R. RAMAKRISLMA, J. ( 1 ) FROM 1983 to 1985 and from 1985 till the dissolution of the last assembly, was a candidate to 10-gulbarga assembly constituency representing janata dal, the election of which was held on 24-11-1989. The result of the said election was declared on 27-11-1989 declaring the first respondent as having been duly elected who was sponsored by muslim league. Respondent No. 2 was the official candidate from the congress-i party; respondent No. 7 was the official candidate from the janata party (jp); respondent No. 8 from the bharathiya republican party; respondent No. 11 from the lok-dal (b) and respondent No. 12 from the bharathiya janata party (bjp); respondents 3 to 6, 9 and 10 contested the elections as independent candidates. Respondent No. 13 was the returning officer who conducted this election. Out of all these candidates, leaving aside the petitioner and the first respondent, only the second respondent secured 12675 votes and others secured below thousands and hundreds. The petitioner secured valid votes of 51204 and the first respondent secured 55801 votes. ( 2 ) THE petitioner states that, when the last assembly was dissolved, he was in janata party and later, he joined janata dal. He was a minister for labour as he has represented labour class. He being a leading person in the labour field of gulbarga, he had all the hopes to be elected by securing majority votes. After several candidates filed their nomination papers, recognised political parties got the parties recognised symbols while the independents and others got other symbols. The petitioner was allotted the symbol "wheel" while the first respondent was allotted the symbol "ladder". The contest of the 10th gulbarga assembly constituency was mainly between the petitioner and the first respondent, who will be referred to hereinafter as respondent. ( 3 ) THE petitioner further states that, in both the previous elections, the respondent contested the elections and had been defeated. In this background, the respondent, who is the general secretary of the Karnataka branch of the Indian union muslim league, was making preparations with the object of winning the said election. ( 3 ) THE petitioner further states that, in both the previous elections, the respondent contested the elections and had been defeated. In this background, the respondent, who is the general secretary of the Karnataka branch of the Indian union muslim league, was making preparations with the object of winning the said election. In his official capacity as the secretary, he held a coveted post and taking that advantage, he appointed persons to various organisations in the Indian union muslim league and one such person is the convener of the youth muslim league (shortly yml) mohammed moiuddin pasha who is also from gulbarga assembly constituency. The said mohammed moiuddin pasha has acted as election agent of the respondent. The gulbarga city municipal corporation had majority of its representatives from muslim league and the mayor was also representing from muslim league. Taking advantage of the fact that the muslim league was in majority at the 10th gulbarga assembly constituency, the respondent had used the official machinery for his favour and also committed several corrupt practices to get the different of votes of 4597 to declare himself as an elected candidate. ( 4 ) THE petitioner alleged that the respondent had committed corrupt practice ofundue influence under Section 123 (2); appeal on the ground of religion, etc. , under Section 123 (3); promotion of feelings of enmity or hatred on the grounds of religion and publication of a false statement under sections 123 (3-a) and 123 (4 ). He has also interfered with the free exercise of electorate of the 10th gulbarga assembly constituency. ( 5 ) THE material particulars amplified on the material facts, corrupt practice,according to the petitioner, briefly stated are as follows: (i) the respondent as the general secretary for Karnataka state of the Indian union muslim league, has appointed mohammed mohiuddin pasha as convenor of the myl who has acted as the agent of the respondent in the entire election. Various publications were issued by the iuml, gulbarga, seeking votes for the respondents. (ii) the bahmani news a leading urdu newspaper having a vide circulation published at gulbarga, printed the messages to further the election prospectus of the respondent from 1-11-1989 to 15-11-1989 in addition to the editorials made by its editor (p. w. 4) which are in the nature of promoting religious feelings and creating enmity or hatred on the ground of religion. Some of the messages published in bahmani news read thus: (a) the message published on 1-11-1989 reads thus:"re-COLLECT your memory before voting; that you might have come across to hear this sentence: I will not sign on your passport forms because, I have been elected only on hindu votes, you go to him to whom you have voted. Now your election decision is definitely in favour of muslim unity. Issued by Indian union muslim league, gulbarga. " (b) the message published on 2-11-1989 reads thus: "can you vote such party, its chief minister wanted to impose restrictions on the "azan" (call for prayer), and he is also intending to do so. Certainly your election decision will be in favour of muslim unity. Issued by Indian union muslim league. " (c) the message published on 3-11-1989 reads thus: "who is the person not willing to regularise his houses. . . Who will vote that party person, who had created obstacles to regularise the houses by exhibiting communal feelings. Certainly this time your election decision is in favour of muslim unity. Issued by Indian union muslim league. " (d) the message published on 5-11-1989 reads thus: "person musthave links with the religion without that he is nothing 'as the waves in the river and out of river nothing'. Your utmost power should be used to strengthen the muslim unity. Issued by Indian union muslim league. " (e) the message published on 8-11-1989 reads thus: "do your like to partition the city in two parts, for representing only one community which is being represented since last six years by a particular person; should he elect again? Certainly this time you will elect your own representative in assembly issued by Indian union muslim league. " (f) the message published on 14-11-1989 reads thus: "it is the voice of every musahnan, 'no babari masjid no vote' issued by muslim youth league, gulbarga. " (g) the message published on 15-11-1989 reads thus: "muslim league's victory is your victory. For gulbarga assembly constituency, vote and elect Indian union muslim league's strong, young candidate tiger of Karnataka (sher-e-karnataka) Sri Quamarul Islam. You create a history of muslim unity with full support of your own and establish your particular representative in assembly. Issued by Indian union muslim league. For gulbarga assembly constituency, vote and elect Indian union muslim league's strong, young candidate tiger of Karnataka (sher-e-karnataka) Sri Quamarul Islam. You create a history of muslim unity with full support of your own and establish your particular representative in assembly. Issued by Indian union muslim league. " (h) the message published on 15-11-1989 further reads thus: "thus said paigambar-e-islam 'musalman is just like a wall, his every part of body is supporting with each other. ' 24th november, 1989, it is the day for creating a history of your unity. " issued by muslim youth league, gulbarga. " (iii) that the above publications are directly interfered with the electorate of gulbarga assembly constituency, more so, the distribution of this newspaper in thickly populated muslim community areas such as momminpura a and 13, roza, zillanabad, santraswadi and other places. These publications were made through Mr. Mohammed moiuddin pasha and these publications amount to corrupt practice of undue influence under Section 123 (2) of the act as the messages were interfered with the free exercise of votes by the electorates. The publications were made with the consent of the respondent from 1-11-1989 to 24-11-1989. Some of the publications were made in the name of myl with the consent of the respondent. All these publications prejudicially affected the election of the petitioner. Appeals were made on the ground of religion and caste, namely, the muslim community. ( 6 ) THE petitioner further averred that, in addition to these messages, a sacred religious symbol was used which reads "ershade nabhavi" which means voice of paigambar-e-islam, i. e. , voice of prophet of islam. The use of the said symbol and the publication promoted the feelings of enmity and hatred between different classes of citizens of Indian on the ground of religion, race, caste and community. ( 7 ) THIS apart, the respondent made a false statement published with his consent in the bahamani news dated 1-11-1989, to the following effect:"recollect your memory before voting; that you might have come across to hear this sentence: 'i will not sign on your passport forms because, I have been elected only on hindu votes, you go to him to whom you have voted. ' "the above statement affected the personal character and conduct of the petitioner which was made to prejudice the election prospects. ' "the above statement affected the personal character and conduct of the petitioner which was made to prejudice the election prospects. ( 8 ) APART from publishing the messages, the respondent has spoken to the electorates in various places offending the religious feelings of the communities and thereby bringing a rift between the other communities and muslims. At roza market area, about 8 days prior to the date of poll, at about 9. 30 p. m. , respondent in his election meeting, among other things, gave a speech in 'urdu' which has been calculated to make an interference in the free exercise of the electoral right by the electorate on the basis of religion and community feelings. The extract of the speech reads thus:"muslim youth league ke convenor mister mohiuddin pasha. Gujeesta numaindane main passport form per dasthakat naliin karoonga, kahakar firklia parasthi ka ainae lagaya. Sabekiia mla ney muslim ilakhaun main borewell kay l iye sifarish tak nahee ki. Prakash akash kore nay chay saath muslim makkan today hain. Musalmanun kaa imaani josh tha jo unhonney muslim league ko har baar jeeyada vote diye. Aap ko sabz parcham ki izzad rakhana hai. Apnay ittehad ko mazhooth kama hooga. Hindustan mem jab tah ek blii musalman kalman haques bolnay walaa hai muslim league ko naheen meetta sakta. Jab toom apnay mohalley main javogey tho athraaf dekho kaheen munaafikhay islam (islaam kay gaddaar) meer jafar, mirsadiq, jaisay cominaymillath kay khilaaf muslim league kay kheelaaf kaheen sazeesh tho nahee kar rahey hain. " ( 9 ) THE respondent also committed corrupt practices by obtaining and procuring the assistance of the returning officer (respondent No. 13) throughout the period of election upto the date of declaration, i. e. , the manner in which the respondent got assistance was, respondent No. 13 throughout was stating that the respondent is a candidate sponsored by the iumlwhich is not a recognised political party but telling it as a registered political party. This information was published in the ballot papers, result sheets and all the other documents showing the respondent as a candidate from the muslim league which is not a nationally recognised political party nor a state recognised political party. Instead of showing respondent No. 1 as an independent candidate, in which even the electorate would have not elected him, he was shown as sponsored by muslim league. Instead of showing respondent No. 1 as an independent candidate, in which even the electorate would have not elected him, he was shown as sponsored by muslim league. ( 10 ) ON the above facts, it is prayed that the election of the respondent is held to bevoid under the provision of Section 100 (l) (b) read with Section 100 (l) (d) (ii) (iii) and (iv) as defined under Section 123 (2), 123 (3), 123 (3-a), 123 (4) and 123 (7) of the act. ( 11 ) IT was further contended that the respondent to improve his election prospects, arranged the election in such a manner detrimental to the election prospects of the petitioner. The commissioner of the corporation of the city of gulbarga, by his communication dated 30-9-1989 reported that the area of gulbarga city as on 1-8-1977 is required to be decided on the basis of the erstwhile city municipality limits and the 1977 electoral roles. But at the same time, the chief electoral officer, in his letter dated 15-9-1989, had stated that the basis for delimitation of the parliamentary and assembly constituencies order 1976, is 1971 census and as such, it has to decide the area of gulbarga city. Inspite of the said clarification, some villages were excluded and added to chitapur constituency and some villages were excluded from the gulbarga constituency which as a result affected the election prospects of the petitioner. ( 12 ) THE other averments of the petitioner are improper reception and rejection of votes. Added to this, the returning officer accounted the ballot papers pertaining to polling stations where 90% and above votes were casted in favour of the petitioner though there is a bar in circulars issued by the election commissioner. The polling stations where 90% votes were polled are numbered as 45,65,83,92,94,95 and 98. In those polling stations, the respondent secured 5079 votes against 106 votes secured by the petitioner. The polling stations where 90% votes were polled are numbered as 45,65,83,92,94,95 and 98. In those polling stations, the respondent secured 5079 votes against 106 votes secured by the petitioner. ( 13 ) IN these circumstances, the petitioner prayed to: (a) declare that the election of respondent No. 1 has been materially affected by corrupt practices referred to in the petition; (b) to name the respondent No. 1 and respondent No. 13 to have committed the corrupt practices referred to in the petition; (c) order recount of the votes, excluding the bogus votes, and other votes which are illegally received and declare the said votes to be void votes; (d) declare that the petitioner has received the majority of valid votes and is elected from No. 10 gulbarga assembly constituency to the Karnataka state legislative assembly. ( 14 ) THE first respondent is the only contesting respondent in this election petition. Respondent No. 13, through the learned government advocate, has filed objections, but however, he has not taken active part in this election petition except he having been examined as a witness for the petitioner. In his objection statement, he has totally denied all the allegations made against him of assisting the respondent to further his election prospects and also denied of assisting the respondent in the question of delimitation and further contended that this court cannot go into the validity or otherwise of delimitation orders while dealing in an election petition under the representation of the People Act, 1951. ( 15 ) THE respondent filed his objection statement to the election petition and alsofiled a recrimination petition, which, subsequently, not pressed by the respondent. The respondent is a resident of gulbarga city who contested the election as a muslim league candidate with the symbol 'ladder'. He is a general secretary of muslim league of Karnataka state which is a recognised political party in Kerala state. He is an engineering candidate in mechanical engineering having secured his degree during 1972 from engineering college, gulbarga. He joined the muslim league in 1974. Since he had inclination in politics, he contested the election in the year 1978 where he has defeated the powerful candidate Sri Mohammed Ali, who was the then transport minister. Subsequently, he contested the election again in the year 1983, 1985, but he has lost both the elections though he has secured a good number of votes. Since he had inclination in politics, he contested the election in the year 1978 where he has defeated the powerful candidate Sri Mohammed Ali, who was the then transport minister. Subsequently, he contested the election again in the year 1983, 1985, but he has lost both the elections though he has secured a good number of votes. ( 16 ) HE has denied of having filed his nomination paper as a candidate of iuml. he was sponsored by muslim league which was recognised by the election commission of India which was recognised as a state party in Kerala state. On the basis of the communication dated 31-10-1989, made by the election commissioner to the deputy commissioners for the districts to allow the respondent to contest under muslim league banner with the election symbol of 'ladder', he filed his nomination on 31-10-1989. He has denied the allegation that mohammed moiuddin pasha was appointed as an agent, but contends that, one Mr. Kaiser mohammed was the election agent as per the letter of appointment annexure-v. He has denied of having committed any corrupt practices alleged by the petitioner; according to him, any publications issued by iuml or by myl have nothing to do with this respondent as he was not a member of iuml or myl much less the secretary of iuml. The publications made in bahmani news were not originated nor sponsored at his instance or that of his election agent. He has also denied the allegations made by the petitioner in respect of improper reception and rejection of votes and the question of delimitation of constituency as having furthered his election prospects. ( 17 ) ON the basis of the above pleadings, the following issues were set out for determination: issues 1. Whether the petitioner proves that respondent No. 1 has committed acts as alleged in the petition of undue influence on voters interfering with free exercise of votes attracting Section 123 (2) of the representation of the People Act, 1951? 2. Whether the petitioner proves that respondent No. 1 has committed acts as alleged in the petition that he appealed to the religion, caste', community or used religious symbols to further his prospects of election and/or for prejudicially affecting the election of the petitioner attracting Section 123 (3) of the representation of the People Act, 1951? 3. 2. Whether the petitioner proves that respondent No. 1 has committed acts as alleged in the petition that he appealed to the religion, caste', community or used religious symbols to further his prospects of election and/or for prejudicially affecting the election of the petitioner attracting Section 123 (3) of the representation of the People Act, 1951? 3. Whether the petitioner proves that respondent No. 1 has committed acts as alleged in the petition to promote or attempt to promote feelings of enmity or hatred between different classes of voters on grounds of religion, caste, community for furtherance of the prospects of election of respondent No. 1 or for prejudicially affecting the election of the petitioner attracting Section 123 (3-a) of the representation of the People Act, 1951? 4. Whether the petitioner proves that respondent No. 1 has committed acts alleged in the petition of publishing any pamphlet or statement which is false or believed to be false in relation to the personal character, conduct of the petitioner calculated to prejudice the prospects of the petitioner attracting Section 123 (4) of the representation of the People Act, 1951? 5. Whether the petitioner proves that respondent No. 1 has committed acts alleged in the petition to procure or obtain the assistance of persons in service of the government as enumerated therein to further the prospects of respondent No. 1's election attracting Section 123 (7) of the representation of the People Act, 1951? 6. Whether the petitioner proves that mohammed mohiuddin pasha acted as the election agent of respondent No. 1 or with his consent committed the aforesaid corrupt practices in issues nos. 1 to 5? 7. Whether the petitioner proves that the election of respondent No. 1 is vitiated on account of illegal or improper (i) exclusion of voters from exercising their votes and/or (ii) acceptance of votes which are invalid and/or (iii) rejection or refusal of votes which are valid. 8. Whether the petitioner proves that the election of respondent No. 1 is vitiated on account of improper or illegal procedure adopted or irregularities in the conduct of election? 9. Whether the recrimination petition is bad for want of compliance of any of the Provisions of the representation of the People Act, 1951? 10. 8. Whether the petitioner proves that the election of respondent No. 1 is vitiated on account of improper or illegal procedure adopted or irregularities in the conduct of election? 9. Whether the recrimination petition is bad for want of compliance of any of the Provisions of the representation of the People Act, 1951? 10. Whether respondent No. 1 proves that the petitioner or any person acting as his agent or any other person with his knowledge and consent committed acts attracting Section 123 (3) and 123 (3-a) of the representation of the People Act, 1951 as alleged in the recrimination petition? 11. Whether respondent No. 1 proves that the petitioner or any person acting as his agent or any other person with his knowledge and consent restrained voters from exercising their franchise as alleged in para 9 of the recrimination petition? 12. To what reliefs, if any, the parties are entitled? ( 18 ) BEFORE taking up the above issues for consideration, it is relevant to note andkeep in view the established propositions with regard to pleadings in election petitions and burden of proof of facts and issues involved. In Laxminarayan Nayak v Ramratan chaturvedi, 1990 (2) SCC 173 which is a recent decision, the Supreme Court, after referring to a catena of decisions laid down the principles as to the nature of pleadings in election cases and summarised, their sum and substance as follows: (1) the pleadings of the election petitioner in his petition should be absolutely precise and clear containing all necessary details and particulars as required by law; vide: dhartipakar madan lal agarwalv rajiv gandhi and Kona Prabhakara rao v Seshagirirao, 1987 supp. Scc 93 and 1982 (1) SCC 442 respectively. (2) the allegations in the election petition should not be vague, general in nature or lacking of materials or frivolous or vaxatious because the court is empowered at any stage of the proceedings to strike down or delete pleadings which are suffering from such vices as not raising any triable issue; vide: Manphulsingh v Surinder Singh, 1973 (2) SCC 599 , Kona Prabhakara Rao v Seshagiri Rao, and Dhartipakar Madan Lal Agarwal v Rajiv Gandhi (referred to above ). (3) the evidence adduced in support of the pleadings should be of such nature leading to an irresistible conclusion or unimpeachable result that the allegations made, have been committed rendering the election void under Section 100; vide: Jiimuna Prasad Mukhariya Vlachhi Ram and Rahim khan v Khurshid Ahmed, AIR 1954 SC 686 and 1974 (2) SCC 660 respectively. (4) the evidence produced before the court in support of the pleadings must be clear, cogent, satisfactory, credible and positive and also should stand the test of strict and scrupulous scrutiny, vide: Ram Sharon Yadav v Thakur Muneshwar Nath Singh, 1984 (4) SCC 649 . (5) it is unsafe in an election case to accept oral evidence at its face value without looking or assurances for some surer circumstances or unimpeachable documents; vide: Rahim Khan v Khurshid Ahmed (referred to above), M. Narayana rao v G. Venkata Reddy, 1977 (1) SCC 711, Lakshmi Raman Acharya v Chandan Singli, 1977 (1) SCC 423 and Ramji Prasad Singh v Ram Bilasjha, 1977 (1) SCC 260 . (6) the onus of proof of the allegations made in the election petition is undoubtedly on the person who assails an election which has been concluded; vide: Rahim Khan v Khurshid Ahmed (referred to above) Mohan Singh v Bhanwarlal, 1964 (5) SCR 12 and Ramji Prasad Singh v Ram Bilas Jha (referred to above ). In the case of M Chenna reddy v R. R. Rao and another, (1972)40 elr 390 the Supreme Court pointed out that the trial of an election petition on the charge of a corrupt practice partakes of the nature of a criminal trial and the finding must not be based on balance of probabilities but on direct and cogent evidence supporting it. The candidate charged with corrupt practice invariably leads evidence to prove his denial and it becomes the duty of the court to weigh the two versions and come to a conclusion. The candidate charged with corrupt practice invariably leads evidence to prove his denial and it becomes the duty of the court to weigh the two versions and come to a conclusion. Similarly even in the case of T. K. Gangi Reddy v M. C. Anjaneya reddy and others, (1960)22 elr 261 the Supreme Court had earlier held that in an election petition the burden of proving that certain statements alleged to have been published by the respondent were false and that the respondent believed them to be false or did not believe them to be true is in the first instance, on the petitioner, but if the petitioner examines himself and states that he has not committed the alleged acts and proves circumstances indicating a motive on the part of the respondent to make false allegations against him, the court is entitled to accept his evidence, and if it does so, the onus would shift to the respondent to prove the circumstances if any to dislodge the assertions made by the petitioner; and if the respondent has failed to put before the court any facts to establish either that the petitioner did in fact commit the alleged acts of violence in the past or to give any other circumstances which made him bonafide believe that be was so guilty the court is entitled to say that the burden of proving the necessary facts had been discharged by the petitioner. Referring to the corrupt practice by publication under Section 123 (4) of the Act, in the case of Mohan singh v Bhanwarlal (referred to above) the Supreme Court pointed out that as regards the corrupt practice of the alleged publication of the leaflet, the onus of establishing the corrupt practice was undoubtedly on the person who set it up, and the onus was not discharged on proof of mere preponderance of probability, as in the trial of a civil suit; the corrupt practice must be established beyond reasonable doubt by evidence which was clear and unambiguous. It further observed that publication to amount to corrupt practice within the purview of clause (4) of Section 123, besides being a publication by a candidate or his agent or by another person with the consent of the candidate or his election agent, must contain a statement of fact which is false, and which the candidate or his agent believes to be false or does not believe to be true. It also held that in considering whether a publication amounts to a corrupt practice within the meaning of Section 123 (4) the tribunal would be entitled to take into account matters of common knowledge among the electorate and read the publication in that background, for one of the ingredients of the particular corrupt practice is the tendency of the statement in the publication to be reasonably calculated to prejudice the prospects of that candidate's election. The test in cases under Section 123 (4) is, whether the imputation besides being false in fact, is published with the object of lowering the candidate in the estimation of the electorate and calculated to prejudice his prospects at the election. And in ascertaining whether the candidate is lowered in the estimation of the electorate, the imputation made must be viewed in the light of matters generally known to them. ( 19 ) ONE more factor to be noted before taking up the issues for determination is that, in the middle stage of this petition, when the tape recorded statement was introduced by the petitioner, as a piece of evidence to corroborate the contention raised in the election petition, the cassette was marked as Ex. P. 7 subject to the objection raised by the respondent. Subsequently, on 16-3-1992, a finding was given holding that the tape recorded statement is admissible in evidence. At the time of this Order, reliance was placed on the decisions vide: Yusufalli Esmail Nagree v The State of Maharashtra, AIR 1968 SC 147 ; n. Sri Rama Reddy and others V/s V. V. Giri, AIR 1971 SC 1162 ; R. M. Malkani v State of Maharashtra, AIR 1973 SC 157 ; Ziyauddin Burhanuddin Bukhari v Brijmohan Ramdassmehra, AIR 1975 SC 1788 ; Ram singh and others v Col. Ram singh, AIR 1986 SC 3 ; reference was also drawn to the pleadings of the material facts and material particulars of corrupt practice while admitting the tape recorded statement Ex. P. 7. Ram singh, AIR 1986 SC 3 ; reference was also drawn to the pleadings of the material facts and material particulars of corrupt practice while admitting the tape recorded statement Ex. P. 7. The said contention was overruled placing reliance on the rulings in U. S. Sasidharan v K. Karunakaran and another, AIR 1990 SC 924 . The said contention highlighted by the Supreme Court reads thus:" (II) on the other hand, if the contents of the document in question arc pleaded in the election petition, the document does not form an integral part of the election petition. In such a case, a copy of the document need not be served on the respondent and that will not be non-compliance with the provision of Section 81 (3 ). The document may be relied upon as an evidence in the proceedings. In other words, when the document does not form an integral part of the election petition, but has been either referred to in the petition or filed in the proceedings as evidence of any fact, a copy of such a document need not be served on the respondent along with a copy of the election petition. "" (III) there may be another situation when a copy of the document need not be served on the respondent along with the election petition. When a document has been filed in the proceedings, but is not referred to in the petition either directly or indirectly, a copy of such document need not be served on the respondent. " ( 20 ) THE petitioner has made a reference in his election petition of the speeches made by the respondent in some of the places at gulbarga and before the commencement of the evidence, he has stumbled to a fact that P. W. 1 Sri Basavaraj Ingini, circle inspector of police, has recorded some of the election speeches made by the respondent as a routine duty and after having learnt the said fact, the said officer was summoned by the petitioner and the cassette was admitted as one of the material for the assistance of the petitioner to prove his averments regarding the corrupt practice. ( 21 ) AFTER the conclusion of the evidence, the respondent sought findings on la. ( 21 ) AFTER the conclusion of the evidence, the respondent sought findings on la. iii, an application filed on 3-4-1992 under order 6, Rule 16 read with order 7, Rule 11 (a) of the Code of Civil Procedure to strike down the allegation of corrupt practice contained in paras 11, 12, 13 and 14 of the election petition both under sections 123 (3), 123 (3-a) and 123 (7) of the act. ( 22 ) THE respondent also filed another application I. A. No. V on 28-8-1992, i. e. ,after the evidence was over, under Section 151 of the Code of Civil Procedure to decide the admissibility of Ex. P. 7, Ex. P. 223 to Ex. P. 227, Ex. P. 231 to Ex. P. 234, Ex. P. 236 to Ex. P. 250, Ex. P. 255, Ex. P. 257 to Ex. P. 263 before the commencement of the arguments on the merits of the petition. ( 23 ) AGAIN on 1-9-1992, the respondent filed I. A. No. Vi under Section 151 of the Code of Civil Procedure to reject the election petition as the affidavit sworn to insupport of the corrupt practice alleged in the petition are not in conformity with Section 83 of the act read with form 25 of the conduct of election rules, 1961. ( 24 ) ALL these three applications were decided by a common order on the very same day by dismissing them. However, under I. A. No. Vi, the petitioner was directed to file a proper affidavit to remove the defects pointed out by the respondent in the affidavit filed along with the election petition. Accordingly, the petitioner has filed a fresh affidavit in conformity with the ruling of F. A. Sapa v Singora, AIR 1991 SC 1557 . I. A. No. Iii was dismissed due to the fact that the evidence was fully recorded and the stage of striking down the allegations of material facts and material particulars was over. In I. A. No. V The documents which were admitted subject to objections, were held to be the documents admissible in evidence. ( 25 ) THE above facts were reiterated to avoid further discussion while the relevant documents were subjected to prove the merits contained in them. In I. A. No. V The documents which were admitted subject to objections, were held to be the documents admissible in evidence. ( 25 ) THE above facts were reiterated to avoid further discussion while the relevant documents were subjected to prove the merits contained in them. ( 26 ) ISSUES No. 1 to 4:these issues relate to the alleged corrupt practice said to have been committed by the respondent attracting sections 123 (2), 123 (3), 123 (3-a) and 123 (4) of the act. To prove these issues, the petitioner relied on direct evidence, circumstantial evidence, probabilities and documentary evidence. The cumulative effect are to be appreciated in deciding this petition. By deciding these issues together, the duplication of discussion, repetition of facts and possibility of overlapping of the facts can be avoided. Therefore, the above issues are taken together. ( 27 ) BEFORE taking up the question of corrupt practice, said to have been committed by the respondent, it is absolutely necessary to decide whether the muslim league (shortly 'ml') and the Indian union muslim league (shortly iuml) are one and the same. This is absolutely necessary as the respondent contested the election on a permission granted by ml which is a state recognised party in kerala. The symbol allotted to this party in Kerala is 'ladder'. ( 28 ) THE petitioner, in his petition, described the respondent having been taking advantage of both ml and iuml. The respondent denied the same in his objection statement and contended that he is representing only ml. In the beginning, this question appeared to be only an academic interest, but after conclusion of the evidence, it has gained so much of importance that a correct decision in this case is also depended on resolving this question. Due to its insignificant importance in the pleadings of the parties, this court has not raised a specific issue to resolve this difference, nor the parties have suggested the importance of such an issue at interregnum. On the available materials, this question is to be resolved to make a substantial Justice between the parties. ( 29 ) EX. Due to its insignificant importance in the pleadings of the parties, this court has not raised a specific issue to resolve this difference, nor the parties have suggested the importance of such an issue at interregnum. On the available materials, this question is to be resolved to make a substantial Justice between the parties. ( 29 ) EX. R. 3 is a teleprinter message by the chief electoral officer, Bangalore,to the deputy commissioner of districts that the ml a recognised state party in Kerala having its registered address at calicut, intimated of intending to set up candidates in the ensuing general elections to lok sabha and legislative assembly in karnataka. The symbol ladder was claimed to be allotted to this party, under election symbols reservation and allotment Order, 1968. This message also indicated that the respondent has been authorised to set up candidates in Karnataka and allotment of symbol 'ladder' should be made to the candidates of the said party (ml ). This message is addressed to all the deputy commissioners of the districts. ( 30 ) EX. R. 4 is the nomination paper form 2-b; under Rule 4 where the respondent declared that: "i am (set up) at this election by the muslim league party. " ( 31 ) 1 have carefully gone through the oral evidence and the documents producedin this case and I am convinced beyond iota of any doubt that ml is a recognised state political party authorised to contest elections with a symbol 'ladder' as it has secured minimum votes required for the purpose of recognition. The term 'iuml' has been liberally used by all the political parties connected to ml. What one can understand by the term ml and iuml is that the political parties were making use of both these names to identify themselves as the candidates belonging to ml at state level and iuml at national level. Respondent is advancing the theory that 'ml' and 'iuml' are altogether different so as to escape from the liability of corrupt practice which I am going to demonstrate little later. ( 32 ) R. W. 1-kaiser mohammed maniar, an election agent of the respondent who was nominated as such one day prior to the election, has many thing to say on this controversial question. ( 32 ) R. W. 1-kaiser mohammed maniar, an election agent of the respondent who was nominated as such one day prior to the election, has many thing to say on this controversial question. He has contested the election of the corporation of gulbarga from 1983 and subsequently and was also a mayor of gulbarga city corporation. He has stated that he has not heard of a political party called iuml. He is definite in his assertion thatthee is no political party called iuml. But in a speech made by him at milad-un-nabi, he has referred to iuml. Ex. P. 218 is a souvenior, where he has been described as a fourth mayor for 1987-88. In his welcome speech, he has referred to iuml, district gulbarga, as the party which has organised this function and during the course of his welcome speech, he has referred to as saying that iuml is a political party which came into existence after independence to safeguard the secular rights of muslims. The full text of his speech made in urdu language has been incorporated in his evidence at page nos. 12 and 13 of his deposition. In his speech he has referred that Sri Sulaiman Sail and Sri Banathwala, members of parliament as president and secretary respectively of iuml. But in his evidence, he has denied that they are not so. The petitioner asserted in his evidence that the respondent contested the elections during 1978 and 1983 as iuml candidate but the same was not denied by challenging the said assertion. ( 33 ) THERE are innumerable documents produced in this case are freely used in the name of iuml and it is astonishing to note that r. w. 1, the election agent of the respondent, is not even aware of such a party. In Ex. P. 1, Ex. P. 3 and Ex. P. 5, the applications, for permission to use loud-speakers in different meetings of the respondent, dated 13-11-1989, 17-11-1989 and 20-11-1989 describes the respondent as iuml candidate for assembly. These applications are signed by mohammed ahmed as a muslim league secretary, muslim league, gulbarga district. The said mohammed ahmed has described himself as an ex-mayor and secretary of iuml in Ex. P. 3 and Ex. P. 5. Similarly, exs. These applications are signed by mohammed ahmed as a muslim league secretary, muslim league, gulbarga district. The said mohammed ahmed has described himself as an ex-mayor and secretary of iuml in Ex. P. 3 and Ex. P. 5. Similarly, exs. P. 228, p. 229, p. 230 and p. 259 are the applications for permission to use loud speakers in the assembly and corporation meetings where the concerned speaker were described as belonging to iuml. The respondent has issued press note as the general secretary of iuml which has been marked as Ex. P. 234. The report appeared in the deccan herald newspaper-ex. P. 233, dated 16-5-1992 describing the respondent as general secretary of iuml. Ex p. 235 is a letter calling a meeting of iuml executives signed by the respondent. The respondent has denied the signature signature found in Ex. P. 235. On a comparison, this signature is found to be the signature of the respondent when compared with the admitted signatures found on the vakalat, recrimination petition. Even Sri Banathwala, General Secretary Of ML has given an address as iuml's office in the notification of election commission of India dated 23-10-1989 published in Karnataka gazette, part iv, dated 23-10-1989. In the souvenir published by the corporation of the city of gulbarga in connection with 'decennial celebration' photos of some of the corporators have been printed. In these photos, majority of the corporators from muslim community have been shown as belonging to iuml. R. w. 1 who was a sitting mayor, has asserted in his evidence that the majority of the muslim candidates elected in the corporation are from ml. ( 34 ) IN addition to the above materials, the publications made in urdu newspapers, viz. , siasat Ex. P. 223, Ex. P. 227, bahmani news exs. P. 129 to 207, press notes issued by the respondent exs. P. 233,234 and 235 show that there is a party called iuml, to which, the respondent is closely associated. Totally there were about 40 advertisements in bahamani news, gulbarga, three in iqan newspaper, five in siasate newspaper and seven in rahnuma-e-deccan. The last two newspapers (siasat and rahnuma-e-deccan newspapers) are printed and published at hyderabad and all these newspapers described the respondent as a party from iuml and these facts are not denied by the respondent. On the contrary, he has shown his ignorance about these publications which cannot be believed. The last two newspapers (siasat and rahnuma-e-deccan newspapers) are printed and published at hyderabad and all these newspapers described the respondent as a party from iuml and these facts are not denied by the respondent. On the contrary, he has shown his ignorance about these publications which cannot be believed. Similarly, r. w. 1, however, accepted the fact that, he reads siasat, rahnuma-e-deccan and went to the extent of saying that he has not come across any of the advertisements discussed above. ( 35 ) ALL these facts show that both public and all the news papers have accepted the representation that there is no difference between these two political parties, i. e. , ml and iuml. Even in the deccan herald newspapers exs. 233,236,241,262 and 263; in indian-express Ex. P. 232, hindu newspaper exs. P. 237, p. 238 and p. 240; times of india-ex. P. 239 they have described the respondent as a person belonging to iuml. Since iuml could not obtain sufficient votes, it was not recognised as an all India party but since it obtained sufficient votes in kerala, it was recognised in Kerala only under the caption 'muslim league'. This would only indicate for recognition of a state level and all India level and there could not be any difference between these two parties in the literal sense. Exs. P. 234 and p. 235 conclusively proved that the respondent has described himself as the general secretary of iuml, Karnataka state. Ex. P. 234 is a press note issued to all the leading newspapers regarding the resolutions passed unanimously by the state executive meeting of iuml which was held on 15-9-1991. Ex. P. 235, dated 19-3-1991 is an invitation to the members of iuml, Karnataka state, to attend the meeting of the state executive of iuml and which is signed by the respondent describing as general secretary of iuml, Karnataka state. ( 36 ) P. W. 4, the editor of bahamani news and one of the participants in miladun-nabi under Ex. P. 218 has written an article. A portion of english translation was filed duly certified by the learned Advocate for the petitioner. This conclusively proves the fact that iuml is not a strange and unknown party as contended by these witnesses. This translation is not challenged nor any motives to be attributed to its genuineness. P. 218 has written an article. A portion of english translation was filed duly certified by the learned Advocate for the petitioner. This conclusively proves the fact that iuml is not a strange and unknown party as contended by these witnesses. This translation is not challenged nor any motives to be attributed to its genuineness. This is marked for the purposes of identification as court-exhibit c. 1. It reads:"translation of portion of Article "organisation of milad day" written by 'azizulla sarmast' as per exhibit p. 218: 1. By the grace of allah (the god) the foundation of Indian union muslim league a political organisation of muslims, is laid down at gulbarga; and once again the muslims of gulbarga were united below the moon marked green flag to achieve their past glory. As a result of this glorious unity of muslims in 1978 assembly elections. The historic victory of 'quamarul islam' under the banner of muslim league, encouraged the muslims, and once again the muslims of gulbarga took breath in a free atmosphere. 2. The aim of organising the milad day function is that, muslims, who have got faith in kalima-e-tayyaba, and who are the followers of hazrat mohammed shall not be divided and disintegrated, but should remain as a model of unity and integrity the name of prophet mohammad itself should remain as a symbol for the glorious unity among muslims. After the demise of khayad-e-millat behaddur yar jung, a process to use the milad day, for awakening the consciousness among muslims collectively, began at gulbarga also just like in aurangabad and other cities, and this was started by Indian union muslim league in the year 1981 under the leadership of janab qumarul islam, which is continued so far in a glorious manner. 3. In the year 1983 Indian union muslims league got the power of city municipal corporation, which was the second big success for muslim league janab mahemood ahemed and janab qaisar mohemood maniyar became first and second muslim mayors of gulbarga. 4. To consider the great procession and function of milad day celebration by Indian union muslim league, gulbarga district; a political one; is due to lack of national and milli (united muslim community) knowledge. But the aim of this holey procession and function is to show the glorious unity of muslim community and to let the muslims know about the soul of milad day. But the aim of this holey procession and function is to show the glorious unity of muslim community and to let the muslims know about the soul of milad day. " ( 37 ) IN this connection, it is brought out that Mr. Mohammed mohiuddin pasha (shortly pasha) was the agent of the respondent in this election. He has also been shown as an election agent. After the objection statement and recrimination petition of the respondent, it is understood that Mr. Pasha is only an agent and the election agent was r. w. 1. This is so because, the confusion that was inevitably due to publication of advertisements in bahamani news said to have been given by iuml and the active participation of Mr. Pasha, and the appointment of r. w. 2 and an application was given to the returning officer in form No. 8 appointing r. w. 2 as an election agent from 23-11-1989. It is to be noted here itself that the election was held on the next day. ( 38 ) A party called muslim youth league was also brought into the picture duringthis election showing that Mr. Pasha is the convenor of this party ('myl' ). This has been made amply clear in the evidence of P. W. 1-a police officer that Mr. Pasha was the convenor of myl and was working for r. w. 1 in the election. Indeed the respondent has shown his ignorance of this party in his evidence. ( 39 ) P. W. 4 azizulla sharmast, the editor of bahamani news, admitted in his evidence that the advertisements-ex. P. 94 (b) and Ex. P. 95 (b) were given by myl. In fact, an office was opened for locating myl district office and a press statement was also given as per Ex. P. 311. Curiously these facts have not been challenged in the cross-examination of the respective witnesses. Hence it is convenient to hold that ml and iuml are the two faces of the same coin and myl is one of its organ. ( 40 ) THE petitioner sought to prove the corrupt practice committed by the respondent attracting Section 123 (2) (3) (3-a) and (4) by direct evidence, tape recorded statement, publications and other surrounding circumstances. Hence it is convenient to hold that ml and iuml are the two faces of the same coin and myl is one of its organ. ( 40 ) THE petitioner sought to prove the corrupt practice committed by the respondent attracting Section 123 (2) (3) (3-a) and (4) by direct evidence, tape recorded statement, publications and other surrounding circumstances. ( 41 ) P. W. 1 basavaraj ingini, the then circle inspector of police, who was do inghis duty during this election, has recorded the speech of the respondent made in places called roz and zillanabad. The cassette was marked as Ex. P. 7. The petitioner and a witness P. W. 5 have corroborated to the contents of the speech contained in the tape recorded statement in their oral evidence. However, the admissibility of this recorded statement was seriously challenged at the time of evidence but the same was overruled. Later, this tape-recorded statement was transcripted and translated from urdu to english language in the presence of the learned advocates, contesting parties, translators before the registrar (judicial) of this court who is one of the senior district judge. P. w. 1 the petitioner and P. W. 5 a witness have recognised the voice as that of the respondent. The respondent except denying the voice, has not placed any material giving the reason for the introduction of this tape-recorded statement, atleast contributing some motive behind it. It is true, the onus of proof of allegations made in the election petition is undoubtedly on the person who assails the election vide rahimkhan's case (ibid); mohan singh's case (ibid) ramjid prasad singh's case (ibid ). In m. channa reddy 's case (ibid) and t. k. gangi reddy'scase (ibid), the Supreme Court pointed out that the change of corrupt practice par-takes of the nature of a criminal trial and if the court accepts the evidence of the petitioner, the onus should also shift to the respondent to prove the circumstances to dislodge the assertions made by the petitioner. ( 42 ) IT is in the evidence of P. W. 5 and P. W. 6 that this speech was made at rozaand jcelanabad and they were present. P. w. 1 has also stated that he has recorded the speech made by the respondent which was in his custody. P. w. 1 also stated that he was in exclusive custody of the tape-recorded statement. P. w. 1 has also stated that he has recorded the speech made by the respondent which was in his custody. P. w. 1 also stated that he was in exclusive custody of the tape-recorded statement. No oblique motive can be attributed regarding this tape-recorded statement as it was recorded as routine of police work. Though no reference was made in the petition regarding the recording of the speech but there is an averment that at roza and zillanabad, the respondent used objectionable language during those speeches amounting to influencing the electorates. The statement recorded cither side of the cassette was transcribed both in urdu and english language. For the purpose of identification, this transcribing statement is to be marked as court exhibits. The transcript in urdu language i. e. , on 'a' side is marked as Ex. C. 2 and its english translation is marked as Ex. C. 3. Similarly, the transcript in urdu language i. e. , on 'b' side is marked as Ex. C. 4 and the english translation of the same is marked Ex. C. 5. ( 43 ) IN Ex. C. 3, some of the salient features, which according to the petitioner,influencing the electorates, are as follows: "friends, today, in this city there are many problems before us, one problem was of borewells for water, when 55 to 56 borewells were sanctioned, you ask the then d. c. m. l. a. of this place at that time recommended for 35 borewells and said "borewells" should be on my recommendation. " in that he has not recom- mended a single borewell for any muslim area. Go and ask at muslim sangh and taj nagar people, to whom he (mla) had asked that "whether you have castcd your votes in my favour then why should I recommend for borewells. ". . . . . our youth league and other colleagues have given some quotations, which arc called as saying, in "bahmani" pertaining to our Ex. M. l. a. to whom peoples of gulbarga had elected, we said one among them is that when a muslim approached him for getting a signature on passport he said "i have been not elected from your votes", that is why I will not sign on your passport form". M. l. a. to whom peoples of gulbarga had elected, we said one among them is that when a muslim approached him for getting a signature on passport he said "i have been not elected from your votes", that is why I will not sign on your passport form". A person who is wearing the glasses of communal ism who had not signed your passport form, who had not recommended for borcwells to your localities. Then how such a person can enter in your mohalla and ask for your votes. I can show you his written recommendation with date, which he has recommended as an mla of this place. Go and see one of his colleague who was the chairman of city improvement board had demolised 6-7 houses. . . . . then those peoples approached me, I said them that quamarul islam is not here at gulbarga to help the impotents go and sit in the house by wearing bangles. In this democracy who has got guts to dismantle the houses constructed by the earnings of your hard work, you were silent, now you are saying qumar saheb houses arc dismantled. I say, whoever comes to dismantle to your houses, burn their jeeps and out their hands. . . . . quamarul islam does not desire to contest elections every time. It is a truth, but there is one thing which forces me, it is your love and affection with me. Because first time you had cast 18,000 votes in my favour and I won the election. Muslim league won the election a respect and honour was brought to the sabz hilali parcham (green flag with a moon holy for muslims) hoisted by you at gulbarga, after representation of five years, again you peoples conferred your love and affection to me, to a greater extent by casting more than 25,000 votes in my favour in 1983 election. But it was the gods will that inspite of victory of the unity of the muslim league. Victory of our organisation, there was a defeat for mla. It was the decision of our luck, it was the decision of allah (god ). . . . In 1983 also muslim of this place liked and loves us. Again we proceeded; almighty gave us power in 1984. Victory of our organisation, there was a defeat for mla. It was the decision of our luck, it was the decision of allah (god ). . . . In 1983 also muslim of this place liked and loves us. Again we proceeded; almighty gave us power in 1984. Again elections were conducted in the year 1985, again the religious provocation and islamic faith (josh-e-imani) of muslims developed and I got double votes that is from 18 to 25 to 35,000 votes of the muslim league candidate, inspite of this muslim league was defeated with minimum votes,___after my defeat, in this same jeelanabadlhad said that "innallahu mohassaberein" (god is with those who have got patience) have patience allah (god) will give you the reward for your patience and you have seen that, whether we won or defeated. . . . I swear in the name of allah (god) that, in 1985 if I would have got less than 25,000 votes instead of 37,0001 would not have participated in any election. . . . . quamarul islam will remain in the party and work for it, because quamarul islam muslim league and its workers have decided that they will live under the shadow of this sabs hilali percham (green flag with a moon mark on it which is wholly for muslims) and if they expired, they will go to the burial ground under the shadow of this flag. For the greatness of this flag, for the glory of this party (jamat) and for your unity; today you have to show your unity. . . . . if you want to regain the representation given by allah (god) to you people in the assembly, from 1978 to 1983 you have to cast your votes to muslim league, you have to show the unity. . . . I remember the speech of Sri Md. Ismail Saheb the founder of muslim league, in the parliament and pandith jawaharlal nehru had said that, muslim league is a dead horse, muslim league will be thrown into arabian ocean. On that occasion qayad-e-millath (leader of islamic community) ismail saheb had said that, so long as even a single muslim who read "kalma-e-haq" exists in India muslim league cannot be removed from here. " ( 44 ) THE excerption in 'b' side Ex. On that occasion qayad-e-millath (leader of islamic community) ismail saheb had said that, so long as even a single muslim who read "kalma-e-haq" exists in India muslim league cannot be removed from here. " ( 44 ) THE excerption in 'b' side Ex. C. 5 reads as follows:"people say that muslim league is communal law, it has become too old one. It is possible to deceive the people once or twice. But not always. One who serv. es public and works for them, public cannot forget their services. Some people get victory one or two times in the name of communalism and by spreading communal hatredness. . . . . so this, his slave, the slave of akhai namdar mohamed mustafa sallulla-o-sallam and who have faith in him, and he came for the entire humanity akhai namdar was made rahmatul-ul-al-ameen and sent "quran" (holy book of islam) is not meant only for muslims but it is all for human beings and it serves all human beings. It is to be described that when muslim league got representation in the assembly from 1978-83 how this servant had served you in the assembly as a representative of muslim league. . . . . When we got power, we ruled on the basis of Justice because out religion itself teaches Justice and we have done what we thought was. Today, I have to bring few facts to your notice, it is to be stated, because the parties and candidates in the election, their characters today is before you. . . . . i need not tell you about other candidates, just like filling up the blanks cong. (i) veerendra patil has completed. You find out who is the muslim in the city to become a candidate against muslim league because, that is why, senior persons said that if really congress has got sympathy for muslims, it should have given ticket to a muslim from any taluka place. . . . Ticket should be given to such a person who should divide your unity and should misguide and provoke you. . . . This party is the "sabz-hilali parcham". This party is of your unity. . . . Today muslim league is the field. . . . Ticket should be given to such a person who should divide your unity and should misguide and provoke you. . . . This party is the "sabz-hilali parcham". This party is of your unity. . . . Today muslim league is the field. Muslim league is contesting the elections, then before us is the previous government and minister of that government and that to which minister, labour minister, what opportunity would have been better than this for a mazdoor (labour) that he became an mla and minister of labour what that minister did. He used the problem of msk mills problem of services of poor labours and the problem of their livelihood, as a source for shining his politics. Various "natakas" (stage plays) were conducted hunger strikes were conducted and one day whistle was also given it was said that all of them will get jobs at msk mills. But the card colours of 309 permanent employees were changed and made them temporary. From that day they become worst than those who were temporary system. . . . If the government does not permit us to construct the houses in our own city and on our own plot that government has no right to rule. Janata government made a law and increased the n. a. fees 400 times, it was raised from Rs. 1,400/- per acre to Rs. 8,000/- per acre and the process was made so complicated that a poor person after purchasing a plot has to make its n. a. clearance from city improvement board and approval from town planning is required, to obtain permission for construction of house from municipality. . . . By the grace of allah (god) when you give us powers in corporation, first thing we had done was that, a resolution was passed in the corporation to regularise the unauthorisedly constructed houses, one room, two rooms, four rooms, it was not only put on the notice board of the corporation, and the same was also announced on mike that whoever wants to regularise their unauthorisedly constructed houses they can do so by paying a nominal penalty. If the penalty is Rs. 1,200/- or Rs. 1,500/- and it is not possible to pay it at a time, it will be accepted in instalments and your houses will be regularised. . . . . . If the penalty is Rs. 1,200/- or Rs. 1,500/- and it is not possible to pay it at a time, it will be accepted in instalments and your houses will be regularised. . . . . . as a representative of peoples mla of this place should have welcomed it happily. Instead of that, a pain started in the stomach of kanta he was not sitting constantly in one place, he was feeling very much inconveniency because yadulla colony was going to be regularised gesudaraz colony going to be regularised, ramji nagar, sanjivanagar, rajivnagar, shivajinagarand bilalabad were going to be regularised. How it was possible for kanta saheb to sit silent. . . . Whether he has got a right to approach you for your votes, who will vote to such a person, who has not got any respect for your feelings. . . . . kanta saheb tried his level best, but by the grace of allah (the almighty) more than 50% houses are already regularised. Few remain but see the work of god, when ramakrishna hegde when on "pada yatra" (approach by walking) in his basavanagudi constituency people approached him for regularisation of their houses, there were also thousands together houses, the chief minister understood it, you have seen that bangalore corporation have also followed the same step as done by gulbarga corporation. . . . . go and see among the persons who have constructed houses many are cart pillars, and hammals (coolies) of the gunj. Among them many are the persons of "milli ittehad" (unity of islamic community ). If you go on the right side of the ring road there are middle class government servants, and there is no big house constructed by a wealthy persons. But purchase plots worth Rs. 10,000/-, 4,000/-, 5,000/- and 2,000/- and constructed a room with bricks or with mud according-to their capacity wherein husband wife and children were living. They acted beyond their powers, after sitting on chair. There are some powers with certain legal limits. But they acted beyond their powers and they issued acquisition notice. It is wonderful that 6-7 houses were demolished therein the presence of tahsildar, in the presence of the police and the corporation staff. A wonderful situation created, people asked me quamar saheb our houses were destroyed I said quamarul islam has not supported the "impotents" at any time. But they acted beyond their powers and they issued acquisition notice. It is wonderful that 6-7 houses were demolished therein the presence of tahsildar, in the presence of the police and the corporation staff. A wonderful situation created, people asked me quamar saheb our houses were destroyed I said quamarul islam has not supported the "impotents" at any time. If you want to live in this world be stranger and courageous. Those people who think that if we fell on the feet of the person before us. We will treat us with love, it is a wrong thought, if you fell on his feet, he will kick you. If you catch his neck and ask for your rights then he will say that please come my brother sit here, drink this juice. Now the situation of this world is quite different. Here new chairman had tried to show that I am a very big (influencive) person. I saw that notice was from city improvement board which is not empowered to acquire the land. Only the sub-divisional magistrate, assistant commissioners is authorised to issue notices for land acquisition, next day I went to the chamber of jyothi ramalingam, d. c. with 5-6 hundred residents of that locality who are gathered there. I said district magistrate saheb a wonderful terror has been created, one chairman, who does not have any authority to acquire the lands, had issued such a notice by his power, on his backing is a minister who had visited their in his car, before the houses were demolished who were those persons who always used to talk about the wages of mazdoors (labours) but destroyed the houses of those labours. Jyothi ramalingam was in a peculiar condition he said "what is this nonsence going on" I said. "it is going on under your very nose". D. c. wrote a letter to secretary to government. He was very angry. I said there is a big planning behind it. " ( 45 ) THE petitioner, gave the particulars of publications made in bahmani news,in the election petition under material particulars. Initially, the petitioner has referred to the publications dated 1-11-1989, 2-11-1989, 3-11-1989, 5-11-1989, 8-11-1989, 14-11-1989 and 15-11-1989. According to the petitioner, these publications directly interfered with the electorates of gulbarga assembly constituency and the convenor of myl (Mr. Pasha) was equally contributing to these publications. Initially, the petitioner has referred to the publications dated 1-11-1989, 2-11-1989, 3-11-1989, 5-11-1989, 8-11-1989, 14-11-1989 and 15-11-1989. According to the petitioner, these publications directly interfered with the electorates of gulbarga assembly constituency and the convenor of myl (Mr. Pasha) was equally contributing to these publications. A reference was also made on the speeches made by the respondent offending the religious feeling of the community to bring rift between the other communities with muslims. The excerpt of speech was also shown at para 11 of the petition. Since the petitioner was able to lay his hands to some of the newspapers mentioned above; on his application, summon was sent to the editor of bahamani news to bring the remaining newspaper and to give evidence. As the order sheet disclose that P. W. 4 was summoned with very great deal, the progress was also affected as he was not able to bring the documents directed in the summons. ( 46 ) THIS witness (p. w. 4) is a printer, publisher and editor of bahmani news and he expressed his inability to bring the complete newspaper required by the petitioner. According to him, he is not maintaining the original reports, on the basis of which, he printed some news and it is also not available with him. According to him, this newspaper (bahmani news) was not regularly published and only 4 to 5 days in a month it used to be published. According to this witness, the publication of this paper was only about 4 to 5 days during November 1989. In fact, he went to the extent of telling that all the advertisements printed in his newspaper were given by iuml and he do not remember the name of the person who gave these advertisements for publication. He has also stated of having written some editorials on the basis of speeches made by the respondent which were furnished by his staff reporter one Mr. Mohd. Shah feroz but he has not maintained the copies of the reports submitted by his staff reporter. On this unwillingness attitude of this witness, I had to appreciate the gist of these publications as to how they have interfered with the election of the petitioner and whether they are the bonafide publications. Mohd. Shah feroz but he has not maintained the copies of the reports submitted by his staff reporter. On this unwillingness attitude of this witness, I had to appreciate the gist of these publications as to how they have interfered with the election of the petitioner and whether they are the bonafide publications. Here is a circumstances where the elected candidate raised his hands with regard to these publications, the editor gives an evasive reply and there is an attempt to exclude Mr. Pasha as having any connection with these publications. I had the benefit of looking into these advertisements and editorials published in bahmani news from 1-11-1989 to 24-11-1989 continuously except the newspapers dated 6-11-1989, 13-11-1989 and 20-11-1989. In addition to these newspapers, the petitioner has produced 'iqan' a weekly as Ex. P. 42 to Ex. P. 47; rehnuma-e-deccan, Ex. P. 245 to Ex. P. 250; and siasat a daily newspaper to corroborate that these publications were made in all these newspapers in connection with the election. Though these editorials and advertisements are voluminous in nature, atleast, it is necessary to look into the publications made in bahmani news. P. w. 4, the editor, has not disputed that these publications were made by him. We have the evidence of P. W. 4 and P. W. 5 which has been further corroborated in the evidence of the petitioner. P. w. 4 was showing reluctance whenever the question was relating to establish the link of this publication with the respondent. However, his contention that he used to publish this newspaper only 3 to 4 days in a month is found to be false. His tendency of not maintaining the manuscript of these advertisements, report of his staff reporter and the small circulation of this newspaper have not been established and rendered a doubtful character of this witness in not coming with truth. In fact, I had the opportunity of observing the demeanour of this witness during his evidence. ( 47 ) P. W. 5 abrar razvi, a witness for the petitioner has given a detailed evidence regarding these publications and the effect of this publication on voters of the said constituency. It is relevant to note the gist of these publications. The religious sign alleged by the petitioner is dealt with separately: (ex. ( 47 ) P. W. 5 abrar razvi, a witness for the petitioner has given a detailed evidence regarding these publications and the effect of this publication on voters of the said constituency. It is relevant to note the gist of these publications. The religious sign alleged by the petitioner is dealt with separately: (ex. P. 189, dated 1-11-1989 reads:) "recollect your memory before voting; that you might have come across to hear this sentence: "i will not sign on your passport forms because, I have been elected only on hindu votes, you go to him to whom you have voted. " now your, election decision is definitely in favour of muslim unity. " (ex. P. 190, dated 2-11-1989 reads:) "can you vote such party, its chief minister wanted to impose restrictions on the "azan" (means. . . Call for prayer) and he is also intending to do so. " certainly your election decision will be infavour of muslim unity. " (ex. P. 191, dated 3-11-1989 reads:) "who is the person not willing to regularise his houses. . . . . who will vote that party person, who had created obstacles to regularise the houses by exhibiting the communal feelings. " certainly this time your election decision is in favour of muslim unit. " (ex. P. 192, dated 5-11-1989 reads:) "person must have links with the religion without that he is nothing "as the waves in the river, and out of river nothing". Your utmost power should be used to strengthen muslim unity. " (ex. P. 193, dated 8-11-1989 reads:) "do you like to partition the city in two parts, for representing only one community which is being represented since last six years by a particular person; should he elect again? Certainly this time you will elect your own representative in assembly. " issued by Indian union muslim league" (ex. P. 194, dated 14-11-1989 reads:) "it is the voice of every muslaman, no babari masjid no vote" issued by muslim youth league, gulbarga. " (ex. P. 195, dated 15-11-1989 reads:) musalman is just like a wall. His every part of the body is supporting with each other. You create a history of muslim unity with full support of your own and establish your particular representative in assembly. " issued by iuml gulbarga. (ex. " (ex. P. 195, dated 15-11-1989 reads:) musalman is just like a wall. His every part of the body is supporting with each other. You create a history of muslim unity with full support of your own and establish your particular representative in assembly. " issued by iuml gulbarga. (ex. P. 196, dated 7-11-1989 reads:) vote and elect al haj quamarul islam tiger of Karnataka (sher-e-karnataka) candidate of Indian union muslim league and general secretary, Karnataka muslim league to show your muslim community (milli) unity for success. Issued by iuml. (ex. P. 200, dated 16-11-1989 reads:) slogan of quamarul islam "either rajiv or raja, no one is a well wisher of muslims. Gulbarga: 15th November (staff reporter): all haj quamarul islam general secretary, Karnataka state muslim league contesting from gulbarga constituency as muslim league candidate strongly appealed to the muslims that they should be careful of bad elements and 'munafikhat'. During the election period they (muslims) should apply their political sense just not to hear slogans and take in promises they should not become passionate. Last night quamarul islam was addressing the muslim league first election, large gathering meeting at muslim chowk, further he added that some professional (reshawara) speakers whose speeches are good for listen but it would curtail the realities. The muslim league leader blaming the cong. (i) and opposition parties said that neither rajiv nor raja, hegde or bommai none is a well wisher of muslims. The leaders of this country who are speaking about democracy and fair politics have involved their hands "khoon se rangiya have hain". The muslims tasted all these leaders but they wounded (betrayed) them (muslims) Mr. Quamarul islam said since independent the cong. (i) and opposition parties (khataranak majak ). In the name of prosperity and welfare muslims were made week and down trodden at every level by systematic conspiracies. Quamarul islam stated in detail and clarified that muslim leaders are divided at national level due to antimuslims policy by the 'sarkari muslims' and you should not allow them in your (muslim) line. He has given examples of islamic history how these peoples have damaged 'islam' by the 'munafikhat' and 'inteshar'. He has pressed the muslims to maintain historic unity and asked them to defeat the 'munafikhana sajeshan' by the leaders and workers. He has given examples of islamic history how these peoples have damaged 'islam' by the 'munafikhat' and 'inteshar'. He has pressed the muslims to maintain historic unity and asked them to defeat the 'munafikhana sajeshan' by the leaders and workers. Quamarul islam further addressed that muslim league is the only party after the independence of India which has represented fearlessly and boldly the entire problems of the 'millat-e-islamic' in assembly and parliament. Its glorious record of service proves that it is most heart-beaten (dil ki dhadkan) of 'millat-e-islamia' and the sole representative party of muslims. " (ex. P. 201 (c), dated 17-11-1989) reads:"jeelanabad speech the success of muslim league from the gulbarga assembly constituency is essential for all the communities of the city. Addressed by Mr. Quamarul islam and other muslim league leaders in the election meeting at jeelanabad. Gulbarga: 16th November (staff reporter): mr quamarul islam muslim league leader and general secretary, Karnataka state muslim league, contesting candidate from the gulbarga assembly constituency. Pressed the muslims of gulbarga and cast their vote in favour of muslim league in the assembly election on 24th November and to show their muslim (milly) unity to send again their representative in Karnataka assembly. Mr. Quamarul islam addressing a largely attended public meeting of muslim league at jeelanabad, mskmill, continuing his address he said that the success of muslim league is not only essential for the muslim. But also in all the other communities. Further he added that the successful candidate of last two election had divided the city into two parts. The successful candidate had represented a particular community which shows that communalism and narrowmindedness. And he has played the mockery with Constitution and democracy. If any candidate has elected on any community votes should represent the whole constituency and all communities. It is the constitutional duty of the elected candidate to represent all communities. In last two elections elected candidate was representing a particular community. When other communities approached the elected candidate he clearly said that 'i am not elected by your votes'. This is enough to elect the muslim league after getting power in gulbarga municipal corporation has not played such games and never shows favouritism to muslims. The public of gulbarga has come to know about the reality of the mulsim league which is defamed for political benefit. This is enough to elect the muslim league after getting power in gulbarga municipal corporation has not played such games and never shows favouritism to muslims. The public of gulbarga has come to know about the reality of the mulsim league which is defamed for political benefit. Lastly he strongly appealed to the muslims to maintain their historical unity and send again their own representative in the assembly. Mohammed ahmed, khaisar mohamood maniyar (ex-mayors of gulbarga), zahcd abdul sattar, ex-chairman, public works committee, gulbarga corporation also addressed the public meeting. Before addressing the meeting Mr. Quamarul islam, mohd. Mohiuddin pasha, convener muslim youth league shouted the slogans, muslim league zindabad, quamarul islam zindabad, allahau akbar (god is great ). The meeting presided over by zahed ahamed. " (ex. P. 202 (b), dated 18-11-1989 reads)"muslim league is a symbol of self respect and dignity of muslim community (mullat-e-islamia) and its symbol in ladder. Remember your seal shall be only a ladder. " (ex. P. 203 (b), dated 19-11-1989 reads:)"division is death and unity is life historical unity of muslims in historical and spiritual city of gulbarga is the gift of muslim league. Gulbarga muslim league is not the symbol of the unity of muslims only but others also admit that in the last 11 years it has been the guarantor of peace and communal amity in the city. So vote for alhaj quamarul islam, sher-e-kar- nataka on 24th November who is muslim league candidate by putting seal on his election symbol ladder to make him success by big majority so that our unity be retained and city atmosphere be cordial. " (ex. P. 204 (c), dated 21-11-1989 reads:)"a member, muslim youth league, gulbarga, Mr. Shaikh naimuddin of jamat khana bibi masjid mominapura in his statement to a newspaper has insisted on the muslims of the gulbarga that on account of the laying of the foundation of ram mandir in the area of the historical babari masjid and in order to express their anger and sorrow should not vote to congress (i) to power and topple the congress (i), they should not vote the candidate contesting for assembly and parliamentary seats on congress (i) tickets, and that they should vote the torch bearer of the islamic unity the young and dashing muslim leader Mr. Quamarul islam and make him successful with dig majority and this demonstrate their unity. " (ex. Quamarul islam and make him successful with dig majority and this demonstrate their unity. " (ex. P. 204 (d), dated 21-11-1989 reads:)"mr. Quamarul islam was addressing largest gathering of muslim league election public meeting at market roza khurd, naya mohalla, santraswadi, he blamed Mr. S. k. kanta saying that he has divided the city in two parts by representing only one community which shows his communal ism mean mentality and communal feelings. It is shameful on his part that he openly disregarded the Constitution and democratic norms. Mr. Quamarul islam further stated that any candidate elected by the votes of any caste but he will be representative of whole constituency. And without considering community, religion and caste, it is his responsibility to represent all. Muslim league has not only for assembly and even in corporation also fulfilled this responsibility. But it is regretted that when muslims approached to Mr. S. k. kanta for getting signature on passport forms, he said that "i have been elected on hindu votes you have voted to quamarul islam so you go him. " in case of borewells also he has shown his communal feelings. But quamarul has never done so. Today hindus have realised this fact. Mr. Quamarul islam further stated that when muslim league was in power in corporation because of this Mr. S. k. kanta has obstructed and created problems forgetting all kinds of aid from government to corporation. " ( 48 ) A great deal of this case was devoted to prove that the respondent has appealed the voters in the name of the religion. He has also freely used the religious symbol to influence the muslim voters. ( 49 ) THE words such as 'milli', 'millad islamic', 'sallallam-allai-o-sallam' and'firkaparsti' and the symbols 'swad' and 'half-swad' were used to make a reference to prophet mohammed paigamber thereby to influence the electorates in the name of religion. The parties have relied on various dictionaries to prove this aspect. Great deal of oral evidence is also devoted to prove these religious signs. ( 50 ) I have excerpted the publications made in bahmani news where some of the quaranic phrases were freely used. The parties have relied on various dictionaries to prove this aspect. Great deal of oral evidence is also devoted to prove these religious signs. ( 50 ) I have excerpted the publications made in bahmani news where some of the quaranic phrases were freely used. On a further reading of this publication, it is pointed out that the petitioner is responsible for causing hardship to the muslim community by refusing to sign on the passports, preventing the digging of borewells and demolishing the unauthorised constructions made by muslim community. One more reference is made to Ex. P. 195 (d), which according to the evidence, is a symbol called 'half-swad' which refers to a nabhi and specially to prophet mohd. Paigambar. The symbols 'swad' and 'half-swad' are relevant to note: 'swad' 'half-swad' ( 51 ) IT is pointed out that whenever muslims referred to prophet md. Paigambar,they say sallallam-allai-o-sallain' to mean 'peace be upon him'. In order to shorten the same, the alphabet 'swad' is being used and to shorten the entire phrase, 'half-swad' is used. ( 52 ) THE word 'milli' and 'millat' gained more importance in this case as both the parties have confined a great deal of evidence on this aspect of the matter. P. W. 4 the editor of bahmani news was also examined on these religious symbols, i. e. , milli, millad, milli ithe hadko, majbut karo and the word 'swad'. The words milli and milli ittehad shown to be referred to strengthen the muslim community, muslim unity; P. W. 4 has confined to say in his cross-examination that english translation of all these exhibits are not correctly made, though, he made an appeal before this court that except urdu language, he does not know any other languages in this earth. Therefore, this court has took the assistance of one Sri Rawoof Ansari, a learned Advocate from gulbarga. So his evidence that milli means 'national' cannot be accepted at all. P. w. 5 a witness on behalf of the petitioner who was educated upto puc ii year and had the knowledge of urdu, arabic and hindi, has placed some evidence on these points. So his evidence that milli means 'national' cannot be accepted at all. P. w. 5 a witness on behalf of the petitioner who was educated upto puc ii year and had the knowledge of urdu, arabic and hindi, has placed some evidence on these points. A continuous reading of his evidence shows that what is the literal translations of these publications and how the respondent has taken this opportunity to make use of these words and has made an effort to absolve himself from any allegations that will be made in the future. This witness says: 'milli' means religious and ittehad means unity i. e. , religious unity. He has stated that the. Name of prophet mohd. Paigambar was used by the respondent to make the. People to vote the muslim candidates. The symbol 'half-swad' has got a religious significance and this will be respected with highest esteem by mohameddans. The muslim community in the locality held some group meetings and resolved that there is a direction by prophet that they should cast their votes to mohameddans only. This witness also referred to milad-un-nabi function held during 1989 to celebrate the birth-day of prophet mohd. Paigambar where the religious languages were used freely to the muslim voters. This witness also referred to the word 'sub-parcham illai' which refers to a green flag which is freely used by the respondent which will be displayed on the dargas and this symbol is looked by the muslims with great respect due to its religious significance. ( 53 ) SEVERAL dictionaries have been pressed into service to resolve these word sliterally. ( 54 ) THE respondent states that the word 'half-swad' does not contain any religious symbol but it is used only when the documents or accounts are corrected i. e. , to mean 'sahee'. He has also stated that the word 'milli' means national. He relied on some of the dictionaries written by renowned scholars. Ex. R. 12 is a standard english-urdu dictionary written by Dr. Abdul haq, where at page No. 750, the word 'national' an english word is translated as milli, quami, sariquamka. Ex. R. 13 is a dictionary by the same author from urdu to english. At page No. 730, the word 'milli' is given the meaning as 'national'. The word 'millat' at page 728 shows the meaning as religion, belief, faith, nation. Abdul haq, where at page No. 750, the word 'national' an english word is translated as milli, quami, sariquamka. Ex. R. 13 is a dictionary by the same author from urdu to english. At page No. 730, the word 'milli' is given the meaning as 'national'. The word 'millat' at page 728 shows the meaning as religion, belief, faith, nation. In the same dictionary, the meaning of the word 'swad' is given as an abbreviation for the word 'sahee' which according to this witness, is used on documents or accounts to indicate that they are in order [ex. R. 13 (c)]. Ex. R. 14 is a persian english dictionary written by steingass, 5th impression, 1963. At page 1311, in Ex. R. 14 (a), the word 'milli', millia, milliya is shown. The meaning in english is shown as popular, national. Ex. R. 15 is a dictionary written by ferozasons, a urdu-english dictionary. At page 730 [ex. R. 15 (a)], the meaning of milli is shown as 'national' and at page 476 the word 'half-swad' is given as the meaning as 'abbreviation' to the word 'sahee'. Ex. R. 16 is the larger english persian dictionary written by an english author s. Haim. At page 250 of the same, the meaning of the word 'national' is shown as 'mellee' [ex. R. 16 (a)]. Ex. R. 17 is a urdu-english dictionary written by makdhoom sabri. At page 662 [ex. R. 17 (a)], the meaning of the word millat is given as 'national', faith, belief in religion. The above dictionaries are relied on by the respondent to prove his contentions. Ex p. 218 is a magazine published on the occasion of id-milad of october, 1989 which was edited by p. W. 4. This function was specifically fixed to celebrate the birth-day of prophet mohd. Paigambar. In this magazine, half-swad is used which is an indicative of the fact that it is to mean for celebrating the birth-day of prophet mohd. Paigambar. The word sallallam-allai-o-sallam was also used in this exhibit which is a reference to prophet mohd. Paigambar. Half-swad is also used to shorten the word 'sallallam-ailai-o-sallam'. It is brought out in the evidence that according to the islam religion there are more than one lakh nabhis (nabhi means paigambars ). ( 55 ) R. W. 1 has stated that the word subj-parcham-illali means a green-flag witha moon which will be hoisted on some dargas. Paigambar. Half-swad is also used to shorten the word 'sallallam-ailai-o-sallam'. It is brought out in the evidence that according to the islam religion there are more than one lakh nabhis (nabhi means paigambars ). ( 55 ) R. W. 1 has stated that the word subj-parcham-illali means a green-flag witha moon which will be hoisted on some dargas. According to him, there is no word in urdu language called half-swad but there is an alphabet for 'swad'. ( 56 ) A lengthy cross-examination was made to r. W. 1 and r. w. 2 by the learned Advocate for the petitioner to set right this controversy. It is proved that the dictionaries Ex. R. 8 (ex. P. 221), Ex. R. 13 and Ex. R. 15 are written by one and the same author, but with different wrappers being used. The word 'milli' understood to be in arabic language as national, in the above dictionaries. The word 'millat' in arabic language gives the meaning as a religion, belief, faith, nation and in hindi it gives the meaning as society and friendship. ( 57 ) EX. P. 222 is a 20th century urdu-english dictionary with copious graphic illustrations released by anjum book depot, New Delhi. At page 412, the word 'swad' and the printings of 'swad' is shown as a symbol which is similar to the symbol used in Ex. P. 195 (d ). It is stated in this dictionary that in colloquial it is called 'swad'-which is a 20th letter of urdu alphabet used only in the words of arabic extraction. The meaning given to this word in one meaning is the abbreviation of 'sahih' which means o. k. /okay; in another meaning it is the abbreviation of sallallahu 'alai-he va-sallam' written after the holy prophet's name, i. e. , peace be on him [ex. P. 222 (a)]. ( 58 ) AT page 605, the word 'millat' is given the meaning in noun form as followers of a faith; following (of) muslim nation and the word 'milli' in (adj.) Is shown as national of muslim nation (a) [ex. P. 222 (d)]. ( 59 ) IN Ex. R. 17, the concise twentieth century dictionary, a urdu-english dictionary, the meaning of the word millat in arabic and in noun form is given the meaning as nation, faith, belief in religion. ( 60 ) OUT of these dictionaries the meaning given in Ex. P. 222 (d)]. ( 59 ) IN Ex. R. 17, the concise twentieth century dictionary, a urdu-english dictionary, the meaning of the word millat in arabic and in noun form is given the meaning as nation, faith, belief in religion. ( 60 ) OUT of these dictionaries the meaning given in Ex. P. 22 is more relevant tonote as it derives to the meaning alleged by the petitioner. Even in Ex. R. 8 (ex. P. 222), at Ex. P. 219 and at Ex. P. 220 at page No. 728, it relates to religion, belief, faith and society. It is established beyond doubt that the word 'milli' is derived from arabic word. The word 'milli' is used in majority of the advertisement in bahamani news. Though some benefit of doubt is to be given to the meaning of 'milli', the swad and half-swad are no doubt signifies religious symbols. This reasoning is also fortified from the fact that in Ex. P. 265 a urdu-dictionary written by molvi ferozuddin and at page 856, the symbol 'swad' is used [ex. P. 265 (b)]. In between two lines the symbol half-swad is used [ex. P. 265 (c)]. At page 1332, the word millad-un-nabi is used Ex. P. 265 (h) where the symbol 'half-swad' is used. ( 61 ) SINCE it is held that ml and iuml are the two faces of the same coin, now the link that the respondent is responsible for these publications and the publisher acted as his agent and the respondent consented to these publications is to be established. ( 62 ) R. W. 1 the election agent who was appointed a day prior to election has statedin his evidence (page 16 of his deposition) that he started election campaign of the first respondent only after he was appointed as an election agent. He do not know what was the campaign before his appointment as an election agent and how they were conducted. He do not know the name of the person who conducted campaign before his appointment. He do not know if anybody gave any advertisements in respect of this election. He do not remember whether he ordered for printing of wall-posters after he was appointed as an election agent. ( 63 ) THE above facts bears great significance in this election. He do not know the name of the person who conducted campaign before his appointment. He do not know if anybody gave any advertisements in respect of this election. He do not remember whether he ordered for printing of wall-posters after he was appointed as an election agent. ( 63 ) THE above facts bears great significance in this election. Since his appointment as an election agent i. e. , from 23-11-1989, there should have been some other person or persons to help the respondent in his election campaign. Though mohammed mohiuddin pasha's participation is totally denied by r. w. 1 and r. w. 2 the totality of evidence proved his participation as the secretary of myl. P. W. 4 the editor of bahamani news who has published the advertisements and covered the election campaign speeches, throws his hands high in the AIR to say that he do not remember the name of the person who gave advertisement. He proceeded to say further that he has not maintained the notes of reports given by his staff reporter on the basis of which he published the reports and wrote editorials. It is proved beyond reasonable doubt that he has closely associated with respondent's election campaign which facts are proved by his very conduct. He has also closely associated with milad-un-nabi celebrations. Respondent has, admittedly, not denied any of the publications made, speeches published by giving a statement that what are published is not at his consent or direction. In fact, the petitioner relied on the evidence of p. W. 1, p. W. 5 that the respondent gave speeches at roza and jilanabad areas. These facts are corroborated in the tape-recorded cassette-ex. P. 7. The fact that these persons were present are not challenged in the cross-examination. There are many cases where speeches have been allowed to be proved in their entirety and have been considered by the courts. For example this was done in Ziauddin Bukhari v Brij Mohan Mehra, AIR 1975 SC 1788 and Kanti Prasad Yagnik v Purushotham das patel, AIR 1969 SC 85. ( 64 ) P. W. 5 who heard the speech has stated that the trend of these speeches promoted hatred and biased the voters. For example this was done in Ziauddin Bukhari v Brij Mohan Mehra, AIR 1975 SC 1788 and Kanti Prasad Yagnik v Purushotham das patel, AIR 1969 SC 85. ( 64 ) P. W. 5 who heard the speech has stated that the trend of these speeches promoted hatred and biased the voters. ( 65 ) WHEN P. W. 4 fails to give details regarding the name of the person who gave the advertisement, and the source of his reports for publishing the speeches and writing editorials, the failure on the part of the respondent to deny these facts publicly or by any publication, implies conscious assent that there were ad-idem as held in Charanlal Salve v Giani zail singh, AIR 1984 SC 309 . In D. P. Mishra v Kamalnayarsharma, AIR 1971 SC 856 and in H. C. Mohanty v Surendra mohanty, AIR 1976 SC 47, it is pointed out that, consent or agency could not be held from close relationship unless there was evidence to prove that the person publishing or writing the editorial was authorised by the elected candidate or he had undertaken to be responsible for all the publications; no consent could be inferred. ( 66 ) IN Jaukshimha v Mahant Ram Kishore Das, AIR 1972 SC 359 the consent of the candidate was inferred upon the evidence. Some of the advertisements containing corrupt practices are in the name of myl. The petitioner, to show the connection of myl and its convenor, mohammed mohiuddin pasha with the ml, iuml and the respondent No. 2 has adduced the evidence of the witnesses: (a) P. W. 1 the circle inspector of police who was closely in watch of this election has deposed at page No. 2 that mohiuddin pasha is the convenor of myl and he was working for respondent in the election. This statement is not challenged in the cross-examination; (b) P. W. 5 in his deposition stated the active participation of mohiuddin pasha in the election campaign and his involvement as per Ex. P. 213 and Ex. P. 214 on the polling day. This fact is not challenged in the cross-examination; (c) P. W. 6 says at page 8 of his deposition that mohiuddin pasha spoke in the election meeting at roza market which is corroborated by Ex. P. 204 (c); (d) mohiuddin pasha was appointed as counting agent vide Ex. P. 213 and Ex. P. 214 on the polling day. This fact is not challenged in the cross-examination; (c) P. W. 6 says at page 8 of his deposition that mohiuddin pasha spoke in the election meeting at roza market which is corroborated by Ex. P. 204 (c); (d) mohiuddin pasha was appointed as counting agent vide Ex. P. 21; (e) P. W. 4 says that Ex. P. 194 (b) and Ex. P. 195 (b) are the advertisements given by myl. He further says mohiuddin pasha gave the advertisements as per Ex. P. 209 which is not challenged in this petition. " ( 67 ) EVEN the evidence that the voice in Ex. P. 7 is the voice of the respondent is not challenged in the cross-examination. ( 68 ) SRI Bapu Heddur Shetty, learned counsel for the petitioner pointed out that non-cross-examination of the witness on material points by the adversary amounted to admission of the said facts. In a. g. carpiet va. y. derderian, AIR 1961 Calcutta 359 the principle laid down is that wherever the opponent has declined to avail himself of the opportunity to put his essential and material case in the cross-examination, it must follow that he believed the testimony given could not be disputed at all. This is not merely a technical Rule of evidence. It is a Rule of essential justice. It serves to prevent surprise at trial and miscarriage of justice, because, it gives notice to the other side of the actual case that is going to be made when the turn of the party on whose behalf the cross-examination is being made comes to give and lead evidence by producing witnesses. This much a counsel is bound to do when cross-examining that he must put to each of his opponents witness in turn, so much of his own case as concerns that particular witness or in which that witness had any share. ( 69 ) SRI Mohandas Hegde, learned counsel for the elected candidate, submitted that the consent of the respondent should not be attributed for the publications so far discussed in the absence of any evidence. Reference was made to sarnant 's case (ibid ). Atre who had acted as an agent of george fernandez, was the editor of the newspaper 'maratha'. Reference was made to sarnant 's case (ibid ). Atre who had acted as an agent of george fernandez, was the editor of the newspaper 'maratha'. The Supreme Court said that if the same news appeared in different newspapers it could not be said that each editor had acted as an agent for fernandez and, by parity of reasoning a line had to be drawn between the acts of atre in running his newspaper and hi acting as fernandez's agent. Therefore, the acts of atre which related to his function as editor could not be attributed to fernandez to make the latter liable. Supreme court insisted on evidence. Otherwise, there had to be some reasonable evidence from which an inference could be made of the meeting of minds as to these publications or atleast a tacit approval of the general conduct of the agent. ( 70 ) THE documents disclose that the permission for the use of loud-speakers from the day of election campaign were made before the police authorities signed by mahmood ahmed on behalf of the respondent. R. w. 4 and Mr. Pasha attended several meetings addressed by the respondent. They also spoke in some election meetings. P. w. 4 gave unsatisfactory evidence in disproving the link of the respondent to these publications. The necessary damage has been done with calculated precision to influence the election prospects of the respondent. The respondent is also not successful in showing his ignorance about these advertisements. He is a resident of gulbarga; the bahamani news is a leading urdu daily newspaper of that place. He also shown his ignorance about these publications. In fact, the respondent denied even a photo of him printed in the magazine Ex. P. 218 on the ground it is a concocted-photo. The principle laid down by the Supreme Court in t. k. gangi reddy's case (ibid) applies to the facts of this case. ( 71 ) THE Supreme Court views on the object of sub-sections (3) and (3-a) of Section 123 was expressed in bhukaria's case (ibid) and in Harcharan singh v S. Sajjan singh, AIR 1985 SC 236 . The principle laid down by the Supreme Court in t. k. gangi reddy's case (ibid) applies to the facts of this case. ( 71 ) THE Supreme Court views on the object of sub-sections (3) and (3-a) of Section 123 was expressed in bhukaria's case (ibid) and in Harcharan singh v S. Sajjan singh, AIR 1985 SC 236 . ( 72 ) IN bhukari's case, beg, j. , speaking for the court said:"it seems to us that Section 123, sub-sections (2), (3) and (3-a) were enacted so as to eliminate, from the electoral process, appeals to those divisive factors which a rouse irrational passions that run counter to the basic tenets of our constitution, and, indeed, of any civilised political and social order. Due respect for the religious beliefs and practices, race, creed, culture, and language of other citizens is one of the basis postulates of our democratic system. Under the guise of protecting your own religion, culture, or creed you cannot embark on personal attacks on those of others or whip up low heard instincts and animosities or irrational fears between groups to secure electoral victories. The line has to be drawn by the courts, between what is permissible and what is prohibited, after taking into account the facts and circumstances of each case interpreted in the context in which the statements or acts complained of were made. " ( 73 ) IN 5. Harcharan singh's case (ibid) the Supreme Court said:"the paramount and basis purpose underlying Section 123 (3) of the act is the concept of secural democracy. Section 123 (3) was enacted so as to eliminate from the electoral process appeals to divisive factors such as religion, caste, etc. , which give vent to irrational passions. It is essential that powerful emotions generated by religion should not be permitted to be exhibited during election and that decision and choice of the people are not coloured in any way. Condemnation of electoral campaigns on lines of religion, caste, etc. , is necessarily implicit in the language of Section 123 (3) of the act. Consequently the Section must be so construed as to suppress the mischief and advance the remedy. Legislative history of this Section is important from this point of view. The statement of objects and reasons of the amending Act, 1961, clearly mentions the objects of the amendment. , is necessarily implicit in the language of Section 123 (3) of the act. Consequently the Section must be so construed as to suppress the mischief and advance the remedy. Legislative history of this Section is important from this point of view. The statement of objects and reasons of the amending Act, 1961, clearly mentions the objects of the amendment. It was 'for curbing communal and separatist tendencies in the country. It is proposed to widen the scope of the corrupt practice mentioned in column (3) of Section 123 of 1951 act and to provide for a new corrupt practice'. In order to determine whether certain activities come within the mischief of Section 123 (3), regard must be had to the substance of the matter rather than to the mere form or phraseology. The inhibition of Section 123 (3) should not be permitted to be circumvented indirectly or by circuitous or subtle devices. The court should attach importance to the effect and impact of the acts complained of and always keep in mind the paramount purpose of Section 123 (3), namely, to prevent religious influence from entering the electoral field. The nature and consequence of an act may not appear on its very face but the same can be implied having regard to the language, the context, the status and position of the person issuing the statement, the appearance and known religion of the candidate, the class of persons to whom the statement or act is directed, etc. ( 74 ) IN Jagdev singh Sidhanti v Pranap singh daulta, AIR 1965 SC 183 , the appeal made by the candidate and his agents to vote in his favour on account of his language and to refrain from voting in favour of the other candidate held to be not amounting to corrupt practice within sub-section (3 ). Steps to conserve the language held to be not a corrupt practice. Steps to conserve the language held to be not a corrupt practice. ( 75 ) THE decision of this case was explained by the Supreme Court in Kultar singh v Mukhtiar singh, AIR 1965 SC 141 , thus:"political issues which formed the subject-matter of controversies at election meetings might indirectly and incidentally introduce considerations of language or religion but, in deciding the question as to whether a corrupt practice had been committed under sub-section (3) case had to be taken to consider the impugned speech or appeal carefully and in the light of the relevant political controversy. The Supreme Court noted that a corrupt practice'under sub-section (3) could be committed by a candidate by appealing to voters to vote for him on the ground of his religion even though his rival candidate belonged to the same religion. It was well-known that there were several parties in this country which subscribed to different political and economic ideologies but the membership of which was either confined to or predominantly held by members of particular communities or religions. So long as law did not prohibit the formation of such parties and in fact, recognised them for the purposes of election and parliamentary life, it was necessary to remember that an appeal made by the candidate of such parties for votes might, if successful, lead to their election and in an indirect way, might conceivably be influenced by considerations of religion, race, caste, community or language. That is why, in considering the question as to whether a particular appeal made by a candidate fell within the mischief of sub-section (3), courts should not be statute to read into the words used in the appeal anything more than could be attributed to them on a fair and reasonable construction. The effect of a speech or pamphlet on the mind of an ordinary voter could not be ignored. " ( 76 ) THE Madhya Pradesh high court has rendered two judgments which deals with Section 123 (3) and (3-a ). The effect of a speech or pamphlet on the mind of an ordinary voter could not be ignored. " ( 76 ) THE Madhya Pradesh high court has rendered two judgments which deals with Section 123 (3) and (3-a ). In Bhagirath Bilgaiya v Rishabh Kumar, AIR 1964 m. p. 1, it was held that:"where one of the contestants was a jain and the other a sanatan dhanni hindu, the cry that the sanatan dharama was in danger at the hands of the jains, that a sanatan dharmi had, therefore, been set up against a jain and that votes should be cast in his favour to save the sanatan dharma was an appeal on the grounds of religion and community within the meaning of Section 123 (3 ). Further, to tell the hindus that the jains had removed a shiv linga or that they had published a booklet derogatory to the esteem in which ram and sita were held was provoca- tive; it was an attempt to promote tellings of hatred and enmity between jains and sanatan hindus and was a corrupt practice within the meaning of Section 123 (3- a ). "in Basantilal Ratanlal Jain v Umashankar mulji bhai trivedi, AIR 1965 m. p. 94, the Madhya Pradesh high court was concerned with an appeal which exhorted voters to vote for the jan sangh if hinduism was to be saved on the ground that every vote for the congress, whose symbol was a pair of bullocks, would result in sending as many bullocks to the slaughter house which, besides entailing the sin of cow killing for the voters, would also cause complete destruction of the hindu religion. It was held that this was an appeal to vote or refrain from voting on the ground of religion for the furtherance of the prospects of the election of the jan sangh candidate and for prejudicially affecting the election of the congress candidate, which was a corrupt practice. ( 77 ) SRI Mohandas Hegde, learned Advocate for the respondent placing relianceon samanth's case (ibid), azhar hussain's case (ibid), dhirthipakar madanlal agarwal case (ibid), and sapa 's case (ibid) submitted even at this stage, the petition is to be dismissed for lack of material facts and material particulars. This plea was not raised at the earliest point of time nor any issues are framed to examine this question at the threshold. This plea was not raised at the earliest point of time nor any issues are framed to examine this question at the threshold. The respondent raised this plea under I. A. iii for the first time on 3-4-1992; when the petitioner's side closed their evidence. On 10-4-1992, the petitioner has filed objection statement to I. A. iii. Sri Mohandas Hegde, learned Advocate for the first respondent has submitted that I. A. iii is to be considered along with the main petition. In this regard, the observations in Balwan Singh v Lakshmi Narain, AIR 1960 SC 770 are relevant to note. A bench of five judges of the Supreme Court observed:"insistence upon full particulars of corrupt practices is undoubtedly of paramount importance in the trial of an election petition, but if the parties go to trial despite the absence of full particulars of the corrupt practice alleged, and evidence of the contesting parties is led on the plea raised by the petition, the petition cannot thereafter be dismissed of jurisdiction of the tribunal to adjudicate upon the plea in the absence of particulars. The appellate court may be justified in setting aside the judgment of the tribunal if it is satisfied that by reason of the absence of full particulars, material prejudice has resulted; and in considering whether material prejudice has resulted failure to raise and press the objection about the absence of particulars before going to trial must be given due weight. " ( 78 ) AFTER issues were settled, the parties entered into trial with full understanding the ramifications of the findings on the issues framed by the court. Hence it is too late in the day to set the clock back. ( 79 ) I have carefully gone through the publications, advertisements and the speeches made by the respondent by hearing the cassette Ex. P. 7 and comparing with the transcript prepared by the translators and convinced that the respondent has created a net work through which he can commit corrupt practices and at the same time created a situation where it is difficult to prove by ordinary methods. The acts committed squarely falls within the mischief of sub-sections (2), (3), (3-a) and (4) of Section 123 of the act. ( 80 ) THE full text of speech made at roza and zilanabad on 16-11-1989 are reproduced. The acts committed squarely falls within the mischief of sub-sections (2), (3), (3-a) and (4) of Section 123 of the act. ( 80 ) THE full text of speech made at roza and zilanabad on 16-11-1989 are reproduced. Few of the publications made in the bahamani news are excerpted for proper understanding of the allegations. The cassette was produced by P. W. 1, the police officer. At the time of its introduction, it was played for few minutes to enable P. W. 1 to recognise the voice and thereafter the cassette was kept in the safe custody of the court; vide the order of this court dated 16-3-1992, the registrar (judicial), the cassette was played on a record player and it was transcribed in urdu and translated into english. P. w. 5, who has not heard the tape recorded speech before it was transcribed, has stated in his evidence the text of this speech as he heard when respondent spoke in his election speech. This has proved the credibility of this witness. Advertisements in bahamani news regarding the allegations connected to passports; borewells, regularisation of houses, division of city are to be found in the speeches made by the respondent. This corroborative piece of evidence is important in the face of the denial made by P. W. 4 and r. w. 1 and also the respondent. ( 81 ) THE respondent induced or attempted to induce the electorates to believe that by voting the petitioner, they will become an object of divine displeasure. He has threatened the voters to desist from voting to a party which is trying to bring restrictions to religious prayers (azan) vide Ex. P. 190 (b ). This fact is corroborated in the evidence of r. w. 1 in the welcome speech made on milad-un-nabi vide Ex. P. 218. Similarly, Ex. P. 192 (a), Ex. P. 195 (b) and Ex. P. 203 (a) are in the form of religious injunctions invoked on the muslim voters and any violation amounts to invoking the displeasure of god. This amounts to exercising undue influence to deprive the persons to affect their power of free exercise of votes falling under sub-section (2) of Section 123 of the act. ( 82 ) IN all the advertisements the words milli, milli-ittehad were freely used. there is no exception even in the speech of the respondent. This amounts to exercising undue influence to deprive the persons to affect their power of free exercise of votes falling under sub-section (2) of Section 123 of the act. ( 82 ) IN all the advertisements the words milli, milli-ittehad were freely used. there is no exception even in the speech of the respondent. The contention of the respondent that the words used lead to conveying national and national unity found to be incorrect both in the context of the words used and the meaning attached to these words in the dictionaries. In Ex. P. 202 (a) an appeal was made that the ml is the protector of pride of millate islamia, i. e. , muslim community. In Ex. P. 203 (a), it is stated that the unity of muslims is the contribution of ml. The respondent referred himself as a slave of prophet mohammed paigambar. Though on has got right to identify himself to a religion of his belief, but when it is used before the electorate publicly, amounts to influence a particular set of people in the name of religion. In fact in the speeches made at roza and jilanabad, respondent alleged that the petitioner did not sign passport forms, did not get borewells in muslim area and did not help in regularising the unauthorised constructions, because the petitioner claims that he has won by hindu votes. Another significant factor is using religion symbol 'swad' and 'half-swad' to invoke prophet mohammed paigambar to further election prospects. After a great deal of evidence, it is conclusively held that the symbol "swad", "half-swad" sallallah-ul-o-sallam and several terminologies used in Ex. P. 218 signifies the identification of the prophet to the voters; these acts of the respondent falls within the meaning of sub-section (3) of Section 123 of the act. ( 83 ) IF any publication by a candidate or his agents or by any other person with the consent of a candidate or his election agent or any statement of fact which is false and which he either believes to be false or does not believe to be true, in relation to the personal character or conduct of any candidate or in relation to the candidature, or withdrawal of any candidate, being a statement reasonably calculated to prejudice the prospects of that candidate's election amounts to corrupt practice under sub-section (4) of Section 123 of the act. ( 84 ) THE law guarantees freedom of criticism of a political nature during election campaign. The policy followed and envisaged by the adverse party or candidate can be criticised which furthers the voters to decide which policy is needed at that hour. However democracy will be a farce if interested persons are allowed freely to indulge in character assassination during election. The Supreme Court highlighted the principle in guruji shrihwr balirain jivatode v vithalrao and other, AIR 1970 SC 1841 . The summary of the judgment is that, the election law in this country as in england guarantees freedom of criticism of a political nature at the time of election. The freedom of criticism may sometimes be misused, but the advantage gained from free criticism though sometimes it may turn out to be irresponsible in the long run, outweighs the disadvantages. It is in the interests of democracy that such criticism should be allowed. However, democracy will be a farce if interested persons are allowed to freely indulge in character assassination during election. A political party may not be affected by passing winds but a campaign of slander against an individual is likely to create prejudice in the dual purpose of protecting freedom of speech and prevention of malicious attack on the personal character and conduct of rivals. The ingredients of the corrupt practice mentioned in sub-section (4) are (1) the publication by a candidate or his election agent or by any other person with the consent of that candidate of his election agent of any statement (2) which statement is false and which was believed by the candidate to be false or at any rate was not believed by him to be true; (3) the said statement relates to the personal character or conduct of a candidate or is in relation to his candidature or withdrawal; and (4) the same being a statement reasonably calculated to prejudice the prospects of that candidate's election. The burden of proving every one of the ingredients of the corrupt practice alleged is on him who alleges it. ( 85 ) EX. P. 189 (a) contains the allegations that the petitioner refused to sign passport forms of muslims on the ground that he was elected by hindu votes. The burden of proving every one of the ingredients of the corrupt practice alleged is on him who alleges it. ( 85 ) EX. P. 189 (a) contains the allegations that the petitioner refused to sign passport forms of muslims on the ground that he was elected by hindu votes. This contention of the respondent was met by the petitioner by examining P. W. 5 who said that the petitioner has not refused to sign the passport forms. The petitioner has also stated that he has signed about 99% out of 1,500 application forms produced by muslims. This is not challenged. Ex. P. 19 (a) is in respect of demolition of unauthorised constructions belonging to muslim community. The question of digging of borewell also figured in the publications and in the speech of the respondent. Ex. P. 205 is the reply of the petitioner to these allegations which is not challenged by the respondent. The tapcrecorded speech (ex. P. 7) drives one to think that the muslims are isolated from the main-stream; therefore, all the muslims should vote to the respondent. Here I have to make some distinction to the words used in this sub-section "in relation to personal character or conduct" and "being a statement reasonably calculated to prejudice the prospectus". In K. Gangi reddy v M. C. Anjaneya, (1960)22 elr 261 (sc), subba rao, j. , speaking for the court observed; the words 'personal character' or 'conduct' are so clear that they do not require further elucidation or definition. The character of a person may ordinarily be quoted with his mental or moral nature. Conduct connotes a person's actions or behaviour; darling, j. , dealing with similar to Section 123 (4) in comberland (cockermouth division) case, (1901)5 o'm and h. 155 observed:"what the act forbids is this. You shall not make or publish any false statement of fact in relation to the personal character or conduct of such candidate; if you do, it is an illegal practice. You shall not make or publish any false statement of fact in relation to the personal character or conduct of such candidate; if you do, it is an illegal practice. It is not an offence to say something which may be severe about another person nor which may be unjustifiable nor which may be derogatory unless it amounts to a false statement of fact in relation to the personal character or conduct of such candidate; and I think the act says that there is a great distinction to be drawn between a false statement of fact which affects the personal character or conduct of a candidate and a false statement of fact which deals with the political position or reputation or action of the candidate. If that were not kept in mind, this statute would simply have prohibited at election times all sorts or criticism which was not strictly true relating to the political behaviour and opinions of the candidate. That is why it carefully provides that the false statement, in order to be an illegal practice, must create to the personal character and personal conduct. "in jivatode's case (ibid) hegde, j. (as he then was) speaking to the meaning of latter part of the expression in sub-section (4) of Section 123 of the Act, observed:"the language of Section 123 (4) is 'any statement of fact which is false' and that language must be used in contrast to a false statement of opinion. The language used is not merely a 'false statement' but a 'statement of fact which is false'. The statement in question must be in relation to the personal character or conduct of candidate, which means a false statement of fact bearing on the personal character or conduct of a candidate. Further one of the ingredients of the corrupt practice under Section 123 (4) is that the statement complained of must be one reasonably calculated to prejudice the prospects of the election of the person against whom it is made. It may be noted that the Section does not merely say 'being a statement calculated to prejudice the prospects of the ncandidate's election', but on the other hand, it says: 'being a statement reasonably calculated to prejudice the prospects of that candidate's election'. It may be noted that the Section does not merely say 'being a statement calculated to prejudice the prospects of the ncandidate's election', but on the other hand, it says: 'being a statement reasonably calculated to prejudice the prospects of that candidate's election'. The meaning of that expression is as held by a division bench of the Bombay high court in Dattatraya Narayan v Dattatraya Krishnaji, AIR 1964 Bombay 244, that the publication of false statement of fact relating to the personal character or conduct must be such as would, in the estimation of the court having regard to the nature of the publi- cation, the evidence tendered in court and the surrounding circumstances have its natural and probable consequence of prejudicing the prospects of the candidate relating to whose personal character or conduct the publication has been made. So far as the last limb of Section 123 (4) is concerned, the emphasis is not so much on the intention of the publisher but on the probable effect on the election of the candidate against whom those statements are directed. "the petitioner states in his evidence that these publications are calculated to prejudice the minds of muslim community to affect his election. Hence I hold issue nos. 1, 2, 3 and 4 in the affirmative. ( 86 ) ISSUES No. 5. the petitioner has alleged that the respondent has also committed corrupt practice under Section 123 (7) of the act by obtaining and procuring the assistance of the returning officer-respondent No. 13 who is the gazetted officer of the cadre of the special deputy commissioner throughout the period of election from the date of nomination till the date of declaration of results, i. e. , from 31-3-1989 to 27-11-1989. It is further alleged that respondent No. 13 was sponsoring the respondent as a candidate from iuml which is not a recognised political party. That has been held to further the prospects of the respondent. The above allegations made by the petitioner, on the face of it, is a vague and ununderstandable. The material particulars do not disclose the motive for respondent No. 13 to assist the respondent and it also does not disclose the manner and the agent through which the assistance was rendered to the first respondent which is a corrupt practice as defined under the act. The material particulars do not disclose the motive for respondent No. 13 to assist the respondent and it also does not disclose the manner and the agent through which the assistance was rendered to the first respondent which is a corrupt practice as defined under the act. ( 87 ) RESPONDENT No. 13 was examined as P. W. 3 by the petitioner. I have gone through the evidence of this witness. There is not even a suggestion that he has rendered assistance by himself or through his officials to further prospects of the respondent's election. Therefore, I hold this issue in the negative. ( 88 ) ISSUE No. 6. this issue is framed as it is the specific case of the respondent that mohd. Mohiuddin pasha was not his election agent. The petitioner described him as agent and election agent in his pleadings. Ex. R. 7 is the true copy of form No. 8, under Rule 12 (1 ). This exhibit shows that r. w. 1 was appointed as the election agent of respondent with effect from 23-11-1987, i. e. , one day prior to the voting day. Therefore, this issue is to be held in the negative. ( 89 ) ISSUE nos. 7 and 8. the petitioner has devoted a great deal of pleadings inrespect of delimitation of No. 10 gulbarga assembly constituency, by including some villages and survey numbers where majority of the voters are from muslim community and excluded some areas where the voters are muslims and hindus. It is alleged that this work was done with ulterior motive, which, according to the petitioner, is a sort of assistance rendered to the respondent. The officials lethargy in this election work in not making proper arrangements in polling stations and several other irregularities were alleged in the petition. Some shortages in the counting and wrong mentioning of the figures were also highlighted in the pleadings. In addition to these irregularities, an allegation was also made that the returning officer has flouted the guidelines contained in the circular issued by the election commissioner in respect of the votes casted in several booths which is, more than 90%, without setting apart the ballot papers as contained in the instruction Ex. P. 118. According to the petitioner, in the polling station nos. 45,65,83,92,94,95 and 98, more than 90% polling had taken place where the respondent has secured 90% votes. P. 118. According to the petitioner, in the polling station nos. 45,65,83,92,94,95 and 98, more than 90% polling had taken place where the respondent has secured 90% votes. The votes said to have been secured by the respondent in these seven polling stations are 5,079 while the petitioner is said to have secured only 106 votes. Rigging and bogus voting were also alleged in several polling stations. At the time of counting of votes, 6912 votes were rejected on various grounds as can be found at page No. 31 of the petition. ( 90 ) WITH regard to the question of delimitation, a lengthy examination was madeby the learned Advocate for the petitioner to P. W. 2-subhas chandra kutia, the then deputy commissioner of gulbarga and district election officer during 1989 elections. ( 91 ) A file Ex. P. 12 relating to the question of delimitation was summoned from the office of the deputy commissioner and the entire correspondence which took place from August 1989 to November 1989 were marked as exhibits. This correspondence denotes that pursuant to the representations made by some of the political parties, the correspondence were started between the deputy commissioner and the chief electoral officer, Bangalore. P. w. 3 also took an active part in the said correspondences as he was the then commissioner of the corporation of the city of gulbarga and also returning officer. ( 92 ) P. W. 3 was examined by the petitioner. In his evidence, he had confined to these correspondences and stated that some of the suggestions were not carried out due to shortage of time from the date of correspondences till the date of election. The work of delimitation was done under the delimitation Act, 1972; the delimitation of assembly and parliamentary constituency Order, 1976 came into force from 1-12-1976 and the corrigendum was issued on 6-12-1977 giving the date as 8-1-1977. He has stated in his evidence that after coming into force of this act and rules neither the. Deputy commissioner nor the commissioner of the corporation has power to include or exclude any areas which has not been notified under the order. The petitioner has not placed satisfactory material to prove that the act of delimitation was done deliberately to help the respondent. Deputy commissioner nor the commissioner of the corporation has power to include or exclude any areas which has not been notified under the order. The petitioner has not placed satisfactory material to prove that the act of delimitation was done deliberately to help the respondent. Under the delimitation Act, a proposal is to be made and published to include and exclude some areas to adjust the constituency and after publication if any party is aggrieved, he should file objections to the commission appointed under the act. On going through the delimitation Act, 1972, the central government constituted a commission called delimitation commission which consisted of two members each of whom shall be a person who is or has been a judge of the Supreme Court or of a high court to be appointed by the central government and the chief election commissioner is the ex-officio. The procedure and powers of the commission have been prescribed and powers of the commission have been prescribed under Section 7 of the act and the power to maintain the delimitation orders up-to-date is vested with the election commission under Section 11 of the act. The evidence of P. W. 2 or P. W. 3 does not allege any motive for these officials in respect of this delimitation work. Therefore, il is a futile exercise to fix any liability on these officers when the act does not allow them to do the delimitation work by themselves. ( 93 ) NOW, coming to issues 7 and 8 proper, P. W. 3 has examined at length. On going through the evidence of this witness, it is mostly confined to the activities of 219 poll ing stations during this election and the issue of ballot papers, repelling in some booths, etc. , exs. P. 41 to p. 181 covered polling station nos. 2 to 208. On going through the evidence of this witness, these is some arithmetical errors in maintaining the account by the presiding officers, but, in toto, the difference that occurred is quite negligible, since in every election there would be large number of voters, such small discrepancies bound to occur and the same cannot be taken into consideration to hold that the voters were excluded, invalid votes were accepted and valid votes were rejected. There is no direct evidence that the votes were rejected improperly without any valid reasons. There is no direct evidence that the votes were rejected improperly without any valid reasons. There is also no such complaint alleged to have been made by the political parties with regard to these defects immediately after the votes were counted. ( 94 ) ONE more point involved under these issues are that, the returning officer flouted the directions contained in Ex. P. 188, a circular issued by the election commission of india. The evidence of P. W. 3 is that, in polling station nos. 65, 94, 98 and 102-a more than 90% votes were polled. He has not followed the guidelines contained in Ex. P. 188 because the total number of votes where more than 90% votes polled has not exceeded the difference of votes between the winning candidate and the next higher votes secured candidate. Therefore, the results were announced without the permission of chief election officer. The petitioner has failed to prove issue nos. 7 and 8 and therefore, they are answered in the negative. ( 95 ) ISSUE nos. 9 to 11. These issues were framed due to recrimination petition filed by the respondent. The respondent has not pressed the recrimination petition at the closing stage of the case and therefore, these issues do not require for any consideration and they are held accordingly. ( 96 ) I have examined the necessity of issuing notice to Sri Mohammed Mohiuddin Pasha under Section 99 of the act due to the allegations made against him by the petitioner in his election petition that he was an agent and election agent of respondent. The latter status found incorrect after the respondent filed his objection statement and recrimination petition. The respondent has totally denied Mr. Pasha's participation in this election in any capacity to further his election prospects. The evidence of r. w. 1 and r. w. 2 are in the nature of protecting Mr. Pasha and further his direct participation is attempted to screen by the respondent, in this election petition. Further his presences and the evidence can only be treated as corroborative piece of evidence and the material for cross-examining the petitioner witness is totally inadequate, a notice under Section 99 is found unnecessary. Pasha and further his direct participation is attempted to screen by the respondent, in this election petition. Further his presences and the evidence can only be treated as corroborative piece of evidence and the material for cross-examining the petitioner witness is totally inadequate, a notice under Section 99 is found unnecessary. ( 97 ) BY summarising the oral, documentary and circumstantial evidence, and by examining the probabilities, I have no hesitation to hold that the petitioner has proved the corrupt practices alleged in the petition attracting sub-sections (2), (3), (3-a) and (4) of Section 123 of the act. The re turned candidate Sri Qumarul Islam is directly responsible for committing these corrupt practices. However, the petition has failed to prove the allegation under sub-section 7 of Section 123 of the act. Similarly, the petitioner has failed to prove issue nos. 6,7 and 8 and they arc held in the negative. Determination of issue nos. 9,10 and 11 are not considered due to the fact that the respondent has not pressed the recrimination petition. ( 98 ) THE entire law concerning elections enacted by the statute are certainlyengineered to the goal of purity, in the matters of elections and continuation in election office. Purity, while in public office, governs the electoral ethos. It is an accepted principle in democracy that electoral process should not only accord well with the statutory Provisions but should be such which will maintain that process in an unsullied condition. With this view, the election law enacts Provisions with regard to the corrupt practices and so also with regard to election offences and further enacts the qualifications and disqualifications. The statutory strategy aims at free, fair, non-corrupt process. That maintains the basic channel unaffected. The principles that govern the holding of elections and all the matters of the elective process are enforced whenever it is shown that the same is affected by reason of practices, either corrupt or illegal. In this view, the election court is empowered to intervene and empowered to set aside even the result of election; notwithstanding the fact that it is shown that result had the backing of the majority. This aspect has been again and again re-emphasised in different context by the courts dealing with election disputes under the Provisions of the representation of the People Act. This aspect has been again and again re-emphasised in different context by the courts dealing with election disputes under the Provisions of the representation of the People Act. The principle of purity with regard to the election process and elective office continues to hold the filed keeping the public interest in view. The election proceedings are not common law proceedings wherein individuals are interested. They are proceedings wherein the public at large and particularly the constituency that is called upon to elect are entirely interested. It is trite to observe that the electoral process should be free from corrupt practices as well as illegalities, as well the elected person should be eligible to hold an office and should not suffer from any disability or disqualification. However, caution must always prevail. The law has to be understood and administered in the context of reality. ( 99 ) THE respondent on his own saying is a secretary of muslim league of Karnataka state. He is an engineering graduate having passed his degree in first class in mechanical engineering in the year 1972. Since he was interested in politics, he joined muslim league in the year 1974. He was also an active social worker. He had contested the election to the Karnataka legislative assembly in the year 1978 defeating late mohamad ali, the then transport minister. He again contested in the year 1983 and 1985 but lost the election by narrow margin of votes. This being the position, the respondent in this 1989 election has committed corrupt practices such as undue influence, appeal to voters to vote or refrain to vote on the grounds of religion, community. He has used religious symbols to influence the muslim voters. By using false allegations against the petitioner, knowing it is false, has attempted to promote feelings of enmity or hatred between the citizens. He is also found responsible for publications of false statements against the petitioner which are later found false and prejudice the prospects of petitioner's election. He has also used election platforms to ventilate his feelings against the petitioner to prejudice his election success. One of the prayer of the petitioner is to declare that he has received the majority of valid votes and is elected from 10th gulbarga assembly constituency after declaring the election of the first respondent has materially affected by corrupt practices. He has also used election platforms to ventilate his feelings against the petitioner to prejudice his election success. One of the prayer of the petitioner is to declare that he has received the majority of valid votes and is elected from 10th gulbarga assembly constituency after declaring the election of the first respondent has materially affected by corrupt practices. Section 101 of the act deals with the grounds upon which a candidate other than the returned candidate may be declared to have been elected. It envisages that the person who has filed the petition calling in question the election of the returned candidate, claims declaration that he himself has been duly elected and the high court is of the opinion that but for the votes obtained by the returned candidate by corrupt practices, the petitioner has obtained the majority of valid votes, the high court shall, after declaring the election of the returned candidate to be void, declare the petitioner to have been duly elected. The precondition for such declaration is the opinion of the court. It is difficult to hold that all the votes obtained by the respon- dents are tainted for discounting. Since I held issues 7 and 8 in the negative; there is no material that all the votes obtained by the first respondent is by the reason of corrupt practices or for the reasons fall ing under issue No. 7. Therefore, the consequences of declaring the first respondent election void, can, therefore, only be a fresh election. In the result, I make the following: order the election of the first respondent to the Karnataka legislative assembly from 10th gulbarga assembly constituency held on 24-11-1989 is declared null and void. Corrupt practices defined under sub-sections (2), (3), (3-a) and (4) of Section 123 of the act have been proved to have been committed at the election of the first respondent by appealing to the voters on the ground of religion and promoted or attempted to promote feelings of enmity and hatred between different classes of the citizens of India on the ground of religion and community. The consequences of declaring the first respondent election void, can, therefore, only be a fresh election. The first respondent shall pay the cost of the petitioner which is quantified at rs. 2,500/ -. The other respondents shall bear their own costs. The consequences of declaring the first respondent election void, can, therefore, only be a fresh election. The first respondent shall pay the cost of the petitioner which is quantified at rs. 2,500/ -. The other respondents shall bear their own costs. Rrkj: 13-10-1992 e. p. No. 14 of 1990 this election petition was decided vide judgment dated 25-9-1992. Today the office has posted the petition for being spoken to regarding the rectification of provision of law under which this election petition is presented. There is no doubt that this election petition was filed under Section 81 of the representation of the People Act, 1951 to declare the election of the first respondent null and void, on the grounds mentioned under Section 100 of the Act, Section 101 of the act was also invoked. The ground under Section 100 (b) was accepted for allowing the petition. The prayer under Section 101 was rejected. While presenting the petition, Section 81 of the act was not specifically incorporated in the petition along with sections 100 and 101 of the act. However, the office while preparing the order sheet mentioned that this petition is filed under Section 81 of the act. The contesting respondents have not pointed out non-mentioning of Section 81 in their objection statement; all along this petition was proceeded that Section 81 was invoked. Section 81 of the act is the only provision for the presentation of election petition, under the representation of the People Act. This Section is a procedural law. Non-mentioning of the Section does not render the petition invalid or the defect is incurable. No prejudice will be caused for both the sides if this defect is rectified even at this length of time. Hence there is no impediment to the office to invoke Section 81 of the act while preparing the decree. It is further directed by the order of this court that the petitioner is allowed to amend the petition by incorporating Section 81 of the act immediately. The office is further directed to issue a copy of the judgment and decree of this petition immediately without any loss of time as sufficient time has already been elapsed. --- *** --- .