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REGISTERED No. P. 221. 




EnMa 


EXTRAORDINARY 

PART II— Section 3 

PUBLISHED BY AUTHORITY 


No. 9] NEW DELHI, FRIDAY, JANUARY 9, 1953 


ELECTION COMMISSION, INDIA 
NOTIFICATIONS 

New Delhi, the 9th January, 1953 

S.R.O. 112. — Whereas the election of Shrl Rarpalingam as a member of the 
Legislative Assembly of the State of Madras, from the Tanjore constituency of 
that Assembly has been called in question by an Election Petition duly presented 
undfe Part VI of the Representation of the People Act, 1951 (XLIII of 1951), by 
ShrUR. Swaminatha Merkondar, Koonampatti, Sengipatti Post, Tanjore District, 
Madf-as State; 

And whereas the Election Tribunal appointed by the Election Commission, in 
pursuance of the provisions of section 86 of the said Act, for the trial of the said 
Election Petition has, in pursuance of the provisions contained in section 103 of the 
said Act, sent a copy of its Order to the Commission; 

Now, therefore, in pursuance of the provisions of section 106 of the said Act, 
the Election Commission hereby publishes the said Order of the Tribunal. 

BEFORE THE ELECTION TRIBUNAL, TIRUCHIRAPPALLI 
Present: — 

Sri H. Ananthanarayana Ayyar, I.C.S. — Chairman. 

Members 

Sri L. S. Parthasarathi Ayyar, B.A., B.L. 

Sri V. C. Viraraghavan, B.A., B.L. 

Election Petition No. 18 of 1952 
Friday, the 26 th day of December, 1952 
Between : — Sri R. Swaminatha Merkondar — Petitioner. 

AND 

Respondents. 

1. Sri S. Ramalingam. 

2. Sri Marimuthu. 

3. Sri Gopalakrishnan. 

4. Sri Shanmugham. 

5 Sri Dharmalingam. 

6. Sri Govindan. 

7. Sri Lakshmana Karuppatiyar. 

8. Sri Narayanasami. 

9. Sri Natarajan. 

10. Sri Singaravelu. 

11. Sri Srinivasachari. 


( 55 ) 


50 • TEE GAZETTE OF INDIA EXTRAORDINARY [Pam II ' 

~ : ■ — ■■ ■ i — -- — — 1 -■ - 

This Election Petition coming on for hearing on the 10th. 11th, 12th, 13th, 14th, 
15th and 18th days of November, 1952. and on the 6th, 19th, 20th and 22nd days of 
December, 1052, in the presence of Sri K, V. Srinivasa Ayyar, and Sri S. Lazar, 
Advocates for the petitioner, and of Sri G, M. Vrlcthachalam, Advocate for the 1st 
respondent, of Sri S. Kastunrenga Ayyangar, Advocate for the 8th respondent, and 
respondents 8 and 9 appearing In person, and the other respondents not appearing 
either in person or by pleader, and the petition having stood over to this day for con- 
sideration, the Tribunal passed the following Order: — 

The petitioner, R, Swaminatha Merkondar, has filed this election petition for 
a declaration that the election of the 1st respondent S. Ramalingam, to the Madras 
Legislative Assembly from the Tanjore Constituency in the election held on 12th 
January 1952 is void and that he himself (petitioner) has been duly elected. 

2. The Tanjore Constituency is a double member constituency. One was a Re- 
served seat, The contestants for this seat were respondents 2, 4, 5, 6 and 8. Of 
these, 2nd respondent was declared duly elected to the Reserved seat. For the 
other seat, which was a general seat, the contestants were petitioner and Respon- 
dents No. 1 (Ramalingam), 3 (Dr. Gopu alias Gopalakrlshnan), 7, 9 (Natarajan), 
10 and 11. As per the results declared by the Returning Officer, the votes secured 
by the petitioner and 1st respondent were as follows : — 


Name of candidate 


No. of valid 
votes secured 
by candidate 


Invalid votes Total 

.... — — invalid voteH 

Cumulative Mutilated Wrong type of 

votes votes ballot papers 

used. 


Petitioner ... 23,332 1,409 

1st Respondent ... 24,585 531 


2 1,412 

3 534 


The Returning Officer declared S. Ramalingam (1st Respondent) as duly elec- 
ted. At the Election, the 1st Respondent stood as a candidate of the Communist 
party, and the petitioner as a candidate of the Congress party. At the same lima 
as the election to the Madras Legislative Assembly, an election was also held from 
the Tanjore Constituency for one seat in the Union Parliament. In that Election, 
Sri R. Venkataraman (P.W. 24) was the Congress candidate. Sri R. S. Sarma was 
an Independent candidate. Dr. Dasan was the other candidate. 

3. The petitioner Is a resident of Koonampattl, In Tanjore District. He is am 
owner and cultivator of land. The 1st Respondent was originally an employee 
(Relieving Station Master) in the South Indian Railway. His services were termi- 
nated by an order Exhibit B5 dated 13th April 1951 passed by the General Manager, 
South Indian Railway as follows: — " * * * you are therefore given one Month’s 
pay in lieu of notice * * *, and your service will terminate on the 1st May 1951”. 
The joint family of the 1st respondent and his brothers and father (who is also a 
retired railway servant) owns 3 or 4 acres of land. 


4. For the purpose of this petition, we are concerned with the activities in vil- 
lages connected with the polling stations at (1) Vallam, (2) Thennankudi, (3) 
Koonamangalam, and (4) Budalur. 


5. The petitioner raised various pleas In his petition. He was directed to give 
further and better particulars. Accordingly, he gave the particulars In the form 
of a “supplemental list” dated 25th September 1952. The 1st respondent is the 
main contesting respondent. He filed a counter which resulted in the following 
Issues being framed: — 

(1) Whether, at a public meeting at 8 p.m., on 4th January 1952, near 
Kaliatnman Temple in Thennankudi, PiLlayarnatham Vattam, the 1st 
Respondent and/or R. Rajagopalan (who worked for him), made pro- 
mises of land and cattle to those who vote for the 1st Respondent (as 
alleged in para III (3) of the petition and Item 2 of the list and supple- 
mental list)? 

(il) Whether, at a public meeting at 8 p.m., on 4th January 1952, near 
Kaliamman Temple in Thennankudi Pillayarnatham Vattam, the 1st 
Respondent held out threats of social ostracism and excommunication 
or expulsion front caste or community or fine by the community, a« 
alleged In para 111(3) of the Petition, and item 2 in the list and supple- 
mental list to the petition filed by the petitioner? 

(lil) Whether the 1st Respondent was holding an office of profit, viz,, as Re- 
lieving Station Master in the South Indian Railway, under the Govern- 
ment of India at the time of nomination (or of election)? 




SiC 8] &A&ETTE OP INDIA EXTRAORDINARY 


57 


(iv) Whether the 1st Respondent or his agent or any one on his behalf, hired 

or procured vehicle Car No. M.D.O, 143? for conveyance of electors to 
the Polling booth in Vallam on the date of election, 12th January 1952, 
and a pleasure car for polling booths in Budalur, 

(v) Is the petitioner entitled to all or any of the reliefs prayed for in paia 7 

of the petition? 

In para III (5) of his petition, the petitioner also made a vague allegation that 
"the candidates or their agents or counting agents do not appear to have been given 
reasonable opportunity to inspect ballot papers." Subsequently, he filed I.A. No- 1 
of 1952 on 11th October 1952 praying as follows:— “to permit the petitioner to In- 
spect and scrutinise with his counsel, all the ballot papers including valid and 
rejected votes in the said elections.” On 18th November 1952 we dismissed that 


6. Respondents 2 to 5, 7, 10 and 11 did not file any counter, though served with 
notice. Respondents 6, 8 and 9 filed counters which did not result In any issues or 
evidence. They did not take part In cross-examining any of the witnesses of peti- 
tioner or of 1st respondent or attempt to let in any evidence. Of these three, the 
jth respondent is the only candidate concerned in the general seat. He simply 
pleaded that the system of voting in a two member constituency led to a lot of 
confusion and that the election ought to be set aside on this ground alone. This 

lea did not disclose any issue which could be framed or tried by this tribunal, 

7. Respondents 6 and 8 were candidates only for the Reserved seat. The 8th 
respondent supported some of the contentions of the petitioner and tried to explain 

s to why ho got less votes than the 2nd respondent- The 6th respondent filed a 
somewhat similar counter. (These statements did not lead to any issues). 

8. The petitioner deposed as P.W. 23 and examined 23 other witnesses. On his 
behalf, five documents, i.e., Exhibits A1 to A5 were marked 

9. The 1st respondent deposed as R.W. 11, and examined besides, 10 other wit- 
nesses (R.Ws. 1 to 10), On his behalf, Exhibits B (1 to 5) were marked- 

10. Issue 3. — Exhibit B5 is the order passed by the General Manager, South 
Indian Railway, intimating that the services of the 1st respondent “will terminate 
on 1st May 1951”. 1st Respondent, as R.W. 11, swore that his services 
vere terminated accordingly on 1st May 1951, i.e,, long before his nomination and 
jlection and that he did not prefer any appeal from that order. There is no evi- 
dence contra. No arguments were even addressed by the learned Advocate for 
the petitioner on this issue. We find this issue in the negative. 

11. Issues 1 and 2.— -Beyond doubt or dispute, 1st respondent hold an election 
propaganda meeting in the Kaliamman Temple ai Thennankudi on 4th January 1952. 
m and Rajagopalan addressed the gathering, 

12. P.Ws. 7, 8, 9, 10, 20, 21 and 22 say that they attended this meeting. P.Ws, 9. 
10, 20, 21 and 22 deposed to the following effect: — Rajagopal first addressed the 
meeting. 1st Respondent spoke next. He told the audience, which consisted to a 
great extent of Harijans from Siralur and other Cheris, “Do riot vote for Con- 

ress. Vote for us (i.e.. Communists). We will give 5 acres of land and one 

5 alr of bulls ( ) for each Adi-Dravlda who votes for us 

(i.e,, Communists)”. The wording is as given by P.W. 9 in his deposition). But 

P.W. 7 who Is a ryot of Pillayarnatham said that the 1st Respondent spoke only 

as follows: — “If votes are given to us in the forthcoming elections, and, if we. in 
consequence, come into power, we will do a lot of benefit to poor people. We will 
distribute land among the Adi-Dravldas. We will give cattle ( ) 

to those who do not have them. * * * I will give 5 acres of land to each person, 
i will g£t cattle for the Pallars and Parayars." P.W. 7 further explained as fol- 
lows: — “The 1st Respondent said that the land would be redistributed among peo- 
ple and that rich peoples’ land would be given to the poor.” He said “We will bring 
such legislation by Government. ” P W. 8 deposed in chief-examination that the 
l Respondent said “I will get land for the landless and cattle for those who 
have none. * * Iri Cross Examination P.W. 8 added that the 1st Respondent 
said at the meeting “I will gel 5 acres of land each for those who vote for me and 
support me. We will get the land by talcing from the rich people! 

)” R.W. 2 deposed as follows: — “The 1st Respondent said “* * * If 

you vote me into power, it will be good for the poor * * * Rich men have lot 
of lands. Poor people do not have any lands. If votes are given to us, poor peo- 
ple can eat well und be comfortable. Poor people can do cultivation of lands 
instead of doing work for cooly under the rich people.” P.W. 7 is the first witness 
who was examined to speak about the speeches of the 1st Respondent and Rajago- 
>alan at the Thennankudi meeting. It is significant that his evidence does not 




THE GAZETTE OF INDIA EXTRAORDINARY [Part H 


68 


show at all that 1st respondent promised land and cattle, only to those w T ho voted 
for him or to those who voted for his (Communist) party. It Is also worth noting 
that when the petitioner’s Advocate examined P.W. 8 (i.e., in chief-examination), 
he did not elicit from him that the 1st respondent promised land and cattle only 
to those who voted for him (1st respondent) and his (Communist) party, If really 
the 1st respondent had stated in the meeting that he would give land and cattle 
only to those who voted for him and his party, the fact must have been stated by 
P.W. 7 and must have been elicited from him. Therefore, the mention that he 
made such promise to only such persons who voted for him has to be treated as an 
addition and development in the evidence of the later witnesses. We decline to 
believe this addition and development. On the other hand, P.W. 8 does not say 
that the 1st respondent offered to get any cattle or anything else for Pallars or 
Parayars in particular. So, we believe (P.W. 7’s version) that the 1st respondent 
promised to give land to the landless and poor and do not believe his statement that 
he offered cattle for Harijans in particular. We believe the version of R.W. 2 as to 
the contents of the 1st respondent’s speech at the meeting 

13. The question is whether the offer of the 1st respondent in making the above 
speech amounted to the corrupt practice of bribery as defined in Section 123 (1) of 
the Representation of People Act. Under the above Section, an act constitutes 
bribery if it is “ * * * offer or promise by a candidate * * * of any gratification to 
any person whomsoever with the object directly or indirectly of inducing * * *. 

(b) An elector to vote (or refrain from voting) at an election,” 

The 1st respondent was a candidate and he spoke at the election meeting. His 
object was certainly to appeal to electors to vote at the election. There was nothing 
illegal in It. As a matter of fact the aim of most candidates in addressing election* 
meetings i 3 not different. In his speech, the 1st respondent offered to secure for 
poor and landless people, land and cattle. The only question is whether this am- 
ounted to "offer of gratification to any person whomsoever.” In Webster’s English 
D'ctionary, the meaning of the word ’gratification’ is given as "Something that 
pleases”. Of course, the people whom he mentioned as his intended beneficiaries 
(i.e., poor and landless people) were made up of persons. If the term (gratifica- 
tion to any persm whomsoever) is mechanically and narrowly interpreted, it can 
cover the poor people and landless. But, with such a narrow and mechanical in- 
terpretation, it can be made to cover even an offer or promise, by proper noble 
and harmless measures, of prosperity and happiness to the entire nation (not 
merely the constituency) or humanity in general. For, the nation (and humanity) 
is constituted only by persons. We feel that the legislature could not have intend- 
ed that such a narrow interpretation should be put on the above phrase. We feel 
that a liberal and reasonable interpretation should be made, We are inclined to 
hold that offer of land and cattle to the landless and the poor, irrespective of caste, 
creed, community and religion, does not constitute an offer of such a nature as 
to constitute an offence. For, giving of land to the landless and improving the 
position of the poor tn general is In line with the lessening of inequality of wealth 
and income which is a commonly accepted aim and object of statesmen and Go- 
vernments In most modern democratic countries. We feel that the offer (or pro- 
mise) made by the 1st respondent in his speech lacks that element of corrupt 
motive and t’mproper and unfair intention which is contemplated by the legisla- 
ture (by a reasonable and proper interpretation of the section) as necessary to 
retake out the corrupt practice of bribery under Section 123(1). 

14. The following facts also go to show that the aim of the 1st respondent in 
addressing the meeting was not to hold a secret conclave or conspiracy to induce 

f allible and poor people by unfair means and with corrupt motives to vote for 
im at the elections: — 

(i) The meeting was open to the public. It was not meant exclusively for 
poor people alone or for any sect or community. As a matter of 
fact, P.Ws. 7, 8 and 9 who are Kallaryoig of Pillayarnatham and 
owners of lands, attended the meeting. P.W 10 also says that the 
Har’ians of his Cher : were owmers of land and that he himself owns 
lan a. 

(]']) The offer was obviously meant for all poor people, not merely for those' 
who voted for the 1st respondent. 

(iii) The offer was not meant for benefit of the audience alone. It was 
meant to benefit poor and landless people who were not present In 
the audience and who were not in the constituency and even those 
who had no votes or did not vote for the 1st respondent. On the other 
ha*d, the offer was not for benefit of well-to-do, men who owned 
plenty of lands and cattle even if they were present in the audience- 
and were willing to vote for the 1st respondent. 



Sac. 8] 


THE GAZETTE OE INDIA EXTRAORDINARY 


59 


(iv) The offer by the 1st respondent wag not meant to be understood os an 

offer by himself in his personal capacity or from his personal property 
or possessions. The 1st respondent is not a well-to-do-man. (The joint 
family of himself and his father and brothers owns only 3 or 4 acres). 

(v) The 1st respondent said openly that he intended to carry out his policy 

by legislation (P.W, 7’s evidence). So, we And that the action of 
the 1st respondent in addressing the meeting and making his speech 
at Thennankudi does not amount to a corrupt practice. 

15. P.Ws. 10, 20, 21 and 22 have also deposed to an incident in the village of 
Siralur, close to Thennankudi. 

16. P.W, 10 is one of the five Pallar Nattamais of the Harljan Cheri and stated 
as follows: — After the meeting at Thennankudi was over, 1st respondent with Sun- 
dararajalu and Ekambara Nattar came to the Kaliamman Temple In the Cheri. He 
sent for all the Nattamais of the Cheri (five of the Pallars and two of the Para- 
yars) and gathered through them, all the other Pallars and Parayars (of the Cheri). 
He told them "You must vote for me. I will got and give you plough bulls. I will 
get you land and give you land. The Nattamais had a talk among themselves and 
then decided in the presence of the 1st respondent that all their people should vote 
only for the 1st respondent and not for any one else ” Then, after garlanding the 
1st respondent with sickle and Sheaves (said to be the symbol of the Communist 
party), the Nattamais told the Pallars and Parayars in the presence of the 1st res- 
pondent “If any of you do not vote for the 1st respondent, we will ostracise him 
socially and make him a singleton all by himself without social intercourse with 
others”. 

17. The evidence of P.Ws. 20 to 22 is substantially the same, but contains a 

development as follows: — (i) That the 1st respondent promised 5 acres and one 
pair of bulls, (ii) P.W. 20 would raise the decision of the Nattamais to the level 
of a pa-t with the 1st respondent and of an edict to the Harijans, (ii() due to the 
desire for the promised land and due to the edit passed and the fear of Kattupadu 
( ostracism), the Harijans voted In large numbers for the 1st respondent. 

18. We are unable to accept the evidence of P.Ws. 10 and 20 to 22 for the fol- 
lowing leasons: — (1) the petit' oner’s case In the petition that the threat was held 
out +o the Harijan Community at Thennankudi also, was given up at the trial. No 
evidence was let in on that point and none of the Thennankudi Harijans who were 
cited in the witness list was examined. It was not put to any of the witnesses in 
the box that at the meeting at Thennankudi such threat was held out. (ii) P.Ws. 
21 and 22 were not mentioned in the original list of the witnesses dated 11th Octo- 
ber 1902. They were produced in Court on 14th November 1952 with a supple- 
mental list of w'tnesses and examined on the same day. (iii) There is a develop- 
ment in the evidence of P.Ws. 20, 21 and 22 over the evidence of P.W. 10. (Iv) It 
is not explained why any one of tho Parayars or their Nattamais were not examined 
as to the happenings, (v) The 1st respondent as R.W. 11, swore that he never 
went to Siralur Harijan Cheri at any time. Sundararajalu (R.W. 3) who ’s said 
to have been with the 1st respondent deposed that he worked for Dr. Gopu (3rd 
respondent) and not for the 1st respondent. It was not even put to Sundararajalu 
(R W. 3) or Ekambara Nattar (RW 4) when they were in the box, that they 
were present with the l=t respondent in the Cheri at Siralur. (vl) The way in 
which these witnesses (P.W., 10, 20, 21, 22) have spoken to the two cars working 
at the Thennankud 1 Polling Station the 1st respondent coming in a red car and 
so on, showed that they were partisan witnesses. P.W. 22 would go to the extent 

of saying ‘Cars went in shuttle service’ 1, and simply scooped the voters anal 

brought them five or six at a time to the polling station ( ). 

The suggestion by the 1st respondent against these witnesses was that they 
deposed at the Instance of Ramalinga Swami (a close relative of the petitioner 
who owns large extent of lands in the village of these witnesses) and P.W. 19, the 
Village Munsif, of the place. The witnesses denied this suggestion, but one witness 
P.W. 22 blurted out ; — “KoonampattI Ejarnan (Petitioner) asked me yesterday to 
give evidence”. The evidence of P.Ws. 10, 20, 21 and 22 cannot safely be accepted 
and does not prove any bribei-y or undue Influence as alleged by the petitioner. 

19. The learned Advocate for the 1st respondent also contended as follows: — In 
the list appended to the petition, there is mention of Incidents only as follows 
‘Promise of land and cattle and the holding of threats in villages in Pillayarna- 
tham Vattam". This tribunal called on the petitioner to furnish further and better 
particulars regarding the items given in his list in the petition. The petitioner thea 
filed a supplemental list adding as follows:—"* * • On or about 4th January 

1952 at about 5 p.m. at the public meeting in Thennankudi in Pillayarnatham Vattan* 
by the 1st respondent and another Rajagopalan * * * and on or about th® 




60 


THE GAZETTE OF INDIA EXTRAORDINARY [Fart II 


same date, l.e,, 4th January 1952, at about 9-30 p.m. near the Kaltamman Temple 
In the Harijan Cherl attached to Siralur in Pillayarnatham Vattam by the 1st 
respondent and Rajagppalan aforesaid to the Harijan Community." Siralur is not 
within Pillayarnatham Vattam, Therefore the question of happenings in Siralur 
is not covered by the original petition and therefore cannot be the basis of any 
attack on the election of the 1st respondent. 

20. We find that there is no need to go into this contention in view of the fact 
that we have found, on appreciation of evidence, that P.Ws. 10, 20, 21 and 22 are 
unreliable and that their version regarding Siralur incident cannot be accepted or 
acted upon to any extent 

We find issues 1 and 2 in the negative and against the petitioner. 

21. Issue No. IV. — Petitioner’s case is as follows: — 1st respondent and his agent 
and those who worked for him, procured vehicles for the conveyance of electors 
do four polling stations i.e., Vallarn, Budalur, Koonamangalam and Pillayarnatham, 
A van M.D.O. 1433 of T.K S, family was used at Vallam. A green car was used 
at Budalur and another green car at Koonamangalam, Two cars, one black (M. 
D.T. 931) and the other grey, were used at Pillayarnatham. 1st respondent visited 
Budalur polling station at 9 a,m. .sent for Vijayaraghavalu who was working for 
him and told him that he would send a car. Accordingly, a green car came at 10, 
or 10-30 am. and Vijayaraghavalu conveyed voters in it to the polling station.' 
1st respondent v sited Koonamangalam polling station at 9-30 a.m. where a green 
car was being used for the conveyance of voters. 1st respondent visited Pillayar- 
natham polling station at 10-30 a.m. and took away the black car, leaving only the 
grey car which continued to convey voters to the polling station till evening. 

22. Pet.'tloner (P.W. 23) has no personal knowledge in this matter. Except for 
the van at Vallam for which the car number is given, no description Of the other 
cars by colour or number is given in the petition. In a memo dated 25th October 
1952, filed late, colours of the cars were given and the number of one car (black 
car) was given as M.D.T. 931, In his counter, 1st respondent denied these allega- 
tions in the petition. He stated that he did not go to Budalur, Koonamangalam, 
Vallam or Pillayarnatham, that he did not arrange for car to transport the voters 
to the polling stations and that neither he nor any agent3 of his used a black, 
green, or grey car In any one of the polling stations -He has further sworn that 
the car M.D.T. 931 was a small baby ‘FOBD’ which he got from a relative for his 
own private use, that it was the only car at his disposal on the date of the elec- 
tion (and not a ‘Fleet *of Cars’) and that he did not leave Tanjore town at all on 
election day. We are dealing below with the detailed evidence regarding indivi 
dual polling stations: — 

23. Thennangudi Polling Station.— The evidence on this point on the side of 
the petitioner is given by P.Ws. 7, 8, 9, 19, 20, 21 and 22. Their version is as fol- 
lows: — Voters were brought to the polling station from the concerned villages in 
two cars, one black and the other grey, by the workers of the 1st respondent from 
0 a.m. to 10 a.m. At about 11 a.m. the 1st respondent came in a red car, alighted 
at the place and then took away the black car with him. 

P.W. 7 says that he was present (in the polling station) from morning 1 11 even- 
kig and that P.W. 8 was with him. P.W. 7 also says that R.W. 3 and PIchaya Nattar 
of Thennangudi (not examined as witness) brought the voters In the car to the 
polling station. But P.W, 8 says that R.W, 3 brought the voters in the car and 
tihat Pichaya Nattar (of Thennangudi) simply received the voters at the polling 
station. P.W. 9, the village munsif of Pillayarnatham who was on duty at the 
polling station says, that R.W. 3 and R.W. 4 and one Chinnaya Nattar were bring- 
ing the voters in the cars. 

24. The defects In the evidence of these witnesses for petitioner are: — 

(i) P.W, 19 gives the number of only one car. That number too : s not given 

in the petition or in the supplementary list. The other witnesses 
do not give the number of any car. 

(ii) No complaint was made to the police or any authorities who were avail- 

able at the polling booth at the polling time. It is clear from the 
evidence that there were at the polling booth, polling agents of the 
petitioner as well as other congress workers. They would certainly 
have noted the numbers of the cars and made report if cars had been 
used for transporting voters unlawfully. 

(iii) No one except P.W. 8 gives the identity of any of the voters who were 
alleged to have been transported. It is not possible that everyone 
of those people transported was a stranger to everyone of these wit- 
nesses (i.e. P.Ws. 7, 9, 19 and 20). They are people of the vicinity. 




Sbc. S] 


THE GAZETTE OP UmiA EXTEAOREINAET 




The evidence of P.W. 8 mentioning names of four Harijans as trans* 

ported Is not satisfactory. None of the four persons mentioned by 
him as transported has been examined as witness. 

(iv) The explanation of P.Ws. 7 and 8 for their presence at the polling sta- 
tion from morning till evening Is merely that they were watching the 
crowd and fun, This explanation is not acceptable, particularly when 
considered with the other defects mentioned above, 

(v) There is discrepancy among witnesses as to which man or men brought 
the voters in the cars and which man stayed at the polling station 
and reee'ved the voters who were brought in the cars. 

(vi) P.W. 19 is now the village munsif of Siralur. On the day of election, he 
was not the village munsif. He says that he was staying indoors in 
his house due to illness. He also says that he saw a black car M.D.T. 

931 come and stand in front of his house with Ekambara Nattar in 

it and that he saw the latter taking voters in the car in two trips for 
voting, He does not attempt to specify by name, a single one of the 
men taken in the two trips, who were men of his village and street. 
The fact that he gives the number of the car as M.D.T. 931 is not 
entitled to any special value. For, admittedly, the car belonged to 
the 1st respondent’s relative and was being used by the 1st respondent 
for election purposes (other than transport of voters) and fts number 
must have been known to many people. 

25. The 1st respondent says that he was himself using the car, that on the day 

of election he Inspected only the polling stations within Tanjore town, that ho 
never Went out of the town, that no car worked for him at any booths and that 

as a matter of fact he had given instructions definitely, to people who worked for 

him on election day, that they should not engage cars or take voters in engaged 
cars. He also says that R.W. 4 was his polling agent at Thennangudi on the elec- 
tion day and that he does not know any one called Chinnayya Nattar or Pichaya 
Nattar of Thennangudi. If P.W. 19 had noted the number of the car when It was 
working, ihe petitioner would have come to know about that before the day of 
filing of the petition and he (the petitioner) would and should certainly have 
mentioned the number in the petition or in the supplemental list filed by him. 
As a matter of fact no number has been mentioned in them. R.Wb. 3 and 4 
swear that they did not bring any voters in any car from any village to the polling 
station at Thennangudi. 

26. We find that the petitioner has failed to prove satisfactorily that voters 
were brought in car by the 1st respondent’s people to vote at Thennangudi. 

27. KOONAMANGALAM. — P.Ws. 11 to 15 deposed about the use of car in this 
area. Their evidence Is to the following effect: — From 7 a.m. to 4 p.m, people of 
the 1st respondent brought voters to the polling station in a green car. 

28. The defects in the evidence of these witnesses are:— 

(i) None of the witnesses is able to give the number of the car. though their 
case is that the car was working from 7 a m. till 4 p.m. 

(li) None of them gives the name of any of the voters who travelled In that 
car for voting (t.e. apart from the alleged agent of the 1st respondent). 

(ii'i) No one reported about the use pi the car to any of the authorities at 
the polling station. 

(iv) There is discrepancy among these witnesses as to who brought the voters 

in the car from the villages. P.W. 11 says that it was Ganesa Udayar 
and Doraiayya Thenkondar (not examined as witness). P.W. 12 says 
that the men were Sappanimuthu (R.W. 9) and Ganesa Udayar. P.W. 
13 mentioned Sappanimuthu (R.W. 9) alone. P.W. 15 mentioned R.W. 
9 and Doraiayya, P.W. 14 mentioned that the men who brought the 
people from Rayandur were Varadarajalu and Sundararajulu (not ex- 
amined). 

(v) None of the persons alleged to have been transported by the cars has 

been examined -as a witness. P.W. 15 says that voters were being 
brought within 10 yards of the polling station and that still, the police 
who were on duty did not prevent it and that he (P.W. 15) did not 
complain. It 1 is not possible to believe this statement, especially be- 
cause P.W. 15 was the polling agent of the petitioner, 

29. On behalf of the respondent, R.Ws. 5, 9 and 11 deposed in the matter. 
R.W. 11 (i.e. 1st respondent) says that he did not at all visit the Koonamangalam 
Polling Station and that no car worked for him to bring voters to that polling 



82 


-THE GAZETTE OE INDIA EXTRAORDINARY [Part II 


Station. R.W. 5 the village munsif of Chitrakudi wag on duty at the polling sta- 
tion throughout. He said that the Tahsildar had issued strict instructions to him 
and other village officers that if any car brought voters to the polling station they 
should detain it and hand it over to the police. R.w. 9 was the authorised polling 
agent of the 1st respondent in Budalur polling station about three miles off. He 
deposed that he did not transport any voters to Koonamangalam polling station by 
car and that he was really funct’oning as polling agent at Budalur polling station 
and simply went to Koonamangalam polling station at about 4-30 p.m. to cast his 
vote. The village munsif of Chltrakudl (R.W. 5) corroborated R.W. 9 by saying 
that R.W. 9 came to Koonamangalam Polling Station only at 4-30 p.m. He also 
stated that Varadarajalu and Sundararajulu of Rayandur worked for Gopu (3rd 
respondent). R.W. 11 says that he does not know Sundararajulu of Rayandur or 
Varadarajalu. In view of the vital defects in the evidence of P.Ws, in this matter, 
It is not possible to believe their version that voters were being conveyed In the 
car on behalf of the 1st Respondent to the polling station. There is no need to 
discuss in greater detail, the evidence of 1st respondent’s witnesses in the matter. 


30. Budalur Polling Station. — P.Ws. 16 and 17 speak about this polling station. 
Their version is as follows:— P.W. 16 was the polling agent of the petitioner at 
Budalur. P.W, 17 owns a paddy intindi close to the polling station. At 
9 a.m. on election day, the 1st respondent came In a red car, secured the presence 
of Vljayaraghavan and told him “I will send car. See that voters are taken in * 
It quickly and that they vote briskly” P.W, 17 saw and heard this when he was 
just watching the crowd from his mundi. At about 10 a.m., a green car came. 
Vljayaraghavan went in the car and brought voters in it to the polling 
station for voting for the 1st respondent. P.W. 16 saw the car bringing four 
or 5 trips (of four or five people at a time) till 10 a.m. P.W. 17 saw four trips. . 


31. The evidence of these witnesses is vitiated by the following defects: — 
(i) No complaint was made by P.W. 16 or anybody else to the 

authorities. P.W. 16 was polling agent of the petitioner and also 
related to him, besides being a member of the Congress 
Panchayat. . 

(11) It te very unlikely that if the 1st. respondent wanted to announce 
to his man, that he would be sending his car for transport of 
voters (unlawfully) . he would choose to do so openly In the 

presence and within hearing of petitioner’s polling agent P.W. 10 

and of bystanders including P.W. 17, 

(iii) No attempt has been made by P.Ws. 16 and 17, who are men of 

Budalur, to give the identity of a single person out of the many 
voters who are alleged to have been transported in the green car. 
The 1st respondent as R.W. 11 denies the truth of the evidence of 
P.Ws. 16 and 17. 

(iv) P Ws 16 and 17 are not able to give the number of the car or even the 

make of the car. (PW. 17 says that he can distinguish between 
various makes of cars.). In viow of the above defects, it Is not 
possible to accept the evidence of P.W, 16 or P.W. 17. 

There Is no reliable evidence that voters were transported by car to 
Burlalur polling station on behalf of the 1st respondent to vote. 
There Is no need to discuss in detail the evidence on the side of 
the 1st respondent in this matter. 


32 VALLAM: — P.W. 5 Narayanaswaml Chettiar is a congress worker of 
Vallam who worked for the petitioner. He deposed as follows: — 

A boy of chetty Street, who was working for the 1st respondent, took voters 
to polling stations in the van In four or five trips between 9.30 a.m. and 
12 noon and unloaded voters close to the polling station, Duraiswamy 
Udayar R. W. (10) and T. K. S. Balasubiamanyam (R.W. 8) told the voters who 
were dropped from the van at the polling station to vote for the 1st 
respondent. In the afternoon he saw the. van coming once at 4.30 p.m. 


PW 5 hag not stated all this to the police when they examined him ho 
recorded the statement Ex, A. 3. His evidence that he saw the van comim 
once at 4 30 P.M to the polling station cannot be accepted as he did not phone 
to the Collector about It though he says that he had already said in his phone 
message at about 12 noon that he would phone again if there was transport 
3 f voters after the lunch interval, Duraiswamy Udayar (R.W. 10) denle< 
having worked for 1st respondent and having brought any voters in the van 
to vote for 1st respondent. T. K. S. Balasubramanyam (R.W. 8) was not even 
isked *bout it. 




Ebo, 8] 


THE GAZETTE OF INDIA EXTKAOEDINAHY 


63 


33, P.W, 5 did not complain to the presiding officer of the polling station 
though he had authority to enter the booth. Nor did he show the transport 
to the police who were admittedly On duty at the polling station. He stated 
that when Mr. Venkataraman (P.W. 24) came at 10 a.m. to the polling station 
and saw voters getting down from the van near the polling station, he 
mentioned the facts to him and that Mr. Venkataraman said he had to go 
away to other polling stations and would take action if possible and that, 
feeling that Mr. Venkataraman did not take action, he (P.W. 5) went at about 
12 noon and phoned to the Collector, But his version to the police in Ex. A. 3 
is quite different. Therein, he says as follows: — When Mr. Venkataraman 
came, he saw Hindu voters were being conveyed in the van of R.W. 8. The 
voters were getting down within 100 yards of the polling station, and Mr. 
Venkataraman (P.W. 24) questioned him (P.W, 5) as to who they were. P.W. 5 
replied that they were not the family members or relatives of R.W. 6 but were 
private voters. Thereupon, P.W. 24 said that ho would ask R.W. 6 himself 
Immediately about it or take further steps in the matter. Within 15 minutes, 
he (P.W. 24) sent word through a messenger that he had given a telegram to 
the Collector. This suggests that it was not P.W. 5 who complained to Mr. 
Venkataraman (P.W. 24) in the first instance; but that it was Mr. Venkatara- 
man who drow his attention to the matter and that he (P W. 5) told him that 
voters were being conveyed in it. P.W. 24 does not say that he sent any 
messenger to P.W. 5 that he had sent any telegram to the Collector. R.W. 6 
(Owner of the van) swore that his van was used m the morning to convey his 
own family and no other voters. In his statement before the police (Ex. B. 2), 
he has distinctly stated that he did not give his car to any one to convey 
'■private” voters, and that no private voters were in fact conveyed. The Head 
Constable (R.W. 7) who was on bandobust duty on the election day stated that 
he was at the polling station during morning hours and no one complained to 
him that voters were brought in the van, and that the Sub Inspector, another 
Head Constable and other police officers were also on duty on that day. His 
report to the Sub-Inspector Is Ex. B. 3. 


34. P.W. 18 is brother of the petitioner, P.W. 4 is a nephew of the 
petitioner residing at Marudur in Tiruchirappalli District. P.W. 6 is a 
merchant of Tiruchirappalli, Their evidence is as follows; — They went 
together to Vallam at about 3 or 3.30 p.m. Then, they saw a van MDO 1433 
going with load of gosha ladies to the polling booth. P.W. 18 wanted to make 
a complaint to the Sub-Inspector and so made enquiry at the polling station 
He went to the polling booth, found the Sub-Inspector there and told him the 
facts. The latter took P.W. 18, the driver of the van, etc. to the polling 
station. The Circle Inspector of Thiruvayar (P.W. 3) was there. The Sub- 
Inspector recorded the statement of P.W. 18 (Ex. A. 4). The Circle Inspector 
(P.W. 3) received oral report in the matter and recorded statements Ex A 1 
and A. 2 from P.Ws. 4 and 6. Then, the van M.D.O. 1433 came from the 
direction of Collector’s bungalow i.e. the direction of the polling booth. At 
(hat time, the van did not have any passengers. He (P.W, 3) examined the 
driver of the van. The Sub-Inspector of Police recorded the statements of 
K.Ws, 1 and 8 and P.W. 5. 


35. P.W. 18 swears that he saw the van going with a load of gosha ladies 
towards the polling booth and that he mentioned that fact to the Sub-Inspector 
when giving statements. But the statement Ex. A. 4 recorded from him by the 
Sub-Inspector does not mention that the van went towards the polling booth 

P.Ws. 4 and 6 say, not that the van was going towards the polling booth but 

mat ’it was standing near the polling station with a load of gosha women 
Ex. A 1 and A 2 are the statements given by the P.Ws. 4 and G to the Circle 
Inspector. In Ex. A. 2, P.W, G has stated that when he and P.W. 4 were 
standing at the bus stand a station wagon came near the bus stand full of 
gosha women at 3.45 p.m. and was proceeding towards the polling station and 
they reported it to the police. In Ex. A. 1, P.W. 4 endorses this version. 

38. R.W, 1, Peer Muhammad, deposed to the effect that as jutka s were not 
available, he borrowed the van from T. K. S. Balasubramanyam and took the 
women-folk of his family and some neighbouring Gosha women for voting 
that they got down at the bus stand, and that the Sub-Inspector called him and 
recorded the statement Ex. B. 1. His evidence finds sufficient corroboration in 
Ex. B. 1. It is difficult to see why R.W. 1 should have agreed to give a false 

statement to oblige the Sub-Inspector who is said to be a friend of T K S 

family (R.Ws. 6 and 8). It was suggested that R.Ws, 8 and 8 and Veeravu 
XJdayar and Rengaswami Udayar were friends of the Sub-InsDector 
Sundararajulu Naidu, that therefore the latter hushed up the matter after 
recording statements Ex. B, 1 to B. 4. These suggestions are all denied bv the 
witnesses. R.W. 8 swore that he never lent the van to R W 10 


61 THE 'GAZETTE OF INDIA EXTRAORDINARY [Part IT 


37. P.W. 1 deposed that at 1 p.m., he saw the van of T. K. S, with 25 or 30 

persons going to the polling station (3 males and the rest being gosha) and 
while the van was in motion near the polling atation he heard R.W. 10 and 
Shunmugham Chetty say to the voters “vote' for 1st respondent” and that half 
an hour later, he found another batch getting down from- the van and going 
to the polling station. It is very strange that P.W. 1, who Is a village munsif, 
did not point out to the police or complain to the presiding officer when voters 

were getting down from the van. P.W, l’s evidence cannot be accepted. 

38. P.W. 2 deposed as follows:-— At 7 a.m. when the 1st respondent arrived 

at Duraiswamy Udayar’s house in a car, he went there and Duraiswamy 

Udayar asked him if he had a vote? He said 'Yes’. Then 1st respondent and 

Duraiswamy Udayar said: "The T, K. S. Van will come and all voters should go 
In It and vote”. At 9 or 9.45 A-M. P.W. 2 saw the van full of voters going to 
the polling station past the Co-operative Stores where he (P.W. 2) was 
working. P.W. 2 went in the van in the third trip. He voted and returned in 
the van (which had in the meanwhile brought another batch). 

That Duraiswamy Udayar (R.W, 10) who is said to have been working for 
1st respondent, should have asked his neighbour only in the morning of the 
election day as to whether he had a vote is difficult to believe; also the alleged 
fact that 1st respondent said at that time that all should go in the van. The 
polling station is within 3 furlongs from the Co-operative Stores where he was 
working and he thought it necessary to go in the van to vote. P.W. 2 cannot 
be believed; his evidence is very artificial. 

39. No doubt these broad facta appear from the evidence; — The van of 
T. K. S. M.D.O. 1433 was used on the election day. It conveyed to the polling 
station some voters. Among them were the owner (RW. 6), his close relatives 
(R W. 8’s brother, wife, etc.), the friend R.W 1 (who borrowed it from R.W. 8 
on the basis of his personal friendship and not as connected with any 
candidate) and his relatives and close neighbours whom he (R.W. 1) took 
with him. An oral complaint was mada by P.W, 5 to the Circle Inspector that 
the van was bringing voters. The police examined and recorded the statement 
from the driver of the van, the owner of the van (R.W. 6), his nephew 
(R.W. 8), the petitioner’s brother (P.W. 18), P.W. 5 and others. Beyond these 
facts, there Is no satisfactory evidence to connect 1st respondent or his agent 
or Shunmugham Chettiar or Duraiswamy Udayar (R.W. 10) with the transport 
of voters In that van. 1st respondent deposed that neither Duraiswamy 
Udayar (R.W. 10) nor Shunmugham Chettiar worked for him and that he did 
not know R.W. 6 or Shunmugham Chettiar. Duraiswhmy Udayar (R.W. 10) 
denied that he worked for 1st respondent. Shunmugham Chettiar was not 
examined. T. K. Balasubramanyam (R.W. 8) knows Duraiswamy Udayar but 
he swears that he did not lend his van to him. Neither Duraiswapiy Udayar 
nor Shunmugham Chettiar nor the Chetty Street Boy was even mentioned to 
the police by P.W. 6 in his statement Ex. A. 3. While P.W. 1 would say that 
Duraiswamy Udayar and Shunmugham Chettiar were bringing voters in the 
van, P.W. 5 would say that Duraiswamy Udayar and T. K. S. Balasubramanyam 
were receiving the voters at the polling station and that a boy of Chetty 
Street was bringing voters in the van. 

40. Thus, on the whole, the evidence does not establish that the 1st 
respondent, or his agent or any person working on ht s behalf, conveyed any 
voters to the polling station at Vallam on his behalf. 

41. We find issue Iv accordingly in the negative. 

42. Issue v. — In view of the fact that we have found issues Nos. I to Iv 
against the petitioner, we find that the petitioner Is not entitled to any of the 
reliefs prayed for in paragraph 7 of the petition. We, therefore, dismiss the 
petition under Section 98 (a) of the Representation of People Act. 

43. Under Section 99 (1) (b) of the Representation of People Act we direct 
the petitioner to pay the costs of the 1st respondent, fixing the total amount 
of costs payable to him at Rs. 250. The other respondents and petitioner will 
bear their own respective costs. 

44. Under Section 99 (1) (a), we also find as follows: — 

(i) No corrupt or Illegal practice has been proved to have been 
committed by or, with the connivance of the 1st respondent (or 
any other candidate) or the agent of 1st respondent (or of any 
other candidate), 



Sic. 


i] 


THE GAZETTE OF INDIA EXTRAORDINARY 


65 


(6) No one has been proved at the trial, by satisfactory evidence, to 
have been guilty of any corrupt or Illegal practice. 

Pronounced in open Court this the 26th day of December, 1952. 

(Sd.) H. A. Ayyar, 
Chairman. 


(Sd.) L. S ■ Partijasaratmy Ayyar, 
Member. 


List of Witnesses 
For Petitioner 


(Sd.) V. C. VlRARACHAVAM, 
Member. 


1. Sri Karuppudayar. 

2. Sri Rengaswaml. 

3. Sri M. N. Raja (Circle Inspector of Police). 

4. Sri Nallamuthu Nattar. 

8. Sri Narayanaawami Chettiar. 

0. Sri Palaniappan. 

7. Sri Pichaya Nattar. 

8. Sri Nithyanantham. 

9. Sri Thyagaraja Nattar. 

10. Sri Idumhan. 

11. Sri Thangaraju. 

12. Sri Doraiayya Thenkondar. 

13. Sri Nataraja Thenkondar. 

14. Sri C. Nataraja Thenkondar. 

15. Sri Amirtha Thenkondar. 

16. Sri Nataraja Vlruthular. 

17. Sri Krishnamurthi. 

18. Sri Balasubramania Merkondar. 

19. Sri Natarajan. 

20. Sri Gopalan. 

21. Sri Palaniandi, 

22. Sri Poosari Karuppan. 

23. Sri Swaminatha Merkondar (Petitioner). 

24. Sri R. Venkataraman (M.U.P.). 

For 1st Respondent 

1. Janab Peer Muhammad. 

2. Sri Peramayya Nattar. 

3. Sri Sundararala Nattar. 

4. Sri Ekambara Nattar. 

5. Sri Sundararaja Sundayar. 

6. Sri Thirugnanam Pillai. 

7. Sri Venkataraman (H.C, 601). 

8. Sri T, K. S. Balasubramanyam. 

9. Sri Sappanimuthu Thenkondar. 

10. Sri Duraiswamy Udayar. 

11. Sri S. Ramalingam (1st respondent). 



00 THE GAZETTE OF INDIA EXTRAORDINARY [Past H 

4 


Al/12-1-1952. 

A2/12-1-1952. 

A2 (a)/ 12-1-1932. 
A3/13-1-1952. 

A4/12-1-1952. 

A5/ 

Bl/12-1-1952 
B2/ 13-1-1952 

B2(a)/13-1-1952. 
B3/ 12-1-1952 

B4/12-1-1952. 

B5/13-4-1052. 


List of Exhibits 
For Petitioner 

Statement of Sri Nallamuthu Nattar (P.W. 4). before the 
Inspector of Police (P.W. 3). 

Statement of Sri Palaniappam (P.W. 6) before the 
Inspector of Police (P.W. 3). 

Portion marked in Ex. A. 2. 

Statement of Sri Narayanaswami Chettlar (P.W. 5) before 
the Sub-Inspector of Police, Vallam. 

Statement of Sri Balasubramania Merkondar (P.W. 18) 

before the Sub-Inspector of Police, Vallam. 

Rough plan of Vallam polling station. 

For Respondent 

Statement of Janab Peer Muhammad before the pub- 
Inspector of Police, Vallam. 

Statement of Sri Thirugnanam Pillal (R.W. 6) before the 
Sub-Inspector of Police, Vallam. 

Portion marked in Ex. B. 2. 

Report made by P.W. 7 (H. C. 601) to the Sub-Inspector of 
Police, Valjam. 

Statement of T. K. S. Balasubramaniam (R.W. 8) before the 
Sub-Inspector of Police, Vallam. 

Letter from General Manager, South Indian Railway to 
the 1st respondent, intimating termination of his services 
from 1-5-1951. 

(Sd.) H. A. Ayyah, 
Chairman. 

(Sd.) L. 3. Parthasarathy Ayyah, 
Member. 

(Sd.) V, C. V IRARAQH AVAN, 
Member. 


[No. 19/18/52-Elec. Ill] 


S.R.O. 113. — Whereas the election of Jenab Amjad Ali of Goalpara Town, 
Assam and Shri Sitanath Brahma Clioudhury of Bongaigaon, Goalpara District, 
Assam as members of the Houso of the People, from the Goalpara-Garo Hills 
constituency of that House has been called in question by an election petition duly 
presented under Part VI of the Representation of the People Act, 1951 (XLIII of 
1951), by Shri Man! Kanta Das of Goalpara Town, Assam; 

And whereas the Election Tribunal appointed by the Election Commission, 
In pursuance of the provisions of section 86 of the said Act, for the trial of the 
said Election Petition has, in pursuance of the provisions contained in section 103 
of the said Act, sent a copy of its order to the Commission; 

Now, therefore, Jn pursuance of the provisions of section 106 of the said 
Act, the Election Commission hereby publishes the said Order of the Tribunal. 

Election Petition No. 45 of 1952 


Present ; — 

Shri Ashutosh Das, Retired District Judge (West Bengal) — Chairman- 

Members 

Shri Umakanta Gohain, Retd. Addl. District Judge, (Assam). 

Shri U. N. Bezbaruah, Barrlster-at-Law, Gauhati. 



Ebcj, 8] 


TH^E GAZETTE OF INDIA EXTRAORDINARY 


et ' 1 


Dated Gauhatl, the 29th December, 1952 

In the matter of a petition under Section 81 of the R.P. Act, 1951, calling in 
question an election; 


And, 

In the matter of rejection of Nomination-paper of the petitioner for election to 
the House of the People, from the Goalpara-Garo Hills Constituency, Assam, by 
the Returning Officer, 

Mani Kanta Das — Petitioner. 


Versus 

1, Jonah Amjad Ali, 

2, Rani Manjula Devi, 

3. Sarat Chandra Brahma Dutta, 

4, Satlsh Chandra Basumatari, 

5. Sitanath Brahma Choudhury, 

6. Surendra Mohan Sen Gupta— Respondents. 

Petitioner, represented by Shri S. Lahiri, Advocate-General and others. 

Respondent No. 1, represented by Shri S. K. Ghose, Shri B. C. Baruah, 
Advocates and others. 


JUDGMENT 

This petition calls in question the election of the returned candidate 
Shri Amjad Ali, respondent No. 1, to the General Seat of the Goalpara-Garo Hills 
Constituency, Assam, for the House of the People, mainly on the ground that the 
nomination-paper of the petitioner who stood as a candidate for election to the 
seat, was improperly rejected by the Returning Officer. That the petitioner was 
an elector of the constituency at the relevant time is not disputed. His nomination 
was rejected on the ground that he was disqualified as under Section 7(d) of the 
R.P. Act, 1951, and it will be worth-while to reproduce the order of the Returning 
Officer here which runs thus; — 


"House of the People: — 
Manl Kanta Das; — 


Objection from Socialist Party— 

The candidate is a partner of "Das Transport Syndicate", Goalpara which 
has contract with Postal Department to carry mail and also other 
obligations, to Government to perform services. As such he Is dis- 
qualified under Section 7(d). 

©n behalf of the candidate, a registered sale-deed selling the candidate’s 
share in the business on 20th November, 1951, is filed and It is said 
that the candidate has no interest or share in the business from 20th 
November, 1951 and that the candidate has already served registered 
notice on the Registrar. 


Heard both the sides._ Under Section 32 of the Indian Partnership Act, a 
partner can retire only after giving public notices; and according to 
provision the notices must be served on the Registrar and published 
^ aze ^ e an -d News papers These procedures have not been 
adopted and from the copy of the Register obtained from the 
Registrar on 29th November, 1951 it appears that the candidate’s 
name continues even on 29th November, 1951, i.p., after illing of the 
nomination-paper, as a partner of the said firm. The registered sale- 
deed, therefore, cannot take away the candidate’s interest or share in 
the urni which the law gives him and the sale-deed is ineffective to 
take away his share and interest until all the provisions required by 
Jaw are completed. As those provisions were not completed at the 
time of filing nomination, the nomination-paper is held invalid under 
Section 7(d), of R,P. Act, 1951 and as such rejected.*’ 



THE GAZETTE OP b&IA EXTRAORDINARY [Part H 


'm 


The petitioner’s case is, in the main, as set out before the Tribunal in para. 9 
of the election-petition, was really to challenge alone the view, taken by the 
Returning Officer that there had not in fact been a valid assignment of the 
petitioner’s interest in a certain registered firm, under the name of “Das Transport 
'Syndicate” at the relevant time, the firm having been under a contract with the 
Postal Department, representing the Central Govornment, to carry mail. At the 
opening of the case, the petitioner went to raise another issue of fact, namely, 
that he had indeed never any share or interest in the aforesaid contract to carry 
mall, as alleged, and the petitioner was not permitted to raise this issue of fact 
as it had no where in his pleadings before the Tribunal been specifically taken by 
him. The Tribunal’s order on the point is made annexure No. 1 to this judgment. 
We may only further repeat in this connection that what we have already referred 
to in our above order, that (he petitioner does not appear to have at all denied 
that as a partner of the aforesaid firm he had indeed a share or interest in the 
■contract to carry mall, referred to above, and his only contention before the 
Returning Officer was that by virtue of the assignment, upon which he relied, his 
share or interest in the contract had ceased before the date of nomination, and. 
as such, any disqualification he might have had under Section 7(d) of the R.P. Act, 
1951, had been removed. 

The petitioner took also an objection in the case to 1 the fact that nominations 
of respondents Nos. 1, 3, 4 and 6 were improperly accepted by the Returning Officer 
which he gave up at the time of hearing. Another objection on the score that the 
Returning Officer adjourned scrutiny of the nomination-papers of the candidates 
till the next day, without holding the same on the date notified was also given 
up at the end, because no evidence of the result of election having been materially 
affected by reason of this alleged non-compliance with the Rule by the Returning 
Officer, was furaished. 

The respondent No. 1 pleaded in his written statement, in substance, that the 
assignment alleged by the petitioner was not a real transaction, and it did not 
really affect the interest of the petitioner under the contract in question. That 
the assignment too was not one which was effective in law. That the Returning 
■Officer’s order of rejection of the petitioner’s nomination was quite proper. 

The respondents N-os. 3, 5 and 6 appeared to file written statements in the case, 
but they have failed to make any appearance in the case since, and it docs not 
appear necessary to refer to their pleadings here separately. 

Issues were framed in the case, as follows: — 

1. Was the petitioner disqualified as under Section 7(d) of the R.P. Act, 1951, 

as held by the Returning Officer, or, was his nomination improperly 
rejected? 

2. If the latter, has this materially affected the result of the election? 

3. Were the nominations of respondents Nos. 1, 3, 4 and 0 improperly ac- 

cepted, as alleged in the election petition and, if so, has any qif these 
materially affected the result of the election? 

4. Was there any irregularity committed by the Returning Officer in holding 

scrutiny of the nomination on an adjourned date? If so, has this 
materially affected the result of the election? 

As already noticed, issues Nos. 3 and 4 were not pressed at the end, and the 
objections are over-ruled. 

Issue No. 2. 

If Indeed there is found in the case that the nomination paper of the petitioner 
j 1 ^ v;f n lm P r 0P e rly rejected, that the result of the Election was materially affect- 
ed, will necessarily follow. So, the only issue left for our decision Is issue No. 1. 
Issue No. 1. 

4 I n considering the issue, the initial position of the facts as we take settled 
is that there was a certain firm having its principal place of business at Goalpara 
Town, as went under the name of “Das Transport Syndicate” and as was registered 
in July, 1949. The petitioner Man! Kanta Das, his wife, the brother of the latter 
Shn Jogendra Narayan Das, and, lastly, the wife of the last, Prababhati Das, were 
the partners of the firm. The firm entered Into a contract with the Central Gov- 
ernment m the Postal Department, to carry mall, and this contract between the 
Central Government and the aforesaid firm was subsisting till about the relevant 
tune. The case of the petitioner is that his share or interest in the contract 
ceased before the date of nomination upon he and his wife, executing the deed of 



Sec. 3J 'l-tus GAziJS'i TU Ob iNJjxA KAJLU«,AU xi ,jl>ijn a_u, i 


assignment (Ext. 1) on 20th November, 1951, in favour of the remaining partners 
of the firm, the petitioner having filed his nomination paper on 28th November, 
1951, the last date fixed for filing of the nomination papers. It may at once be 
observed here that a firm is not a juristic persona, and, it has no existence apart 
from the members who constitute the firm. The above contract must, therefore, 
be one between the Central Government on the one side, and all the four partners 
of the firm on the other. 

The material point here for consideration thus resolves into whether by the 
above assignment the petitioner had really ceased to have any share or interest 
in the aforesaid contract, so as to remove his disqualification as under Section 7(d) 
of the R.P. Act, 1951, at the relevant time. We answer the point in the negative. 

Under the provision of Section 32, Sub-section (2) of the Indian Partnership 
Act, the petitioner, as a retired partner could not have been discharged of his 
liability to the Central Government for acts of the firm done before the alleged 
date of retirement, except with the consent of the aforesaid Government. Further, 
the deed of assignment itself makes no reference to the contract, what is assigned 
under the deed, appears to be the share or interest in the business of the firm, 
and a certain motor bus. Though under the provision of Section 32(1) (a) of the 
Indian Partnership Act, a partner may retire with the consent of all the other 
partners, and such a consent is implied in the case, in that all the partners had 
been parties to the deed of assignment, this cannot be interpreted as sufficient t« 
prove also the consent of all the partners so far as the rights and liabilities under 
the contract in question, were concerned. There was nothing in the document to 
show that there had, in fact, been at the same time, an agreement between the 
above two sets of the partners in respect of the rights and liabilities under the 
contract, either in respect of the past dealings or the future ones. At any rate, 
the liability of the other party to the contract namely, the Central Government 
cannot be held to have been discharged without any consent on their behalf, of 
which there is not even the suggestion, and this liability continuing, it cannot 
be held that the petitioner had ceased to have an interact in the contract in 
question, at the relevant time. 

It was, however, contended on behalf of the petitioner that in spite of such 
liability continuing, the petitioner’s share or interest in the contract may be held 
to have been terminated by the aforesaid assignment. We cannot at all agree in 
this view. 

In the Indian Contract Act by Pollock and Mulla, 7th Edition at page 245 while 
dealing with the subject of performance of a contract, and discharge thereof, and, 
further, dealing with the subject of assignment of contracts under the above head, 
the Authors observe that broadly speaking the benefit of a contract can be assign- 
ed, but not the burden, without the consent of the other party to the contract; and 
this find support in some judicial pronouncements referred to in the same page 
of the book. Indeed, in our Statute, the principle has been adopted in the pro- 
vision contained in Section 32. Sub-section (2) of the Indian Partnership Act. We 
are here also absolutely in the dark about the term of the above contract, so as to 
find whether this was one that had been fully executed so far as the petitioner 
and his partners were concerned, before the above assignment. If not, it continu- 
ed to be of the nature of an executory contract and there can be in no case of 
such a contract, an assignment without the consent of all the parties to the contract. 

In the above view of the law, we cannot hold that there had been either in law 
or fact a discharge of the contractual relation as between the petitioner and the 
Central Government, in relation to the aforesaid contract of carrying mail, and 
that at the relevant time. So, we hold that the petitioner did continue to be 
under disqualification, as provided in Section 7 (d) of the R.P. Act, 1951. 

On behalf of the petitioner, another contention made is that a contract to 
carry mail is not really a contract of the nature contemplated by Section 7(d) 
of the R.P. Act and the words “any services” that occur in it do not cover such 
work. In support of this, we were referred to a short note of a certain English 
case, occurring at page 275 of “The English and Empire Digest” Vol. 36, (namely, 
Re — City of Londonderry Election Petition, 1860). Without the full report of the 
case being placed before us, we cannot place any reliance upon the short note, as 
we find here. Further, in Parker’s “Election Agent and Returning Officer”, 5th 
Edition, at page 52, we find a reference to the above ,case from which it would 
appear that the person sought to be disqualified did not really hold his contract 
directly under Her Majesty’s Government, this being thus a case clearly distinguish- 
able. We cannot accept the petitioner’s contention that the contract to carry 
mail with the Postal Department of the Central Government would not fall here 
under Section 7(d) of the R.P. Act, 1951. 



T. .Hi GAzxHi'l 1 Hj 6x INDIA -HiA-i-EvAO- .D-IinARx [x art ll 


, 70 


We now proceed to consider shortly some further points argued for the 
respondent. On behalf of the respondent it was contended further that the notice 
of retirement of the petitioner from the firm, not having been given to the 
Registrar of Firms, under Section 63(1) of the Indian Partnership Act, in the 
prescribed form, and that before the date of nomination, and, further, publication of 
the retirement not having been made in the local official Gazette, as required by 
Section 72(a) of the Indian Partnership Act also before the date of nomination, 
and, lastly, no publication of this retirement having been made In a local vernacular 
news paper which is required under the provision of Section 72(a) of the Indian 
Partnership Act, the assignment relied upon by the petitioner could not have re- 
moved his disqualification. In answer to this, It was argued on behalf of the 
petitioner that the delay in giving these notices Is of no material consequence, and 
in support of this two English Cases, referred to in the "Indian Election Law” by 
Sarin and Pandit, at page 277, were relied upon. It is observed in the book that 
it had been decided in the English cases, referred to, that if there had been, 
in fact, an assignment of a contract before nomination, that would save a con- 
tractor from disqualification, though some formalities, connected with the assign- 
ment, might not have been gone through before then. Though the full reports of 
these English Cases also have not been placed before us, we And ourselves in 
general agreement with the principle, above enunciated. It appears that there 
is no time-limit fixed for giving these notices, either under Section 63 ( 1 ) or 
Section 72(a) of the Indian Partnership Act, and the provision of the law is made 
obviously for the protection of the customers in respect of their future dealings 
which would not, of course, be affected in any way, without such notices having 
been previously given. But the fact remains that there must have been a valid 
assignment of a contract in such cases, and before the date of nomination In order 
to remove disqualification of a contractor and this not being established, the 
above principle, of law, as enunciated, is of no help to the petitioner. It may 
further be observed in this connection that from the evidence, it appears that 
at least the assignees in the case had given notices of this retirement to the 
Registrar of Firms, and in the prescribed form before the date of nomination, 
the notices having reached the office of the Registrar on 24th November, 1951. The 
notice appears to have been first published in the local official Gazette, on 5th 
December, 1951, but this, as already noticed, would have been of no material flaw 
if there had, in fact, been a valid assignment of the contract in the case. Lastly, 
however, it remains to be noticed that the lacuna remains in that the retirement 
has never been published in a local vernacular news paper up to date. 

It was also argued on behalf of the respondent that there having been recorded 
nq change in the constitution of the firm before the date of nomination, the 
petitioner was in law estopped at the time of the nomination from raising the 
plea that he had indeed retired, and this, in view of the rule of evidence, provided 
for In Section 68 of the Indian Partnership Act. There can be no question of absolute 
estoppel in such a case. It was only a rule of evidence that is provided for In 
the above Section of the Act, which will raise only a strong presumption, which, 
however, is always rebuttable. Then this rule of evidence is obviously meant 
to apply to a case where a material issue arises upon this, with a certain customer 
in respect of any dealing. Again, as already noticed, there had. In fact, keen 
given notice to the Registrar of Firms of the change in the constitution, by the 
assignees before the date of nomination, and the requirement of law in fact, bepn 
fulfilled thereby, and if the Registrar took no action on this notice given by the 
assignee, to change the record that was his fault for which the petitioner cannot 
suffer. 

Lastly, it was contended, on behalf of the respondent further that the assign- 
ment was really of a colourable nature which was not, in fact, really intended. 
We do not consider it necessary to enter into this issue, In view of our above 
findings. In the circumstance, we come to the view that the petitioner’s case of 
an improper rejection of his nomination paper has not been established, and, 
we decide the issue No. 1 against the petitioner, and in the result, the election 
petition must stand dismissed. 

About cost, we direct that the petm nor should pay this to the respondent as 
per schedule given hereunder: — 


Order 

The election petition Is dismissed. The petitioner shall pay cost to the res- 
pondent No. 1 as per schedule below, to be recovered out of security deposit made 
by the petitioner, under Section 117 of the R,P. Act, 1951. 



&EC. 8] 


The &a2»h oe india extraobHinaHY 


71 


Schedule op Cost 


As. a. 

1. Lawyers’ fee ... ... 50 

2. Vakslatnama ... ... ... 4 

3. Witnesses’ expenses .. .- o'-* 3 


Total ... 147 3 

Rupees one hundred and forty seven and annas three only. 

(Sd.) U. N, Benzbahuah, 

(Sd.) U. K. Gohain, 

Members, 

29-12-52. 


(Sd.) A. Das, 
Chairman, 
29-12-52. 


Annexuke No. 1 . 

Case opened. In opening the case, It was submitted by the lcai :t I Advocate 
for the petitioner that his case is not only that he had made on ; .iijuincnt of his 
share or interest as a partner in the Das Transport Syndicate 0:1 20th November, 
1951, but that, further, he had, in fact, no share or interest : 1 any alleged contract 
with the Postal Department by the Das Transport Syndicate On behalf of the 
respondent No. 1, objection was taken to this plea, being l.usjd and it n submitted 
that the pleadings, as put forth in the election petition, do nowhere set out this 
ground of a material fact. In answer to this, we were rcferiod by the learned 
Advocate for the petitioner to paragraph 6 of his election petition. The statement 
occurring there, that the petitioner had no share or inters . in the alleged contract 
with the Postal Department, was only a case that is alleged to have been taken 
by the petitioner before the Returning Officer, though the ordei of the Returning 
Officer does not show that really any such ground was taken before him, and that 
it shows the only ground taken before him, was that the petitioner, having interest 
in the Das Transport Syndicate which had, in fact, been under the alleges contract 
with the appropriate Government, the petitioner had assigned his interest or share 
in the business In favour of the other partners, Apart from what we find from the 
order of the Returning Officer the above was indeed a material fact which had to 
be taken by the petitioner before the Tribunal specifically and it was not at all 
sufficient for him only to refer to the tact tnat he may has 0 taken this ground 
before the Returning Officer. In paragraph 9 ol the election petition, we find 
Indeed the grounds upon which the petitioner bases his case before the Tribunal, 
and here too, while the Returning Officer’s view that the assignment, relied upon 
by the petitioner, had not, in fact, been complete in law before the relevant time, 
was what was in substance questioned, nowhere do wc- find this above further 
fact, on which the petitioner now wants to rely, pleaded or even referred to. In 
view of the nature of the pleadings, as set forth in the election petition, wo cannot 
allow the petitioner to raise this ground of fact here and on this point, as appears 
to us on an examination of the pleadings, his case has to be confined only to the 
issue whether there had been a valid cessation of his interest by reason of the 
alleged assignment in the above business beforo the relevant time. The petitioner 
is, therefore, to confine his case thus. 

(Sd.) Umakanta Gohain, (Sd.) A. Das, 

(Sd.) U. N. Bezbaruah, Chairman, 

Members, 22-12-52. 

22-12-52. 


[19/45/ 52-Elec. IH] 
P. S. SUBRAMANIAN, 
Officer on Special Duty. 


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