry can be made on such vague allegations. According to him, in fact the allegations made in para 3 (i) of the election petition do not amount to corrupt practice and the election cannot be set aside on these allegations as they come within the declaration of public policy or promise of public actions and shall not be deemed to any interference in exercise of legal right of any elector. So far as the allegations contained in para 3(j) of the election petition are concerned, the case of the returned candidate is that he did not address any general meeting as alleged therein. He never made any speech that if Congress comes in power and if the petitioner Thada is elected, house tax would be imposed as Thada is in favour of imposition of house-tax. He also denied the allegation that any leaf-lets Annr. 4 and 5 were distributed before re the meeting. So far as other meetings are concerned, it is the case of the returned candidate that no such meetings were held by the returned candidate, his election agent and other agents. According to him. even the alleged statements do not come within the definition of corrupt practice under Section 123 and the election cannot be set aside on these allegations.21. So far as other meetings are concerned, it is the case of the returned candidate that no such meetings were held by the returned candidate, his election agent and other agents. According to him. even the alleged statements do not come within the definition of corrupt practice under Section 123 and the election cannot be set aside on these allegations.21. The parties have led evidence in support of their respective allegations. It may he stated that the returned candidate has not disputed that Arnr. 4 and 5 to the petition were printed Annr. 4 has been marked as Ex. PW. 1/4 and Annr. 5 has been marked as Ex. PW. 1/5. Besides the statement of the petitioner as PW. I who has proved that these documents were published by the returned candidate, it may be stated that Lalit Kishore Chaturvedi, the returned candidate as DW 1 states that pamphlets F.W. 1/4 and FW. 1/5 were published. though he states that he does not remember as to who got it published and who drafted it but he admits at pace 4 bottom of his statement that they were got published and distributed by the party of which he was the candidate, and whatever has been stated therein is correct. At the cost of repetition it may Fe stated that in para 3(i) of the election petition the petitioner has set up a specific case that it was the returned candidate who published the pamphlets and circulated the same in the Vidhan Sabha Nirvachan Kshetra, Kota (107). In reply to the aforesaid para the returned candidate in his written statement admitted that he got printed the leaflets Anr. 4 and 5. It was not specifically denied that he also circulated the same in the Vidhan Sabha Nirvanchan Kshetra Kota. Therefore, notwithstanding the statement of the returned candidate Lalit Kishore Chaturvedi as DW 1 that these pamphlets were got printed and distributed by the party of which he was a candidate without feeling any necessity to go through other evidence on record. it can he said that only on the basis of the pleadings of the parties that these pamphlets Annr. 4 and 5 (PW 1/4 and RW 1/5) were got printed. published by the returned candidate and they were circulated by his election agent and other agents with his tacit approval or consent. it can he said that only on the basis of the pleadings of the parties that these pamphlets Annr. 4 and 5 (PW 1/4 and RW 1/5) were got printed. published by the returned candidate and they were circulated by his election agent and other agents with his tacit approval or consent. It may be stated that if any pamphlets are published by a candidate or party to which he belongs they are only published for being distributed. The question is as to whether by publication and circulation of those pamphlets the returned candidate committed any corrupt practice ?22. Before I enter into the discussion of the evidence in question, it is relevant to read Ex. PW. 1/4 and Ex. PW. 1/5. They read as under:- Ex. The question is as to whether by publication and circulation of those pamphlets the returned candidate committed any corrupt practice ?22. Before I enter into the discussion of the evidence in question, it is relevant to read Ex. PW. 1/4 and Ex. PW. 1/5. They read as under:- Ex. PW 1/4 izxfr dh ifgpku dey dk fu'kku Hkktik us vc rc gkml&VSDl ugha yxus fn;k ukxfjdksa lko/kkuA dkaxzsl fQj gkml&VSDl yxkus okyh gSA ukxfjd cU/kqvksaA jktLFkku esa dksVk gh ,d ek= ,slk 'kgj gS tgka gkml&VSDl dk vkjksi.k ugha fd;k tk ldrk gSA D;ksa\ Hkktik us gkml&VSDl ugha yxus fn;kA tc&tc dkaxzsl ;gkWa thrh] gkml&VSDl yxkus dh ukikd lkft'k dh xbZ] vkidks ;kn gksxkA 1972 esa dkaxzsl thrhA bldk ifj.kke gqvk] 1975&76 esa gtkjksa gkml&VSDl ds uksfVlksa dk rksgQkA vkidksa feyk% uxj ifj"kn us ugj ds fdukjs ,d n�rj Hkh [kksy fn;k vHkh Hkh vkidks og cksMZ fn[kkbZ nsrk gSA ysfdu 1977 esa tc yfyr fd'kksj prqosZnh fo/kk;d cus rc gkml&VSDl olwy djus dh lkjh dk;Zokgh fujLr dj nh xbZA nhokfy;k uxj ifj"kn fQj gkml&VSDl yxkus dh fQjkd esaA bl {ks= ds ,d eU=h vius pgsrksa dks uxj ifj"kn dk iz'kkld vkSj vk;qDr ds :i esa yk, gSaA bu pgsrksa us jktLFkku dh lokZf/kd vkfFkZd lk/kuksa ls lqn`<+ uxj ifj"kn dk lkjk LFkk;h rFkk py&dks"k fQtwy [kphZ esa mBkdj uxj ifj"kn dks fnokfy;k cuk fn;k gSA vkt deZpkfj;ksa dks le; ij osru nsus ds fy, Hkh :i;k ugha gSA ;g fnokfy;k uxj ifj"kn pquko iwjs gksus ds rqjUr ckn iqu% x`g dj olwy djus ds iz;Ru esa gSA x`g dj ds uksfVl vkids ikl igqpus okys gSaA Hkktik dksVk esa x`g dj ugha yxus nsxhA ;g gekjk ladYi gSA dksVk 'kgj dh izxfr ds fy, Hkktik dks oksV nsA ExPW 1/5 " izxfr dh ifgpku dey dk fu'kku dPph cfLr;ksa ij cqyMkstj pyok nwaxkA 'kkfUr /kkjhoky dh /kedh dkaxzsl vius okLrfod :i esaA detksj vkSj xjhc oxZ dh rFkk dfFkr jguqek cuus dk <+ksax jpus okyh daxzsl vius okLrfod :i esa vk xbZ gSA verZiqjk esa fnukad 1-3-85 dks cPph cfLr;ksa okyksa dks /kedkrs gq, 'kkfUr /kkjhoky us dgk fd dPph cLrh okyksa rqEgsa dkaxzsl dks yksdlHkk dh rjg gh fo/kku lHkk esa oksV nsuk gksxkA ;fn txnh'k BkM+k gkj x;s rks eSa dPph cfLr;ksa ij cqyMkstj fQjok nwaxkA rqEgkjs ?kj uLrsukcwn dj nwaxkA vki buds okLrfod psgjksa dks ifgpkusA ;s xhnM+ dh [kky vks<+s HksfM+;s gSaA bUgksaus vius [kwuh iatksa vkSj jDr ykSyqi MkaVs fn[kkuh 'kq: dj nh gSA dkaxzsl dk iatk f'kdatk cu dj dlrk tk jgk gS vkids xys esaA vkidks lkspuk gksxk fd D;k ;s cqyMkstj pykus dh /kedh nsus okys vkids oksV ds lgh vf/kdkjh gS\ budh xhnM HkHkfd;ksa dk m�kj 5 ekpZ dks vius oksV ls nsaA " --------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------- Hkktik gj la?k"kZ esa vkids lkFk gSA Hkktik dks oksV nsA -----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------23. The above extracted documentary evidence if read will go to show that so far as PW. 1 /4 is concerned it is mentioned therein that Bhartiya Janta Party has not yet allowed the imposition of house tax and that the public of Kota should be vigilant that the Congress is again going to impose house tax. It is also mentioned therein that as and when Congress has won a conspiracy was entered into to levy house tax and reference was made to the year 1972 when Congress is said to have won the election as a result of which thousands of notices for the recovery of house tax were issued. An office for collection of house-tax was opened. It is mentioned that when Lalit Kishore Chaturvedi. The returned candidate became a member of Rajasthan Legislative Assembly in the year 1977, the entire proceedings for recovery of the house tax were cancelled. It is also mentioned therein that immediately after the election efforts will be made to recover the house tax and the owners of houses in Kota were in the process of receiving notices for house tax. It was further stated that the Bhartiya Janta Party will not allow any imposition of house tax. Ex. PW. 115 is a pamphlet wherein it has been stated that Shantilal Dhariwal has threatened that he will see that Kachchi bastis are erased to the ground with the help of bulsozer and Congress was in its true colours. It was stated therein that giving threats on March 1, 1985 in Anantpura kachchi bastis Shanti Dhariwal said that kachchi basti walas will have to vote for Congress in the election in the same manner as they did in the election of Lok Sabha and in case Jagdish Thada loses in the election then he will see that kachchi bastis are erased to the ground with the help of buldozers, and their houses will be destroyed. It is also mentioned therein that the Congress started showing its blood stained claw (panja) and they will have to consider whether those who were threatened to erase their houses are entitled to their votes. It was also an appeal to the voters to vote for Bhartiya Janta Party.24 Section 123 of the Act provides as to what shall be deemed to be corrupt practices for the purposes of the Act. It was also an appeal to the voters to vote for Bhartiya Janta Party.24 Section 123 of the Act provides as to what shall be deemed to be corrupt practices for the purposes of the Act. As the case of the petitioner is that in this case the corrupt practice alleged to have been committed by the returned candidate falls under clause (2) and (4) of Section 123 of the Act a reference of those clauses alone need be made. They read as under:- 123. Corrupt Practice-The following shall be deemed to be corrupt practice for the purposes of this Act. (1)....... (2) Undue influence, that is to say, any direct or indirect interference or attempt to interfere on the part of the candidate or his agent, or of any other person with the consent of the candidate or his election agent with the free exercise of any electoral right: Provided that- (a) without prejudice to the generality of the provisions of this clause any such person as is referred to therein who (i) threatens any candidate or any elector, or any person in whom a candidate or an elector is interested, with injury of any kind including social ostracism and ex-communication or expulsion from any caste or community; or (ii) induces or attempts to induce a candidate or an elector to believe that he or any person in whom he is interested, will become or will be rendered an object of divine displeasure or spiritual censure, shall be deemed to interfere with the free exercise of the electoral right of such candidate or elector within the meaning of this clause; (b) a declaration of public policy, or a promise of public action, or the mere exercise of a legal right without intent to interfere with an electoral right, shall not be deemed to be interference within the meaning of this clause (3) ...... (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 calculate to prejudice the prospects of that candidate's election. As already stated earlier, the case of the returned candidate is that these pamphlets contain only the public policy of Bhartiya Janta Party to which the returned candidate belongs or they contain the promise of public action and therefore there cannot be deemed to be interference within the meaning of clause (2) of Section 123 of the Act. It may be stated that evidence has been led by the parties that the returned candidate Lalit Kishore Chaturvedi DW 1, his election agent and others addressed the meetings where these pamphlets were distributed, but as I will presently show the extent that the meetings were held and pamphlets were distributed, the evidence does not inspire confidence and cannot be read but at any rate it cannot be disputed even on the basis of the pleadings of the parties that the above pamphlets PW. 1/4 and PW.l/5 were got printed, published& circulated by the returned candidate, his election agent and other agents with his consent or that of his election agent. Apart from the pleadings there is evidence to the effect that they were published and circulated. Thada, PW I, the Congress(1) defeated candidate and the petitioner. in his statement states that on March 3, 1985 two pamphlets Ex. PW 1/4 and Ex. PW 1/5 on behalf of Chaturvedi and his agents were issued and were distributed in the public. He further states that Chaturvedi and others knew fully well that the contents of those pamphlets were false and do not contain the truth. He has named the persons who are said to have told him about the pamphlets. He was not cross-examined so far as factum of publication and printing of pamphlets is concerned, and the cross-examination was only directed to his statement that Chaturvedi held various meetings and in those meetings he and his agents were personally present and both of them distributed pamphlets. I will later on advert to the evidence whether the meetings as alleged were or were not held by the returned candidate on March 3, 1985. In the earlier part of this judgment a reference has been made to the fact that the returned candidate in his written statement has not disputed the publication of the two pamphlets. Chaturvedi DW 1 in his statement states that though pamphlets Ex. PW. 1/4 and PW. 1/5 were got printed. In the earlier part of this judgment a reference has been made to the fact that the returned candidate in his written statement has not disputed the publication of the two pamphlets. Chaturvedi DW 1 in his statement states that though pamphlets Ex. PW. 1/4 and PW. 1/5 were got printed. published and distributed by the party of which he was the candidate, though in his written statement he clearly admits that it was he who published and got the pamphlets distributed. His statement at page 8 that he does not remember as to who got these pamphlets printed, in view of his admission in the written statement cannot be relied upon Thus, it can be said that the above pamphlets were got printed, published and circulated by the returned candidate his election agent and other agents and workers with his tacit approval and connivance.25. So far as the case of the petitioner that on March 3, 1985 at the time and places mentioned in para No. 3 (j) of the election petition the returned candidate and his election agent addressed the public meetings on the evidence on record the same cannot be relied upon. Besides the fact that the allegations contained in para No. 3 (i) have been denied by the returned candidate in his written statement, even Jagdish Thada PW. 1 admits in his statement (page 11) that it is correct that no election meeting can be held before 48 hours of the completion of the election but one can still hold the meeting and in the aforesaid meetings no loudspeakers were used. According to him, he had no election office in Adarsh Nagar. Kachchi basti and his office was at Gumanpura and one Rameshwar Prasad Shranghi was the incharge. He admitted that in the aforesaid meeting held on March 3 and 4, 1985 he was not personally present and others disclosed to him about the meeting that it was addressed by Chaturvedi and his election agent Kishangopal and the pamphlets were distributed. A look at the verification of the petition will show that he has verified the contents of para No. 3 (j) to be true to his personal knowledge which from his statement do not appear to be correct because he was not present at the time of meeting and the facts in relation to those meetings cannot be true to his personal knowledge. He further admits that he filed the election petition, the names and addresses of all the persons were not available to him and he could not give the same to his advocate when he drafted the petition. He admits that Dr. B. S. Shaktawat was his election incharge but he did not complain to him about any meeting in Kherdi organised by BJP or about distribution of pamphlets as aforesaid. PW. 3 Rameshwar Prasad Shranghi states that he is Vice President of Congress (1) Kota City. According to him (sic) gone at about 4 p.m.on March 4,1985 to Keshavpura Kachchi basti and saw that there were about 400 to 500 people who assembled and 3-4 persons having badges of BJP were announcing that Lalit Kishore Chaturvedi was shortly to arrive. At about 4.30 or 5.00 p.m. Shri Chaturvedi and his election agent Kishangopal arrived on a motor cycle. Shri Chaturvedi gave a speech for about 10 to 15 minutes that the Congress (I) partly if elected will impose house-tax Shri Chaturvedi also said that Jagdish Prasad Thada is a dangerous person. Shri Chaturvedi then said that take out the pamphlets and distribute them. Two of the boys brought those pamphlets to him and they are E.s. PW. 1/4 and Ex. PW. 1/5. He admits that he was the incharge of the election office of the petitioner in Gumanpura. According to him, no police personnel was present at that meeting. He informed Jagdish Thada on the same night but did not complain to any body about it. He further admits that he knew that propaganda had stopped on behalf of the candidate and no meeting could have been arranged but he did not complain to anybody. He also did not issue any counter in writing to Ex. PW. 1/4 and Ex. PW. 1/5 that what was said in the meeting and contained in the pamphlets was not correct. According to him. the police station is at about 2 to 21/2 k.m. from the place of meeting. He did not keep any notes of that meeting. He is unable to give the individual names to whom the pamphlets were distributed. PW. 4 Amarjit Singh Chawla states about the meeting held by Shri Chaturvedi and his election agent at 7 p m. at Sanjay Nagar Bhimganjmandi. He did not keep any notes of that meeting. He is unable to give the individual names to whom the pamphlets were distributed. PW. 4 Amarjit Singh Chawla states about the meeting held by Shri Chaturvedi and his election agent at 7 p m. at Sanjay Nagar Bhimganjmandi. According to him a meeting was held and pamphlets were distributed though without mike and Shri Chaturvedi gave out that if Thada, Congress (1) candidate wins from Kota. house tax will be imposed and kachchi bastis will be erased to the ground with the help of buldozers. It may be stated that Thada stated that he did not know the names of those persons who disclosed him about the meeting till the time of filing the election petition. He is a practising lawyer and he knows that it is against rule still he did not lodge any report with the police though the police station is about 11/2 km. PW. 5 Mukesh Bhatnagar also stated about the meetings on March 3, 1985 and he says that he gone there to distribute the identity slips to the voters of Kherli ward No. 7.Dr. B. S. Shaktawat who was incharge of Congress (I) candidate there. According to him, Mohan Singh Solanki was giving out the people assembled here that they should stay for some time as Shri Chaturvedi was expected to come shortly, and Shri Chaturvedi arrived within a few minutes accompanied by Shri Kishangopal Gupta, his election agent on a motor cycle. Some pamphlets were distributed by Shri Chaturvedi some by Shri Gupta and others by Shri Mohan Singh Solanki. Chaturvedi also addressed the meeting and asked the people that they should not vote Shri Jagdish Prasad Thada as in case of his election he bring the supporter of house-tax, house tax will be levied in Kota and Shri Thada is a dangerous man. In cross-examination he states that he is Vice President of Youth Congress (I). According to him he gave importance to the meeting held by Chaturvedi and tried to convince the people that whatever stated by Chaturvedi and others was not correct but he did not go to Shri Thada immediately and thereafter he went to him on March 7, 1985 and told him about that incident. According to him he gave importance to the meeting held by Chaturvedi and tried to convince the people that whatever stated by Chaturvedi and others was not correct but he did not go to Shri Thada immediately and thereafter he went to him on March 7, 1985 and told him about that incident. This is all the evidence on behalf of the petitioner and in rebuttal it has been denied that any meeting as alleged was held on March 3, 1985. DW 2 Prem Kumar states that he was in charge of Bhartiya Janta Party candidate in civil lines area for the election. On March 3, 1985 he alongwith Om Shanker Gautam and others were distributing pamphlets in Kherli at about 8 p. m. According to him no meeting of BJP was held in Kherli on that day and no such meeting was addressed by Shri Chaturvedi or his election agent Shri Kishangopal. They did not distribute any parchas. DW 3 Pooran Chand states that he was incharge of BJP candidate. Chaturvedi for Keshavpura and Taimandi areas. He states that on March 4, 1985 at about 7 p. m. in that area no meeting was held and no parchas were distributed. DW 5 Harish Chandra states that Dr. B. S. Shaktawat (sic) his clinic at a distance of 20 or 25 steps from his house. He states that on March 3, 1985 neither Chaturvedi nor Kishangopal distributed any pamphlets near the clinic of Dr. Shaktawat. Mohan Singh Solanki did not address any meeting on March 3, 1985 near the clinic of Shri Shaktawat, nor distributed any parchas. DW6 Om Shanker Gautam a (sic) Kherli Purohit locality of Kota city states that at about 5 p. m on March 3, 1985 he was distributing parchas on the crossing in Kherli Purohit locality. Shri Chaturvedi either alone or accompanied by anybody never came to Kherli and never addressed any meeting. Motion Solanki DW 9 stated that on March 3,1985 he was at his house where he had his office. He is a practising lawyer. He states that on that day during 4 p.m. to 7 p.m, no meeting was held by Shri Lalit Kishore Chaturvedi or anybody else and no parchas were distributed -near the clinic-of Dr.Shaktawat. Motion Solanki DW 9 stated that on March 3,1985 he was at his house where he had his office. He is a practising lawyer. He states that on that day during 4 p.m. to 7 p.m, no meeting was held by Shri Lalit Kishore Chaturvedi or anybody else and no parchas were distributed -near the clinic-of Dr.Shaktawat. DW 13 Yogendra Khichi states that on March 4, 1985 at about 7 p.m. he was to Adarsh Nagar Kachchi basti ward and was distributing identity slips, and on that day neither Shri Lalit Kishore Chatuvedi nor his; election agent Shri Kishangopal came into those wards nor addressed any meeting, nor distributed any pamphlets.26. From the above evidence more so taking into consideration that any convassing 48 hours before polling is stopped, it cannot be said that Shri Chaturvedi addressed any meeting either alone or accompanied by Kishangopal his election agent nor distributed any pamphlets. But as already stated from the pleadings of the parties, more so from the written statement of Shri Chaturvedi and his statement as DW 1 it cannot be disputed rather it stands proved that Ex. PW 1/4 and Er. PW 1/5 were got printed, published by Shri Chaturvedi and were circulated among the public. In Thakur Virendra Singh v. Vimal Kumar (1977) 1 SCC 718 , the Supreme Court held that the fact of printing of the offensive pamphlet at the instance of the returned candidate has an important bearing on the question of its distribution by him or with his consent. In para 22 of the judgment, the court said that : "Even if the testimony of Ram Singh (PW 21) which has been disbelieved by the High Court is excluded from consideration even then there are some unimpeachable and glaring places of circumstantial evidence, which go to establish the distribution of the leaflet (Ex. P/10) by the appellant or with his consent which cannot be easily ignored. These circumstances are (i) it was the appellant who as already observed caused the election leaflet (Ex.P. 10) to be printed by Ramprasad (PW 24) at the Kamla Printing Press, Ujjain, (ii) in the normal course of human conduct, no one gets any material printed without a purpose and in the instant case, the purpose manifestly was to malign the conduct and character of Rajendra Jain by distribution of the leaflet (Ex.P. 10) amongst the inhabitants of Khachrod constituency. (iii) the selection of time and place for distribution of the leaflet (Ex. P. 10) which openly denounced Rajendra Jain and cast aspersions on his personal character and conduct and appealed to the electorate not to vote for him." Thus, apart from what has been stated earlier from the circumstances Ex. PW. 1/4 and Ex. PW. 1/5 were got printed and published by the returned candidate as admitted by him in his written statement para 12 it can be said that they were published for being distributed among the voters and on that point that the same were circulated the evidence is also there.27. But the question is even if those pamphlets were published, and circulated whether the returned candidate can be said to commit any corrupt practice within the meaning of clause (2) or (4) of Section 123 of the Act ? The relevant clauses have already been extracted in an earlier part of this judgment. Similarly, Ex. PW. 1/4 and Ex. PW. 115 have also been extracted in extenso in the earlier part of this judgment.28. Ex. PW. 1/4 contains a statement that the Congress is again going to re-impose the house-tax. In the State of Rajasthan, Kota is the only city where the house-tax could not yet be imposed. Then, it is stated that it is so because BJP has not allowed it to be levied and as and when the Congress won, it has always conspired,red to levy house-tax. Then instances have been given of the year 1972 when Congress won and the result was that in the year 1975-76 thousands of notices for recoveryy of house-tax as gift were sent. An office was also opened which still has its board. It further states when Lalit Kishore Chaturvedi became a Member of Rajasthan Legislative Assembly he cancelled all the proceedings for recovery of house-tax. The insolvent Municipal Council is out to impose house- tax. It is further stated that a Minister has got appointed one of his persons as the Administrator and Commissioner. They have squandered the assets of the Municipal Council and have made it insolvent. Even the employees of the municipal council do not get their wages. After elections, the insolvent municipal council is to make efforts to recover house-tax and they shall receive the notices. In bold letters it is again stated that BJP will not allow the house tax to be levied. Even the employees of the municipal council do not get their wages. After elections, the insolvent municipal council is to make efforts to recover house-tax and they shall receive the notices. In bold letters it is again stated that BJP will not allow the house tax to be levied. It may he stated from the bare perusal of the aforesaid document that there is nothing in relation to personal conduct or character of any of the candidates. As is clear from the perusal of clause (4) of section 123 of the Act before the same can be attracted and before it can be said that the publication is a corrupt practice under the aforesaid, it is necessary that it is not only that the publication by a candidate or his agent or by any other person with the consent of a candidate or his election agent or any statement of fact is false and which he either believes to be false or does not believe to be true but it must be in relation to the personal character or conduct of any candidate being a statement reasonably calculated to prejudice the prospects of that candidate's election. There being nothing in relation to the personal character or conduct of any candidate in Ex. PW. 1/4, it cannot be a corrupt practice falling under clause (4) of Section 123 of the Act. Whether it falls under clause (2) of Section 123 of the Act this question will be dealt with after dealing with the document Ex. PW. 1/5. As to whether the publication of Ex. PW. 1/4 and or Ex. PW 1/5 falls under clause (2) of Section 123 and whether it is a corrupt practice shall be dealt with in the latter part of this judgment.29. Coming to the Ex. PW. 1/5 the case of the petitioner is that the returned candidate induced the voters to vote for him. It was done so by threatening the electors with injuries to demolish their houses in case the returned candidate was not declared elected. A look at the document Ex PW. 1 /5 will show that a statement attributed to Shanti Dhariwal has been published under the bold heading -Threatening of Shanti Dhariwal". Buldozer will be used at kachchi bastis and the 'Congress is in true colour'. A look at the document Ex PW. 1 /5 will show that a statement attributed to Shanti Dhariwal has been published under the bold heading -Threatening of Shanti Dhariwal". Buldozer will be used at kachchi bastis and the 'Congress is in true colour'. The sail pamphlet thereafter contains a statement that Congress which falsely claims to be the protector of weak and down-trodden society has come in its true colours. On March 1, 1985 Shanti Dhariwal threatened the inhabitants of Anantpura and said Kachchi basti walas, you will have to vote for Congress in the Assembly Elections like Lok Sabha elections and in case Jagdish Thada loses his election, he will see that Kachchi bastis are erased to the ground with the help of buldozer. Their houses will be destroyed. The said document further reads that they should recognise their true faces and that they are wolfs in the skin of jackals. They have started showing their blood stained hands and the grip of Congress is getting stronger round the neck. They will have to think whether those who threaten to use buldozers are truly deserving their votes. A reply should be given on March 5, 1985 through their votes. A look at the aforesaid document will show that there is clear reference to the conduct of Jagdish Thada that in case he loses the election the kachchi bastis will be erased by the help of buldozer. He is wolf in the skin of jackal. Lalit Kishore Chaturvedi DW 1 in his statement states at page 7 para 3 that : "In Ex. PW. 1/5 in para 3 by words 'Inke' and 'Inhone'. I mean the Congress (I) party, which includes its candidate, the petitioner and every body. In ex. PW. 1/5 it was threatened that kachchi basti shall be erased to the ground with the buldozer, it means blood soaked hands (khuni panje). I had only brought to the notice of the public the state of things as appeared from the meeting addressed by Shri Dhariwal and there was no character assassination on the petitioner and I neither did it nor intended to do it. I have myself heard Shri Shanti Dhariwal addressing the public when I was returning from the public contact in Anantpura alongwith my 5 to 6 workers at about 8 p m. The meeting was taking place at Mataji ka chabutra. I have myself heard Shri Shanti Dhariwal addressing the public when I was returning from the public contact in Anantpura alongwith my 5 to 6 workers at about 8 p m. The meeting was taking place at Mataji ka chabutra. I cannot say if the petitioner was present in that meeting or not." From the perusal of Ex.Pw. 1/5 along with the statement of Shri Chaturvedi there can be no doubt that it refers to the conduct of Shri Thada and that the public should recognise their true faces and they are wolfs in the skin of jackals. They have started showing their blood soaked claw and blood thirsty threats. There can be no doubt from the bare perusal of Ex. PW 1/5 that it is the statement of fact in relation to the personal conduct of the petitioner in case he would have been returned as a candidate. Even assuming for the sake of arguments, that earlier part of Ex. PW 1/15 attributed to what was stated in the meeting by Shri Dhariwal a Congress (1) MP from Kota but so far the latter part is concerned, the same cannot be said and it is a fact calling upon the persons to recognise their true faces, the true faces of wolfs who were wearing the skin of jackals and who were pressing their blood soaked claws over the neck and houses of the inhabitants of kachchi bastis were to be erased to the ground with the help of buldozers.There can be hardly any dispute looking more so to the margin of votes by which the returned candidate won i. e. 579 that the statement was made and it is reasonably calculated to prejudice the prospects of the petitioner's election. The question is as to whether the statement of fact contained in Ex. PW. 1/5 is false and which the returned candidate either believes to be false or does not believe to be true, in relation to the conduct of the petitioner as aforesaid ? In para No. 3(i) of the petition, it is mentioned that in the aforesaid pamphlet Ex. PW. 1/5 false propaganda were made with the intention to threatening the voters with dire consequences knowing fully well that such statements were false. In para No. 3(i) of the petition, it is mentioned that in the aforesaid pamphlet Ex. PW. 1/5 false propaganda were made with the intention to threatening the voters with dire consequences knowing fully well that such statements were false. In reply to the contents of para 3(i) of the petition the returned candidate has come out with the case that no false propaganda threatening the voters of dire consequences was made by the respondent No. 1 and it is wrong to say (sic) mentioned therein were false Besides denying the aforesaid, it is stated that the statement of facts contained therein is true. Jagdish Thada states at page 4 of his statement that knowing fully well that the contents of these pamphlets are false, he and his election agent got them distributed.According to him the contents of the pamphlets are false and do not contain the truth. Surprisingly. he was not cross-examined on this point of his statement that the contents of Ex. PW. 1/5 do not contain the true statement of facts. He was not even cross-examined that as stated in the said documents any meeting was addressed by Shanti Dhariwal. Shri Chaturvedi DW 1 states at page 4 of his statement that on March 1, 1985 a meeting was held in Anantpura Kota which was addressed among others by Shri Dhariwal, Congress (I) MP and in that meeting he gave out there were many kachchi bastis in Kota which were at the mercy of the Government and in case the petitioner is not returned those bastis will not he regularised and will be demolished. He further states that Shri Dhariwal also said that many of the kachchi bastis were unauthorised and in case the petitioner Jagdish Prasad is not returned to the assembly the basti will he erased to the ground with the help of the buldozer According to him whatever is stated therein is correct.Part of the cross-examination has already been referred to in the earlier part of this judgment and whatever is meant by such words as used in Ex. PW. 1/5 as per Shri Chaturvedi is the Congress (I) party including the petitioner and every-body. According to him he had brought to the notice of the public a state of things as appeared in the meeting of Dhariwal. PW. 1/5 as per Shri Chaturvedi is the Congress (I) party including the petitioner and every-body. According to him he had brought to the notice of the public a state of things as appeared in the meeting of Dhariwal. He is unable to say whether the petitioner was present and according to him he recognised Shri Dhariwal from his voice. Thus, he admits that some of the statements of act mentioned in Ex. PW. 1/5 as appeared to him from the meeting which was addressed by Dhariwal. It has already been said earlier that the petitioner was not cross-examined on the fact whether the statement of facts contained in Ex. PW 1/5 were correct or false and whether Shri Dhariwal addressed such meeting or not.No doubt Dhariwal has not been examined on behalf of the petitioner and it would have been better, had he been examined, but in the absence of cross-examination of the petitioner on the statement of Shri Chaturvedi, and other evidence which shall be discussed, hereinafter, more so Shri Chaturvedi admits that Ex. PW. 1/5 not only contains the statement attributed to Dhariwal but also the state of things as appeared to him from the meeting addressed by Shri Dhariwal, it can be said that the statement of fact contained therein is false which the returned candidate either believes to be false or does not believe it to be true. It does not appeal to reason that one who seeks votes for a candidate will give any threatening to the voters in public. The inhabitants of kachchi basti or for that matter inhabitants of any locality have become so much cautious as no amount of public threatening much less depriving them of their shelters can work.Shri Chaturvedi DW 1 states that Shanti Dhariwal made a statement in that public meeting that the kachchi bastis were at the mercy of the Government and in case Thada is not returned those kachchi bastis will be demolished. In fact it is a statement which is impressed upon in Ex. PW. 1/5. It may be stated that to see as to whether it contains the statement of fact which is false generally the printed document is to be looked into. In fact it is a statement which is impressed upon in Ex. PW. 1/5. It may be stated that to see as to whether it contains the statement of fact which is false generally the printed document is to be looked into. DW 7 Devilal who says that he used to reside in Anantpur says that he has been a member of Municipal Council Kota from 1966 to 1969 and again from 1970 to 1973, from ward No. 28 Khorepura. He stated that on March 1,1985 in Anantpura an election meeting was held by the Congress (1) at about p.m. and his house was only at it distance of about 100 steps from the place of meeting which was held at Mataji ki chabutara.Smt. Prem Lata and Shanti Dhariwal addressed that meeting. Shri Shanti Dhariwal said tc tie 1 ublic that because of the support of the public he won elections for Lok Sabha and they should vote Congress (I) candidate Jagdish Prasad. He also gave out that if they did not vote for Congress (I) candidate the kachchi bastis will be erased to the ground with the help of buldozer. He further states in the examination in chief that after the Congress (I) candidate lost in the election many houses of kachchi basti were demolished but further demolition was stopped because of agitation of the public. He states that when the aforesaid meeting was held Shri Chaturvedi was at his house and was taking his tea. Leaving him at his house he had gone to the meeting.It may be stated that Shri Chaturvedi DW 1 does not state so that he was sitting at the house of Devilal when the meeting was held and taking his tea there and Devilal left for the meeting. A look at the statement of DW 1 Chaturvedi will show that he does not state as to when he was sitting and what was the time when the meeting was being addressed by Shri Dhariwal. He has stated at page 8 of his statement that he had himself heard Shri Shanti Dhariwal addressing the public when he was returning from the public contact in Anantpura alongwith his 5 to 6 workers at about 8 p.m. and that he can recognise Shri Dhariwal from his voice. He has stated at page 8 of his statement that he had himself heard Shri Shanti Dhariwal addressing the public when he was returning from the public contact in Anantpura alongwith his 5 to 6 workers at about 8 p.m. and that he can recognise Shri Dhariwal from his voice. His statement is therefore directly in conflict with the statement of Devilal DW 7 that Chaturvedi was taking his tea when the meeting was held and he (Devilal) left for the meeting. Devilal DW 7 states that he stayed in the meeting for hardly five minutes. and then meeting dispersed, and he came to his house.He admits that no house in kachchi baste has been demolished. Dw. 8 Satyanarain states that on March 1, 1985 at about 7.30 p.m. an election meeting for Congress (I) was held in Anantpura. He had gone to that meeting which was held on Mataji ka chabutara. He had reached there after 7.30 p.m. At that time recording of songs were going on. At about 7.45 p.m. Smt. Premlata a Congress (I) worker and Shri Shansi Dhariwal, MP Congress (1) from Kota came and addressed the meeting. Shri Dhariwal addressed the meeting numbering about 100 to 150, and in his speech first eave the outlines of Congress policy. Then he said that kachchi bastis are at the mercy of the Congress (1) government.He also said that the public will vote to the Congress (I) candidate and in case he is successful, pattas will be distributed to the inhabitants of kachchi bastis. In case the Congress (1) candidate is defeated, then the kachchi bastis shall be demolished with the help of buldozers. The meeting ended at about 8 p.m. After Shri Dhariwal addressed the public, the public stood and the meeting was dispersed In the cross-examination he stated that his house is at a distance of about I furlong from Mataji ka chabutdra where the meeting took place. When he went there records were being played and they continued for about 10 to 15 minutes and then the above persons started addressing the public. First. Smt. Prem Lata addressed the meeting and then she was followed by Shri Dhariwal. Shri Dhariwal spoke for about 5 to 7 minutes. He also states that no houses in kachchi bastis were demolished in Anantpura after the assembly elections. First. Smt. Prem Lata addressed the meeting and then she was followed by Shri Dhariwal. Shri Dhariwal spoke for about 5 to 7 minutes. He also states that no houses in kachchi bastis were demolished in Anantpura after the assembly elections. He denied the suggestion that no meeting took place on March 1, 1985. No reliance can be placed on his statement.It has been the consistent view of the courts that so far as proof of corrupt practice is concerned, oral evidence of witnesses belonging to rival party cannot form the sole basis of proof as it comes from tainted source. A reference will he made to the case of Surinder Singh v. Hardial Singh and others, AIR 1985 SC 89 , more so to its para No. 45. Therefore, my conclusion on the discussion of oral evidence is that it cannot be held that Dhariwal addressed any meeting as alleged and had made a statement as contained in Ex.Pw. 1/5. The statement contained therein is therefore false.30. It may be stated that a look at the document Ex. PW. 1/5 will show that it does not bear the date when it was published, though it is mentioned that the meeting was held on March 1, 1985 but it is not mentioned that the meeting was held at 8 p. m. or at what time it was held. I have already discussed the evidence on record including the fact of non-cross-examination of the petitioner on his statement of facts contained in it is false. As already stated earlier, it would have been better if Shanti Dhariwal would have been examined but even on the basis of evidence produced on behalf of the petitioner and the returned candidate, I am unable to hold that any meeting was held on March 1. 1985 which was addressed by Shri Dhariwal in which any statement as contained in Ex. PW. 1/3 was made by him or could have been made by him. That apart, as already stated earlier. the latter part of Ex PW. 1/5 even as per the statement of Shri Chaturvedi DW. 1 is not attributed to Dhariwal but it was from the state of things as appeared to Shri Chaturvedi from the meeting addressed by Dhariwal. PW. 1/3 was made by him or could have been made by him. That apart, as already stated earlier. the latter part of Ex PW. 1/5 even as per the statement of Shri Chaturvedi DW. 1 is not attributed to Dhariwal but it was from the state of things as appeared to Shri Chaturvedi from the meeting addressed by Dhariwal. Not a single house in the kachchi bassi was erased much less in Anatpura though the Congress (I) candidate, the petitioner was defeated in the election. Thus, I am of the opinion that the statement of facts contained in Ex PW. 1/5 is false and the returned candidate himself believes it to be false or does not believe it to be true, in relation to the personal character and conduct of the petitioner. a candidate for election. inasmuch as the character of Shri Jagdish Prasad Thada, the petitioner was given as such that in case the he was defeated the kachchi bastis shall be erased to the ground with the help of buldozer and the voters should recognise the true faces of Congress(I) people including Shri Thada, who was a wolf in the skin of jackal. It has already been said earlier that looking to the margin of votes i. e. 579 by which the returned candidate won, taking into consideration the fact that in this world one of the things which is most loved is one's house, may be a thatch, kachcha or pucca which gives shelter to him. The threat that in case Jagdish Thada is not elected, the kachchi bastis will be erased to the ground was a false statement reasonably calculated to prejudice the prospects of the petitioner's election. Therefore, it is a corrupt practice within the meaning of clause (4) of Section 123 of the Act and all the ingredients of that clause are made out. There can be no dispute that burden to prove that the returned candidate committed any corrupt practice and on that ground his election is likely to be set aside, is on the petitioner. If two views are possible one in favour of the returned candidate and the other in favour of the petitioner, then the view in favour of the returned candidate should be taken. In the case of Ram Singh v. Col. If two views are possible one in favour of the returned candidate and the other in favour of the petitioner, then the view in favour of the returned candidate should be taken. In the case of Ram Singh v. Col. Ram Singh, AIR 1986 SC 3 , in para 3 it was held that:- "Of course, the advocacy of the counsel for the parties does play a very important role in unveiling the truth and in broderline cases the courts have to undertake onerous task of 'disengaging the truth from falsehood to separate the chaff from the grain. In our opinion all said and done. If two views are reasonably possible-one in favour of the elected candidate and the other against him-courts should not interfere with the expensive electorol process and instead of setting at naught the election of the winning candidate should uphold his election giving him benefit of the doubt. This is more so where allegations of fraud or undue influence are made." In Yogendra Prasad v. Mirkanaadeshwar, AIR 1971 SC 690 it was held that in a pamphlet related to the personal character and conduct of the rival candidate and were false and were reasonably calculated to prejudice the prospects of his election and it was also proved that it was published at the instance of the returned candidate and that the copies thereof were widely distributed the returned candidate is guilty of corrupt practice. In Sheopal Singh v. Rampratap AIR 1965 SC 677 , a case from Rajasthan-Hanumangarh constituency referring to clause(4) of Section 123 of the Act it was held : "The sub-section prohibits any statement of fact in relation to personal character or conduct of any candidate which is not only false, but also the candidate making it either believes it to be false or does not believe it to be true. It implies that a statement of fact relating to the personal character or conduct etc. of a candidate can be made. if it is true. Even if it is false, the candidate making it is protected, unless he makes it believing it to be false or not believing it to be true, that is to say statements which are no, true made bonafide are also outside the ambit of the provision. of a candidate can be made. if it is true. Even if it is false, the candidate making it is protected, unless he makes it believing it to be false or not believing it to be true, that is to say statements which are no, true made bonafide are also outside the ambit of the provision. To be within the mischief of sub-section 4) of Section 123 of the Act such a statement shall satisfy another test, namely, it shill be a statement reasonably calculated to prejudice the prospects of the election of the candidate against whom it is made. The word 'calculated' means designed, it denotes more than mere likelihood and imports a design to affect voters. It connotes a subjective element, though the actual effect of the statement on the electoral mind reflected in the result may afford a basis to ascertain whether the said statement was reasonably calculated to achieve that effect. The emphasis is on the calculated effect. not on the actual result, though the latter proves the former. But what is important to notice is that it is not necessary to establish by positive evidence that the voters, with the knowledge of the contents of the statement, were deflected from voting for the candidate against whom the statement was made." In Ram Chand v. Hardayal. AIR 1986 SC 717 , it was held that to bring within the mischief of clause (4) of Section 123 of the At whit is objectionable is a false statement of fact and not a false statement of opinion however unfounded or unjustified. The court further held that: "A distinction has been drawn between the personal character or conduct of the candidate and his public or political character and conduct. Law postulates that if a false statement is made in regard to the public or political character of the candidate it would not constitute a corrupt practice even if it is likely to prejudice the prospects of that candidate's election. The public or political character of a candidate is open to public view and public criticism. If a false statement is made about the political views or his public conduct or character, the electorate would be able to judge the allegations on the merits and could not be misled by any false allegation in that behalf. The public or political character of a candidate is open to public view and public criticism. If a false statement is made about the political views or his public conduct or character, the electorate would be able to judge the allegations on the merits and could not be misled by any false allegation in that behalf. It is on this theory that false statements of facts affecting public or political character of a candidate are not brought within the mischief of Section 123(4) The courts have taken the view that it is only when a person -beneath the politician' is sought to be assaulted that sub-section(4) of Section 123 of the Act is attracted. In some border line cases difficulty arises to find out whether the assault is on the person beneath the politician that is on the personal character and conduct of a man or on his political opinion and conduct. It will depend on the facts of each case whether in the particular given case the assault is on the personal character and conduct of the candidate or on his political conduct". In the case of Harcharan Singh v. Sajjan Singh, AIR 1985 SC 237 , the court said that in a case of allegation of corrupt practice while insisting on standard of strict proof, the court should not extend or stretch this doctrine to such an extreme extent as to make it well-nigh impossible to prove an allegation of corrupt practice. Such an approach would defeat and frustrate the very laudable and sacrosanct object of the Act in maintaining purity of the electoral process. Again in case of Surinder Singh v. Hardial Singh and others (supra) in para 23 the court said that : "It is thus clear beyond any doubt that for over 20 years the position has been uniformly accepted that charges of corrupt practice are to be equated with criminal charges and proof thereof would be not preponderance of probabilities as in civil action but proof beyond reasonable doubt as in criminal trial." The court referred to the case Mohan Singh reported in AIR 1964 SC 1366 , as also the decisions of co-ordinate benches.31. Thus, there can be no dispute that all the ingredients of clause (4) of Section 123 of the Act should not only be pleaded but also proved, those ingredients are (i) publication by a candidate, or his agent or by any other person (ii) of any statement of fact which is false and which he either believes to be false or does not believe to be true (iii) it should be in relation to personal character or conduct of any candidate, (iv) it should he a statement reasonably calculated to prejudice the prospects of that candidate's election. I have already, in the earlier part of this judgment, reproduced sub-section (4) of Section 123 of the Act. I have also dealt with the document Ex. PW. 1/5 and the evidence led on behalf of the parties and in my opinion there can be no doubt that all the ingredients of clause (4) of Section 123 of the Act, were pleaded and have been proved by the petitioner who lost by a margin of 579 votes.32. Under the earlier part of this judgment I have held that so far as PW. 1/4 is concerned, its publication does not fall under clause (4) of Section 123 of the Act, but as to whether the same falls under clause (2) of Section 123 of the Act or not, shall be dealt with after dealing with the document Ex. PW. 1/5. So far as PW. 1 /5 is concerned, I have held that this is a corrupt practice falling tinder sub-section (4) of Section 123 of the Act. PW. 1/5. So far as PW. 1 /5 is concerned, I have held that this is a corrupt practice falling tinder sub-section (4) of Section 123 of the Act. Now the question is as to whether the returned candidate is guilty of having committed a corrupt practice as contained in clause (2) of Section 123 In the earlier part of this judgment clause (2) of Section 123 of the Act has already been reproduced in extenso.Under clause (2) of Section 123 of the Act any direct or indirect interference or attempt to interfere on the part of the candidate or his agent or any other person with the consent of the candidate or his agent with the free exercise of any electoral right and without prejudice to the generality of clause (2) any such person who is referred to in that clause and who threatens any candidate or any elector or any person in whom it candidate or an elector is interested, with injury of any kind including social ostracism and ex-communication or expulsion from any caste or community or induces or attempts to induce any candidate or elector to believe that he or any person in whom he is interested will become or will be rendered an object of divine displeasure of spiritual censure shall be deemed to interfere with the free exercise of the electoral right of such candidate or elector within the meaning of this clause.Clause (2) of Section 123 of the Act is quite general in nature and any direct or indirect interference or attempt to interfere on the part of the candidate or any agent or any other person with the consent of the candidate or his election agent with the free exercise of any electoral right will he undue influence falling therein. But under clause (2) (b) a declaration of public policy or a promise of public action or the mere exercise of the legal right without intent to interfere with an electoral right shall not be deemed to be interference within the meaning of this clause. As stated earlier, the case of the returned candidate is that what was published in Ex. PW. 1/4 and Ex. PW. 1/5 was nothing but the declaration of public policy or a promise of public action. A look at the Ex. PW. As stated earlier, the case of the returned candidate is that what was published in Ex. PW. 1/4 and Ex. PW. 1/5 was nothing but the declaration of public policy or a promise of public action. A look at the Ex. PW. 1/4 will show that the voters were told if the Congress is returned to power, they will impose house-tax and it is the BJP which has not allowed any house-tax to be imposed.In my opinion, so far as this document is concerned, it does not fall within the meaning of clause (2) of Section 123 of the Act. But so far as Ex. PW. 1/5 is concerned, about which a discussion has been made in the earlier part of this judgment, it has been held that it was the returned candidate who published it and he admitted its publication,it can be said that the threates alleged to have been given by Shanti Dhariwal have been held in the earlier part of this judgment as not having been given and being a fare statement, it was direct or indirect interference or attempt to interfere on the part of the returned candidate or his agent or other persons with his consent with the free exercise of electoral right. The voters were threatened that in case Shri Thada is defeated their houses in kachchi bastis will be erased to the ground and it was an interference or attempt to interfere with the free exercise of right of voters in the kachchi bastis.It was mis-representation to the voters that if Thada is defeated their houses in the kachchi bastis will be erased to the ground. In Avtar Singh Brar v. Tej. In Avtar Singh Brar v. Tej. Singh and others., AIR 1984 SC 619 , it was held that where the evidence showed that the returned candidate admitted that certain pamphlets and posters circulated during the election were circulated at the instance of the returned candidate and the effect of the posters was to mislead the voters so as to make them believe that one of the candidates had withdrawn and any vote given to the returned candidate would be considered as a vote given to the candidate who was alleged to have withdrawn, the returned candidate was guilty of corrupt practice contemplated by Section 123(2).It was further held that in such a case when the margin of votes between the defeated and the returned candidate was very small, viz. 128 a strong presumption and possibility that the votes polled in favour of the candidate allowed to have withdrawn would have gone to the defeated candidate could not be ruled out and that would have materially altered the result of the election. In Rad Lal v. Kanshi Ram, AIR 1980 SC 1356 , in para No. 11 it was held that it is an essential ingredient of the corrupt practice of undue influence' under sub-section (2) of Section 123 of the Act that there should be any direct or indirect interference or attempt to interfere' on the part of the candidate or his agent or of any other person with the consent of the candidate or his agent 'with the free exercise of any electoral right'.A look at the relevant pleadings will show that in para 3(i) it has been mentioned therein that the returned candidate along with his agents and party workers Shri Damodar Prasad published and circulated the material contained in Ex. PW. 1/5 threatening the electors with injury to the extent of demolition of their houses in case the returned candidate was not declared elected and by these acts the returned candidate is guilty of corrupt practices as laid down tinder the Act. Shri Jagdish Thada PW. 1 at page No. 4 of his judgment (sic statement) has stated that as a result of these election pamphlets the voters of those wards were misled and could not exercise their votes freely.It is further stated by him that the contents of these pamphlets are false and do not contain the truth. Shri Jagdish Thada PW. 1 at page No. 4 of his judgment (sic statement) has stated that as a result of these election pamphlets the voters of those wards were misled and could not exercise their votes freely.It is further stated by him that the contents of these pamphlets are false and do not contain the truth. About 5000 voters who would have otherwise voted in his favour, did not cast their votes as a result of the pamphlets, Shri Chaturvedi DWI states that it is wrong to suggest that in order to mislead the voters and to seek their votes Ex. PW. 1/4 and Ex. PW. 1/5 were published and distributed. From the contents of pamphlet Ex. PW. 1/5 in my opinion it can be said that by publication of the same there was direct or indirect interference or an attempt to interfere on the part of the returned candidate or his agent or other persons with his consent with the free exercise of the electoral right. By the publication of the aforesaid pamphlet a reasonable impression in the mind of the voters residing in the kachchi basti was made that in case Shri Thada the Congress (I) candidate loses the election their houses in kachchi bastis shall be erased to the ground.This clearly amounts to direct or indirect interference or an attempt to interfer on the part of the returned candidate or his election agent or any other persons with the free exercise of the electoral right. In my opinion, by bare reading of the contents of Ex. PW. 1/5 only one view is possible that it was got printed and published by the returned candidate or his election agent or any otter person with a view to interfere or attempt to interfere directly or indirectly on the part of the returned candidate with the free exercise of electoral right of voter., residing in kachchi bastis. A perusal of the aforesaid document will make it clear that it does not contain the declaration of public policy or promise of public action or the mere exercise of a legal right without intent to interfere with an electoral right.The case of the returned candidate that it contains the declaration of public policy or promise of public action can hardly be relied upon. I am therefore of the opinion that by publication of Ex. PW. I am therefore of the opinion that by publication of Ex. PW. 1/5 a corrupt practice of undue influence as defined in clause (2) of Section 123 of the Act has been committed by the returned candidate inasmuch as there was on the part of returned candidate or his election agent or any other person with his consent directly or indirectly interference or an attempt to interfere with the free exercise of electoral right of the voters residing in the kachchi bastis of Kota (constituency No. 107). In the case of Ram Singh v. Col Ram Singh AIR 1986 SC 3 the Supreme Court dealt with the case of booth capturing and it was held in that case that- "I agree with Mr. Sihal and hold that forcible polling of bogus votes in the circumstances and manner found in this case would constitute indirect interference with the electoral right of the concerned electors. Whether they be persons who had decided to cast their votes in that election or those who had decided (illegible)." Thus, as stated earlier, the pamphlet Ex. PW. 1 /5 also is a corrupt practice within the meaning of clause (2) of Section 123 of the Act.33. My finding on issue IV is that Ex. PW. 1/5 was published by the returned candidate or his election agent or any other person with his consent or his election agent and that the publication of the statement of facts which is false which the returned candidate either believes it to be false or does not believe it to be true in relation to personal character or conduct of the petitioner being a candidate for election and it is a statement reasonably calculated to prejudice the prospects of a candidate in that election and it is also held that by publication of the said pamphlet the returned candidate or any other person with his consent directly or indirectly interfered or attempted to interfere with the free exercise of electoral rights of the voters residing in kachchi bastis. Thus, it is a corrupt practice falling under clause (2) and (4) of Section 123 of the Act.34. ISSUE-I Issue No. I reads as under:- "Whether there has been mistake in counting the votes as alleged in the petition. Thus, it is a corrupt practice falling under clause (2) and (4) of Section 123 of the Act.34. ISSUE-I Issue No. I reads as under:- "Whether there has been mistake in counting the votes as alleged in the petition. If so, whether such a mistake has materially affected the result of the election?" As per the case of the petitioner during the course of counting several irregularities were committed by the counting parties who were in a hurry to complete the counting and declare the results and proceed for celeberating the festival of Holi which was on the next day i. e. 7th of March, 1985. According to him, a bare perusal of form No. 16, and form No. 20 and the result (Annr. 1) would go to reveal that the counting party without caring to scrutinise or check the tabulations, declared the results in utmost haste, and the total given in the form No. 20 of the total number of votes received by each candidate are not the same as given in Annr. 1, whereas in Annr. 1 the total number of votes alleged to have been polled by the retuned candidate is 32, 934, in form No. 20 the said total is 32,964 leaving a gap of 30 unexplained. It was submitted that the total number of valid votes polled by all the candidates plus the rejected and tendered votes also does not account for the total number of ballot papers issued. In that too there remains a wide gap unexplained. So far as form No. 20 is concerned the case of the petitioner is that at polling Station No. 14 he has not been credited 200 votes and has been credited only 124. This is evident from the fact that the returned candidate secured 109 votes, other secured 3 and the total in column No. 17 is given as only 236 votes. At the same time even in the grand total this difference of 200 has continued and the petitioner was not credited with 200 votes polled by him on polling station No. 14. There are numerous instances of over writings in the form No. 20 and these over writings are not at all initialled by the Returning Officer and as such the authenticity of form No. 20 is doubtful. The petitioner has given some illustrations in the election petition. There are numerous instances of over writings in the form No. 20 and these over writings are not at all initialled by the Returning Officer and as such the authenticity of form No. 20 is doubtful. The petitioner has given some illustrations in the election petition. According to the petitioner at polling station No. 30 he polled 288 votes and the returned candidate polled only 22 votes, but these have been increased to 224 without there being any initials by the concerned officer for this correction. This has attributed a significant difference of 202 votes in favour of the returned candidate. He further given the instance at other polling stations Nos. 132 (ka), 138, 134 (kha) 20, 58, 131, 135, 139 (ka), 1 59 and 165. According to him, if the actual votes which were originally recorded are counted the total number of valid votes polled by the returned candidate is reduced by 1225 votes making his election liable to be set aside. At the same time, if the petitioner is given credit of the votes actually polled by him instead of the over-written and incorrect version given in form No. 20 at the polling station No. 1, 14, 132 (ka) and 153 the actual number of votes polled by the petitioner increased by 736. thus making him liable to be declared elected as against the returned candidate. These averments have been denied by the returned candidate in his written statement. In para No. 4, the averments of para 3(a) to (b) have been denied. The case of the returned candidate is that the fact is that at polling station the petitioner has secured only 124 votes and the same have been credited. The returned candidate has secured 109 votes and other candidates secured only three votes and thus, there was total number of vote only 236 which has been correctly mentioned in column No. 17 of form No. 20, result sheet. At this polling station, there were only 408 votes according to electoral roll and if the petitioner's case is accepted that he has secured 324 votes, then total number of votes would some to 438 which is impossible. At this polling station, there were only 408 votes according to electoral roll and if the petitioner's case is accepted that he has secured 324 votes, then total number of votes would some to 438 which is impossible. The over-writings have not been accepted and in the alternative it is submitted that if there are any correction and they are not initialled by the Returning Officer, it will not affect the result of election and it is not the requirement of the Act.35. It may be stated at the very outset that the oral evidence led by the petitioner as well as by the returned candidate in so far as this issue is concerned can be said to be tainted as the witnesses belong to the political party to which the petitioner and the returned candidate belong i.e. Congress (I) and BJP. The petitioner Thada in his statements as PW 1 admits that Rhit R. Brandan was the Returning Officer. He stated that he was present throughout the counting and according to him during the course of counting there were 24 tables and there were in all 8 counting rounds. According to him Kishangopal was his counting agent. According to him Kishangopal could have noted any vote which was rejected, but he did not note the number of any vote which was rejected. He also did not note the votes polled in his favour, and the votes polled in favour of the returned candidate Shri Chaturvedi. He is not in a position to say as to on which of the tables the supervisors declared the votes and his counting agent noted, and on which of the tables his counting agents could not note the votes as the supervisors did not declare the votes. He cannot also give the number of even one table in which either of the above two situations had taken place. He admits that he did not report in writing to any of the table supervisors or Returning Officer or District Returning officer that any of the supervisors or which of the supervisors was not announcing the votes received by each candidate after the end of each count in writing. According to him, because before completion of form No. 20 (result-sheet) the result was declared, he was prevented from making any application for recount. According to him, because before completion of form No. 20 (result-sheet) the result was declared, he was prevented from making any application for recount. He did not consider it necessary to narrate this fact to his advocate before he drafted the election petition. The petitioner Thada further states that it is correct that he did not make a complaint in this respect either to the District Election Officer, Returning Officer, Chief Election Officer or Election Commission of India either in writing or orally because after declaration of the result he did not consider any justification for the same. He admits that the last page contains signatures of the Returning Officer but according to him the form No. 20 is complete before the last page and the last page does not form the part of the form No. 20. He admits is that except third sheet of form No. 20 all the pages have initials of somebody but they are not of the Returning Officer, and he cannot say as to who initialled them. According to him, Ex.D. 1 is the certified copy of form No. 21-E and hears the seal of the Returning Officer and his signatures. Bahadur Singh PW 2 was the counting agent of the petitioner on table No. 12. He states that there were 8 rounds of counting on his table, and in the seventh round when the ballot boxes of 14-K Kishorepura came on his table for counting no form No. 16 part II was filled. After the 8th round was complete immediately thereafter the result was declared that Shri Lalit Kishore Chaturvedi has been elected by so many votes. In cross-examination, he states that he was appointed Notary Public at Kota by the Rajasthan Government in 1981. In 1970 he was in Jansangh. He admits that he did not note down the votes received by Jagdish Prasad or other candidates of each round because the table supervisors and their assistant never gave these figures to them. He did not complain in writing either to Table Supervisor or Returning Officer. It is really surprising that though he has noted down that on his table part 2 of form No. 16 was not prepared, but even this fact has not been disclosed by him to the petitioner. He did not disclose this fact to anyone other than supervisors. He did not complain in writing either to Table Supervisor or Returning Officer. It is really surprising that though he has noted down that on his table part 2 of form No. 16 was not prepared, but even this fact has not been disclosed by him to the petitioner. He did not disclose this fact to anyone other than supervisors. It does not appeal to reason that anything would have happened he would not complain to the petitioner, who admittedly came on round during the course of counting. PW 8 Rameshwar Prasad Shrangi was present at the time of counting when the counting was going on. According to him, upto the first three rounds the counting was alright. Thereafter before the completion of the counting of rounds, the ballot boxes for the other round were placed on the tables.According to him the result was declared (sic) by .30 or 5 00 p.m., the counting having been completed by 4.15 p m. The votes polled by Shri Chaturvedi were only declared and the votes for other candidates are not declared. He is a Congress (1) supporter and he has interest in the party. He did not complain that after the third round the counting was being done in hurry.36. This is all the evidence of the petitioner. Shri Chaturvedi denied these allegations and on oath he has stated that no irregularity was committed during the course of counting. He has given the details. He denied that the result of the election was prepared without preparing form No. 20. Prem Kumar DW 2 was the counting agent for Shri Chaturvedi on March 6, 1985 and he states that the counting was going on smoothly and not hurriedly and every counting agent was given proper opportunity to look the entire counting process. No irregularity was committed during the course of counting. According to him, the form No. 16 part II was prepared on his table and after each round of counting the supervisor on the table gave out the figures of the votes received by each of the candidates. Pooran Chand DW 3 was also present on counting table No. 13 being the counting agent for Shri Chaturvedi. He also states that no irregularity was committed during the counting. Abdul Hamid DW. 4 was present on table No. 12 and he also states similarly. Pooran Chand DW 3 was also present on counting table No. 13 being the counting agent for Shri Chaturvedi. He also states that no irregularity was committed during the counting. Abdul Hamid DW. 4 was present on table No. 12 and he also states similarly. Kishangopal DW 14, a practising lawyer in Kota and active member of BJP, who was the election agent for the returned candidate Shri Chaturvedi was present at the time of counting and he states that he took rounds of various tables where the counting was in progress. After the end of each round of counting the counting parties were preparing the ballot paper account in form No. 16 part II. They were sending the ballot papers account in form No 16 part 11 alongwith ballot bundles of 50 each to the Returning Officer of each round. Some clerk was seated there who was preparing from No. 20 from ballot paper account in form No. 16 part II. The Returning officer on his table used to announce the result of the votes secured by each candidate. No doubt there are some over-writings in the result sheet as well as form No. 16 but these over-writings have been initialled and in the absence of any complaint in writing by the petitioner or his election agent during the course of counting about any alleged irregularity having been committed, the oral testimony of the petitioner and his witnesses besides the fact that it has been rebutted by the returned candidate and his witnesses, being evidence of interested witnesses is tainted and cannot be relied upon.Issue No. I is decided against the petitioner and for the returned candidate. ISSUE-VI-Relief ? 37. The result of the above discussion is that the returned candidate Shri Lalit Kishore Chaturvedi has been found to have committed corrupt practice falling under clauses (2) and (4) of Section 123 of the Representation of the People Act. 1951. The election of Shri Lalit Kishore Chaturvedi from the Vidhan Sabha Nirwachan Kshetra Kota (No. 107) is declared to be void and is set aside under Section 100(l)(b) of the Act. 1951. The election of Shri Lalit Kishore Chaturvedi from the Vidhan Sabha Nirwachan Kshetra Kota (No. 107) is declared to be void and is set aside under Section 100(l)(b) of the Act. Though, the petitioner has also sought the relief in the election petition that he be declared to be duly elected candidate from the aforesaid constituency, but I am of the opinion that it cannot be said that the petitioner received the majority of votes or that but for the votes obtained by the returned candidate by corrupt practice, the petitioner would have obtained the majority of votes. Therefore, no declaration as sought under Section 101 of the Act that the petitioner may be declared to have been elected, can be made.38. An authentic copy of this judgment declaring the election of Shri Lalit Kishore Chaturvedi from the Vidhan Sabha Nirwachan Kshetra Kota (No. 107) as void, be sent to the Secretary of the Election Commission, New Delhi as well as to the Speaker, Rajasthan Legislative Assembly, Jaipur. The petitioner shall get Rs. 1,000/- as costs of this petition from the returned candidate Shri Lalit Kishore Chaturvedi.Pronounced today i.e. April 2, 1987 in the open court.Petition allowed. *******